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

Professor Mogk Fall 2013
BASIC PREMISE: a client/landowner should be able to use property for whatever purpose he chooses, unless there is enforceable law or private agreement to which landowner is bound
A.                 Limitations
1.                  Common Law: General Principles of considerations that may affect landowner’s free use of land
a.                   No consent at issue
b.                  Tort Law of Nuisance
c.                   Public Nuisance
d.                  Negligence, adjacent and subjacent support, how water is discharged.
e.                   Governs the rights and relationships of neighbors in light of what the client wants to do
f.                    E.g. owner wants to construct a plant that might use odors.  This c/ give rise to CL nuisance or negligence claims
2.                 Consensual Arrangements between neighbors on how land will be used
a.                   Affecting rights and relationships of adjoining landowners
b.                  Easements, servitudes, and covenants
c.                   ALWAYS look to see if there is a burden on the land that a neighbor may hold the benefit to, that may prevent client from using the land in the way he desires
3.                 Governmental Regulation (of private land use)
a.                   Regulation requiring compliance of an imposing governmental authority for the purpose of PUBLIC HEALTH, SAFETY, MORALS, AND GENERAL WELFARE (PHSMGW)
b.                  Land use planning focuses on this limitation
i.                     Must be a proper exercise of a power.
c.                   Delegation of authority to local unit of government
d.                  EPA standards, Zoning
e.                   ASK: Are there any state/local regulations that affect your client’s plans?
f.                    Divided into POWERS and RIGHTS
No inherent power of their own.
Have that power which is either: 1) delegated to them by the state legislature or 2) written in the state constitution (home rule provision).
Trigger: clash between municipality and state
·         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?
Constitutions are documents of limitation, but can also be seen as a document of grants.  Municipalities have no inherent powers of their own. 
Basic Procedural Framework – What can aggrieved landowners do?
1.      Go to BZA to seek a variance (administrative strategy)
2.      See if planning commission will allow you a special exception (administrative strategy)
3.      Ask if the ordinance will be amended (political strategy)
a.       Angry neighbors may try to challenge valid of ordinance
4.      Challenged to validity of the ordinance – it is not enforceable (judicial strategy)
a.       Does not PHSMGW
b.      Too burdensome
c.       Etc…
§  Standard City Planning Enabling Act (1928)
o   An act to provide for city and regional planning; the creation organization and powers of planning commissions; the regulation of subdivision of land and the acquisition of right to keep planned streets free from buildings; and providing penalties for violations of this act.
§  Centrality of Planning
o   UDELL v HAAS (1968)
§  Udell submitted proposal to village to use his land, currently under business zone, to develop. That same day, Village rezoned the land into residential area after it had been a business zone for nearly 20 years.
§  STATUTORY REQUIREMENT: All Future Zoning must be in accordance with the comprehensive plan. Up to judiciary to decide whether the new zoning is in compliance with the original plan—they do not do so by examining the motives of the local officials, but by seeing if the zoning objectively is in accordance with the comprehensive plan.
§  Held: The rezoning was discriminatory and was not done in accordance with the comprehensive plan. The comprehensive plan protects the landowner from arbitrary restrictions on the use of his property
§  Each state has its own mandatory elements imposed on cities when designing comprehensive plans
§  Includes capital improvement programs, future land use, traffic circulation, sewer and solid waste management, recreational and open space, etc
§  Also have requirements regarding time and consideration spent creating the plan
§  Can be amended periodically
o   Specific Plan is a planning document adopted concurrently with an application for discretionary development approval
o   Used principally as a device for providing specific, definitive, and identifiable standards needed to uphold the validity of an approved developmental agreement
o   Civil statutes tested for vagueness under Due Process Clause, which requires that a statute be sufficiently definite so that individuals of ordinary intelligence are not forced to guess at the statute’s meaning.
§  OK for city to freeze zoning changes on a specific property to allow developer time to submit a specific developmental plan for the land that will comply with the general plan
o   Created prior to development
o   A plan or map of the regulated area designati

nstitutional as applied to a particular parcel of land
§  Now, Supreme Court leaves zoning ordinance disputes to the states
o   SZEA grants authority to zone
o    SZEA under which municipalities may adopt zoning regulations
o   Administrative components: zoning/planning commission, setup with an appointed board with staff, Review and advise, requests to amend/propose amendments, responsible for master plan
o   Board of adjustment/zoning appeals: 3 responsibilities
§  1) Hear and decide appeals from aggrieved Landowner,
§  2) Grant special exceptions,
§  3) Authorize variances not contrary to public (allows Flexibility for unnecessary hardship)
o   Building commission: makes sure buildings are in compliance with building code
o   Important: Planning Commission, Zoning commission, zoning board of appeal
o   SZEA grants power to zone for the health, safety, morals, or general welfare of the community promotion of aesthetics— highly litigated
o   Generally, regulation of aesthetics of land is within police power, but a regulatory board must have sufficient guidance to avoid a delegation problem
§  Reid v. Architectural Board
·         P proposed to build a house that differed significantly in architectural style from the surrounding homes— D determined that the project would not conform to the character of the houses
·         RULE: ordinance designed to protect values and to maintain a “high character of community development” is a constitutional exercise of the police power by a city if it is in the public interest and contributes to the general welfare.
o   Use Districts – residential, commercial, and industrial – can be subdivided into intensity of use. 
§  Cumulative zoning – method of zoning in which any use permitted in a higher-use, less intensive zone is permissible in a lower use, more intensive zone. For example: under this method, a house could be built in an industrial zone but a factory could not be built in a residential zone.
·         R1 was most desirable use then R2, C1, C2, I1, etc.  Any higher classified use could be built in a lower classified use but not vice versa. So, you can build an R1 in an R2 area, but not an R2 in an R1 area. 
§  Non-cumulative zoning – zoning that allows strictly only the specified use and no other use