ZONING AND LAND USE PLANNING
SPRING 2013
PROFESSOR BRIAN GOODENOUGH
I. Class Introduction: Local Government
A. Overview: A city is not a sovereign, so we must find a city or villages’ source of power. In Michigan it is called the Michigan Zoning Enabling Act
1. This is where city's in MI get all of their power for zoning
2. Complied three old sets of laws. So be careful when reading older cases
B. Players in the Game
1. Township Board (City Council)
a. Legislative Body
b. Elected and consists of 7 members: Main function is to pass and enact ordinances
c. First three are full time paid positions working 40-60 hours per week
i. Supervisor
ii. Clerk
iii. Treasurer
d. Four trustees: Paid on a per meeting basis around $40/meeting once or twice a month (Per Diem Basis)
e. Rezoning: This is critical and the Board is the only group that can rezone because they have legislative power
2. Planning Commission: The work horse and recommending body. 90% of zoning litigation is accomplished by holding investigations and testimony hearings
a. Appointed group by Supervisor subject to ratification of the entire Board
b. 9 members
i. Staggered 3 year terms
ii. Paid on per diem basis
c. Can be granted legislative functions by the township board. Then it becomes a rules making board and more than just a recommending body
3. Zoning Board of Appeals (ZBA): The judicial group
a. 5 members who are appointed. With 2 alternates (Serves when members are unable to)
b. Primary function
i. Permit variances
ii. Hears appeals of administrative officials
iii. Interpret the ordinance
c. Ministerial functions
i. Measures walls
ii. Building code compliance
iii. Challenge these measurements here because it is not a legislative function
d. Common Errors Made by Students
i. CANNOT rezone
ii. CANNOT overturn board
4. Staff: Clerical workers making around $8 an hour
a. Functions
i. Process applications. Works at the office
ii. These people are at it every day. They know the important people
b. Important tips to remember
i. Treat these people nice so your paper work gets processed ASAP
ii. Treat them right so that they treat you nicely!
iii. Gets tips from the Board and know what they are thinking
iv. They are very valuable and deserve respect
C. Tools Used by the Players
1. Comprehensive (Master Plan)
a. Function: This is a vision, a snapshot, and a dream of what the community will look like in the future
i. You can use it
ii. Or throw it off on the shelf (most municipalities do this and revisit every six years)
b. Created by the Planning Commission: Develops a plan to extend 10-15 years down the road. The plan can cost a lot of money ($110,000)
i. Aids in challenges to zoning, after all it is the municipalities' plan and dream
ii. The municipalities respond by saying that it is not time to change the master plan
c. Importance of Plan
i. The plan must be in place
ii. If the plan is not is place and zoning occurs; it is deemed unconstitutional
2. Zoning Map
a. Current zones: Based on current use etc…
b. This is more real time in nature
3. Zoning Ordinance
a. Zoning Ordinance: How private land can or cannot be used
b. Zoning Districts: Permitted uses of each district. Two Uses in Each District
i. Use by Right: Uses that are fundamental (IE raising cows on Farm Land)
ii. Special Use Permit or Conditional Use Permit (CUP): Allows for uses that are not inherent with the Zoned land. This requires a process that begins with the planning commission and notice to the surrounding neighbors. Requires conditions that take the special use and takes it back to the original planned used of the zone
c. Nuisance Ordinance: These can be very difficult to enforce
D. Lack of Zoning Across The United States
1. Many municipalities do not have zoning ordinance to this day
2. People don't always want to be regulated. Houston, TX did not create a zoning ordinance until the 1980's
3. Overall, zoning ordinance area good idea
a. But not every community does not think so
b. More effective and easier to enforce than a nuisance ordinance
c. Zoning Ordinances are a good idea and have A LOT of value
II. Nuisance Ordinances
A. Overview: Additional and different to a Zoning Ordinance
1. Creates a Nuisance Per Se and makes the judicial process a whole lot easier
2. These are free standing ordinances and not part of the zoning ordinance
B. Loud Party Nuisance Ordinances
1. What is a reasonable person and their tolerance of loud music
2. So police come out with a decibel reader. The challenge becomes
a. The Skill of the officer
b. The calibration of the reader: Machines are never calibrated, so that become the typical challenge
3. Selective enforcement: This becomes a problem when an ordinance (whether zoning or nuisance) is enforced against only one person but not every other offender
4. Take away lesson
a. These are difficult cases to prosecute
b. Find a relevant law in the Zoning Ordinance, it will make your life easier
C. High-Expensive Housing Sub-Division Example
1. Factual Background
a. Average hour price: $400,000-$500,000
b. Not all nuisance cases involve the run down small ranches
2. This is a case of a nuisance called “Spill-Over Lighting” (Incompatible land uses)
3. Notes on holding
a. Problems
i. Spent almost $15,000 in tax payer dollars to handle a dispute between two neighbors
ii. The local municipal government got involved in a private dispute between two neighbors
b. If there is a nuisance per se in the zoning ordinance the judge can rule abatement and order costs to the violator
c. These sort of cases rarely see defense counsel, most private people represent themselves – which can create difficulties
III. Takings
A. Introduction to Topic
1. Common Terminology (Counts in the complaint)
