1.

Basic elements of zoning - a restriction - decided by the public - on the use of you own land - an integrated legislative-administrative system w/ judicial oversight - both planninng and regulatory components - scheme of special permits and variances or waivers to take care of exceptional cases in which regulations cause landowners severe hardship 2. Police power (regulation) allows gov't to do this 3. Nearly all planning and zoning is carried on at the local level by cities and counties - city or county ordinances - details of local procedure vary widely from jurisdiction to jurisdiction 4. Standard Zoning Enabling Act - 1922 - a model statute created by US Dept of Commerce - set all basic zoning principles - authorized certain reasons to zone - health; safety; morals; general welfare 5. Three tools of zoning - use - bulk - height 6. Within each geographical zoning district, all land uses have to conform to the same zoning designation 7. What is planning? - thinking about zoning - or, creating a "master plan" - created usually by professionals at a municipal planning department - SZEA - "such zoning regulations shall be made in accordance with a comprehensive plan" - what does this mean? merely that zoning must form a rational pattern within itself - comprehensive plan is only a general guide to zoning 8. What makes up the integrated system of zoning bodies? 1. the local legislative body - city council or county commission, etc - will draft the original zoning ordinace of the city - will amend the document if needed 2. the planning commission - part-time citizen administrative body appointed by the local legislative body - appointed by city council - an advisory body - main function -> recommend the original zoning ordinances and amendments to them to the city council for final action 3. the board of adjustment - quasi-judicial duties - hears applications for variances; other special permits - use variances - allow an owner to make some use that is forbidden in the zone - bulk variances - a waiver of a bulk regulation - like setback 4. planning department - if you can afford one

- professional experts and staffers - no formal power - but realistically - have the power of influence b/c they are experts 5. local court 9. Euclidean Zoning Ordinace - major decision by SCt that influenced zoning everywhere - Euclidean zoning - fixed geographical zones but with different kinds of restrictions 10. Issues of constitutional law - 5th amendment - takings clause - 14th - if the gov't takes private land for public use, it must provide fair compensation - has the gov't regulated your land so much that it has effectively "taken" it? - so where does the gov't get this power? - police power - gov't can act for public safety and welfare - can take extreme measures - there are limits to the police power though - this is the issue - what does gov't have to show when it adopts an ordinace? - how much does the gov't need to compensate? Village of Euclid v Amber Realty Co. SCt (1926) Facts: 1. Three main highways pass east-west through Euclid - Euclid Ave - southern border - St. Clair Ave - central - Lake Shore - northern - 2 RR's in between St. Clair and LS 2. Amber Realty owns 68 acres - borders Euclid Ave and a RR 3. 1922 - Village Council adopts a zoning plan - also adopted a zone map - six classes of Use districts; 3 classes of Height districts; 4 classes of Area districts -> this is a Euclidean zoning plan - different levels of different zones - each zone includes all the zones beneath it - you can even put a single family house in a heavy industry zone - U1 - single family dwelling - U2 - two family dwelling - U3 - apartments, etc - U4 - banks, offices, etc - U5 - warehouses, etc - U6 - sewage plants, etc - example - U1 allows only U1 buildings; U3 allows U3, U2, and U1 - H's, A's operate the same way

4. AR's tract of land comes under U2, U3, and U6 - most of the village's land in between the RR tracks is reserved for industrial use (high U's) - AR thinks the land is most valuable as industrial land; not residential 5. Enforcement of the ordinance is entrusted to the inspector of buildings - meetings off the board of zoning appeals are public - penalties are prescribed for violations Procedure: 1. AR argues: - ordinance violates 14th Amend. b/c it deprives AR of liberty and property w/o due process - and denies it the equal protection of the law - [not a 5th amendment takings case] - wants injunction stopping enforcement - best use of the land is retail and industrial, not residential 2. TC - ordinance is unconstitutional and void Issue: Is the ordinance invalid in that it violates the constitutional protection "to the right of property in the AR by the attempted regulations under the guise of the police power, which are unreasonable and confiscatory? Holding: The ordinance is not unconstitutional; the rules of zoning are not arbitrary or unreasonable; they affect public health, safety, morals, and general welfare Reasoning: 1. Building zone laws are new - urban life has gotten complex - like traffic laws, you just need them 2. This ordinance must somehow be justified under the police power asserted for the public welfare - makes more sense in an urban setting than a rural community - also, everyone thinks laws setting height, building materials, other reasonable rules are ok - and obviously keeping factories out of neighborhoods are good too 3. But here, the exclusion is in general terms of all industrial establishments - not just offensive or dangerous industries - but those which are neither - what is the purpose here? - Cleveland's industry is expanding - Euclid wants to keep it out for the most part or else force it into certain areas 4. So far, most state courts have allowed cities to create residential districts and keep out commercial and industrial uses - ie how is this not unreasonable? - this bears a rational relation to health and safety of the community - kids are safer

- keep fires away - other pollution - keep streets in better shape - experts agree with all of this - example - one apartment is built in a neighborhood of houses - soon, all the houses are torn down and all apartments go up - why don't we just keep apartments separate from houses? - they're both desirable in a city - the sum total of the city's value can increase by restricting the value of certain areas of land within the city 5. Therefore, all of these reasons are enough to say that the ordinace cannot be declared unconstitutional (b/c of arbitrary and/or unreasonable rules which have no relation to public health, safety, morals, or general welfare) 6. The land owner has not suffered or is threatened with an injury which entitles him to challange the ordinances' constitutionality - instant - AR hasn't really been hurt yet Notes: 0. this case is the precedent for zoning 1. Other SCt cases - setbacks are ok - Nectow - cannot divide one owner's tract of land into two zones - one residential and one industrial 2. TC had held that the Euclid ordinance was invalid as a taking 3. Who holds the police power? - each state (ie SC) - and each state delegates the police power to smaller gov't units (local gov'ts) 4. Some rural counties have no zoning ordinaces at all 5. This is as much a political process as a judicial process NONCONFORMITIES 1. Issue - what to do with ongoing, preexisting uses that do not conform to new zoning? - should zoning regulations be made retroactive? 2. Constitutional worries - more suspect to force an owner to cease a pre-existing use than to forbid a future hoped-for use 3. "non-conforming use" - a use, permitted when begun, that would not now be permitted to be commenced in the zone as a new use, but that the zoning allows to continue - residential, industrial, commercial, etc 4. "bulk nonconformity" - the use itself conforms to the new zoning, but placement of improvements does not conform to the present zoning thought it formerly was lawful - size, height, setback, materials used, etc 5. Planners believed in time nonconformities would "wither away" - nonconforming uses are generally not allowed to increase in size or to be

changed to other nonconforming uses City of Los Angeles v. Gage District Court of Appeal (1954) Facts: 1. 1930 - Gage buys two adjoining lots - built a two family house on one lot - put his office in one part; lived in the upper part - on the other lot he built a plumbing business 2. 1930 - the two lots were classified as "C" zone - Gage's use is permitted 3. 1941 - new zoning - Gage's open storage of plumbing materials is a nonconforming use that may be permitted to continue 4. 1946 - new zoning again - reclassifed Gage's land from C-3 to R-4 - only residential - no plumbing business allowed - ordinance contained language that said the business would only be allowed to operate for 5 more years 5. Gage has enormous expenses if he has to move - $5,000 + advertising costs, risk of the move, etc Procedure: 1. LA wants injunction to command Gage to discontinue the use of his property for plumbing business 2. TC found - Gage could not move the business w/o substantial expense - the use of the property for plumbing retail will not adversely and detrimentally effect the use or value of other property in the neighborhood thereof - the business is not unsanitary, noisy, etc - he's not disturbing the peace - the last zoning ordinace is void b/c it affects Gage's use of the property - deprives him of a vested right to use the property for the purpose it has been used continuously since 1930 - and deprives him of property w/o the due process of law Issue: Are zoning ordinances which require that certain nonconforming existing uses shall be discontinued within 5 years after its passage constitutional? Holding: Reversed; Yes, as long as the ordinance does not cause substantial injury and the prohibited business is indeed a nuisance, the ordinance is enforceable; so Gage needs to move Reasoning: 1. A business can be entirely unobjectionable when founded, but when things change in the neighborhood it can become completely objectionable - but, a provision permitting the continuance of a nonconforming use is ordinarily included in the zoning ordinances b/c of the hardship and doubtful constitutionality of compelling immeidate discontinuance

