Chapter 14: Zoning

Question 1

Police Power and Improper Nuisance Control
-Can Developer attack the ordinance, which seeks to reduce traffic and pollution and improve the emotional well-being of the citizenry, because City’s use of its police power was actually improper nuisance control?

Answer 1

-As stated in Lucas, while the state can use its police power to enact laws and regulations for the health and safety of its citizens, and, in this regard, eliminate nuisance, which is never a taking, the nuisance must be a “common law nuisance”. Although the Supreme Court has never defined what a common law nuisance is, Lucas state that the state could proscribe a use of property that was not part of the landowner’s title. Under Lucas, the emission of toxic fumes, as in Hadachek is never part of a landowner’s title, while building a house is part of title and, thus, never a common law nuisance.

Question 2

Substantive Due Process
-Assuming that the ordinance comports with the police power, does the ordinance nonetheless violate the Substantive Due Process Clause of the 14th amendment?

Answer 2

-Social welfare legislation, which includes zoning ordinances, will violate the Due Process Clause if the challenger can establish that the ordinance is not rationally related to a legitimate government interest.

Question 3

Rational Relationship
-Does the ordinance satisfy the rational relationship test when many experts testified that the ordinance will not actually reduce traffic, pollution, or improve the citizenry’s emotional well-being?

Answer 3

-An ordinance will satisfy the rational relationship test when it is not fully arbitrary and the legislature could believe that the legislation will further the legitimate government interest.

Question 4

Legitimate Government Interest
-Is the reduction of pollution and traffic, and the improvement of the emotional well-being of the citizenry a legitimate government interest?

Answer 4

-A legitimate government interest in the due process realm includes laws for the health and safety of the citizenry and, therefore, is coterminous with the police power.

Question 5

Regulatory Taking: Penn Central Ad Hoc Analysis (This is ch 15 takings btw)
-Does the ordinance, by preventing Developer from building single-family homes, go “too far” and constitute a regulatory taking in light of the Penn Central ad hoc analysis?

Answer 5

-The Penn Central factors are: interference with distinct investment backed expectations (DIBE); average reciprocity of advantage; character of the government action; and diminution in value.

Question 6

DIBE
-Did the ordinance interfere with Developer’s distinct investment backed expectations when he bought the land, intending to build single-family housing but the subsequently enacted ordinance precludes him from building houses and diminishes his anticipated profit?

Answer 6

-While the Supreme Court has never defined this term (DIBE), it probably related to an owner’s reasonable expectations, recouping his initial capital investment, or a reasonable return on his capital.

Question 7

Character of the Government Action
-Does the ordinance, barring Developer from constructing single-family homes, act as a taking when examined in light of the Penn Central factor of considering the character of the government’s action?

Answer 7

-What constitutes character of the governmental action is not totally clear, although it apparently may be applied in the context of balancing the harm to the landowner with the benefit to the public.

Question 8

Average Reciprocity of Advantage
-When the ordinance denied Developer the opportunity to build single-family homes because of traffic and pollution concerns, did Developer receive an average reciprocity of advantage?

Answer 8

-Although is it not fully clear what the Supreme Court means by the term, apparently the term means that either (1) the landowner was not singled out for harsh treatment, or (2) that even while the landowner cannot develop his land as he chooses, he or she nonetheless has received a benefit from the governmental restriction, or (3) both.

Question 9

Economic Impact: Diminution in Value
-When the ordinance devalues Greenacre by 75%, is that a diminution in value so great that it should be a factor in determining that there was a regulatory taking?

Answer 9

-As stated in Penn Central, in determining whether the governmental action went “too far” we examine the extent of the diminution in value caused by the government’s action. The greater the diminution in value, the greater the chance the court will find a taking.