Elements of Zoning Flashcards
What are the two levels that statutory law of zoning operates on?
State Level: Enabling Statutes
create home rule statutes which say what local government can and cannot due including whether the local government can engage in zoning
Local Level: Ordinances
Enacted by city government/councils. For zoning there would be a zoning ordinance.
What do zoning ordinances do?
They dictate where things can and/or should be according to the law
Very few cities have zoning ordinances. (T/F)
False. Almost every city in the country has a zoning ordinance with the big exception being Houston.
Village of Euclid v. Ambler Realty Co. holding
Zoning is within a government’s police power to promote health, safety, and welfare of its citizens. As such, zoning ordinances will be upheld so long as they are not unreasonable, arbitrary, or capricious.
How are zoning ordinances like nuisance laws?
Both zoning and nuisance rules illustrate the policy preferences of legislators. Further, both zoning and nuisance rules can keep certain industries out of certain areas of limit how individuals may use and enjoy their property.
Now that the Court has determined zoning to be constitutional, plaintiffs are no longer able to challenge any zoning decisions. (T/F) If false, what would plaintiffs be able to challenge?
False. While plaintiffs can no longer challenge zoning in general, a plaintiff can still challenge individual zoning areas.
Can challenge things such as: whether a particular zone makes sense, whether particular property belongs in a given zone, or what type of property is allowed in a specific zone.
If zoning is shown to be unreasonable and arbitrary, plaintiff could win.
Why was it important for the Court to acknowledge that there are still ways to challenge zoning?
There is an overall acknowledgement that municipalities are ever changing. If zoning was rigid and could never be challenged, evolving municipalities could never truly adjust.
Note: ALL home rule statutes allow changes to zoning.
Zoning is just about the buildings/types of property. (T/F)
FALSE. Zoning is about people as well as buildings.
Papke mentioned this when reviewing the City of Euclid Analysis Dicta – sometimes the bias is not necessarily about the actual structures being built but the people who may live in the buildings. Zoning is a way to keep certain people or businesses out of certain areas.
Ways to change a zoning ordinance?
Applicant/Map Amendment
Conditional or Special Use
Variances
What is an applicant/map amendment? What is the key case for illustrating how this works?
Most zoning amendments come from individual parties that want their properties rezoned.
Individual applicant appears in front of zoning commission to argue for rezoning, arguments typically do not follow legal arguments such as rules/facts, but instead consist of financial assets of proposer for quality development work/investment.
Bartram v. Zoning Commission (finding spot zoning permissible when it aligns with the city’s comprehensive plan, because the zoning commission’s judgment on such amendments is not typically overridden by courts).
What is conditional or special use? What is the illustrative case here?
Citing that something could reasonably fit into the area in the future, but for whatever reason use does not exist yet.
i.e. Gas station for the area.
Possible that the council is receptive of these but hold off approval until they see an actual development plan
Kotrich v. County of DuPage (approving the development of a country club with outdoor recreational facilities in an R3 residential zone under a special use permit, because such uses are increasingly recognized as beneficial and less controversial, potentially enhancing property values and neighborhood amenities).
What are variances? What is the illustrative case here?
Seeking waiver on whatever restriction is causing an inconvenience/intolerable situation for their property
To get a variance, a person must demonstrate that they would suffer a “hardship” if the variance is not granted
Hardship cannot be created by property owner.
State ex Rel. Ziervogel v. Bd. of Adjustment (holding that the current standards for obtaining a use variance were too restrictive, necessitating a reevaluation under a less stringent standard, because the overly strict requirements prevented reasonable use of property without sufficient justification, thus balancing individual property rights against zoning objectives).
What are the two types of variances?
Bulk/Location/Area Variances
Goes to size/space/height of property. eg, zoning ordinance has height limit but property owner wants to add a floor to their house, would seek an Area Variance.
Use Variance
Goes to what you can do with or on the property. eg, you want to run a day care business in your home but you are in a residential only zone so you would need to seek variance for day care facility.
How does zoning tie into the dynamics of property and power?
Connections to zoning board members may get you further than any “good legal argument” might.
People with less means may not even be aware of zoning boards, how they operate, or how to make an argument regarding zoning
Zoning is about people as well as buildings
if you want to keep certain people, such as lower class tenants, out of a certain area, you can zone them out
by zoning for only single family homes, or requiring lots to be of a certain size, a board can effectively keep out certain groups of people
Think of Justice Sutherland’s dicta in Euclid as he described apartment housing as “mere parasites” that take advantage of open spaces.
Zoning is a way to keep certain people or groups out of certain areas (think of increased suburbanization). The idea of suburbanization was recognized in the Euclid case as the court indicated that municipalities can zone how it pleases as long as the zoning is not arbitrary or unreasonable.
What is a nonconformity? eg?
When a new zoning ordinance is put into place but there is property within that zone that doesn’t fit within those new requirements.
Note: the structure at one point did fit in with the original zoning requirements but after the ordinances enactment the continued use of the structure becomes a nonconformance.
eg, Old farm in the middle of two new neighborhoods