2. Is this the best solution? amortize a non-conforming building - determine the useful remaining life of the building and prohibit the owner from maintaining it after the expiration of that time - SCt - Euclid - "the village was vested w/ the authority to remove any business or trade from the district and to fix a limit of time in which the same shall be done" 3. Gage relies on bad precedent - Jones v LA - cities are reluctant to stop a use immediately - bad policy perhaps bad constitutional - only thing you can shut down immediately is a nuisance - but this is our rule - when a retroactive ordinance causes substantial injury and the prohibited business is not a nuisance, the ordinance is to that extent an unreasonable and unjustifiable exercise of police power - the presence of a nonconforming use endangers the benefits derived from a comprehensive zoning plan - every zoning ordinance effects some impairment or vested rights either by restricting prospective uses or by prohibiting the continuation of existing uses - so this issue really isn't different than the issue of zoning generally - the difference is really only one of degree - use of a reasonable amortization scheme provides an equitable means of reconciliation of the conflicting interests in satisfication of due process requirements - the loss the owner suffers, if any, is spread out over a number of years - a legislative body may conclude that the beneficial effect on the community of the eventual elimiation of all nonconforming uses by a reasonable amortization plan more than offsets individual losses 4. Instant - Gage only has to move his business a few blocks - cost of moving is $5k - or 1% of Gage's minimum gross business for 5 years - he's had 8 years to move - all of the land w/in 500 feet of his business is now residential - the ordinance is neither arbitrary nor unreasonable and it is related to public's health, safety, morals, and g.w. Notes: 1. strategy b/f amortization - don't allow the non-conforming use / bulk to do anything to the offending building - no renovation, no add-on, no anything - eventually that building is "squeezed" out - or, just assume that one day the market will pressure the non-conforming use / bulk out of the neighborhood where it doesn't belong 2. how long is the amortization period? - no magic number - some courts have held 3 years is not enough time, 6 months is enough time - what goes into the calculation?

- expense of moving - value of new piece of property minus cost of selling the old piece - have to advertise that new location - intangibles - a neighborhood business just won't work in a new neighborhood - it's a cultural thing - time given - can spread the loss out of a longer timeframe - some buildings cost a lot more than other buildings - should probably give them more time - a new movie theater versus a guy's plumbing business he runs out of his basement - essentially - how much time is necessary to recover the investment? - a McDonald's costs a lot, but it can function just about anywhere - it's a fungible business 3. Pending ordinance doctrine - race between developer and city - developer wants to hurry up and build - get the structure grandfathered in - and the city wants to hurry up and get the ordinance enacted - this doctrine tells you who was first - cannot rely on date the business opens - nor can you rely on the final reading of the ordinance - so what do you look at? - ordinance - the date at which some formal action has been taken and notice given to the public of a pending ordinance - developer - whenever they got the original permit to build - whoever wins this race gets to stop the build / build RELATIONSHIP OF PLANNING TO ZONING 1. SZEA - "such regulations shall be made in accordance with a comprehensive plan" 2. Raises questions - does a comprehensive plan mean a formal comprehensive or master plan, adopted by at least the planning commission or the legislative body? - is the adoption of a formal comprehensive plan a condition precedent to any zoning ordinance? jurisdictional split - how closely must the zoning conform to that formal master plan? courts - the formal comprehensive plan is a "guide" to zoning DEPARTURES FROM ORIGINAL ZONING (variance) 1. The system is flexible - the possibility that an interested citizen may be able to get an amendment, variance, or special excpetion by an established procedure 2. variance - landowner files app. with the board of adjustment / zoning appeals - public hearing - decision

Puritan-Greenfield Improvment Assoc. v. Leo Court of Appeals of Michigan (1967) Facts: 1. Leo owns a one-story one family house - in a R1 district - wanted to sell the house, but couldn't - next door is a gas station 2. He applied for a variance, was granted RM4 - for a dental and medical clinic - would preserve the exterior of the building 3. Variance granted - board found he unnecessary hardship and practical difficulty in selling the house b/c of all the traffic nearby w/ gas station, etc - so the variance is ok and doesn't alter the essential character of the neighborhood 4. Puritan files suit in court - TC rules - the board did not show the land could not yield a reasonable return or be put to a proper economic use if used only for a purpose allowed by existing zoning Procedure: see above Issue: When should a variance be granted by the board of zoning appeals? Holding: A use variance should be granted if the board of zoning appeals can find on the basis of substantial evidence that - the property cannot reasonably be used in a manner consistent with existing zoning; - instant - neither the proofs nor the findings justify the variance granted Reasoning: 1. The enabling act specifies neither a particular procedure for obtaining review of the board of zoning appeals' action nor the scope of review - and nowhere is the phrase "unnecessary hardship and practical difficulty" interpreted by other courts in this state - unnecessary harship -> use variances - practical difficulties -> bulk variances - this is a use variance - most states use "unnecessary hardship" as the standard - owner seeking variance must show: 1. the main test - credible proof that the property will not yield a reasonable return if used only for a purpose allowed by the ordinance 2. or must establish that the zoning gives rise to a hardship amounting to virtual confiscation 3. or the disadvantage must be so great as to deprive the owner of all

