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Land Use Planning
Villanova University School of Law
Sirico, Louis J.

Land Use Planning

Sirico & Agulnick

Fall 2017

Intro

State Level

State Zoning Enabling Act (Model statute- pg. 90)

-States adopt it

-Empowers local gov for purposes of land use in accordance with a comprehensive plan

-Comprehensive plan is roadmap of how community will be developed

-Local gov issue ordinances (basically statutes at local level)

-Ordinances create agencies (zoning board, etc.)

Udell v. Haas (NY Ct of appeals; 1968)

-Village of lake success

-Owner of land wanted to build bowling alley and supermarket on piece of land

-Gov downzones it from commercial to residential

-Need proper purpose to rezone it

-Didn’t have comprehensive plan

-Court looks at history of community (past ordinances, etc.)

-Determined mainly residential with commercial area

-Potential traffic concern

-“Feeling of Village” for it not to be commercial

-Holding: Commercial use on that land not in accordance with comprehensive plan so rezoning was allowed

Comprehensive Plan

-State could require one

-Court can look at history if there is no written plan

-Court can use rational basis test if no written plan (Easy test)

-In PA- cant sue over violation of comprehensive plan. Can have legal claim in NY.

-Rezoning Test

(1) Made mistake first time

(2) Circumstances have changed

-Factors Test

-Who benefits

-Size of land

-Look at all circumstances surrounding potential rezoning

Dillon’s Rule

-Limitations on local gov power

-A municipal government has authority to act only when:

(1) the power is granted in the express words of the statute, private act, or charter creating the municipal corporation;

(2) the power is necessarily or fairly implied in, or incident to the powers expressly granted; or

(3) the power is one that is neither expressly granted nor fairly implied from the express grants of power, but is otherwise implied as essential to the declared objects and purposes of the corporation.

-Interpret authority delegated down by states to local gov narrowly

-Local gov doesn’t have to have zoning

Structure of Gov

-First class code- Large township

-Second class code- Small town

-Codes are powers states give to local govs

-Delegation of power a common issue

Euclidean Zoning – the traditional model, divides municipality into districts and specifies types of uses that may occur in the districts, the density of the housing, permitted heights, minimum or maximum square footage, location of buildings on lots (set-back requirements)

→ creates clear boundaries and acceptable uses

Non-Euclidean Zoning – anything that’s not Euclidean (performance zoning)

Village of Euclid v. Amber Realty Co. (town changed zoning ordinance to exclude commercial

⇒ the provision is not arbitrary or unreasonable, and had substantial (rational) relation to the public health, safety, morals, general welfare
SZEA → says cities can zone, but it has to be adopted by each state
if you zone consistent with a comprehensive plan, its allowed

→ must make sense, there are times cities are limited in this sense

Ambler Arg: Challenged ordinance on its face (unconstitutional)- Not authorized by police power of gov

-Police power viewed more narrowly in 1920s

Facts: Company owned a 68 acre tract of land in the Village when Village adopted an ordinance establishing a comprehensive zoning plan, based upon 6 classes of use, 3 classes of height and 4 classes of area. Appellee’s land came under U-2, U-3 and U-4 (see P.994), and various H and A requirements. Appellee claims this has substantially reduced the market value of the property by limiting its use.

Appellee claims these are unconstitutional and in violation of the Fourteenth Amendment because it deprives Appellee of liberty and property without due process of law and denies it the equal protection of the law and it offends against certain provisions of the Constitution of the state of Ohio.

Issue(s): Under federal law, does the ordinance establishing the zoning violate the fourteenth amendment (i.e., is the ordinance invalid in that it violates the constitutional protection to the right of property in the appellee) when there are attempted regulations under the guise of the police power, which are unreasonable and confiscatory?

Holding: No. The ordinance must be for the benefit of the public welfare. This is to be determined not by an abstract consideration of the building considered apart but considered in connection with the circumstances and the locality.

Court’s Rationale/Reasoning:

First upheld the denial of appellants motion that the suit was premature because company had not yet sought a building permit or apply to the zoning board of appeals for relief.
The line which separates legitimate from illegitimate assumption of power depends on the circumstances and conditions. These ordinances are made for the public welfare and rely on some aspect of police power.
It can not be said that the ordinance passes the bounds of reason and assumes the character of merely arbitrary fiat. Thus, ordinance can not be

of the restriction, the buyer backed out of the deal. The master appointed to the case found that no practical use can be made of Plaintiff’s land under the ordinance and that the zoning of Plaintiff’s land in a residential district would not promote the health, safety and general welfare of the public. The master’s findings were not followed by the full court below, which found that the zoning ordinance was constitutional as applied to the Plaintiff. Plaintiff appealed.

Part of Nectow’s property zoned industrial and part residential
City wants to make street wider next to residential piece of property
Nectow went to get building permit for industrial use. Wouldn’t let them build on residential part for industrial use
Challenge of ordinance as applied in this case- constitutionality
Nectow says zoning frustrating sale of property

Held. No. Judgment reversed. Ordinance invalid.

The Court found that the determination of public officers should not be set aside unless it is clear that their action has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare.
The Court found that the zoning ordinance in question made no reasonable sense in placing the Plaintiff’s land in a residential district.
The governmental power to interfere by zoning regulations with the general rights of the landowner by restricting the character of his use, is not unlimited, and such restrictions cannot be imposed if it does not bear a substantial relation to the public health, safety, morals or welfare.
The Court found that the finding of the master was dispositive. The master held a hearing and inspected the site and found that the public health, safety, convenience and welfare was not affected by the zoning ordinance.
Taking arg- Last 4 lines pg. 79

Discussion. This case further illustrates the requirements for a zoning ordinance and also the standard of review of the ordinance itself. The student should be aware of the basic requirements of the purpose of a zoning ordinance.