Robert Kohutek Land Use Law CMP/REDEV 6260001 Spring 2014 Study Topics for the FINAL Exam 1. Law

1.1. What is law? Law refers to the principles and norms of a community, as articulated by an authoritative source, that regulate behavior, the compliance with which is ensured by binding sanctions.

1.2. What is the practice of law? 1.2.1. The practice of law is the application of legal principles to a complex set of

facts for another, with a reasonable expectation that they might act in response.

1.2.2. The preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity..."

1.2.3. To practice law, representing another person, you must be certified by a state bar.

1.2.4. The preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity.

2. Types of Governmental Power (related to planning & development)

2.1. Police Power 2.1.1. Definition: The capacity of a state to regulate behaviors and enforce order

within its territory for the promotion of the health, safety, and welfare of the public.

2.1.1.1. The inherent capacity of a sovereign states to regulate behavior and enforce order within its territory for the betterment of the health, safety, morals, and general welfare of their residents.

2.1.2. Limits: 2.1.2.1. Substantive due process 2.1.2.2. Reasonable relationship 2.1.2.3. Legitimate governmental purpose - Health, Safety, Welfare 2.1.2.4. Not arbitrary and capricious

2.2. Eminent Domain 2.2.1. Definition: The power of the government to take private property and

convert it into public use. 2.2.2. Limits:

2.2.2.1. 5th Amendment requires just compensation and public use or purpose.

2.2.2.2. 14th Amendment requires due process (substantive and procedural) 2.2.2.3. Must be a well-considered plan behind the public purpose. General

Plan for redevelopment of a commercial center on dilapidated lands. 2.2.2.4. Must satisfy public use doctrines. Must be a means and ends.

Plausible public purpose and a reasonable means to achieve the purpose. Rational process to implement.

3. Nuisance

3.1. Definitions 3.1.1. Private Nuisance: A private nuisance is a civil wrong; it is the

unreasonable, unwarranted, or unlawful use of one's property in a manner that substantially interferes with the [quiet] enjoyment or use of another individual's property, without an actual "Trespass" or physical invasion to the land.

3.1.2. Public Nuisance: A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community. Specifically, it is a significant and unreasonable interference with health, safety, and welfare, or interference with a "public right."

3.2. Elements of nuisance (factors that are considered) 3.2.1. Balancing: Courts seek to balance the rights of individuals to use their

land by establishing that landowners may not do so in a way injurious to the rights of others.

3.2.1.1. Is the land use reasonable? 3.2.1.1.1. Suitability of the Use: Suitability of the activity to the

character of the place 3.2.1.1.2. Social Utility: Value to society of the alleged nuisance 3.2.1.1.3. Gravity of the Harm: The hardship placed upon the

defendant 3.2.1.1.3.1. Cost of Avoidance 3.2.1.1.3.2. Cost to Cure

3.3. Nuisance and zoning (relationship between the two) 3.3.1. Compliance with all appurtenant ordinances does not constitute

reasonable use, nor does it bar plaintiffs from pursuing Nuisance claims. Private Nuisance actions allow individual lot owners to prove to the court that a permitted use affects a nuisance in the particular circumstances of the plaintiff's land. Plaintiff cannot be barred from PRIVATE nuisance claims just because another's property complies with ordinances. Although compliance with zoning ordinance does immunize a defendant from PUBLIC nuisance claims.

4. Prescriptive (Implied) Easements

4.1. Definition: Prescriptive easements are an easement upon another's real property acquired by continued use without permission of the owner for a specified period provided by state law to establish the easement. In a sense, they are similar to adverse possession.

4.2. Elements (factors): 4.2.1. Established use period of time 4.2.2. Notorious (done out in the open) 4.2.3. Failure to enforce

5. Restrictive Covenants

5.1. Definition: a mutual contractual agreement that restrict the usage of property for the benefit of the owners of a specified development. The relationship

between the restricted and the benefitted may become quite complex, especially over time with the successive sale of properties. The contract must define both the benefitted parties and proscriptions.

5.1.1. Servitudes are private rules that limit the use of privately held land for the benefits of the owners of designated parcels of land, and only those owners.

5.2. Elements required for an enforceable restrictive covenant 5.2.1. The grantor and grantee must intend that covenant run with the land; 5.2.2. The covenant must "touch" the land with which it runs: and 5.2.3. There must be "privity of estate" between the claimant/enforcer and the

promisor/burdened party. 5.2.4. Consistent with the public welfare (policy)

5.3. Restrictive covenants and zoning/land use permitting 5.3.1. Houston is an example of a land use permitting city through restrictive

covenants. City council is zoning example 5.4. Termination (Rescission): When a restricted covenant is lifted or nullified

5.4.1. Criteria: 5.4.1.1. When the purpose of the restriction has come to an end 5.4.1.2. Whether the parties would suffer damage by the removal of the

covenant

6. Planning & Zoning 6.1. Vertical Consistency the connection between planning & zoning

6.1.1. General Plan: Policy with a map 6.1.2. Zoning: Regulations with a map 6.1.3. Permit: Entitlement to land-use

6.2. Permitting 6.2.1. As of right uses: Uses that are customarily found in association with

principal uses, but are incidental and subordinate to them. The uses that are allowed without special permission. Example: Shed, unattached garage, RV pad.

6.2.2. Conditional Use: Specific uses allowed based on meeting certain criteria. 6.3. Variances

6.3.1. Definition: a variance allows property owners to prove that relief from the Zoning ordinance is needed, but such relief will not be detrimental to the integrity of the ordinance or the character of the surrounding neighborhood. Variances provide relief from unnecessary hardships that arise because of special conditions applicable to the affected parcel. They provide a safety valve that responds to unique circumstances, avoids as applied legal challenges by property owners, and preserves the spirit of the ordinance as drafted by the legislature.

6.3.2. Elements 6.3.2.1. Unnecessary Hardship Test:

6.3.2.1.1. Hardship caused by a unique physical characteristic: (A) An unnecessary hardship exists (B) which is not created by the variance seeker, and (C) which is caused by unique physical circumstances of the property.

6.3.2.2. Practical Difficulties Test:

6.3.2.2.1. A variance is needed to enable the party's reasonable use of the property.

6.3.2.2.2. The variance will not alter the essential character of the district, or substantially/permanently impair the use or development of the adjacent property such that it is detrimental to the public's welfare.

6.3.2.2.3. The variance will afford the least intrusive solution. 6.4. Nonconforming Uses

6.4.1. Definition: A use of land that was in existence when a Zoning restriction was adopted, but is now prohibited by that restriction. Zoning changes or enactments that makes an existing use nonconforming. Also, Grand parented in uses that were legal when they were created and have been in continual use. Allowed to continue unless theyve been discontinued, dramatically altered, or have been designated to be phased out over time, are a nuisance, lost or destroyed.

6.4.2. Establishment (What does it take to create one) 6.4.2.1. Was the use established before zoning? 6.4.2.2. Extent of nonconforming use? 6.4.2.3. Has there been a termination of the use? 6.4.2.4. Is the nonconforming use subject to termination because of

nuisance law? 6.4.3. Discontinuance/abandonment: A property owner's right to continue

a nonconforming use may be lost by abandonment. Originally, this required a voluntary, completed act of abandonment by the owner. The mere failure to continue the nonconforming use was not sufficient to establish abandonment. Although these rules still exist in some jurisdictions, modern zoning laws frequently stipulate that any discontinuance of the nonconforming use for a specified period constitutes abandonment. Courts hold that such provisions are sufficient to establish the owner's intent to abandon the nonconforming use as a matter of law.

6.4.3.1. Intent to abandon Walked away 6.4.3.2. Failed to act or some act that implies lack of interest

6.4.4. Expansion: Local laws often prohibit the enlargement, alteration, or extension of a nonconforming use. To allow the expansion of nonconforming uses, which the zoning law wishes to eliminate over time, would defeat that underlying policy. Normally, the law allows the owners of nonconforming land uses to perform property repairs, conduct normal maintenance, and complete internal alterations that do not increase the degree of, or create any new, noncompliance with the locality's zoning regulations.

6.4.5. Amortization: Ordinance that phases out certain non-conforming uses over a designated time period.

6.4.5.1. Factors of a reasonable amortization period: 6.4.5.1.1. Information relating to the structure located on the property

; 6.4.5.1.2. Nature of the use; 6.4.5.1.3. Location of the property in relation to surrounding uses;

6.4.5.1.4. Description of the character of and uses in the surrounding neighborhood;

6.4.5.1.5. Cost of the property and improvements to the property ; 6.4.5.1.6. Benefit to the public by requiring the termination of the

non-conforming use; 6.4.5.1.7. Burden on the property owner by requiring the termination

of the non-conforming use; 6.4.5.1.8. The length of time the use has been in existence and the

length of time the use has been nonconforming. 6.4.5.2. Must balance public gain of discontinuance with private loss

suffered by property owners 6.4.5.3. Some courts have questioned:

6.4.5.3.1. Is there useful life left? 6.4.5.3.2. Has the owner recouped original investment? 6.4.5.3.3. Is property fully depreciated for income taxes? 6.4.5.3.4. Is the amortization a legislative action? 6.4.5.3.5. No violation of disparate treatment of equal protection

6.5. Accessory Uses 6.5.1. Elements

6.5.1.1. Incidental/reasonably related 6.5.1.2. subordinateproportionally smaller 6.5.1.3. Customary/reasonably relate

6.6. Home Occupations 6.6.1. Elements

6.6.1.1. Not more than 25% of home used for home business 6.6.1.2. Home business must be secondary to residential use

7. The Subdivision of Land

7.1. Definition 7.1.1. Subdivision control: The regulation of the division of raw land into

building lots. 7.1.2. Subdivision regulations are land-use controls that govern the division of

land into two or more lots, parcels, or sites for building. 7.2. Purposes of subdivision regulation:

7.2.1. Subdivision regulations ensure the orderly growth and development of communities. Subdivision control and zoning control are preventive measures intended to avert community blight and deterioration by requiring that new development proceed in defined ways and according to prescribed standards.

7.3. Exactions/Dedications 7.3.1. What are they? Exactions and dedication are essentially the forced

transfer of property, because the developer seeks something from the government.

7.3.1.1. A condition for development is imposed on a parcel of land) City (unfairly) requires developer to give up something in return for approval

7.3.2. What standards must exactions/dedications meet to be constitutional?

7.3.2.1. Must meet demands of substantive due process and equal protection

7.3.2.2. Must have a Rational Nexus (Association) between impact and exaction.

8. Vested Rights

8.1. What is it? 8.1.1. Limits the authority of municipalities in certain cases to impose significant

new regulations on existing investments in land, such as completed structures, projects under construction, or projects already approved.

8.1.2. Vesting statutes are laws that create criteria for determining when a landowner has achieved or acquired a right to develop his or her property in a particular manner, which cannot be abolished or restricted by regulatory provisions subsequently enacted. This is called a vested right because it is a right that has become fixed ("vested ") and cannot be eliminated or amended.

8.1.3. Common criteria: 8.1.3.1. Substantial expenditure or liabilities 8.1.3.2. Substantial construction with the intention of continuing 8.1.3.3. Official government statement (Work and expenditures done in

good faith reliance on the preliminary or final plan approval, issuance of a permit)

8.2. Utahs vesting rule 8.2.1. In Utah, a landowner is said to be vested when their application is

complete. 8.2.2. Exceptions:

8.2.2.1. Compelling countervailing (offset the effect of (something) public interest

8.2.2.2. If the zoning change is already in process

9. Developer Agreements 9.1. What are they?

9.1.1. A statutorily authorized, negotiated agreement between a local government and a private developer that establishes the respective rights and obligations of each party with respect to certain planning issues or problems related to a specific proposed development or redevelopment project.

9.1.2. A bilateral contract between developer and municipality whereby municipality agrees to guarantee to the developer the right to develop the project for a defined number of years regardless of future changes to zoning law or subdivision regulations in exchange for certain negotiated public amenities or a fee in lieu therefor that the municipality might not otherwise legally be able to require the developer to contribute. Both sides benefit.

9.2. What are the limits on their use? 9.2.1. In order to prove a violation of the Contracts Clause, a plaintiff must first

prove that there is an enforceable contract that the government has impaired

in some manner. If there is no enforceable contract, there is no violation of the Contracts Clause.

10. Constitutional Limits on Land Use Regulation

10.1. Substantive Due Process: Requires that land use regulations serve a legitimate purpose.

10.1.1. Elements/requirements 10.1.1.1. Reasonable Relationship 10.1.1.2. Legitimate Governmental Interest 10.1.1.3. Not arbitrary or capricious

10.2. Procedural Due Process 10.2.1. How to distinguish between legislative and administrative actions

10.2.1.1. Two key hallmarks of legislative power. 10.2.1.1.1. legislative power generally involves the statement of laws of

general applicability. 10.2.1.1.2. legislative power generally . . . is based on the weighing of

broad, competing policy considerations. 10.2.1.2. 1) Geographic reach how big of an area does it cover? (Slider scale

larger to smaller the smaller an area, administrative) 10.2.1.3. 2) The number of people that are impacted the 10.2.1.4. 3) referendum/knowledge issues can appear on a legislative ballot

but not an administrative ballot (example: Trax line to Draper administrative not legislative)

10.2.1.5. 4) applying the law; not making law 10.2.2. The differences that that distinction makes in approval processes

10.2.2.1. A hearing (an opportunity to be heard by the decision maker) 10.2.2.2. Substantial evidence shown/proven 10.2.2.3. A recent decision made

10.2.3. Process to go through for administrative procedural due process 10.2.3.1. Notice needs to be given to affected 10.2.3.2. Hearing 10.2.3.3. Impartial decision maker. 10.2.3.4. Evidence not opinion fact based 10.2.3.5. Show reasonable result, applying criteria to subjective evidence.

Should be recorded. 10.2.4. Minimal standards for due process clause in 5th and 14th require. Just the

constitutional. LUDMA has specific procedural steps for county and city governments to follow. Referendum. Marakis case. Ballot measures for land use issues. Only legislative issues on ballot not administrative issues. IE vote on a zoning of a new commercial center.

Legislative Action Administrative Action Definition Law-making Law applying Geographic Scope Broad Narrow Process Electoral Procedural Referendum Yes No Due process Minimally factual Substantial evidence

10.3. Delegation of Authority (Ultra Vires)

10.3.1. What is it? Local governments can exercise only those powers Delegated to them by the state legislature. Land use regulations cannot exceed the scope of local authority.

10.4. Takings: 10.4.1. Physical Takings

10.4.1.1. When the government physically invades or takes property. 10.4.1.2. Requires just compensation per the 5th amendment

10.4.2. Regulatory Takings 10.4.2.1. Wipe Outs (No economic use) 10.4.2.2. Penn Central (Ad hoc takings inquiries)

10.4.2.2.1. Economic impact of the regulation 10.4.2.2.2. Interference with investment-backed expectations 10.4.2.2.3. Character of government intrusion: Physical intrusion v.

public welfare program 10.4.2.3. Exactions: Demands that a government places on a landowner to

dedicate an easement allowing public access to her property as a condition of obtaining a development permit.

10.4.3. Public Use Doctrine: In order for eminent domain to qualify as a solution there must be a well-considered plan logically connecting to a legitimate governmental (public) purpose there must be a plan (cannot be arbitrary and capricious)

10.5. Commerce Clause: 10.5.1. Discrimination against out of state commerce

10.5.1.1. Facial discrimination discrimination based on physical characteristics (against out of state (favoring in state) location, etc.)

10.5.1.2. Discriminatory intent- 10.5.1.3. Discriminatory effect - if discrimination is established, the

burden shifts to the state or local government to show that the local benefits of the statute outweigh its discriminatory effects

10.6. Incidental burdens test - differential treatment of in-state and out-of-state economic interests that benefits and burdens

10.7. Equal Protection - opportunity, differential treatment, rational basis, HSW

10.7.1. Rational Basis test - Under the rational basis test, the courts will uphold a law if it is rationally related to a legitimate government purpose.

10.7.1.1. The challenger of the constitutionality of the statute has the burden of proving that there is no conceivable legitimate purpose or that the law is not rationally related to it.

10.7.2. Compelling Interest test - A standard of Judicial Review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.

11. Concurrency

11.1. Definition - what is it Concurrent tiered systems that shift impact burdens to those areas demanding the additional public facilities. It is essentially matching growth with facilities and services.

11.1.1. Growth phasing - how fast? 11.1.2. Growth controls/caps - how much? 11.1.3. Growth management - where?

11.2. Policies make public services/facilities requirement to meet needs of impact of new development in growth area.

11.3. Must be tied to a well-developed plan 11.4. Types of concurrency policies UGB's, USA's, PFA's?

11.4.1. UGBs: Urban Growth Boundaries (UGBs) separate areas where urban growth is allowed to occur from areas where it is not allowed. Greenbelts.

11.4.2. USAs: Urban Service Areas (USAs), which bound the expansion of public services like water and roads rather than limiting development of housing units. It is not regulatory, but rather a demarcation of the availability of urban services.

11.4.3. EZs: Enterprise Zones (EZs), areas where taxes are lower and regulations are relaxed to encourage economic development.

11.4.4. PFAs: Priority Funding Areas (PFAs), are areas designated by local governments and reviewed by the state and serve as target areas for spending by state agencies. These zones are given priority funding for urban scale infrastructure (roads, utilities, sewers, drainage, transit), to encourage development within a specified region. Developers who develop outside of PFA's would be responsible for providing the infrastructure needs of their development as the state/county/city will not give them priority.

11.5. Why are these policies generally considered constitutional? Because it is a defective means to a legitimate end (publics HSW)

12. Performance Planning/Zoning

12.1. Definition: what is it - zoning that is outcome focused, looking at end or outcome/result, not the means to achieve it.

12.2. How does it work - the legislature establishes goals statewide through planning & zoning

13. Transfer of Development Rights (TDR)

13.1. Definition: what is it - the process by which development rights are transferred from one lot, parcel, or area of land in a sending district to another lot, parcel, or area of land in one or more receiving districts

13.2. Advantages/disadvantages o Helps protect protected areas o Where transferred to current household lack of demand o Can have a credit on the transfer of development rights credit can then

be applied to property in the receiving district as a density bonus. 14. Transit-Oriented Development (TOD) Zoning

14.1. What is the purpose of TOD

14.1.1. The purpose of a TOD is to create density, a walkable area/city (residential and commercial), and creates reduced energy consumption.

14.2. How do TOD zoning ordinances achieve that purpose? 14.2.1. TOD reduces the scale of development from vehicular to human 14.2.2. It provides more attractive building, landscape, and streetscape

design 15. Tax Increment Financing - bond to incentivize new development with increase in

tax base 15.1. What is it and how does it work

16. Green Buildings - Using 3rd Party Standards (e.g., LEED) *inappropriate delegation of power on both sides (legislative and administrative) 17. Non-delegation issues

17.1. Legislative - changes in the law affecting a large amount of land and people.

17.2. Administrative changes in a law affecting a small geography requires procedural due process; a city councilmember inspects the property and chooses their authority to say the building does not meet codes/specs

17.3. Timing issues - occupancy permitting vs. certification of compliance with standards can be in compliance with green standards but still not receive occupancy permits (because the city adopts its own green building standards)

18. Fair Housing Act (FHA)

18.1. Protects against housing discrimination based on what characteristics? 18.1.1. Race, gender, family status, religion, and ethnicity

18.2. When there is a claim of discrimination, what must a plaintiff show? 18.2.1. Discrimination/differential treatment based on their

status/classification in a discriminatory effect/intent 18.3. What must the government show in response?

18.3.1. A compelling public interest with no effective alternative for achieving their goal

19. Moratoria

19.1. Definition - A suspension of activity or an authorized period of delay or waiting. They suspend the rights of property owners to obtain permits; Allows time for smart growth management for land use planning.

19.2. Limitations 19.2.1. is usually set to a specific amount of time 19.2.2. there must be hard evidence to document necessity of moratorium 19.2.3. prevent regulators from making hasty decisions on which could

disadvantage landowners as well as the public

Rules of Land Use Law

Rational Basis test - Under the rational basis test, the courts will uphold a law if it is rationally

related to a legitimate government purpose.

Compelling Interest test - A standard of Judicial Review for challenged policy in which the court

presumes the policy to be invalid unless the government can demonstrate a compelling interest to

justify the policy.

NUISANCE

Balancing Reasonable Use Doctrine:

Suitability of the Use: Suitability of the activity to the character of the place

Social Utility: Value to society of the alleged nuisance

Gravity of the Harm: The hardship placed upon the defendant

Cost of Avoidance

Cost to Cure

[W]here a nuisance has been found and where there has been any substantial damage shown by

the complaining, an injunction will be granted.

The police power of the state cannot be exercised arbitrarily, "There must be progress, and if in

its march private interests are in the way, they must yield to the good of the community. "The health and comfort of the community," can outweigh the private interest of a property owner.

Plaintiff cannot be barred from PRIVATE nuisance claims just because another's property

complies with ordinances. Although compliance with Zoning ordinance does immunize a

defendant from PUBLIC nuisance claims.

RESTRICTIVE COVENANTS, SERVITUDES, & EASEMENTS

Restrictive covenants can trump contextual arguments, and context is limited to only the

benefitted parties.

When the purpose for which the restriction was imposed has come to an end, and where the use

of the tract of land for whose benefit it was established has so utterly changed that no party to the

bill could be heard to enforce it in equity or would suffer any damage by its violation, a proper

case is made out of equitable relief.

Enforceable restrictive covenants:

1. Run with the land 2. Touch the land with which it runs: and 3. "Privity of estate" 4. Consistent with the public welfare (policy)

Covenants of a subdivision will be upheld provided that such communities do not unreasonably

withhold their consent or refuse plans in an arbitrary and capricious manner, and are made in

good faith.

LAND USE PLANS & THE PLANNING PROCESS

Procedural Due Process: If a person is denied life, liberty, or property, she is entitled to adequate

notice, a public hearing, an impartial judge, examination of the evidence, results reasoned upon

principle and evidence, and that it be publically recorded

Procedural due process requires that before a local government can adopt a master plan, it must

provide public notice and a period of public comment.

City land use maps and plans do not operate as legally controlling zoning law, but rather serve to

guide and advise the various governing bodies responsible for making Zoning decisions.

Although a city should strive to only issue building permits that are consistent with statutorily

required general plans, it is only obligated to issue permits consistent with current ordinances. To

revoke or suspend issuing permits until all inconsistencies with the general plan are resolved

would result in significant hardship and halt economic progress.

THE BASICS OF ZONING

Zoning and Police Powers:

1) Effectively promote health, safety, and welfare 2) Substantively show a method tied to the protection of Public health, safety, and welfare. 3) Not be arbitrary and capricious

Any exercise of the [police] power which interferes with some right protected by the

Constitution must bear some substantial relation to the public health, morals, safety, comfort, or

welfare. (Substantive due process)

Zoning as a general matter is consistent with the state's police powers because it promotes,

through rigorous method, the health, safety, and welfare of the public so long as it is not arbitrary

and capricious. (Substantive due process)

Consistency doctrine (Vertical Consistency): Cities and counties must adopt a general plan for

the future development, configuration, and character of a city and county, and require that future

land use decisions be made in harmony with that general plan.

Spot zoning, the arbitrary and unreasonable devotion of a small area within a zoning district for

the sole benefit of the owner, is invalid if not in accordance with the comprehensive plan and is

merely for private gain. (Vertical Consistency and Substantive Due Process)

Spot zoning can be justified only when it is done in furtherance of a general plan properly

adopted for and designed to serve the best interests of the community as a whole. (A city must

only demonstrate a rationale that promotes the publics HSW). (Vertical Consistency and Substantive Due Process)

A municipality may not arbitrarily decide when a comprehensive plan is to be followed.

Municipalities must always articulate a rationale when exercising their discretion in determining

whether to continue following their master plans, especially in specific instances. (Vertical

Consistency and Substantive Due Process)

Delegated authority may not be sold to unaccountable parties (Non-delegation).

A municipality may condition amendments to its zoning ordinance upon the implementation of a

set restrictive covenants agreed upon by a property owner, so long as the municipality can

demonstrate a non-arbitrary rational basis.

Test for variances:

1) Unnecessary hardship (not self-generated, unique physical circumstances of the property) 2) Reasonable use 3) Not alter essential character of the district 4) Least intrusive solution

An administrative decision to pursue a city's comprehensive development plan cannot trump a

legislatively defined special use outlined in a zoning ordinance. Administrative enforcement of a

comprehensive plan cannot circumvent the process to amend the zoning ordinance. (Special use

permit)

A nonconforming use is terminated if expanded or prolonged.

Discontinuance requires more than mere cessation; it involves abandonment and the owner's

expressed intent.

A non-conforming use may not be re-built.

SUBDIVISION CONTROL & INFRASTRUCTURE

If public necessity demands part of a property owners property, it can be taken only by condemnation and payment of its value. A property owner has no corresponding right to have his

plat of subdivision so made admitted to the records.

A municipality has the right to reject subdivision applications that do not meet dedication

requirements.

A municipality does not have the inherent right to zone. A local government's authority to plan

and zone and to impose conditions on a developer, is a delegation of police power. (Ultra vires)

Before a municipality is authorized to impose an impact fee, the public service must be rationally

related to the powers granted to a municipality, and the service must be one that traditionally has

been provided or lawfully forecast pursuant to statutes governing municipal planning.

Impact Fee Criteria

Service must be rationally related to delegated authority

Service must be traditionally provided, or

Service must be lawfully forecast by planning

If a property owner has performed substantial work and incurred substantial liabilities in good

faith reliance upon a permit issued by the government, he acquires a vested right to complete

construction in accordance with the terms of the permit. Once a landowner has secured a vested

right the government may not, by virtue of a change in the zoning laws, prohibit construction

authorized by the permit upon which he relied. (Vested Right)

In order to prove a violation of the Contracts Clause, a plaintiff must first prove that there is an

enforceable contract that the government has impaired in some manner. If there is no enforceable

contract, there is no violation of the Contracts Clause.

FEDERAL CONSTITUTIONAL LIMITS TO LAND USE REGULATION

The constitutional right to challenge a taking runs with the land, not the owner. The right to

challenge a taking is transferable from owner to owner

If a state's legislation to abate a legitimate public nuisance results in a loss of some property

value, it is not a taking. (Nobody has a right to be a nuisance).

While property may be regulated to a certain extent, if regulation goes too far it will be

recognized as a taking.

When a regulation that declares 'off-limits' all economically productive or beneficial uses of land

goes beyond what the relevant background principles would dictate, compensation must be paid

to sustain it. (PER SE REGULATORY TAKING)

Ad Hoc Taking: 1) Economic Impact, 2) Investment-backed Expectation, 3) Character of the

regulation

Government may place conditions on land-use permits so long as there is an essential nexus

between those conditions and the harms likely to result from that use. (Exaction)

There must be a rough proportionality (balancing) between the burdens on the public that would

result from granting the permit and the benefit to the public from the conveyance of land.

(Exaction)

If an "essential nexus" is found to exist between a "legitimate state interest" and the conditions of

a permit, then the extent of the conditions must be "roughly proportional" to the projected

impact.

A state may not evade its duty to compensate by leaving a property owner with a token interest.

Takings clause challenges to regulations have to be based on the severity of the burden that the

regulation imposes upon property rights, not the effectiveness of the regulation in furthering the

governmental interest.

(1) A PHYSICAL TAKING: Where government requires an owner to suffer a permanent

physical invasion of her property, it must provide just compensation (Loretto v. Teleprompter

Manhattan CATV corp.).

(2) TOTAL REGULATORY TAKING: Regulations that completely deprive an owner of all

economically beneficial use of her property, government must provide just compensation, except

where the intended use is constrained by nuisance and property law (Lucas v. South Carolina

Coastal Commission).

(3) ECONOMIC IMPACT AND CHARACTER OF GOVERNMENT ACTION TAKING: The

economic impact of the Regulation on the claimant and the extent to which the Regulation has

interfered with distinct investment-backed expectations. And, the character of the governmental

action (whether it is a direct physical invasion or an incidental property interest of a government

program to promote the public good). (Penn Central Transp. Co. v. NYC)

(4) LAND-USE EXTACTION CRITERIA: Government may not condition the approval of a

land use permit on the owners relinquishment of a portion of his property unless there is a nexus and rough proportionality between the governments demand and the effects of the proposed land use. If an "essential nexus" is found to exist between a "legitimate state interest" and the

conditions of a permit, then the extent of the conditions must be "roughly proportional" to the

projected impact.

Doctrine of Custom: First arose in medieval England where, by immemorial custom, citizens

would acquire the right to use land in specific localities. Sir William Blackstone identified seven

requirements for every custom:

(1) The land has been used in this manner so long "that the memory of man runneth not to the contrary";

(2) without interruption; (3) peaceably; (4) the public use has been appropriate to the land and the usages of the community; (5) the boundary is certain; (6) the custom is obligatory, i.e., it is not left up to individual landowners as to whether they will

recognize the public's right to access; and

(7) the custom is not repugnant or inconsistent with other customs or laws.

Permit Application Procedures (Procedural Due Process)

"Quasi-Judicial" decisions require:

1. Public Notice: applicants and other impacted parties 2. Public Hearing: A public meeting to 3. Impartial Decision maker: adjudicators who are not bias 4. Presentation and contesting of evidence (not opinion) 5. Reasoned result: a. Substantial evidence b. Application of the law to the evidence 6. Record Created

A ballot initiative should be deemed an appropriate legislative act where it proposes a law of

general applicability. Laws that prescribe rules of conduct for the general population are squarely

within the ambit of generally applicable rules, and ballot initiatives proposing such laws are per

se legislative.

o A site specific zoning decision is legislative if it is made by a city council that possess only legislative authority. A site specific zoning decision is also legislative if it involves

the adoption of a new zoning classification.

o Entering into a contract with a specific entity or exercising an option is an administrative act, while enacting a broad zoning ordinance is legislative. Similarly, action on a variance

or a conditional use application is executive.

Legislative Action Administrative Action

Definition Law-making Law applying

Geographic Scope Broad Narrow

Process Electoral Procedural

Referendum Yes No

Due process Minimally factual Substantial evidence

Concurrency

Zoning ordinance, allowing subdivision development only by special permit upon showing that

adequate municipal facilities and services were available or would be provided by the developer,

constituted a rational attempt to provide for sequential and orderly residential development in

conjunction with the needs of the community and its ability to supply public facilities

If the present system of delegated zoning power does not effectively serve the state interest in furthering the general welfare of the region or entire state, it is the state legislature's and not the

federal courts' role to intervene and adjust the system... The federal court is not a super zoning

board and should not be called on to mark the point at which legitimate local interests in

promoting the welfare of the community are outweighed by legitimate regional interests."

Equal protection (14th amendment) o Equal Opportunity (not equal outcomes) o Differential treatment

Occasionally permissible when there is a rational basis tied to HSW (Interstate) Commerce Clause

o The Dormant Commerce Clause: Even when Congress has not exercised its authority to regulate interstate commerce, states are prohibited from enacting any

legislation inhibit interstate commerce.

Prohibits direct discrimination Prohibits undue/disproportionate impact on commerce

Performance Planning and Zoning

When government establishes a standard, government must then adhere to it.

Transferring Development Rights

Business and Economic Development

If a covenant is contrary to public policy, it may not be enforced

It is enough to find that the proposed taking is reasonably necessary or convenient for the furtherance of a proper purpose.

Interstate Commerce Clause o No discrimination against out of state businesses

Facial (obvious violations, no out of state businesses need apply) Purpose (if the inherent purpose is to discriminate) Effect (if the end result is discrimination)

Incidental Burdens Test o Balances the burden on interstate commerce with benefits to the local community

Equal Protection Clause o Differential treatment between two groups of people, for all relevant purposes, are

equal.

o Based on a distinction

When the legislatures purpose is legitimate and its means are not irrational, our cases make clear that empirical debate over the wisdom of takingsno less than debates over the wisdom of other kinds of socioeconomic legislationare not to be carried out in the federal courts.

01.07.2014 What is law? - Collective values - Rules - Majoritarian rule - authoritative source - Binding/sanctions - Law is an abstraction - regulate behaviour Example: Case Title block Smith v. Jones (Plaintiff v. Defendant) Supreme Court at Utah (jurisdictional court) 647 P.3d 1249 (citation) Ellin, N. Justice (Judge) Precedent (binding? or advisory?) Components of a Case Brief Statement of Facts

o Parties Plaintiff Defendant

o Legal Facts o Procedural Facts Cause of Action Plaintiff Relief Defense

Procedural History o Lower Court Decision o Damages o Cause of Appeal

Issues o Substantive Issues Disputed Point of Law Pertinent Facts

o Procedural Issues Judgement Holding Applied principle/rule/law Reasoning Alternate Opinions

o Concurring o Dissenting

Jurisdictional Federalism: I. Federal Court

District Court Circuit Court of Appeal (panel and en banc) U.S. Supreme Court

II. State Court District (trial) Court Appeals State supreme court

How to brief a case Important: Legal principles Unimportant: Facts 01.09.2014 Law: The principles and norms of a community, as articulated by an authoritative source, that regulates behavior, the compliance with which is ensured by binding sanctions. (THE FIRST QUESTION ON THE MIDTERM) Injunction: A court order that requires one of the parties to do, or stop doing, a particular action/behavior Mandamus: A subcategory of an injunction typically issued to a government body Consent Decree: It is the legal vehicle for a settlement; a contract between the adversarial parties which is approved by the court. Local Governments (general purpose): Associated with a chartered subdivision of the state that has physical and legal jurisdiction. Municipalities are incorporated cities, towns, townships, and villages. Counties, Parishes, and Boroughs are also general purpose local governments. Jurisdiction: Power to govern. A local government's power is limited to geography and subject matter. Both are defined by a state's legislature. ________________ Practice of Law: The preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity..." Unauthorized practice of law: when a person who is not licensed to practice law does the above. City planner can get into a lot of trouble with this. 01.16.2014 Real Property: Real estate is the quintessential real property. They are a bundle of abstract rights that are socially enforced (government). Social utility

Rights associated with Real Property: Use - quiet enjoyment Benefit Exclude Transfer Alienation - separation of individuals rights from a bundle 01.21.14 Sic utere tuo ut alienum non laedas (versus) salus populi suprema lex est - So use your own as not to injure another's property - The health of the people should be the supreme law Nuisance

Definition - Unreasonable interference with another's right to the quiet/use of their property.

Factors - Suitability of the action, character of the place, Social utility, gravity of the harm,

o Suitability of Use: Compared in context to the character of the area o Social Utility: the activity that maximize value to society o Gravity of the harm: the hardship to the defendant

Cost of avoidance: Cost to cure:

Public Nuisance: an unreasonable inference with the public's health, safety, and welfare.

Police power: an inherent authority of government sovereignty that allows the government to regulate the promotion of the public's health, safety, and welfare.

