Zoning, Variances and Takings

Property Law

comprehensive zoning laws

regulate all land uses within a zone, not those that may be nuisances (like area, height, exterior design, etc)

police power

States can regulate activities relating to public health, safety, morals or general welfare

how do states have police power?

granted by the state constitution to state legislatures

breath of police power

is both plenary and reserved

what does plenary mean in property law

it is inherent in the function of a legislature

what does reserved mean in property law

it is retained by the legislature, if it is not delegated to local (municipal) governments

what powers do local (municipal) governments have?

only have the power delegated to them by a state constitution or by legislation

can municipal governments enact zoning ordinances?

only if the power to enact zoning ordinances is NOT granted to them by a state’s constitution, then they do not have the power to legislate (i.e. enact zoning ordinances)

board of zoning adjustment or board of zoning appeals

this is the administrative body that enforces zoning ordinances

they have the power to also grant variances and special exceptions

a landowner can appeal any of this board decisions to a court

variance

excuses a landowner from a provision of the zoning ordinance if complying with the ordinance would cause undue hardship or practical difficulties

special exception (aka conditional use)

land uses expressly allowed in a use district if certain conditions listed in the ordinance are met

ex. may be granted for a library/church/hospital to be located in a district zoned for single family residences

the use of the word “zoning” in modern language

often used to mean all forms of land use regulation

what was the issue in Euclid v Ambler Realty? what did the court say?

Issue: The constitutionality of zoning, the plaintiff argued that zoning violated rights to substative due process and equal protection under the 14th Amendment

Holding: The court held that zoning was generally constitutional

why was the Euclid ordinance facially constitutional?

regulated nuisance-like impacts

ex. you probably don’t want the traffic of a commercial area or the smog of a industrial area mixed in with residential homes where people live

what is the rule that emerged from Euclid?

zoning is a valid exercise of police power

it will be declared unconstitutional only if it is clearly arbitrary and reasonable, having no substantial relation to public health, safety and welfare

what important principle did Nectow v Cambridge establish?

a zoning ordinance might be unconstitutional as applied to a particular parcel of land

what was the rationale for the principle in Nectow?

if the application of the ordinance has nothing to do with the public health, safety or welfare - then its unconstitutional

what were the facts in Nectow?

In Nectow, the plantiff’s land was restricted to residential use, even though adjacent industrial and railroad uses made the land highly undesirable for housing.

The trial court concluded this land can’t be used for residential purposes even though it is zoned as such.

Ergo, unconstitutional application of zoning ordinance to this parcel of land.

what kind of development does zoning regulate?

zoning regulates future development

what is a nonconforming use?

use of land that lawfully existed before the zoning ordinance was enacted, but that does not comply with the ordinance

ex. it might violate use restrictions (a bakery in a residential area), height restrictions (taller than what a zoning ordinance might dictate) or lot coverage, frontage, etc.

why allow for nonconforming uses to continue?

banning non-conforming uses would:

1. leave traditional zoning more vulnerable to constitutional attacks

2. foster public opposition of zoning in general

3. constitute a regulatory taking under the Takings Clause

4. nonconforming uses will eventually slowly die

why do zoning ordinances restrict nonconforming use

so that nonconforming uses slowly fade out (or adopt a conforming as set out by the ordinance)

types of restrictions on nonconforming use

1. you can’t expand a nonconforming use property

2. you can’t transform it into a different nonconforming use

3. you can’t make major structural repairs or alterations that will extend the duration of the nonconforming use

under what circumstances can the right to continue a nonconforming use be lost?

abandonment or destruction

how does abandonment of a nonconforming use occur?

1. owner intends to abandon the use

2. AND

3. use is discontinued for a substantial period

   1. usually 6 months to 1 year is sufficient to end the use, regardless of the owner’s intent

how does destruction of a nonconforming use occur?

the destruction of the nonconforming use or the structure containing the use usually terminates the right to continue nonconforming use.

if a bakery in a residentially zoned area fully burns down, can the owner rebuild it?

no. the bakery use ends and the conforming (residential) use of that property starts

what if only the kitchen of the bakery in a residentially zoned area burns down? can the owner rebuild it?

in some jurisdictions, the owner may rebuild if only a part of the nonconforming use is destroyed

so yes, the owner may be able to rebuild the kitchen if the jurisdiction allows

how can persistent nonconforming uses be eliminated?

through amortization

(popularized in the 1950s)

what is amortization?

gives the owner of the nonconforming use a fixed period of time to operate the use.

when that period ends, the non-conforming use ends.