reasonable use of his property - why these rules? communal nature of zoning laws 2. A better test - NY standard - adds "unique" to the unnecessary hardship test 1. the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone 2. that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and 3. the use to be authorized by the variance will not alter the essential character of the locality 3. Instant - what standard is the court using? the one in the holding - it doesn't use the other two tests in R1, 2 - issue: whether the property can continue to be reasonably used as a single family residence - Leo was asking for $38k in a neighborhood where houses sell for $20k to $25 - so there's really no evidence upon which the board's finding could be based - just b/c the property could be worth more as a doctor's office does not mean the variance should be granted - heavy traffic is typical of residential streets - being next to a gas station is impossible to avoid - a district has to end somewhere - worry about precedent - one variance could beget another variance Notes: 1. boards of adjustment regularly grant variances in flagrant violation of the rules of law 2. use variance - more difficult to get than bulk variances - most states use the test put forth in the hold of this case - property cannot reasonably be used in a manner consistent with the existing zoning 3. bulk variance - more often granted than not granted - there's not really a common test for this - focus more on "unique" - is there some peculiar characteristic of this property which stops you from following the ordinance? - ie a massive tree that the city won't let you cut down - so you need to go past the setback line - if the neighbor shows up at the hearing and complains - you're almost guaranteed to lose - best advice a lawyer could give to a client - get your neighbor on your side b/f you have the hearing - get architects involved 4. Special Exception concept - a zoning ordinance may contemplate that certain uses should be approved for an area - classic example - in a residential area, you allow a church - the church is permitted under the ordinance, but you still need approval from the city - even though the city is approving something that has already been

deemed consistent - less of a burden for the church builders to prove at the hearing Zoning Amendments 1. Two types - text amendment - changes the text of the zoning ordinance but does not change the geographical boundaries of any zone - map amendment - does not change te text but changes the geographical boundaries 2. zoning is exclusive - lists those uses that are permitted, but forbids all other uses - is the use is not listed, you cannot make it in this zone 3. zoning is cumulative - you may make all the uses permitted in less intensive zones in more intensive zones 4. Rezoning applications are usually connected w/ real estate development, and so app's are invariably for upzoning (more intensive uses) Owener's challenge to existing zoning Karches v. City of Cincinnati SCt of Ohio (1988) Facts: 1. Karches own 15 acres - fronts the river - in flood plain - leased land from 1957, then bought it in 1965 2. Flerlage owns 27 acres - in flood plain too - 1958 - bought land 3. 1963 - city rezoned land from industrial to RF1 - riverfront - Karches and Flerlages did not learn of this until 1966 and 1968 4. 1977 - both Karches and Flerlages unsucessfully asked the city for a zoning change 5. 1978 - city publishes land use plan about riverfront - want industrial and recreational Procedure: 1. 1980 - both Karches and Flerlages files suit - RF1 zoning ordinance is taking and they need compensation - city told parties that the 1983 rezoning would solve their problems - parties drop the case 2. 1983 - revision doesn't help - parties file another suit - best use of land is commercial / industrial - previous use of land was that - and as a result of the restrictive zoning, the properties had no market value other than one for speculative purposes - zoning had no reasonable relation to public health, safety and welfare

- and was arbitrary, discriminatory, and unreasonable - therefore, it violated their due process 3. TC - zoning was unconst. for all the reasons stated above 4. Appeals - reverses - issue of const. of the zoning was not ripe Issue: Is the rezoning of appellants land constitutional? Holding: No; the challenge is ripe; the ordinance is unreasonable, not related to health, etc, and it limits the use to non-viable actions; the city has no p.p. interests in the rezoning b/c it never built the park Reasoning: 1. Is the challenge ripe? - city - the appellants failed to exhaust administrative or other remedies -> no ripeness - two exceptions to ripeness limitation - if there is no admin remedy available which can provide the relief sought - TC - appellants meet this - variance won't work - RF1 won't allow a river terminal variance - city testimony - there's no way we'd grant a variance - or if resort to admin. remedies would be wholly futile - so, it's ripe 2. So is the ordinance unconst? - appellants must show either (note 3 p1222): - (due process) zoning is unreasonable and not necessary to the health, safety, and welfare of the city - OR (taking) zoning denies appellants economically viable use of their land w/o advancing a legitimate gov't interest - the court really uses this angle, not the dp argument - this court should favor the TC's reasoning - RF1 is not economically feasible, and no gov't interest advance with RF1 - the three uses of RF1 that city argues are viable - residential? - instant - doesn't work - no one would build a house here b/c it's a floodplain - commercial? - city - marinas, restaurants, and motels would work - instant - marina won't work - costs too much to build - restaurants and motels - floodplain - won't work either - RV park? - instant - would cost about $1 million, not the $400,000 that the city predicted 3. Did RF1 decrease the value of the lots? - yes - TC - from max of $35,000 per acre to $14,000

