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

Land Use

Land Use
A. Premise: a client should be able to use property for whatever purpose he chooses, unless there is enforceable law or private agreement to which landowner is bound.
B. Limitations
1. Common Law/General Principles
a. No consent at issue
b. Governs the rights and relationships of neighbors in light of what the client wants to do
c. 9E.g. owner wants to construct a plant that might use odors. This c/ give rise to CL nuisance or negligence claims
2. Consensual Arrangements
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 PHSMGW
b. Our focus – must be a proper exercise of a power.
c. Delegation of authority to lug
d. EPA standards, Zoning
C. Municipalities
1. No inherent power of their own.
2. Have that power which is delegated to them by the state legislature or the state constitution (home rule provision).
3. Trigger: clash between municipality and state

Land Use Premise – a client should be able to use property for whatever purpose he chooses, unless there is enforceable law or private agreement to which landowner is bound.

I. Zoning
A. Principles
1. Zoning Ordinance
a. Constraint on use
b. Protect neighborhoods (property values)
c. Est: CZP, Map
d. Enforced by Inspector of Buildings, appealed to ZBA
2. Enforceability
a. Analysis
i. Is there the power to impose the regulation?
ii. Is this a proper exercise of the state’s police power?
iii. If yes- is it in furtherance of the PHSMGW?
iv. If yes- is it so limiting that it can be viewed as a physical taking?
a. Physical takingà government actually seizes the property
b. Regulatory takingà when government leaves the entire bundle with the landowner but “shrinks the pumpkin to a pea” (decreases the value)
b. Constitutionality in general: (14th Am. DP
i. Zoning ordinance
a. Enacted pursuant to the police power of the state. Euclid
b. Constitutional unless it is arbitrary & capricious with no substantial relationship to PHSMGW. Village of Euclid, Ohio v. Ambler Realty Co.
c. Court assumes validity of ordinance
d. Proper public purpose is det’d by lug
e. Court will exercise a narrow scope of review
f. Ambler Realty Co. owned certain land within the Village of Euclid. The land had significant value as an industrial property but the property was not zoned for industrial purposes.
g. LO argued the zoning was an unconstitutional exercise of the police power (viol 14th Am).
ii. Test: ordinances are unconstitutional if: Euclid
a. clearly arbitrary and capricious; or
b. do not serve a proper public purpose
c. Limitations on constitutionality. Nectow v. City of Cambridge (1928). (14th Am DP)
i. A zoning ordinance can be generally constitutional (e.g. for a proper public purpose), but still be unconstitutionally applied (e.g. arbitrary decision about boundaries).
ii. Whether a regulatory taking has occurred is a question of law
iii. A zoning ordinance as applied must bear substantial relation to the public health, safety, moral or general welfare to be constitutional. Euclid
iv. A zoning ordinance should be upheld unless
a. it is clear that there is no logical reason for the zoning decision or
b. it is merely an arbitrary exercise of power.
v. Harmonious land use scheme by regulating private land. Nectow owned land which was adjacent to an industrial area but which was zoned for residential use only.
a. Nectow stipulated that the zoning ordinance was generally valid.
b. Nectow argued that the specific boundary chosen was arbitrary and therefore constitutes an infringement upon his constitutional rights.
c. The court found that regulating this parce

ng Dept
a. Looks at building plans and ordinances
b. Zoning cases normally start here b/c permit is denied
iii. Board of Zoning Appeals
a. Hear appeals for any denial of building permits by Building Commissioner
b. Reviews requests for variances
iv. Relief Available to City in the Event Act is Violated by Property Owner
a. Injunctive relief to order the violation be terminated.
4. Zoning Districts
a. Uses and Use Districts – what uses are compatible in what zoning districts
i. Classification must have a reasonable basis. Pierro v. Baxendale
a. Is there a substantial difference b/w classif and wanted use
ii. Pierro v. Baxendale (differentiate b/w incl and excl uses)
a. P owned land zoned for residential. Wanted to erect a motel.
1. P applied to building inspector for a permit. Town said it violated the zoning ordinance.
2. P arg motel substantially similar to rooming house which was expressly permitted in the district.
3. Motels are business establishments which cater to the general public. Rooming houses are less public in character, may select guests with more care.
4. Duty of selecting particular uses which are congruous in a zone was vested by the leg to munic, not the courts.
b. Arg
1. Municipality has gone beyond the scope of police power
2. Municipality acted beyond the scope of enabling act
c. Munic has broad discretion to create district and to define what is in that district.
General Welfare std: The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary.