AMERICAN WAY OF ZONINGAMERICAN WAY OF ZONING

A ROAD WELL TRAVELEDLecture 1

Developmental HistoryDevelopmental History

Formation period – inception to 1900Comprehensive nuisance controls

“Let Each Use His Own So As Not To Injure Others”

Private and Public Nuisances

Nuisance ConceptsNuisance Concepts

Unreasonable interference with a property right

Non-Trespassory InvasionNuisance Per Se – At all times and

placesNuisance Per Accidens – Times and

Location

Nuisance RegulationsNuisance Regulations

Not necessary to show neglect or reckless use

Suitability of the use to the character of the neighborhood]

A person may not come to the nuisance

Remedy is abatement or injunction

Conceptual Period 1900 - 1926Conceptual Period 1900 - 1926

Developing formation of the police power

Concurrent movements – housing, pure food and drug, parks, good government, and City Beautiful

Formation of the American Institute of Planners and the visits to Europe

The discovery of Swiss ‘Zoning’

New York City - 1916New York City - 1916

First comprehensive zoning ordinance adopted

Zoning shapes the city. Through zoning, a city regulates building size, population density and the way land is used. Zoning recognizes the changing demographic and economic conditions of the city and is a key tool for carrying out planning policy. New York City enacted the nation's first comprehensive zoning resolution in 1916

Nature of the NYC OrdinanceNature of the NYC Ordinance

Housing

Commerce

Industry

Heavy Manufacturing

Pyramidical

Cumulative

NYC Ordinance Based LegislationNYC Ordinance Based Legislation

Enabling LegislationThe Players

Planning CommissionGoverning BodyBZA or Board of AdjustmentThe Comprehensive PlanThe Zoning Text and Map

Purpose of the OrdinancePurpose of the OrdinanceTo divide the community into use

zones and intensity districtsTo establish the district regulationsCreate the enforcement powersCreate the terms of art and definitionsCreate the supplemental regulations

governing the operation of the ordinance

The Original MapThe Original Map

The Interim 1916 - 1924The Interim 1916 - 1924

Zoning is America is a revolutionary step in the face of unbridled and unfettered use of private property

However, there is no serious appellate court test of the constitutionality of this instrument

Adoption Spreads RapidlyAdoption Spreads RapidlyThe rush to adopt state legislation

(Kansas in 1921) is fueled by the efforts of the various state chambers of commerce and key planners in major cities.

Within 6 years after the NYC ordinance, at least 1,800 American towns and cities adopt zoning as a land use control tool.

The OpponentsThe Opponents

Rapid adoption does not escape the notice of many organized lobby groups

Notable – The National Realty Association and the Homebuilders Association

The Stage is set in Euclid, Ohio

Village of Euclid, OhioVillage of Euclid, Ohio Euclid, in 1922, is a small town – a

suburb of Cleveland Ohio Summary of facts:

Ambler owned property in Village of Euclid that it intended to sell for industrial purposes. A new zoning ordinance (1922) in Euclid, however, prevented industrial uses on significant portions of the property, only allowing development that commanded a considerably lower sale price than Ambler expected.

Ambler Realty v EuclidAmbler Realty v Euclid What is the plaintiff's complaint?

Zoning that excludes industrial uses in a growing industrial corridor reduces the value of the land and constitutes a taking.  In addition, zoning in general could significantly disturb the metropolitan real estate market by thwarting natural market forces.

What is the basis for the plaintiff's legal claim?14th Amendment to the U.S. Constitution guarantees that liberty and property cannot be taken without due process of law and payment of just compensation. Claim is that the zoning ordinance violates this amendment. (This is a question of substantive due process, rather than procedural due process.)

District and Ohio Supreme CourtDistrict and Ohio Supreme Court

The district court (Ohio) finds for the Village of Euclid.

The Supreme Court of Ohio upholds the district court decision finding that the use of zoning based on police power objectives is a constitutionally permissible action

Federal District CourtFederal District CourtAmbler Realty jumps jurisdictions

and files and parallel suit in U.S. District Court under federal questions.

Judge Westerhaven finds an equal protection issue and rules for Ambler Realty

The controversy is now set for the the U.S. Supreme Court

U.S. Supreme CourtU.S. Supreme Court Supreme Court reverses lower court's decision that

Euclid's zoning ordinance was unconstitutional. It decides that the municipality can use its police power to enforce zoning ordinances that are established to ensure the public good. It determines that industry can be excluded from residential areas, even in a growing industrial village. It also determines that even retail trades and apartment buildings can reasonably be excluded from single-family areas in order to preserve an order, safety, and preferred character. It notes that the value lost on the land in question is irrelevant.

Sutherland’s DecisionSutherland’s Decision

A 5-4 vote of the U.S. Supreme Court

Based on solid studies and a planValue of property is speculative – a

mere diminishment is not a takingProtects injury to the residential

public

Review of Constitution BasisReview of Constitution Basis

The Police Power – The power reserved to the states to protect the public health, safety and welfare

The 5th Amendment - “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”

Applicable to the StatesApplicable to the StatesThe 14th Amendment - No State shall

make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In Simple TermsIn Simple Terms

The government must not take private property for a public purpose

Due process of law is required to deprive anyone of a property right

Equal protection requires that people must be treated the same unless there is a compelling reason for the difference

TakingTaking

A “taking” is a touching or a physical invasion of property.

A regulatory taking occurs when the governmental restriction or burden on property is so great that in renders the property valueless or practically valueless

Due ProcessDue Process

Due ProcessProcedural – Related to fairness and

equity of treatment. In other words “reasonable”

Substantive – Relates to the very substance and spirit of the law. It goes to the fundamental purpose of the legislation

A Break in SubjectA Break in Subject

Private v Public RegulationPrivate v Public Regulation

Simple put, public land use regulation is only a part of the burden placed on the use of private property

A simpler way is to do it to ourselves

Why Private RegulationWhy Private Regulation

Empowers the market – guarantee of useful ownership

Protect sellers from buyers and sellers from buyers

Swift and merciless enforcementAvoids governmental

entanglement

Private Regulation – Fee or ContactPrivate Regulation – Fee or Contact

Private Regulation as Ownership

In this mode, an instrument is created to run with the title to property giving adjacent owners (appurtenant) or remote owners a right on the land of another (in gross)

By Contract – Its ElementsBy Contract – Its ElementsMutual Agreement – Free informed

consentOffer and Acceptance – expression of

mutual agreement, offer must be identical to substance

Consideration – of valueObject – purpose must be lawful/validTime – specifies the frame for duties

Contractual InstrumentsContractual Instruments

Servitudes Negative – To refrain from a specified

actionPositive – An affirmative duty to

perform some actEquitable servitudes – Benefit and

burden is reciprocal

Covenants – Deed RestrictionsCovenants – Deed Restrictions

A contractual agreement to restrict the use and enjoyment of property

Covenants, as a contract, must run for specified periods of time

Method of amendment or repealMust serve a substantial purpose

and not violate a protected constitutional right

Covenant ExamplesCovenant ExamplesMust have a two car garageAll building plans approved by developerNo business in homesNo external color changeNo metal roofsPickup trucks must be screenedFences constructed from 1st quality wood

Public – Private RelationshipPublic – Private RelationshipFirst, you can’t fight City Hall. Our

regulations take precedence over private when ours are more restrictive

Second, the government will not enforce or honor private regulations between two parties

Third, hell has no fury like a civil suit between two property owners

Back to the Zoning OrdinanceBack to the Zoning Ordinance

First Things FirstFirst Things First

Know where you are!Understanding legal descriptionReading legal descriptionsUnderstanding a survey

Section – Range - TownshipSection – Range - Township

A section is a square unit of land (almost) surveyed as one mile on each side

Each section is given a unique identification number

A township is a square grouping of 36 section (usually) 6 X 6 miles – it is not a political township

NumberingNumberingSections are number beginning in the NE corner of the township and then falling sequentially to the next descending tier

Township - RangeTownship - Range

E

S

BaselineW

N

Locating Within the SectionLocating Within the Section

NW ¼ of the NE ¼

SE 1/4

SE ¼

NE ¼

SE 1/4

SW ¼ SW ¼ NE ¼

640 Ac

The SystemThe System

Baseline

10

10

10 10

N

S

W E

T 10 N – R 1 E

Try it – Identify the “X’s”Try it – Identify the “X’s”

NW

Finding the Exact LocationFinding the Exact Location

POB

N 00 285’

N 90 E 348’