Prof. John Mogk-Wayne State Univ. Law School
i. Use, height and area
ii. Nuisance (prevention)
iii. Takings – 75% diminution
iv. Police power
v. Presumption of validity – a legislative act
Village of Euclid v. Ambler Realty Company 272 U.S. 365 (1926)
Burke wants us to recognize: (i) the reliance by the court on expertise – that apartment houses posed a threat to the public health, safety and welfare, and (ii) nuisance law – that apartment houses are a nuisance and affect the quality of life of neighbors.
Level of judicial scrutiny:
• “not arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.” – Zoning that avoids this description will stand.
• “will not scrutinize its provisions, sentence by sentence, to ascertain by process of piecemeal dissection”
• Case also illustrates deference to expertise.
Board of Supervisors of Madison County v Gaffney (1992) pg.61
• Neighbor is unhappy because there’s a nudist camp operating on the land next to him.
• This is an example of inclusive zoning, which provides a list of permitted uses – anything not on the list is verboten.
• Court said that the nudists lose because nudist colony isn’t on the list.
Covington v Town of Apex 423 S.W.2d 537 (1992) pg.71
• Landlord wanted an electronics assembly business to be its next tenant, which would have allowed it to charge higher rent.
• Neighbors who were zoned residential objected to the rezoning that would allow the assembly business in; the neighbors said it was spot zoning.
• When can a town re-zone? When it’s reasonably necessary to uphold the public health, safety and welfare. Rezoning will be evaluated to see if it has been done arbitrarily or capriciously.
• Ideally you’d bring in a realtor as your expert who would testify that the building was put up for rent for a reasonable length of time, and the electronics assembler is the best/only rental candidate.
• Identifying spot zoning: (i) size (ii) compatibility w/ comprehensive plan (iii) benefits and detriments to community (iv) relationship to other uses (v) damaging or destroying the comprehensive plan.
• This case reflects minority law; majority law is that spot zoning is per-se invalid.
“Permitted use” means one of a list of uses that requires you to file a permit; the city can impose conditions on the issuance of that permit.
Spot zoning in Texas
“An unacceptable amendatory ordinance that singles out a small tract for treatment that differs from that accorded similar surrounding land without proof of changes in conditions….Spot zoning is regarded as a preferential treatment which defeats a pre-established comprehensive plan….It is piecemeal zoning, the antithesis of planned zoning.” – Pharr v Tippett, Texas Supreme Court 1981.
Use Permits: Special Use Permits, Conditional Use Permits, or Special Exceptions
Floating Zones and Contract Zones
Planned Unit Development (PUD)
Area (or non-use) variances, and Use variances.
Practical difficulties test and unnecessary hardship tests.
Arbitrary and capricious standard.
Legislative versus adjudicative (deference).
Area variance: A board may authorize variances in height, area, setback and side yard regulations.
Use variance: A board is not authorized to make use variances. It is considered tantamount to an amendment and that authority is reserved for city council.
Texas law [AREA VARIANCES ONLY]: A board of adjustment may: “authorize in specific cases a variance from the terms of a zoning ordinance if the variance is not contrary to the public interest and, due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship, and so that the spirit of the ordinance is observed and substantial justice is done;” Texas Local Government Code §211.009(a)(3)
In Texas to get a use variance you need to be able to meet both of these tests:
Special conditions test:
i. Hardship is unique to the property related conditions (not unique to the property owner)
ii. Not authorized merely to make the “highest and best use” of property.
iii. Financial hardship is insufficient.
Unnecessary hardship test:
i. Not personal to the property owner
ii. Not self-created
iii. Relates to condition associated with the topography or shape of a lot
iv. Application of zoning must be unreasonable and reasonableness test viewed in light of practical difficulty of applying ordinance to property.
Other flexibility devices:
Devices that give municipalities the ability to examine specific impacts of projects and tailor approval to avoid undue impact that would result from strict adherence to Euclidean Zoning.
Janssen v. Holland Charter Township Zoning Board of Appeals (2002) pg.78
Casebook authors put this in to show the danger of variances.
Janssen wants to turn agriculturally zoned land into residential land.
Unnecessary hardship analysis [applied for this Michigan case]:
i. Could the property reasonably be used in a manner consistent with existing zoning
ii. The landowner’s plight is due to unique circumstances and not to general conditions in the neighborhood that may reflect the unreasonableness of the zoning
iii. A use authorized by the variance will not alter the essential character of the locality
iv. The hardship is not the result of the applicant’s own actions.
Jones v City of Carbondale (1991) pg.84
• Involves a special use permit – this is a use that is envisioned in the zoning ordinance and approved of beforehand. Adjudicative in nature.