Substantive due Process: o Arbitrary and unreasonable: regulation is considered arbitrary and

unreasonable if it does the use of police power does not promote the health, safety and welfare of the public. The term arbitrary describes a course of action or a decision that is not based on reason or judgment but on personal will or discretion without regard to rules or standards. An arbitrary decision is one made without regard for the facts and circumstances presented, and it connotes a disregard of the evidence.

o Fifth Amendment: No person shall... be deprived of life, liberty or property without due process of law.

o Fourteenth Amendment: Nor shall any state deprive any person of life, liberty, or property without due process of law.

01.23.14 EASEMENT - Definition: The conveyance of a partial right of exclusive use of property at some earlier point in the chain of title. In essence, it is a limited use trespass waiver.

Easements fundamentally deal with exclusive possession. By contract the owner of a property holds a concurrent property interest with another party. - Runs with the land: a property right, i.e. easement, that is tied to the land itself and is independent of subsequent sales of the property. Implied Easement (Prescribed Easement): - Established use period of time - Notorious (done out in the open) - Failure to enforce - (Similar to adverse possession)

Common Law Foundations Nuisance, Covenants & Easements 01.16.2014 The Law of Nuisance The two types of nuisance are private nuisance and public nuisance. A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one's property in a manner that substantially interferes with the enjoyment or use of another individual's property, without an actual "Trespass" or physical invasion to the land. A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community. Euclid, OH adopted zoning laws. Supreme Court noted the similarity between judicial policies observable in the common law of Nuisance and zoning. The context surrounding a particular land use matters in determining whether the use is a nuisance or is reasonably restricted by land use laws.

Clark v. Wambold S.Ct. Wisconsin, 1917

165 Wis. 70, 160 N.W. 1039 I. Statement of Facts: A. Parties:

Defendant: Pig farmer and feed mill owner Plaintiff: Summer home owner

B. Relevant Facts: The plaintiff purchased property from defendant in 1905 to build a summer

home on a shores of Eagle Lake. The defendant has operated a feed mill on his property for years prior to the plaintiff's purchase, and has operated an ancillary pig farm as a means to dispose of feed processing byproducts and supplement income. The breeding pens are near the feed mill and the plaintiff's property.

C. Procedural Facts: Cause of action: The odor emanating from the pens are perceived to be a

nuisance to the summer home owner. Plaintiff remedy: Seeks to enjoin (stop) the defendant from maintaining pigs

and pig pens immediately adjacent to his property. Defense: The pigs were raised in a reasonable locale under reasonable

conditions. II. Issues: A. Substantive Issues:

Point of Law in Dispute: The use of one's property in a manner that deprives another of the quiet enjoyment of their property is a nuisance. Also at issue is "the rule of first possession" versus social utility. (Essentially, first come, first serve versus the needs of the many supercede the needs of the few).

This is a matter of context/relativity of property, not first come, first serve. Key Facts: The smell of pigs prevented the plaintiff from enjoying his Lake

front property. B. Procedural Issues:

Claimed a preponderance of evidence, i.e. the original assessment of the odor and sanitation of the pig pens were not accurate.

III. Judgment: Affirmed the trial court's decision, and again ruled in favor of the defendant.

IV. Holding: No action for nuisance because the pig yard is kept in conditions as clean and

sanitary as can be reasonably attained. Real property rights cannot be dealt with in the abstract because their context, or the connection to circumstances, matters. In the abstract a pure property right grants the owner possession, use, and disposition of an asset (Usus, abusus, fructus). This is to say that the owner of an asset has the right to use and benefit from an asset while excluding others from using or benefitting from that asset. Additionally, an owner has the right to transfer right to that asset to another in full or in part. Nonetheless, an asset owner may impinge upon the property rights of another, while in the use of that asset, if reasonable precautions have not been taken. In this instance, the defendant took reasonable precautions by raising pigs on a farm outside the city and provided for their care above a reasonable standard. (If anything, the plaintiff's expectation are unreasonable).

V. Rule of Law/Legal Principle: "One man's enjoyment of property cannot always be the controlling factor, but

must be considered in connection with the reasonable and lawful use of other property by his neighbor."

A material/substantive interference in the enjoyment of one's propety. "It becomes one of those minor discomforts of life, which must be borne in deference to the principle that one man's enjoyment of property cannot always be the controlling factor, but must be considered in connection with the reasonable and lawful use of other property by his neighbors."

Boomer v. Atlantic Cement Company

Ct. Appeals, NY 1970. 26 N.Y. 219,309 N.Y.S.2d 312, 257 N.E.2d 870.

Bergan, J. I. Statement of Facts: A. Parties:

Defendant/appellee: Large cement company Plaintiff/appellant: Neighboring land owners

B. Relevant Facts: A cement company near Albany, NY employing 300 people within the region

produces copious amounts of pollutants that settle on/coat neighboring property. The defendant had received temporary damages, but seeks to enjoin

the pollution. C. Procedural Facts:

1. Cause of action: Atlantic Cement Company's pollution is a nuisance because it impinges neighboring land owners' ability to enjoy their property (not to mention that it also endangers their health).

2. Remedy: Boomer, i.e. landowners, seek to enjoin (halt) Atlantic Cement from further polluting.

3. Defense: The factory is property, and its shareholders/owners should be allowed to benefit from their $45,000,000 investment. Furthermore, the company had paid the damages awarded by the court. Incidentally, the region's economy significantly benefits from the employment and tax revenues it provides.

D. Procedural History: Prior Decision: Trial court ruled that the Atlantic Cement's pollution is a

nuisance and this decision was Affirmed at the appellate division. Despite the standing rule for a substantive nuisance, the defendant was ordered to pay temporary damages instead of being enjoined until it resolves the pollution.

Damages: Landowners (Boomer) awarded temporary damages, but an injunction was denied because of the "large disparity in economic consequence of the nuisance and the of the injunction."

Cause for appeal: Landowners believed that the temporary damages were not commensurate with the ongoing pollution, and the ruling was inconsistent with the standing rule.

II. Issues: A. Substantive Issues:

Point of Law in Dispute: "...[W]here a nuisance has been found and where there has been any substantial damage shown by the complaining, an injunction will be granted." At issue is also the question of whether the court should resolve the litigation between the two parties as equitably as possible, or whether it should promote the general public welfare in achieving a broad public objective, i.e. reducing pollution. (The court's constitutional mandate is to resolve the conflict between the parties immediately before it. It is the providence of the legislature to formulate broad statutes to pursue the public welfare). Does the right to benefit from property grant the right to be nuisance? Can permanent damages be substituted for an injunction?

Key Facts: Pollution is a public issue. Payment of damages does not fully resolve the issue because the plaintiff is not made whole. Because the defendant will continue to pollute, landowners will necessarily need to return to court--at great expense.

B. Procedural Issues: The appellant claims that they were wrongly denied an injunction. Precedent

asserted that when there is a nuisance and the plaintiff has been substantially damaged, the defendant ought to be enjoined.

III. Judgement:

The denial of an injunction and temporary damages were reversed, and a temporary injunction was issued until the defendant could pay permanent damages.

IV. Holding: The Court held that Atlantic Cement's pollution is a nuisance, but an

injunction may not permanently deprive a party of the use and benefit of its property. Granting an injunction unless the defendant fully compensates the plaintiff for the privation of their property redresses the plaintiff's grievances

V. Principles: [W]here a nuisance has been found and where there has been any substantial

damage shown by the complaining, an injunction will be granted. Property entitles an owner to enjoy the use, benefit, disposition, and

transference of an asset. Permanent damages are an efficient remedy when an injunction will

permanently deprive an owner of his/her property rights. VI. Reasoning:

Closing the plant is an inefficient and undesirable outcome; Atlantic Cement is unlikely to technologically resolve a problem that is

inherent to the entire cement industry within any court mandated term; Permanent damages efficiently resolves the nuisance imposed 'servitude on

land' theory. 01.21.14 The Law of Nuisance Part B. Part B: Public and Private Nuisance PRIVATE NUISANCE is a nontrepassory invasion of another's interest in the private use and enjoyment of land. A landowner is only subject to a nuisance action for a land use that is "unreasonable." Reasonableness depends on four considerations:

1. Suitability of the action 2. The character of the place 3. The value to society of the Nuisance (and the social value of the plaintiff's

land use) 4. The hardship placed on the defendant of the injunction/damages award

PUBLIC NUISANCE: Land use that significantly interfere with public health, safety, comfort, or convenience, i.e. the unreasonable interferences with a "right common to the general public." An unreasonable use occurs when:

The plaintiff produces evidence of significant interference The conduct is proscribed by law, ordinance, or administrative regulation.

Part C: Zoning and the Law of Nuisance Although comprehensive zoning laws were relatively new in the 1920, laws proscribing law use were not. Before widespread adoption of Zoning ordinances in

the 1920's, such ordinances were challenged as "takings" without just compensation, i.e. a violation of the Fifth Amendment, which states, "Nor shall private property be taken for public use without just compensation." Despite zoning ordinances largely displacing public nuisance suits, the question of reasonableness remains as a critical measure of the constitutionality of land use laws. The court has said, that before police power legislation of this type--zoning--can be declared unconstitutional, it must be found that it is "clearly arbitrary and unreasonable, having no substantial relationship to the public health, safety, morals, or general welfare."