4. What are the city's interests in the zoning? - city would gain a lot if it actually built a park - but it never did - TC - city's potable water would not be adversely affected by a barge spill or storage of aggregate material - the parcel's best use is for river terminals - what counts is what the city does, not what it intends to do; and it didn't do anything Dissent 1. It seems both properties were bought by the appellants just as an investment w/ no specific use in mind - and both appellants have gotten decent returns 2. This is a comprehensive plan - the zoning is reasonable - everything on the riverfront is RF1 - lots of tourist attractions down on the riverfront 3. Not believable that there are no other uses w/in the zoning guidelines for this land Notes: 0. Importance of framing the issue - city - we're protecting the city's riverfront - we only have one riverfront - for future generations - owners - we're honest tax paying citizens; this ordinance has driven us to 20 years of economic frustration; all we want to do is make good use of the land 1. The ripeness debate - "exhaustion of remedies" - landowner must commence and complete any procedures b/f zoning admin bodies that could have given the relief asked and must have been denied the relief - this can be ridiculously complex Neighbors' Challenge to Rezoning 1. Issue - does the neighbor have standing? Anderson v. Island County SCt of Washington (1972) Facts: 1. March 1966 - Island Sand relocated gravel ops to a 17 acre tract in Holmes Harbor - began to build a cement batching plant 2. Dec 1966 - County Commissioners zoned the entire Holmes Harbor as residential 3. 1969 - Island Sand files an app to operate the plant with Island County Board of Adjustment - withdrew app after being advised that it would not succeed 4. Sept 1969 - Island Sand files another app w/ Island County Planning Commission - denied 5. Oct 1969 - Island appeals this decision to the Board of County Commissioners

- Board rezones - commercial -> residential 6. Anderson is a resident of Holmes Harbor Procedure: 1. Anderson files w/ Island County Superior Court - his complaint - County Board acted arbitrarily - and this is "spot zoning" - court upholds decision of County Commissioners Issue: Is this zoning change unconstitutional? Holding: Yes; This is spot zoning and it is arbitrary and capricious action; it was reclassified for the exclusive benefit of Island Sand w/ no real benefit to the public Reasoning: 1. Does Anderson have standing? - yes, he is a neighboring land owner - he has a protected interest 2. What is the standard of review? - courts only look for "manifest abuse" - plaintiff's burden - the public authority abused its discretion and is guilty of arbitrary, capricious, and unreasoning conduct 3. What did the County Board of Commissioners find? - a portion of the plant was in operation at the time the new zoning was passed - this court - the plant had not yet started; also, the intent of the zoning was for everything to be residential that wasn't already operating as commercial - soil tests reveal that the area is not good for residential - this court - this soil isn't any different than the soil everywhere else - the island is expanding; consequently, it needs cement - this court - wrong, there are 3 other companies on the island that do the same thing - provides jobs - this court - only employs 10 people - and employment alone is not a substantial contribution to general welfare - what is the detriment to the public? - ugly, noisy, lessens surrounding property values - the need to rezone the property to commercial in the middle of a residential one is outweighed by this detriment to the public - putting a 10 foot green buffer around it will work - but this doesn't hide noise 4. Therefore, this rezoning does not have a substantial relationship to the public welfare 5. Is this spot zoning? If so, then this makes it even more arbitrary and capricious - def - designed to favor a particular individual or group and not the welfare of the community as a whole

- not illegal per se - but but if it is not for the general welfare, than it's normally illegal - instant - Island Sand is the primary beneficiary of the change in zoning - a smaller area has been singled out of a larger area for a use totally different from and inconsistent w/ that of the surrounding district - this is spot zoning and it's not for the general welfare (arbitrary and capricious) 6. Also, this is all supported by the fact that the chairman of the County Board was the former owner of Island Sand - and made his decision b/f the other side's witnesses were even done talking Notes: 1. spot-zoning - the zoning is out of keeping w/ surounding zoning and usage - inconsistent w/ the overall plan - the spot is small 2. PUD - planned unit development - avoids spot zoning arguments; avoids variance issues - get an entire parcel re-zoned - get all the lots rezoned all at once - the new zone is zoned to your development footprint - need your architectual drawings - essentially treats an entire development as one building