• A variance allows a landowner to do something that the zoning ordinance forbids, whereas a use special permit allows a use that the ordinance authorizes. Adjudicative in nature.
• An amendment changes or alters the original ordinance or some of its provisions.
• Jones made an argument that the board was making an amendment to the zoning ordinance (which under the relevant statute required a two-thirds vote), but the court rejected that argument, holding this was really just a special use permit, which needed only a simple majority.
• Jones also tried to argue that requirements attached to the special use permit (e.g. dedicating land to street improvements) constituted an amendment, but this argument was rejected because a statute authorized the board to attach conditions to the granting of a permit.
Rodgers v Village of Tarrytown (1951) pg.90
• Mrs. Rubin, landowner, gets permission to have a portion of her property rezoned for apartments, but it is not fixed beforehand where exactly the rezoned portion will be. This is why it is called a “floating zone.”
• The neighbors claim this is really just spot zoning to the benefit of Mrs. Rubin.
• Court says that the relevant inquiry is not whether the particular zoning under attack consists of areas fixed within larger areas of different use, but whether it was accomplished for the benefit of individual owners rather than pursuant to a comprehensive plan for the general welfare of the community.
• Using the two-step floating zone process, whereby (i) apartments are deemed permissible in a certain zone then (ii) the location is decided later, this affords the local government greater flexibility. The downside though is that predictability is reduced – current landowners don’t know where the apartments will wind up.
Peters v Spearfish ETJ Planning Commission (1990) pg.94
Planned Unit Developments (PUDs)
Drawn from tools such as special use permits and floating zones
Particularly suited for large, mixed-use developments
Lower costs (infrastructure is concentrated and minimized)
More open space for individual owners
Inclusion of affordable housing.
Danger is that in approving a PUD, the granting authority (e.g. city council) will lose sight of the comprehensive plan with all the bartering that goes on between government and the developers with PUDs.
A PUD is a multi-use development and will include zoning for a number of different uses: single family residential, apartments, a motel, etc.
In this case the board removed the population density requirements to get the development underway; the court would not allow this.
here has been a material change in the developer’s position (used by majority)
o Proportionate test: compares the percentage of the total cost of the project spent before the zoning change, as compared with the amount yet to be spent.
o Balancing interests: weighs the owner’s interest in developing his property against the interests of public health, safety, morals or general welfare.
– This court held that an applicant is entitled to a building/subdivision permit if his proposed development meets the zoning requirements in existence at the time, and he proceeds with reasonable diligence. There is an exception whereby the amended statute would apply in “compelling” circumstances. This is minority rule.
Texas handles this by statute: Tex. Loc. Gov’t Code Ann. § 245.002 (Vernon 2002):
(a) Each regulatory agency shall consider the approval, disapproval, or conditional approval of an application for a permit solely on the basis of any orders, regulations, ordinances, rules, expiration dates, or other properly adopted requirements in effect at the time the original application for the permit is filed. (So Texas’ rule is that you are entitled to have your application ruled on under rules in effect when application was tendered)
(b) If a series of permits is required for a project, the orders, regulations, ordinances, rules, expiration dates, or other properly adopted requirements in effect at the time the original application for the first permit in that series is filed shall be the sole basis for consideration of all subsequent permits required for the completion of the project.
(c) After an application is filed, an agency may not shorten the duration of any permit.
(d) If a change in law after the application is filed would enhance or protect the project, the permitee may take advantage of the change.
Streamlining and Development Standards
Norco Construction, Inc. v King County (1982) pg.131
Facts: City has a streamlining process whereby the city must act on a permit application within 90 days, unless the permitee agrees to an extension of that time.
Streamlining is your vested right as a developer to be reviewed under the current regulations, and to complete the project as a property right subject to due process and the takings clause.
Kaufman & Broad Central Valley, Inc. v City of Modesto (1994) pg.137
• Facts: the city wants to pass on the cost of civic improvements to the developer, but the problem is that the amount is a moving target: the city keeps adding new improvements and upping the fee.
• Greater point – the city can’t just have an open-ended fee policy where developers are subject to ever-rising fees; once the tentative map is approved, the fees can’t change.
• Common law is that even though government has given some preliminary approval, he may not be exempt from all zoning laws at the time he applies for the permit.
• In Modesto, the court recognizes the right of the legislature to do something a little bit different: a 1982 enacted ordinance means that fees are set at the time the development map application is deemed complete.
• Another ordinance also states that a local agency is precluded from imposing a condition on a building permit (e.g. paying for civic improvements) that it could lawfully have imposed on a previously approved tentative map. (This ordinance prevents the city from changing the game after one approval in order to pass on fees to the developer).