Zoning Flashcards
Zoning - Housing Composition
Moore v. City of East Cleveland
(invalidating Single Family Zoning Ordinance)
“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.)
Zoning Amendments = REZONING
“Spot Zoning”
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.
“Legislative” SPOT ZONING
PRESUMED VALID (unless discriminatory / illegal)
ENTITLED TO JUDICIAL DEFERENCE
Only Overturned if there is NO RATIONAL BASIS for the Exception.
ADJUDICATIVE REZONING
- 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
ZONING + DELEGATION
Zoning Ordinance Cannot Delegate Legislative Discretion to Determine Whether Use Would affect Health, Safety, Welfare.
COPE V. TOWN OF BRUNSWICK
Improper Delegation of Legislative Authority
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.
Special Exceptions:
“Conditional Uses”
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
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?
NO
- Existing violations cannot be a basis for more violations
- Personal Hardships - IRREVELANT
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?
(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
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”.
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.
Zoning - Aesthetic Regulation
State Ex. Rel Stoyanoff v. Berkeley
- Legislation restricting architectural features, and requiring conformity to minimal standards
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.
Zoning - NON CONFORMING USES
- 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.
Zoning - AMORTIZATION PROVISIONS
- Allow a non-conforming uses to continue only for a specified maximum period of time.
LAWFUL PRE-EXISTING LEGAL - NON CONFORMING USE
Cannot be Amortized, Unless
1) It is a nuisance
2) it is abandoned
3) it is extinguished by imminent domain
4) Instance of Force Majeur (Act of God).
Zoning + Non Conforming Uses
Sullivan v. Zoning Board Rule
Amortization of Non-Conforming uses is Constitutional IF:
- 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.
Zoning:
Challenging Zoning Ordinances as Facially Unconstitutional
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
Challenging Zoning Ordinances:
- Unconstitutional As Applied.
Unconstitutional AS APPLIED = Challenging a provision in the zoning ordinance as applied to specific development of the land.
Substantive Due Process Analysis
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.
Zoning in EUCLID
Euclidian Zoning = Cumulative Zoning
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.
Euclid V. Amber Realty
- 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.
Area vs. Use (Requesting Variances)
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.
Self- Imposed Hardship
- Examples:
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.
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)
Holding:
Area variance, not use variance for emotionally unstable women’s facility proving basic needs, counseling, and life skill training.
DISSENT:
- Disguised Use Variance
Floating Zones
TWO STEP PROCESS
1) Gov. Creates a USE district, but does not Pin it Down.
2) Gov pins it down through amendment.
Cluster Zones
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.
Zoning + FHA Act
City of Edwards v. Oxford
- FHA exempts rules / ordinances that put max occupancy regulations on districts
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.
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?
No, No Discrimination, and
Oxford made no offer.
PUD (Planned Development Units)
- Mix of Residential, Commercial, and Sometimes industrial uses
- Area and use variations.