a. Procedural Due Process
b. Substantive Due Process
c. Takings
d. Equal Protection
e. Exclusionary Zoning
2. Litigation Framework
a. These can be both state and federal claims
b. If a federal claim is brought then the defendant (local municipality) can remove to federal court
i. Standard: Shocks the conscience
ii. This will depend on the local judge who is appointed to the case: Pro-local municipality then the case can stay in local state courts. If there is a liberal judge then remove to federal court (where the judge can bifurcate the claims)
c. A complaint seek damages or not see damages
i. Damages: The insurance company handles it. There could also be a much different calibrated attorney defending the case
ii. No Damages: The local municipality deals with case and it becomes a lot more reasonable and ready to be resolved
d. Average cost of a land use case
i. Plaintiff: $250,000 – $500,000
ii. Defendant (local municipality): Not close to that much, they will use the staff they already have
iii. Defendant (insurance company): Will spend more money and have experts flown in from New York for example to resolve the case
B. Significant Takings Cases
1. Overview: The Evolution of takings cases was rather slow almost 50 years between the first and then the next
2. Framework we need to think of in these cases
a. The law on its face: Legitimate government concern for the public health, safety, and welfare
b. The law as applied
3. Pennsylvania Coal Co. v. Mahon (1922)
a. Notes on Justice Holmes’ Majority Opinion
i. The law is unconstitutional on its face and as applied
ii. Government could not go on if it cannot regulate
iii. We are dealing with a contract between two parties: This is not a public safety or safety health issue
iv. If the state government wants to prevent PA Coal from digging under Mahon's land and deed the coal rights back to Mahon then PA Coal must be compensated since it is a taking
v. This majority opinio
legitimate interest??
ii. Very rarely does a local government pass a regulation just for the sake of passing it
iii. What normally happens is that a local government passes a regulation for a good reason but the rationale behind it is not articulated and put on the record at the local meeting
b. RULE: The state must compensate a landowner when a regulatory action denies an owner economically viable use of his land, unless the prohibited used of the land constitutes a nuisance under state common law. This was a government taking that deprived a landowner of all economically beneficial or productive use of land
c. Determining the value of property in a takings case
i. Property is a bundle of sticks and each stick is a specific right
ii. When someone is effected by a regulation we do not look at what stick was taken away but rather what sticks are remaining
iii. It is really difficult to prove that there was a complete loss of economic viable use of land (So a Lucas argument is a tough sell during trial)
d. Local MI rule: The municipality speaks through its record. The record speaks through the vote which is passed. So during a deposition you cannot inquire into the reason why a board member voted the way they did
8. Nollan v. California Coastal Commission (1987)
a. Notes on Background of Case
i. Conditions placed on building permit: Public harm caused by the permit – nexus between the harm and the conditions
ii. When The Nollans asked for a permit the local municipality sees an opportunity
b. Notes on Justice Scalia’s Majority Opinion
i. Substantial Nexus Rule: A state may not condition a property use permit on an act not addressing the problem caused by the permitted use
ii. When a state finds a public interest and does not leave the owner with useless property, not taking occurs when a land use is prohibited. This constitutional propriety disappears when the condition substituted for outright prohibition fails to further the end advanced as the justification for the prohibition. When this occurs, the prohibition no longer becomes a vehicle for advancing a state interest, but rather a manner of extorting a property right without paying just compensation
9. Dolan v. City of Tigard (1993): C.J. Rehnquist’s majority opinion finishes the test
a. Rough Proportionality Test: A regulation has to have a substantial nexus that is roughly proportional to the recognized harm
b. The bike path need does not meet the Nollan test
10. Lingle v. Chevron U.S.A. Inc. (2004): Justice O’Connor Majority Opinion destroys the two prong Agins test
a. RULE: The “substantially advances” formula is NOT a valid takings test, and indeed conclude that it has no proper place in our takings jurisprudence
b. Reaffirms that a plaintiff seeking to challenge a government regulation as an uncompensated taking of private property may proceed under one of the following theories: by alleging a “physical” taking (Loretto), a Lucas-type “total regulatory taking,” a Penn Central taking, or a land-use exaction violating standards set forth in Nollan and Dolan.
11. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, Inc. (2001): Justice Steven’s Majority Opinion
a. This is a really tough opinion to read and fully understand. It takes a lot to reconcile all of the competing theories used in the decision, based on past opinions for takings cases
i. This is a great case because it is creative in every way possible and uses all the cases we have studied up to this point
ii. The human element is really prevalent, we know where we need to go but how do we get there? It is a challenge, but The Court eventually gets there. Justice Stevens does a really good job with the facts of the case, so it is easy to see how the analysis makes sense