HADACHECK v. SEBASTIAN SCOTUS, 1915

239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348. Justice McKenna

Statement of Facts:

o Parties: Plaintiff: Brickyard/brick kiln operator Defendant: L.A. Chief of Police

o Legally Relevant Facts: Hadacheck had been convicted of a misdemeanor for violating a L.A. city

ordinance that proscribed establishing a brick factory within city limits. He was taken into custody and his business was essentially shut down. Hadacheck had purchased the land and started his business long before L.A. annexed the area and instituted the ordinance banning brick-making.

o Procedural Facts: Cause of Action:

Hadacheck filed a habeas corpus petition with the Wisc. S.Ct. A writ of habeas corpus directs a person, usually a prison warden, to produce the prisoner and justify the prisoner's detention. If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the court may order the prisoner's release

The court then issued a writ of error. Its object is to review and correct an error of the law committed in the proceedings, which is not amendable, or cured at common law, or by some of the statutes of amendment or jeofail. A writ of error is in the nature of a suit or action, when it is to restore the party who obtains it to the possession of any thing which is withheld from him, not when its operation is entirely defensive. Plaintiff Remedy:

Hadacheck wants a rule that defines per se Nuisance ex ante and are clear and obvious. Defense:

The city'senactment of the Zoning ordinance, banning brick-making, was done in good faith and is not arbitrary or unreasonable.

Procedural History

o Lower court decision: 4. The California S.Ct. decided that the business could be regulated, and that

value of the investments prior to regulation did not preclude its regulation. Furthermore the length of time in the area was not a valid complaint. Because the area had become largely residential, and the residents considered brick-making is a nuisance, the court rejected arguments that the ordinance imposed an arbitrary invasion of private rights design to discriminate against Hadacheck or injury him personally.

o Damages/Injunction: Hadacheck was sent to jail and his business enjoined o Cause for appeal: Hadacheck felt the ordinance violated his 5th

ammendment right by taking his property without just compensation. Issues:

o Substantive Issues: Are Zoning ordinances a legitimate form of regulation? Was L.A.'s ordinance discriminatory? Does (re)zoning constitute a taking? o Procedural Issues:

Judgement: Affirmed the lower court's ruling.

Holding Zoning is a legitimate form of regulation and an appropriate exercise of police

powers. L.A.'s Zoning ordinance did not discriminate Hadacheck's argument ultimately hinged on the location of the clay, and not

the making of the bricks. Hadacheck could continue to extract the clay, as the ordinance does not proscribe that use of his property, but he would need to manufacture the bricks elsewhere.

Rule of law/principle The police power of the state cannot be exercised arbitrarily. When applied uniformly, zoning is a legitimate exercise of police power. "There must be progress, and if in its march private interests are in the way,

they must yield to the good of the community." "The health and comfort of the community," can outweigh the private interest

of a property owner. Reasoning

If a city were not allowed to enforce zoning ordinances, its progress/growth would be hindered. "The logical result of petitioner's contention would seem to be that a city could not be formed or enlarged against the resistance of an occupant of the ground and that if it grows at all it can only grow as the environment of the occupations that are usually banished to the purlieus."

Part D: The Effects of Zoning on the Law of Nuisance In Maykut v. Plasko, the court held that although a defendant's actions were permitted

by zoning law, zoning ordinance not justify an activity that otherwise interferes with the use and enjoyment of a particular neighbor's property. Legislatures enact Zoning laws to create standards for generally harmonious land usage that are consistent with the character of zone/district. Private Nuisance actions allow individual lot owners to prove to the court that a permitted use affects a nuisance in the particular circumstances of the plaintiff's land.

PRAH v. MARETTI S.St. Wisconsin, 1982

108 Wis.2d 223, 321 N.W.2d 182. Justice Abrahamson

Statement of Facts:

o Parties: Plaintiff: Owner of a solar heated house Defendant: Builder of a sunlight blocking house

o Legally Relevant Facts: o The plaintiff made a sizable investment in building a solar collecting home.

The defendant plans to build a house whose height and location would necessarily limit the plaintiff's ability to collect solar energy. The plaintiff did not optimize the placement of his house on the property, and the defendant added grading after complying with all other requisite ordinances.

o Procedural Facts: Cause of Action: The plaintiff claims "unrestricted use of the sun and

its solar power." Plaintiff Remedy: Enjoin construction on the defendant's property, and

damages Defense: The planned home meets all Zoning criteria, and

Procedural History o Lower court decision The lower court concluded that Prah complaint had no grantable relief and in

summary judgment ruled in the favor of the defendant. It basically said that Prah did not own the right to sunlight.

o Damages/Injunction: none o Cause for Appeal: Prah claimed that the trial court didn't try to apply any

established legal principles. Issues

o Substantive Issues Point of Law in Dispute Do landowners have the right to use their property as they wish, so long

as they do not physically damage their neighbors? Do property owners have a right to sunlight? Is growth and progress still in the public interest? Key Facts

o Procedural Issues: The plaintiff claims that they were summarily barred from pursuing a nuisance claim.

Judgement: Reversed the circuit court's judgment Holding: Plaintiff cannot be barred from PRIVATE nuisance claims just because

another's property complies with ordinances. Although compliance with Zoning ordinance does immunize a defendant from PUBLIC nuisance claims.

Rule of Law: Compliance with all appurtenant ordinances does not constitute reasonable use,

nor does it bar plaintiff's from pursuing Nuisance claims Reasoning Polices become obsolete as social values change, and the court must acknowledge

the priorities of property rights in context with contemporary values. More importantly is the opportunity to dis/prove reasonable use of property in court.

01.23.14 Servitudes, Easements, Covenants, and Alternative Forms of Land Use Control Land Use Regulations: Public rules that limit private land use for the benefit of the community. Servitudes: Private rules that limit the use of privately held land for the benefits of the owners of designated parcels of land, and only those owners. West Alameda Heights Homeowners Association v. Board of County Commissioners

of Jefferson County Supreme Court of Colorado, 1969

169 Colo. 491, 458 P.2d 253 Justice Day

1. Statement of Facts

1.1. Parties 1.1.1. Plaintiff: West Alameda HOA 1.1.2. Defendant: Jefferson County Commissioners

1.2. Legal Facts 1.3. Procedural Facts

1.3.1. Cause of Action: Defendant filed to re-zone property, but proposed property would violate restrictive covenants.

1.3.2. Plaintiff Relief: HOA wanted to enjoin construction of shopping facilities

1.3.3. Defense: commercial development had changed the character of contextual surrounding area and suggested that residential use was no longer a suitable activity

2. Procedural History 2.1. Lower Court Decision o The trial court had invalidated the residential use covenants. It reasoned that

the character of the area had changed and not suitable for residential use. Consequently, any covenant enforcement would be inequitable.

2.2. Damages: none 2.3. Cause of Appeal:

3. Issues 3.1. Substantive Issues

3.1.1. Disputed Point of Law: substantial change in contextual character trump restrictive covenants?

3.1.2. Pertinent Facts 3.2. Procedural Issues

4. Judgment: Reversed 5. Holding: Restrictive covenants can trump contextual arguments. Context is

limited to only the benefitted parties. (If the parties benefitted by the restrictions agree that

6. Applied principle/rule/law When the purpose for which the restriction was imposed has come to an end, and

where the use of the tract of land for whose benefit it was established has so utterly changed that no party to the bill could be heard to enforce it in equity or would suffer any damage by its violation, a proper case is made out of equitable relief. Test 1: Has the purpose of the restrictions come to an end? Test 2: Would either party be damaged by the removal of the covenant?

7. Reasoning 8. Alternate Opinions

8.1. Concurring 8.2. Dissenting

Neponsit Property Owners Association v. Emigrant Industrial Savings Bank

Court of Appeal of New York, 1938 278 N.Y. 248, 15 N.E.2d 793, 118 A.L.R. 973.

J. Lehman Statement of Facts

o Parties Plaintiff: Neponsit Property Owner's Association-- the HOA Defendant: Emigrant Industrial Savings Bank

o Legal Facts

o Procedural Facts Cause of Action

Plaintiff Relief Defense

Procedural History o Lower Court Decision o Damages o Cause of Appeal

Issues o Substantive Issues Disputed Point of Law:

Who has the right to enforce a restrictive covenant? Do only covenants, which compel the covenanter to submit to some

restriction on the use of his property, touch or concern the land, and that the burden of a covenant which requires the covenanter to do an affirmative act, even on his own land, for the benefit of a "dominant" estate, does not run with his land.

Pertinent Facts o Procedural Issues

Judgement: Affirmed Rules in favor of Emigrant Industrial Savings Bank Holding: The HOA was formed as an instrument to advance the common

interest of the residents, and although it has never held title to any of the property in question, it has a right to enforce the covenant. "Only blind adherence to an ancient formula devised to meet entirely different conditions could constrain the court to hold that a corporation formed as a medium for the enjoyment of common rights of property owners owns no property which would benefit by enforcement of common rights and has no cause of action in equity to enforce the covenant upon which such common rights depend.

Applied principle/rule/law o Essentials of a Real Covenant It must appear that grantor and grantee intended that the covenant should

run with the land. It must appear that the covenant is one "touching" or "concerning" the

land with which it runs; It must appear that there is "private of estate" between the promised or

party claiming the benefit of the covenant and the right to enforce it, and the promised or party rests under the burden of the covenant. (Privity of estate is a "mutual or successive relation to the same right in property", such as the relationship between a landlord and tenant. That is, privity of estate refers to the legal relationship two parties bear when their estates constitute one estate in law. A tenant generally cannot transfer the tenancy or privity of estate between himself and his landlord, without the landlord's consent. An assignee who comes into privity of estate is liable only while he continues to be the legal assigneewhile in possession under the assignment. Privity of estate historically traces the land of plaintiff and defendant back to a common owner who imposed the

restriction on the lands use. This is referred to as vertical privity). Reasoning: Regardless of formula, in substance there is privity of estate between

the plaintiff and defendant, hence there is chain of property rights. Alternate Opinions

o Concurring o Dissenting

RHUE v. CHEYENNE HOMES, INC. S.Ct. of Colorado, English Banc, 1969.

168 Colo. 6, P.2d 361. Justice Pringle

Statement of Facts

o Parties Plaintiff: Spanish style home owner/mover Defendant: Residential developer and Plat owner

o Legal Facts Rhue wants to move his house to a new neighborhood. Cheyenne

Homes says that it is inconsistent with the neighborhood their building o Procedural Facts Cause of Action Plaintiff Relief Defense

Procedural History o Lower Court Decision o Damages o Cause of Appeal

Issues o Substantive Issues Disputed Point of Law: If a restrictive covenant does not specify

specific standards to guide a committee, are their related restrictions enforceable?

Pertinent Facts o Procedural Issues

Judgement Holding: Applied principle/rule/law:

o When the standard of a restriction are vague, the governing committee may in good faith, i.e. not arbitrarily, infer assessment criteria from the builder's intent and the actual construction.

o Covenants of a subdivision will be upheld provided that such communities do not unreasonably withhold their consent or refuse plans in an arbitrary and capricious manner, and are made in good faith.

Reasoning

Alternate Opinions o Concurring o Dissenting

01.28.14 Restrictive Covenants - Definition: they are a mutual contractual agreement that restrict the usage of property for the benefit of the owners of a specified development. The relationship between the restricted and the benefitted may become quite complex, especially over time with the successive sale of properties. The contract must define both the benefitted parties and - Critieria:

1) Grantor and grantee intend that the covenant runs with the land, not the owners.

2) It must "touch" or "concern" the particular land at issue 3) There must be "privity of estate" (unbroken chain of title of both parties)

between covenant beneficiary and covenant enforcer. - What Difference does Zoning make: restrictive covenants trump zoning. Recission: - Definition: When a restricted covenant is lifted or nullified - Criteria:

1. When the purpose of the restriction has come to an end 2. Whether the parties would suffer damage by the removal of the covenant

01.30.14 Plan (General, Comprehensive): Policy with a Map - Definition: A document specifying the intended future use of land within specified geography--usually, but not necessarily, concurrent with municipality boundaries and jurisdictions. It is future goal oriented, long-term, and adaptable. They do not require any factual basis. Zoning Ordinance: Regulations with a Map Definition: Regulations tied to a specific geography at the present time. Zoning Ordinances are adaptable, but are as malleable as plans. Zoning Ordinances must be predominantly tied to a comprehensive/general plan to demonstrate a policy objective. Utah 's LUDMA General Plan requirements - Transportation - Land use - Moderate income housing Legislation v. Administration/quasi-judicial action Legislation is (general plan, zoning ordinances) - general broad geographic scope - affects a broad population - creating law Administrative action (permitting)

- specific geography - specific population - application or implementation of law

LAND USE PLANS & THE PLANNING PROCESS The Content and Effect of the Master Plan United States Department of Commerce, A Standard City Planning Enabling Act

Creative Displays, INC. v. City of Florence S.Ct. Kentucky, 1980

602 S.W.2d 682 Justice Stephens

1. Statement of Facts

1.1. Parties 1.1.1. Plaintiff: Creative Display 1.1.2. Defendant: City and County in Kentucky

1.2. Legal Facts 1.2.1. Boone County Planning and Zoning Commission adopted the pre-existing plans of

Florence and Boone County without undergoing due process requirements. 1.3. Procedural Facts

1.3.1. Cause of Action 1.3.2. Plaintiff Relief 1.3.3. Defense

2. Procedural History 2.1. Lower Court Decision 2.2. Damages 2.3. Cause of Appeal

3. Issues 3.1. Substantive Issues

3.1.1. Disputed Point of Law 3.1.1.1. Have City X and County Y properly enacted planning and Zoning ordinances

with the law. 3.1.1.2. Are the aggregate of all city plans within a county adequate formulation of a

county comprehensive plan. 3.1.2. Pertinent Facts

3.2. Procedural Issues 4. Judgement: Court of Appeal decision is reversed 5. Holding:

5.1. A county plan must encompass the whole County and not just the principle population centers (cities).

5.2. More importantly, the adoption of a master plan constitutes rule making, and is therefore subject to due process requirement of notice and comment and applicable open access meeting laws.

6. Applied principle/rule/law

6.1. Due process requires that before a local government can adopt a master plan, it must provide public notice and a period of Public comment.

7. Reasoning 8. Alternate Opinions

8.1. Concurring 8.2. Dissenting

BONE v. CITY OF LEWISTON

S.Ct. of Idaho, 1984. 107 Idaho 844, 693 P.2d 1046.

Justice Bistline 1. Statement of Facts

1.1. Parties 1.1.1. Plaintiff: Bone, sought Rezoning of land to limited commercial use 1.1.2. Defendant: Lewiston city council who listened to planning commission

1.2. Legal Facts 1.2.1. Bone, sought Rezoning of land to limited commercial use but the Lewiston city

council denied his petition upon the recommendation of the planning commission. The commission claimed that 1) the Rezoning sought was not compatible with low-density residential uses of the surrounding properties, and 2) Lewiston already had an overabundance of unused commercial property. The Council agreed without adopting any finding of fact or conclusions of law.

1.3. Procedural Facts 1.3.1. Cause of Action 1.3.2. Plaintiff Relief: be allowed to rezone property 1.3.3. Defense

2. Procedural History 2.1. Lower Court Decision 2.2. Damages 2.3. Cause of Appeal

3. Issues 3.1. Substantive Issues

3.1.1. Disputed Point of Law 3.1.1.1. Vertical consistency: Should plans be driving goals and current Zoning

ordinances (ignores reality of planning objectives) 3.1.1.2. Is a property owner entitled to have his/her property zoned in conformance

with the city's land use map? 3.1.1.3. Are comprehensive plans and land use maps tantamount to a Zoning

ordinance? 3.1.2. Pertinent Facts

3.2. Procedural Issues 4. Judgement: Reversed, remanded to district court and city council for the adoption of findings

of facts and conclusions of law.

5. Holding 5.1. City land use maps and plans do not obligate a legislature (city council) to rezone any

particular property, especially when the language is conditional. 5.2. However, a city cannot ignore it's comprehensive plan, and must make a factual inquiry

into whether the requested Zoning ordinance or ammendment reflects the goals of the comprehensive plan in light of the present factual circumstances.

6. Applied principle/rule/law 6.1. City land use maps and plans do not operate as legally controlling Zoning law, but rather

serve to guide and advise the various governing bodies responsible for making Zoning decisions

7. Reasoning 8. Alternate Opinions

8.1. Concurring 8.2. Dissenting

ELYSIAN HEIGHTS RESIDENTS ASSOCIATION, INC. v. CITY OF LOS ANGELES

California Ct. of Appeal, 2nd district, 1986. 182 Cal.App.3d 21, 227 Cal.Rptr. 226.

Acting presiding Justice Compton 1. Statement of Facts

1.1. Parties 1.1.1. Plaintiff: HOA 1.1.2. Defendant: Los Angeles

1.2. Legal Facts 1.2.1. The HOA sought the revocation of a building permit because the project violated

height requirement of the district plan 1.3. Procedural Facts

1.3.1. Cause of Action 1.3.2. Plaintiff Relief 1.3.3. Defense

2. Procedural History 2.1. Lower Court Decision 2.2. Damages 2.3. Cause of Appeal

3. Issues 3.1. Substantive Issues

3.1.1. Disputed Point of Law: 3.1.1.1. Must an issued building permit be consistent with a municipality's general

plan to be valid? 3.1.2. Pertinent Facts

3.2. Procedural Issues 4. Judgement 5. Holding

5.1. Although a city should strive to only issue building permits that are consistent with statutorily required general plans, it is only obligated to issue permits consistent with current ordinances. To revoke or suspend issuing permits until all inconsistencies with the general plan are resolved would result in significant hardship and halt economic progress.

