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Land Use
Wayne State University Law School
Mogk, John E.

Cases and Materials on Land Use – 4th Edition – by Callies, Freilich, and Roberts
·         Where is the authority for the municipality to do this? 
o        Has the city within the scope of its power delegated to it from the state?
o        If beyond scope – acted ultra vires.
o        Has city used correct procedural steps?
·         Is there a proper exercise of the police power (furtherance of a proper public purpose – protecting PHSMGW)?
·         Is there any limitation on the authority? ZEA, home rule provision, etc. 
·         Are any individual/constitutional rights infringed upon?
·         Has there been a physical taking?
·         Is the regulation so burdensome as to constitute a regulatory taking?
·         Does the power create an opportunity (NOT a right) where the LO can participate?
Hadacheck v. Sebastian
·         Brickyard operation prohibited by ordinance. LO opposes – diminution in value of 92.5%. 
·         So long as the PHSMGW are being served it is lawful under the municipality’s police power. Unless the legislature or the local unit of government has acted arbitrarily and capriciously – no reasonable relationship then it is okay. This is a high bar for the LO to get over. 
·         A reduction alone is not sufficient for a taking (in violation of due process) based on the constitutional standard. 
I.          Local Zoning: The Classics
A.                 The Classic Cases
·         US Department of Commerce (through Interstate Commerce Clause) – came up with a simple zoning enabling act in generic terms that they encouraged state legislatures to adopt.
Village of Euclid, Ohio v. Ambler Realty Co.
First time USSC addressed issues of zoning regulation not related to nuisances. 
Rule: A zoning ordinance, as a valid exercise of the police power, will be declared unconstitutional only where its provisions are clearly arbitrary and unreasonable, having no substantial relation to the PHSMGW.
Nectow v. City of Cambridge – “As Applied Case”
Rule: A zoning ordinance, as applied, must bear a substantial relation to the PHSMGW in order to be constitutional. The zoning ordinance and map was arbitrary and unreasonable as applied to the LO.
·         After this case was decided by the US SC it refused to consider the validity of any zoning ordinance. The constitutionality of zoning ordinances is unquestioned – now reasonableness up to the states individually.
B.            Classic Zoning: Enabling Legislation
1.                  A Standard State ZEA Under Which Municipalities May Adopt Zoning Regulations
·         Administrative components of the structure – zoning/planning commission – setup with an appointed board (by mayor or council) with a staff – review and advise – requests to amend or propose amendments – responsible for the master plan.
·         Board of Adjustment/Board of Zoning Appeals – three responsibilities – hear appeals from aggrieved LOs – administrative official acting unreasonable, etc.
·         PC, BC, and BZA – three players in the game. 
2.                  Udell v. Haas –The Planned Environment – Planning and Zoning
Prior to 1960 – neck zoned for business. After 1960 – amendment to zoning – placed neck in residential zone. The rezoning did not further the community’s comprehensive plan. 
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ed upon reasonable grounds.
2.                  Manalapan Realty, L.P. v. Township Committee of the Township of Manalapan
Π, the owner of a shopping center where a Home Depot store was to open, challenged ordinance prohibiting retail stores selling lumber or building materials.
Rule: a zoning ordinance prohibiting certain uses in a zoning district is presumed valid if a rational basis exists for the prohibition of such uses, and the definition of the prohibited uses is not overbroad. Court relies on aesthetic reasons for no outdoor displays.
Unless a zoning ordianance infringes upon a fundamental right, there is no requirement that it recite “tangible, specific objectives promoted by the ordinance in order to be valid.”
B.                 Height and Bulk Controls, FAR, and Form-Based Zoning
Restrictions exist due to concerns over losses of view, sunlight, and air
Rumson Estate, Inc. v. Mayor & Council of the Borough of Fair Haven
Zoning ordinance with certain R-1 classification areas capped floor area at 2200 sf. Local unit of government in adopting its ordinance and capping has essentially amended the SEA which it does not have the authority to do. 
Because the act expressly allows local units to adopt “other ratios and regulatory techniques.” This gives local units the opportunity to fine-tune the overall state scheme.