Land Use Outline
Mogk, Winter ‘07
Chapter 1. Setting the Stage: The Unplanned Environment
1. The Rise of Planning and Zoning
Hadacheck v. Sebastian(13)
City passes statute that regulates business activities. Man has clay on his property which he uses to manufacture bricks. If the government tells him to stop, he will loose a lot of money. Is this regulation enforceable?
o Court concludes that it is enforceable.
o Sometimes cited to demonstrate that a very substantial drop in value does not always constitute as a regulatory taking.
o It was an action of police power. Look to whether the health safety and morals of the community have been served. There is deference to the legislature.
o Here the court said that an 87% reduction in value did not represent a taking. This was a single purpose regulation.
—Regulation of a use for property is not arbitrary exercise of police powers even if the use precedes the regulation, the use is not nuisance per se, and the regulation is not an absolute prohibition.—
Chapter 2. Zoning: Classic to Contemporary
A. Local Zoning: The Classics
1. The Classic Cases
Is a comprehensive plan.
1. The first thing that the community should do is to have a master plan which will be completed at some date in the future.
i. It is a vision for a future date.
ii. There will be a set of policies and goals that the community wants to achieve as they move out.
2. Then it begins to adopt the regulatory tools to achieve the plan. The most important of which is zoning. There are also regulations and codes.
There is also the capital budget and the capital agenda which will need to be drawn. A schedule to finance the infrastructure.
History of zoning-
1926, the US constitution created the Standard State Zoning Enabling Act (SZEA). Most of the states got on board and created something that mirrored the act.
Village of Euclid(20)
The city of Euclid adopted zoning laws which prevented the landowner from using the land as expected, which resulted in a diminution in the value of the land. Landowner challenges saying that it was a deprivation of property without due process because it results in the diminution in the zone property.
o US constitutional test of the proper exercise of the police power through the state, by the local government. Test pg.27- “It must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”
· The landowner either had to show that the ordinance was an improper exercise of the states police power, or had to show that it was a depravation of the land owner’s due process 5th amendment rights, making it so that he could no longer put it to use on the market.
—A zoning ordinance, as a valid exercise of the police power, will be declared unconstitutional only when its provisions are
alled special use permits/exceptions (examples pg.97)).
· board of zoning appeals, (administrative relief)
§ Third option, you go to these guys and seek a variance (relief from the original zoning). Test is whether the ordinance, when applied to you, resulted in an unnecessary hardness. Can get…
· Use variance
· Dimensional Variance
· And a building commission could advises the executive branch.
§ Building commissioner will determine whether the building meets the building code, and whether the use meets the zoning ordinance.
o You could also bring an action against the city. (legal relief)
Overall, you want to examine what type of relief is being sought, and where is the landowner is going for relief. In addition, what is the test that it being used to make the decision?
There must be a zoning plan. This plan must give a reasonable use for each parcel of land. Otherwise they may be confiscating the land, and it may become a regulatory taking.
o The plan will be unenforceable if it is a general depravation of rights.
o Another way of handling this would be to treat it as a regulatory taking, courts were originally reluctant to reach into the pockets of the city.