5.2. If the state legislature had intended for all inconsistent building permits to be revoked, it had the power to do so but chose to remain silent on that point.

6. Applied principle/rule/law 6.1. Consistency doctrine (Vertical Consistency)

6.1.1. Cities and counties must adopt a general plan for the future development, configuration, and character of a city and county, and require that future land use decisions be made in harmony with that general plan.

6.2. Standard Zoning Enabling Act 6.2.1. Only selected areas within a municipality were regulated by zoning 6.2.2. Zoning was done by means of an interim ordinance that was enacted by legally

questionable practices; 6.2.3. the Zoning failed to control one or more of the factors it was intended to regulate.

7. Reasoning 8. Alternate Opinions

8.1. Concurring 8.2. Dissenting

02.04.14 The Basics of Zoning Review of Planning Zoning 101 Definition:

1. Legislative law (enacted by city council or County commission) 2. Land use law: 3. Regulates: use, building envelope, density

3.1.Use: parking, aethetics, signage, access, preservation, noise, light, shading, etc.

3.1.1. Most use require specific permits 3.2.Building envelope: the 3d space constraints in which structures may

be built 3.3.Density: housing, Sq footing, floor ratio

----> ALWAYS READ THE DEFINITION SECTION OF ZONING CODE (it will save you grief) Land Use Law and Practices 1. Balancing Property Rights and the Public Interest: Limiting doctrines (pg 111)

"non-delgation" "the right to travel" "commerce clause"

2. Zoning Practices As-of-right Uses and their Accessory Uses Nonconforming Uses Variances Special Use permits Rezoning

3. Local Boards Authority to zone Goldman v. Crowther Goldman violated a use Zoning ordinance for a home sewing business (home occupations). The court of appeals agrees that Goldman has not altered the building Ordinances must: 1) promote health, safety, and welfare 2) substantively show a method tied to the protection of Public health, safety, and welfare. 3) not be arbitrary and capricious --When a use does not imperial the public 's health, safety, and welfare, despite the

alleged promotion of such, the broken ordinance may be shown to be arbitrary and capricious. Village of Euclid v. Ambler Realty Co. Ohio city has pyramidal Zoning ordinances that effectively restricts the industrial development of Ambler Realty Co.'s land. Across the street is a suburban neighborhood estates. The city has conducted studies and hearing to substantiate it's claim that its ordinance maintain the health, safety, and welfare of its residents. Ambler over-reached by seeking to teardown the entire ordinance structure, instead of seeking The court rules in favor of Euclid. -- Zoning as a general matter is consistent with the state's police powers because it promotes, through rigorous method, the health, safety, and welfare of the public so long as it is not arbitrary and capricious. 02.06.14 Authority to Zone - Euclid told us that zoning is embedded in the inherent police powers of the state to regulate the health, safety, and welfare of the public - Zoning impacts at least two sticks in the bundle of property rights: 1) Use 2) Develop --> Portions of usage restrictions mutually benefit "neighbors" --> Portions of usage are "as-of-right" which do not need permitting --> Portions of usage are "conditional use" which the community may be permit --> Portions of usage are simply not allowed and may not be permitted Limitations on Authority to Zone - Substantive due process: Land use must serve a legitimate public purpose

1. Effectively promote HSW 2. HSW 3. Not arbitrary and capricious

- Procedural due process: Follows fair process and statutes - Equal protection: Discrimination - Scope of Delegate Authority (ultra vires): - Takings: Just Compensation - Vested Right (estoppel) - Preemption: The state's authority supercedes local authority - Freedom of Speech - "non-delgavertical - "the right to travel" - "commerce clause" Bartram v. Zoning Commission Nimbys against spot zoning for drugstore. However, planning commission demonstrated promotion of HSW and not capricious

OSIEKI v. Town of Huntington The commission denied rezoning because it believes that planning and ordinances are not absolutely tied together. The court says Huntington has not demonstrated vertical consistency and it's commission's decision lacks HSW rational (arbitrary & capricious). Rezoning/vertical consistency/substantial due process Church v. Town of Islip Town conditions rezoning on particular "upgrades." Neighbors believe this to be an inappropriate delegation of authority. It deals with issues of due process and equal protection Variances Definition: Petition for relief from an ordinance that would otherwise inhibit the use or development of a property. Larsen v. Zoning BOA of Pittsburgh Four tests: 1) unnecessary hardship 2) variance is needed to enable reasonable use 3) variance alters essential character 4) variance affords least intrusive solution Issue: Boards of adjustment are hesitant to turndown applications, even when an application clearly violates standards C.U.P.s: Nonconforming Uses:

The Basics of Zoning

1. The Advent of Zoning 1.1. Background

Most states stipulate that zoning is valid only if it is in accordance with comprehensive land use plans. The courts will not sustain ad hoc, arbitrary, capricious, and unfair regulations.

In the early 20th century Zoning was, "seen either as a protection of the suburban American home against the encroachment of urban blight and danger, or as the unrestrained caprice of village councils claiming unlimited control over private property in derogation of the Constitution."

Euclid v. Ambler Realty determined that public guidance of private development was within the police power of states.

New York City, 1916, first comprehensive Zoning ordinance Standard State Zoning Enabling Act (1922) U.S. Dept. of Commerce

published a model statue for zoning. Standard City Planning Enabling Act (1928) U.S. Dept. of

Commerce--published to promote the adoption of a local comprehensive land use plan as a document separate and distinct from zoning.

Because Zoning often preceded planning in most states, States face challenges of prescribing their meaningful integration

1.2. Land Use Law and Practice 1.2.1. Balancing Property Rights and Public Interest: Limiting Doctrines

Doctrine of Substantive Due Process: Requires that land use regulations serve a legitimate purpose.

Procedural Due Process: The administrative process by which regulations are adopted and enforced must follow the procedural requirements of state statutes and meet fairness requirements.

Equal Protection: Localities must avoid improperly discriminating among similar parcels or against types of land users in violation of equal protection guarantees.

Ultra Vires--Delegated Authority: Local governments can exercise only those powers Delegated to them by the state legislature. Land use regulations cannot exceed the scope of local authority.

Takings & Just Compensation: Land use regulations must not effect a taking of private property for a public purpose without just compensation in violation of the taking provisions of the state and federal constitutions.

Doctrine of Vested Rights: Limits the authority of municipalities in certain cases to impose significant new regulations on existing investments in land, such as completed structures, projects under construction, or projects already approved.

Preemption: Local land use regulations are not permitted to control matters whose regulation has been preempted by the state legislature.

Freedom of Speech: Local regulations must not abridge freedoms of speech, expression and the exercise of religion protected by the state and federal constitutions. 1.2.2. Zoning Practices

1.2.2.1. As-of-Right Uses and their Accessory Uses: Uses that are customarily found in association with principal uses, but are incidental and subordinate to them. Example: Shed, unattached garage, RV pad.

1.2.2.2. Nonconforming Uses: A use of land that was in existence when a Zoning restriction was adopted, but is now prohibited by that restriction.

1.2.2.3. Variances: Use variances allow property owners to use their buildings and parcels for purposes otherwise prohibited by Zoning law.

1.2.2.4. Special Use Permits: A specified land use that is generally harmonious with As-of-Right uses, and conclusively demonstrate no ill impacts on neighboring properties.

1.2.2.5. Rezoning: Process which makes a proposed activity an As-of-Right use under that amendment, or revokes a particular use in the interest of the public's health, safety, welfare.

1.2.3. Local Boards There are numerous bodies involved in governing land use.

Applications are submitted to a Zoning administrator who then must ascertain its compliance with local Zoning ordinances. If denied, an application can be appealed to the board of appeals. However, there are numerous other venues for the approval of a Nonconforming use, which may require prescribed time periods, honor requirements, public hearings, and recorded deliberations.

1.3. Early Cases 1.3.1. GOLDMAN v. CROWTHER

1.3.1.1. Background: Goldman violated a Baltimore City ordinance by starting a tayloring/sewing shop in his basement to repair old clothes. The inspector of building denied His papply because residential Zoning prohibited it.

1.3.1.2. Issue: It is whether the power to hold, use and enjoy property can be restricted or taken away by the state under the guise of the police power for purely aesthetic reasons or for any such elastic and indeterminate object as the general prosperity without compensation?

1.3.1.3. Holding: The city's ZO is void because the city cannot provide substantial evidence that Goldman sewing business impinged upon the public's health, safety, and welfare and also because the "only apparent purpose [of the city's Zoning ordinances] was to prevent the encroachment of business establishments of any

kind upon residential territory..." 1.3.1.4. Principles applied: