Zoning

Question 1

Zoning - Housing Composition
Moore v. City of East Cleveland
(invalidating Single Family Zoning Ordinance)

Answer 1

“Family” defined to include no more than one set of grandchildren.
- Distinguishing Belle Terre:
1) BT affected “unrelated” individuals
(it allowed all blood relatives to live together)
2) Ordinance in Moore DIVIDES the FAMILY -
(INTRUSIVE + ARBITRARY.)

Question 2

Zoning Amendments = REZONING

“Spot Zoning”

Answer 2

Definition: Permission to use an “ISLAND” of land for a more intensive use than permitted on adjacent properties.
INVALID IF:
1) a small parcel is singled out for SPECIAL TREATMENT
2) NOT IN THE PUBLIC INTEREST - only for the landowner
3) Action = NOT IN ACCORD WITH THE COMPREHENSIVE PLAN.

Question 3

“Legislative” SPOT ZONING

Answer 3

PRESUMED VALID (unless discriminatory / illegal)
ENTITLED TO JUDICIAL DEFERENCE
Only Overturned if there is NO RATIONAL BASIS for the Exception.

Question 4

ADJUDICATIVE REZONING

Answer 4

• Reflects a judgement made on the use of a specific property,
  NOT GENERAL LEGISLATIVE POLICY DECISIONS AFFECTING A LARGE AREA
  (Burden on Zoners to show need for a change)
  NO DEFERENCE

Question 5

ZONING + DELEGATION

Answer 5

Zoning Ordinance Cannot Delegate Legislative Discretion to Determine Whether Use Would affect Health, Safety, Welfare.

Question 6

COPE V. TOWN OF BRUNSWICK

Improper Delegation of Legislative Authority

Answer 6

Ordinance improperly delegates legislative authority to determine whether a proposed use would adversely affect the health saftey or general welfare of public + whether the use would “alter the essential characteristics of the surrounding property.
LEGISLATURE MUST:
- provide guidance = Specific Conditions, and may delegate discretion on whether conditions are met.
- Cannot delegate legislative power.

Question 7

Special Exceptions:

“Conditional Uses”

Answer 7

Special Exceptions are authorized under conditions which will ensure their compatibility with surrounding uses.
- an exception is a use ‘permitted by the ordinance’ in a district not necessarily incompatible, but where harm may be caused if not watched.
- demands a lot of land,
- may be public or semi-public in character,
- might be noxious or offensive
Hospital in a residential zone - traffic and area occupied
Gas Station in a commercial zone

Question 8

Zoning Variances (Example)
Owner wants to get a variance to build a porch to his house for his disabled child.  House is already in violation. 
Should a variance be granted?

Answer 8

NO

• Existing violations cannot be a basis for more violations
• Personal Hardships - IRREVELANT

Question 9

Zoning and Economic Discrimination
Southern Burlington NaaCP v. Mount Laurel
Issue: Can a Developing City make it impossible for Low and Middle Income people to find needed housing, thus excluding them from the city through the use of ZONING?

Answer 9

(Based on State Law)

1) Every Developing Community must make a variety of housing available
2) Only Exception = PECULIAR CIRCUMSTANCES EXIST allowing it not to provide a variety of housing.
3) Housing Availability = Fundamental Issue
4) All Categories of Housing are ESSENTIAL FOR GENERAL WELFARE
5) Zoning does not accomplish / Promote the General Welfare = Facially Unconstitutional

Question 10

Zoning + Controls of Household Composition
Village of Belle Terre v. Boras
Village Zoning ordinance restricts housing to One-Family Dwellings
One-Family = “Those related by blood” or up to TWO PEOPLE “not Blood Related”.

Answer 10

Majority Upholds Ordinance B/C

1) Zoning used to create a more attractive community
2) Law is not Discriminatory, No Race or Class Involved.
3) No fundamental right involved (not voting / no free association)
4) Rational Basis Scrutiny Test
5) “Family” definition is at the discretion of the legislature.

Question 11

Zoning - Aesthetic Regulation
State Ex. Rel Stoyanoff v. Berkeley
- Legislation restricting architectural features, and requiring conformity to minimal standards

Answer 11

Legitimate State Interest = Preserve Property Values
Enabling Legislation permits attention to be paid to:
1) Character of the neighborhood
2) Preserving property values
- Within the police power
- not wholly aesthetic regulation
- serves the purpose of preserving property values.

Question 12

Zoning - NON CONFORMING USES

Answer 12

• Use or structure not in conformity with newly enacted zoning ordinances
• must exist at the time of the ordinance takes effect
• Non-Conforming Use = RUNS WITH THE LAND.
• Only Ownership & PLAN FOR USE = INSUFFICIENT.

Question 13

Zoning - AMORTIZATION PROVISIONS

Answer 13

• Allow a non-conforming uses to continue only for a specified maximum period of time.

Question 14

LAWFUL PRE-EXISTING LEGAL - NON CONFORMING USE

Cannot be Amortized, Unless

Answer 14

1) It is a nuisance
2) it is abandoned
3) it is extinguished by imminent domain
4) Instance of Force Majeur (Act of God).

Question 15

Zoning + Non Conforming Uses
Sullivan v. Zoning Board Rule
Amortization of Non-Conforming uses is Constitutional IF:

Answer 15

• Reasonable (Factors)
  1) Impact on the property
  2) Nature of the present use
  3) Time given to comply (must be reasonable)
• Based on time needed to recoup investment in use / structure
  4) Present characteristics, future propects.
  5) Beneficial effect on the community more than offsets the loss.

Question 16

Zoning:

Challenging Zoning Ordinances as Facially Unconstitutional

Answer 16

Euclid Court:

• Considered only whether statute was unconstitutional ON ITS FACE
• Challenged the GENERAL OPERATION OF THE ZONING LAW IN MOST CASES
• Legitimate State Interest + Rational Means = CONSTITUTIONAL

Question 17

Challenging Zoning Ordinances:

- Unconstitutional As Applied.

Answer 17

Unconstitutional AS APPLIED = Challenging a provision in the zoning ordinance as applied to specific development of the land.

Question 18

Substantive Due Process Analysis

Answer 18

Court will review a law challenged as unconstitutional as a violation of substantive due process in 3 steps:
1) In Enacting the law or ordinance is the state promoting a legitimate State Interest - Safety, Public Health, Morals, General Welfare)
2) Is the Means to Promote the LSI RATIONALLY RELATED to achieving the LSI.
3) UNCONSTITUTIONAL ONLY IF LAW is:
ARBITRARY AND CAPRICIOUS - No relation to promotion of LSI.

Question 19

Zoning in EUCLID

Euclidian Zoning = Cumulative Zoning

Answer 19

Cumulative Zoning Ordinances

• Different Zones or Districts are ranked in a hierarchy
• Higher uses may be located in all lower zones
• Exclusive zoning (Opposite) Permits only expressly authorized activities.

Question 20

Euclid V. Amber Realty

Answer 20

• Facts Show ordinance is not unreasonable, or arbitrary,
• Zoning does have a rational relation to the public health / saftey.
• Zoning protects some property values, drops others.
• Gov. not “Taking”, but shifting property rights among different private parties.

Question 21

Area vs. Use (Requesting Variances)

Answer 21

Burden of Proof = Greater for USE VARIANCE
Alternative Standard for Area Variances:
- Balancing Test: Benefit to Applicant vs. Detriment to Health Safety / welfare of the community.
Use Variance Standard:
- Must show land cant earn a reasonable return w/out variance, hardship is unique + does not apply to substantial part of neighborhood , Not self-inflicted harm.

Question 22

Self- Imposed Hardship

- Examples:

Answer 22

1) Knowledge or constructive notice that a variance would be required to develop the land
2) Buyer purchases land that is undersized b/c original developer laid out the parcel for common space, not for development.
3) Starting construction on a roof in violation of height requirements, then applying for variance
4) Selling off side lots + seeking to develop land in violation of the size by seeking variance.

Question 23

Area v. Use variance
Hertzberg v. Zoning Board
Appellant seeking an area variance for lodging house of 3400 sq ft. to be operated in a commercial zone permitting min 5000 sq. ft.
(Zone did not allow group care / institutional facilities)

Answer 23

Holding:
Area variance, not use variance for emotionally unstable women’s facility proving basic needs, counseling, and life skill training.
DISSENT:
- Disguised Use Variance

Question 24

Floating Zones

Answer 24

TWO STEP PROCESS

1) Gov. Creates a USE district, but does not Pin it Down.
2) Gov pins it down through amendment.

Question 25

Cluster Zones

Answer 25

Developers are permitted to build in a pattern not in literal compliance, but complies with the spirit of the zoning requirements, e.g. amenities of rural environment in an urban setting.

Question 26

Zoning + FHA Act
City of Edwards v. Oxford
- FHA exempts rules / ordinances that put max occupancy regulations on districts

Answer 26

Edmonds provision governs single-family dwelling units and defines family as relatives by blood, adoption, marriage or unrelated groups of 5 or fewer.
Edmonds ordinance is not exempted by FHA, NOT A MAX OCCUPANCY RULE.

Question 27

FHA 3604(F)(1) 
It Shall be Unlawful to discriminate in the sale or rental or to otherwise make unavailable or deny a dwelling to any buyer b/c of a handicap.
Oxford House intersted in buying a house on sale, but the neighbors object + offer to buy and the broker sells to the neighbors? VIOLATION?

Answer 27

No, No Discrimination, and

Oxford made no offer.

Question 28

PUD (Planned Development Units)

Answer 28

• Mix of Residential, Commercial, and Sometimes industrial uses
• Area and use variations.