The Nature of Zoning
Changes
Procedure,Vesting and Standing
Basic Procedure

A Zoning Ordinance
• Like any other ordinance
• A number of appointed groups can
advise
• But only the governing body can make
law or change law
• The zoning ordinance is composed of
the text and the zoning map
The Zoning Text or the
Regulations

The “Text” or the Regulations
• The Regulations are composed of
several distinct parts
The Authority
 Interpretations
 The Creation of the Zones and Districts
 The permitted uses
 Uses permitted by limitation or variance
 The District Regulations
 The textual definitions

Zoning Text - Continued
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Amendments to the text are not a
proposed “change in zoning”
Amendments are a proposal to amend the
terms, definitions, or actual district
regulations
By tradition, an amendment to the
regulations can be initiated by the
Planning Commission or the Governing
Body – not the public
The public may request a change but
cannot actually (formally) initiate the
change itself
Example – Textual Change
All building exteriors in the PC1 “Planned
Commercial” District shall be either earth tone or a
variation or white to beige color
Amendment – Meeting
Common Arch. Standards
Longaberger Basket
Building – Corp.
Headquarters in Newark,
Ohio
Map Amendment

Amendment to the Zoning Map
• Typically called a request for a zoning
change
• Also called map amendment
• By far the most common type of action
that comes before the Planning
Commission
The Zoning Map
Rural Residential
Village
Commercial
Rural
Conservation
Suburban
Residential
Nature of Zoning Change

By long tradition if an action is
legislative in nature, that is applying
a policy community wide, there is a
full presumption of legislative
immunity. The courts will not inquire
into the reasoning behind the
decision. The full burden of proof falls
on the party challenging the action.
Legislative Actions
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There is no disproportionate in legislative actions
The law impacts us all in the same manner
The great deference given to legislative actions
stems from its high visibility and widely felt
impact.
The theory is that appropriate remedies can be
had at the polls.
Fair dealings and consistent treat are often
sacrificed in the procedural informality the
accompanies legislative actions
Alternative View
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The alternative view is that zoning
changes are marked as administrative or
quasi judicial actions.
These actions are presumed to occur when
a hearing body proposes to adopt some
rule of policy or change when two or more
parties are in contention
An action is quasi- judicial if the process is
bound to result in a decision
What is Quasi Judicial?
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An action that involves the application of a
rule to a specific factual setting
A court-like action that requires a special
set of due process rules
The very basis of this mode of action is
that there are parties in contention and
that the party bringing the change fully
bears the burden of justifying the need for
the change
Contrasts In Change

Legislative
• Indeterminate and discursive
• Not bound to result in a decision
• Free choice among competing
alternatives
• Serves a general public interest
• Actions may be based on a bias for an
initial political philosophy
Contrasts

Quasi-Judicial
• Specific parties in contention
• Bound to result in a decision
• Best choices among competing alternatives
• Loss to the individual can be great while the
gain to the public is small
• Order and fairness
• Actions are not based on bias or initial
positions
• Each action decided on its merits
More Ugly Building Awards
The Watershed Case
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
Fasano v Bd. of County Comm. Of
Washington County 1972
The Supreme Court of Oregon discusses two
essential questions:
• by what standards does a county commission exercise
its authority in zoning matters;
• who has the burden of meeting those standards when a
request for change of zone is made; and what is the
scope of court review of such actions?
The Background



A.G.S. Development Company is the owner of 32 acres
zoned Residential
They apply for a zone change to P-R (Planned Residential),
which allows for the construction of a mobile home park
The change failed to receive a majority vote of the Planning
Commission. The Board of County Commissioners approved
the change and found, among other matters, that the
change allows for "increased densities and different types
of housing to meet the needs of urbanization.
The Controversy

The plaintiffs contend that the Board of County
Commissioners should be held to a certain level
of proof in making this change – especially
because the change is not one mentioned or
contemplated in the comprehensive plan for the
area
The County’s Position


Suck it up and get over it
The County argues that (1) the action of the
county commissioners approving the change is
presumptively valid, requiring plaintiffs to show
that the commissioners acted arbitrarily in
approving the zone change; (2) it was not
necessary to show a change of conditions in the
area before a zone change could be
accomplished; and (3) the change from R-7 to PR was in accordance with the Washington county
comprehensive plan.
Guess Who Got Involved
Washington’s Supreme Court’s
Initial Reasoning

At this juncture we feel we would be ignoring
reality to rigidly view all zoning decisions by local
governing bodies as legislative acts to be
accorded a full presumption of validity and
shielded from less than constitutional scrutiny by
the theory of separation of powers. Local and
small decision groups are simply not the
equivalent in all respects of state and national
legislatures. There is a growing judicial
recognition of this fact of life
A New Basis

It is not a part of the legislative function
to grant permits, make special exceptions,
or decide particular cases. Such activities
are not legislative but administrative,
quasi-judicial, or judicial in character. To
place them in the hands of legislative
bodies, whose acts as such are not
judicially reviewable, is to open the door
completely to arbitrary government
The Test

Our test involves the determination of
whether zoning action produces a general
rule or policy which is applicable to an
open class of individuals, interest, or
situations, or whether it entails the
application of a general rule or policy to
specific individuals, interests, or
situations. If the former determination is
satisfied, there is legislative action; if the
latter determination is satisfied, the action
is judicial.
The Formula

We believe that the state legislature has
conditioned the county's power to zone upon the
prerequisite that the zoning must attempt to
further the general welfare of the community. In
other words, it must be proved that the change is
needed and in conformance with a reasonable
set of standards
The Steps

In proving that the change is in
conformance with the comprehensive
plan in this case, the proof, at a minimum,
should show (1) there is a public need for
a change of the kind in question, and (2)
that need will be best served by changing
the classification of the particular piece of
property in question as compared with
other available property
The Threshold

Because the action of the commission in this
instance is an exercise of judicial authority, the
burden of proof should be placed, as is usual in
judicial proceedings, upon the one seeking
change. The more drastic the change, the greater
will be the burden of showing that it is in
conformance with the comprehensive plan as
implemented by the ordinance, that there is a
public need for the kind of change in question,
and that the need is best met by the proposal
under consideration.
The Burden

As the degree of change increases, the burden of
showing that the potential impact upon the area
in question was carefully considered and weighed
will also increase. If other areas have previously
been designated for the particular type of
development, it must be shown why it is
necessary to introduce it into an area not
previously contemplated and why the property
owners there should bear the burden of the
departure.
Baseline Requirements
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A plan and a set of regulations in conformance to
the plan
Notice and the right to be heard
A fair hearing
Right to counsel
Right to present a rebut evidence
Creation of a record contains facts, not opinions
A decision based on the record
Freedom from ex parte discussion
Golden – The View
The Golden Factors
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(1) the character of the neighborhood;
(2) the zoning uses of nearby properties;
(3) the suitability of the property for the uses to which it is
restricted;
(4) the extent to which the change will detrimentally affect
nearby property;
(5) the length of time the property has been vacant as
zoned;
(6) the gain to the public health, safety, and welfare by the
possible diminution in value of the developer's property as
compared to the hardship imposed on the individual
landowners;
(7) the recommendations of a permanent or professional
planning staff; (8) the conformance of the requested
change to the city's master or comprehensive plan. 224
Kan. at 598.
These are suggested factors only. Other factors may be
important in an individual case.
Golden - The Logo
Present Site Use
Golden – Guess What Came
Follow Up on Golden V
Overland Park
M. B. Landau v Overland Park or
“How Much is Enough”
Background
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Landau is a developer
He purchases a tract of 200 acres in 1982
for $2.5 million in Overland Park
The tract is zoned single family residential
at the time of the purchase
Landau applied to rezone a tract of 40
acres in the Northeast corner to light
commercial
The land on the east side of Landau’s tract
(across Antioch Rd.) is zoned commercial
Landau wants his commercial area to
buffer the remainder of the tract
Site Map
Low to medium
density residential
127th Street
Commercial
Development
Disputed 40
acres
137 acres of single
family residential
20 acres of
medium density
residential
Commercial and
Light Industrial
Further Development Plan

The remainder of Landau’s tract is
scheduled for:
• 137 acres single family development in
the $300,000 to $450,000 range
• 20 acres medium density development
in town houses

At the time of application Overland
Park and others were developing the
Highway 150 Corridor Plan so
Landau’s application was put “on
hold” for more than a year
New Plan

Landau’s application was taken up
again in 1986
• The Northeast and Southeast corners
along Antioch and 127 were zoned for
commercial
• Antioch Rd. was considered the dividing
line between residential and commercial
• The planning commission denies the
application under the theory that
commercial development West of
Antioch would cause a domino effect
The Site Map Again
Low to medium
density residential
127th Street
Commercial
Development
Disputed 40
acres
137 acres of single
family residential
20 acres of
medium density
residential
Commercial and
Light Industrial
Landau Replies

Landau appeals to the City
• Landau claims that the Northeast corner
of the tract is composed of land that is
unsuitable for residential development
• The land slopes too quickly
• Not possible to screen from adjacent
commercial across Antioch Rd.
City Replies Back



Extending the Multi-Family designation to Antioch
would be appropriate, the commercial use proposed
is inappropriate at this location;
 The proposed commercial zoning is at variance
with the Master Plan and the future land use plan
portion of the K-150 Corridor Study;
The proposed commercial zoning would be in
conflict with the Master Plan
 Adequate commercial developments are planned
or proposed within approximately a one-mile radius
of the site that should satisfy the market needs of
the future population of this area.
Legal Action
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Landau files suit and says: No! No! you did not
use the 7 Golden Factors to make this decision
The Kansas Supreme Court says that the 7
factors listed in the Golden Case were advisory
The Court says that what they were trying to do
is to force the Plan Commission/Governing Body
to create a record and finding of fact that laid a
basis for their decision. A “yes” or “no” vote
simply will not do
Findings
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The Court reminds Landau that the burden of
proof for justifying the change rests on the
applicant – and – that as the magnitude of the
changes increases, so does the burden on the
developer
The court, just to make a point, uses the Golden
v Overland Park factors and applies them to
Landau
The court holds that the rezoning was proper, the
reasons rational, and the decision in “sync” with
the existing facts
Insert Case
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Johnson County Board of Commissioners v City of
Olathe
The City had substantial information before it and
considered the possible uses for the Trust
property, as well as the changing nature of the
surrounding area. Although the land appears to
be well-suited for agricultural use, it is located in
a changing area where residential density is
increasing. It is reasonable for the City to plan for
the encroaching change in this area. The decision
is not so wide of the mark that it lies outside the
realm of fair debate
Wide of the Mark
Even Wider
Zoning At The Polls
Referenda as a Method of Zoning
Change
City of Eastlake, Ohio v Forest City

Forest City Enterprises, Inc., Respondent, a real
estate developer, acquired an eight-acre parcel of
real estate in Eastlake zoned for "light industrial"
uses at the time of purchase.
In the Beginning
In May 1971, Forest City applied to the City Planning
Commission for a zoning change to permit construction of a
multifamily, high-rise apartment building. The Planning
Commission recommended the proposed change to the City
Council
Procedure

Meanwhile the voters of Eastlake amend
the city charter to require that any
changes in land use agreed to by the
Council be approved by a 55% vote in a
referendum.
• The City Council approved the Planning Commission's
recommendation for changing the property to permit the
proposed project. Forest City applied to the Planning
Commission for "parking and yard" approval for the
proposed building. The Commission rejected the
application, on the grounds that the City Council's
rezoning action had not yet been submitted to the
voters for ratification.
Challenge

Forest City then filed an action in state court,
seeking a judgment declaring the charter
provision invalid as an unconstitutional delegation
of legislative power to the people. While the case
was pending, the City Council's action was
submitted to a referendum, but the proposed
zoning change was not approved by the requisite
55% margin. Following the election, the Court of
Common Pleas and the Ohio Court of Appeals
sustained the charter provision.
Analysis
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
The question in this case is whether a city charter
provision requiring proposed land use changes to
be ratified by 55% of the votes cast violates the
due process rights of a landowner who applies for
a zoning change
The Ohio Supreme Court reversed. Concluding
that enactment of zoning and rezoning provisions
is a legislative function, the court held that a
popular referendum requirement, lacking
standards to guide the decision of the voters,
permitted the police power to be exercised in a
standard less, hence arbitrary and capricious
manner
The U.S. Supreme Court

The U.S. Supreme Court concluded that a referendum
procedure, is a classic demonstration of "devotion to
democracy. As a basic instrument of democratic
government, the referendum process does not, in itself,
violate the Due Process Clause of the Fourteenth
Amendment when applied to a rezoning ordinance. Since
the rezoning decision in this case was properly reserved to
the people of Eastlake under the Ohio Constitution, the
Ohio Supreme Court was wrong in holding invalid the
charter amendment permitting the voters to decide
whether the zoned use of respondent's property could be
altered.
Insert Kaiser Kai Development v.
City and County of Honolulu
70 Hawaii 480 - 1989
Is the enactment of amendments to a county's detailed land use
development plan and zoning maps through the initiative process
is inconsistent with the requirement that land use and zoning
decisions be made in accordance with, and with the purpose of,
implementing a long range plan invalid?
Background
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
Bishop Estate is the owner of a tract of land divided into
two segments, which are designated as Golf Course 5 and
Golf Course 6, in the Kalama Valley area in East Honolulu.
Kaiser Hawaii Kai Development Company (Kaiser) has the
legal right to possess and develop this land. This
land has been zoned for residential use since 1954.
A portion of the land falls within the Shoreline Management
Area& Supp. 1988).
Before Kaiser could proceed with its planned residential
housing project on this tract, it had to obtain a special
management area use permit from the City and County of
Honolulu (City).
Know also as the Pearl County
Club
And the Public Hearings


The permit application drew the attention of a
number of citizens who protested that the
housing development would severely impact the
beach area known as Sandy Beach which is on
the opposite side of Kalanianaole Highway from
the proposed development area.
The citizens voiced their concerns relative to the
housing development in a series of public
meetings
Strike One
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
But Kaiser was eventually granted a permit to
proceed with its plan for the housing
development.
A group of citizens formed The Save Sandy Beach
Coalition (Coalition) to prevent the housing
development.
The Coalition circulated an initiative petition
which proposed to amend the designation of the
tract from residential to preservation on both the
City's land use development plan and zoning
maps.
The Coalition gathered the necessary signatures
to place the initiative proposals on the ballot for
vote by the electorate
Ball One
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Kaiser Kai tries a pre-emptive strike and asks the
district court to enjoin the balloting – the court
does so
The coalition appeals, and the appeals court
issues a decision lifting the restraining order
The election proceeds and the voters overturn
the rezoning & downzone the property
You might say that things are upside
down at this point
Ball Two


Kasier appeals to the Hawaii Sp. Court for
reversal of the election
Janet Jackson in protest of
of the election decides
to alter her half-time
show at the Super Bowl
Strike 2

Quoting from the Hawaii Planning Enabling
Statutes
• “Zoning in all counties shall be accomplished
within the framework of a long range,
comprehensive general plan prepared to guide
the overall future development of the county.
Zoning shall be one of the tools available
to the county to put the general plan into
effect in an orderly manner.”
Ball 3

The court notes:
• Zoning by initiative is inconsistent with the
goal of long range comprehensive planning,
and "[i]t seems unlikely that the Legislature
intended the possible frustration of
comprehensive zoning through the initiative
process."
Strike 3 – You Are Out
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
Zoning is intended to be accomplished in accordance with a
comprehensive plan and should reflect both present and
prospective needs of the community.
Among other things, the social, economic, and physical
characteristics of the community should be considered. The
achievement of these goals might well be jeopardized by
piecemeal attacks on the zoning ordinances if referenda
were permissible for review of any amendment
Sporadic attacks on a municipality's comprehensive plan
would tend to fragment zoning without any overriding
concept.
The opinion of the appeals court is reversed – popular the
vote cannot be used to amend zoning resolutions.
Ugly Building #4
A Vested Right
A right or privilege acquired after a
threshold requirement that cannot be
lost due to a change in law, position,
or circumstance if the requirements
for holding such right are adhered to
 Often referred to as a “grandfathered
right” by the layperson

Examples

Non-Conforming Use Right
• Threshold – previously legal use and/or
valid permit

Requirements
• Not destroyed beyond 50% of value
• Continuous or not abandoned for a
specific amount of time
• Unchanged in use
• Not Expanded
• Not a nuisance
Vested Use Right
A valid permit (quick to vest state)
 Time
 Substantial investment of funds
 Good Faith Reliance on
Administrative Officer
 Due diligence to ascertain the facts
 No fraud

Estopple & Laches
Estopple is a claim of equity (I
demand justice). In land use cases it
is typically used when one party
claims that they were induced by the
government to rely on some
regulation, in good faith, to
undertake a project (change
position)
 Elements to prove estopple vary
widely in state courts

Common Elements of Estopple
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Good faith reliance
On some act or omission of government
After extensive obligations
Which would destroy the rights to date
And results in a highly unjust and
inequitable situation
And where, if the government is stopped
from enforcement, the health, safety and
welfare of the community would not be
placed in detriment
Laches
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Means undue delay in asserting a right or
a privilege
Government acquiescence and full
knowledge of the infraction is usually
required
What is important to understand is that
the government had full knowledge that
this was an illegal act but failed, over a
long period of time, to invoke their powers
of enforcement
Ugly Building Contest Time
Transland Prop. V Village of
Nags Head
North
Carolina
Nag’s Head Police Force
The Facts

In 1972, after having amended its zoning
ordinance to permit condominium
buildings on petitioners' land, the Board of
commissioners issued to petitioners 25
permits for the construction of
condominium buildings on a parcel of land
within a much larger tract zoned for multifamily dwellings. petitioners had
substantially begun the physical erection
of 12 condominium buildings, designated
as buildings A through L of "The Villas."
The Scheme
THE VILLAS
This tract
entitled to 25
permits
Changed Their Minds
After much public pressure and a
public hearing, the ordinance was
amended again 4 months later to
prohibit the condominium section of
the project
 The Commission revoked the
remaining 13 building permits

Transland Spends $$$$
Prior to this Transland spent
$246,000 to acquire the land, clear
and grade it.
 Also spent $346,000 in sewer, water,
road and sidewalks and payment to
subcontractors

South Carolina Vesting Law

Under South Carolina vesting law the
applicant must have:
• Acquired the necessary permit legally
• Expended substantial sums of money
• Made the expenditures in good faith
reliance on government
• Acquired substantial obligations to
proceed with the project
• Construction must have commenced
The Sticky Part
The Nags Head ordinance contained
a clause that allowed a building to be
completed, even if the law was
changed, within 180 days after a
permit was issued as long as
construction had commenced.
 But since construction had not
commenced on the remaining 13
buildings, was Transland entitled to a
vested right on these buildings?

Supreme Court Ruling
Obviously, Transland had acquired a
vested right to complete the 12
buildings.
 Since project expenditures and
obligations extended across the
entire phase of the condo project,
the right to continue the entire 25
units had vested

Transland Is As Happy As A Pig
With a Bucket of Slop
Auburn v Desgrosseilliers
The Desgro… owned property and
intended to start operation of a
multi-business enterprise (floral
shop, gift shop, retail tree and
plants, and landscaping business)
 They meet with the zoning
administrator, McPhee and are
informed that the property must be
rezoned from Urban Residence to
General Business

The Problem Begins
Their property was rezoned to
General Business in 1985
 A problem occurred in 1987 when a
person told them that their operation
was unlawful under the zoning
regulations
 They meet with McPhee who told
them that they were unlawful
because they never “were really
approved.”

McPhee
Upon Learning That His
Business Was Unlawful
Getting The Bad News
The Desgros … repeatedly tried for a
year to have McPhee give them a
comprehensive answer about the
zoning violation but were
unsuccessful
 In 1989 the City cited them for a
zoning violation and ordered removal
of the commercial nursery and the
tree stock and fined them $500

The Estopple Argument
The Degros … filed in district court
for Estopple and the court barred
enforcement
 Estopple is a doctrine that if
government induces someone to do
something to their detriment, that is
not honest error, then the
government should be barred from
enforcing its own laws

Appeals Court
The Appeals Court notes that
estopple against a City is rare. The
City has a right to enforce its own
laws and should not be restricted in
any manner
 However, in fairness and justice to
the Desgros … they were mislead by
the Zoning Administrator, City
Council, and Planning Commission

Decision
If the Desgros … would have opened
their businesses on the exclusive
reliance of McPhee, that reliance
would not have been reasonable
 No one has demonstrated that the
conduct of this business threatens
the health, safety, welfare or
prosperity of the City. A balancing of
equities in this case requires the City
to be estopped for enforcing its
ordinance against the Degros …

Dege v City of Maplewood
Albert and George Dege own a
garden Center in Maplewood
 They obtained a special use permit
allowing them to construct a parking
lot on land zoning for residential use
adjacent to their building, but this
prohibited truck or trailer parking
 15 years later the Deges’ applied for
a building permit to construct a
trailer garage on the parking lot –
the City granted this permit

Albert & George Dege
Round 2




During construction, neighbors complained
that the building violated the terms of the
special use permit
The City revoked the permit, issued a stop
work order, and ordered the building to be
removed
The Deges’ applied for an amendment to
their special use permit – they were
denied
They filed suited in district court and won
a summary judgment and estopple
Appeals Court

Dege asserts that he changed his position in
reliance upon the building permit to the extent
that it would be inequitable for the city to require
him to remove the garage. Dege spent more than
$ 10,000 on the garage's construction, and it
would cost more than $1,500 to have the garage
removed from his property. Dege contends that
the city should be estopped from revoking the
building permit, and estopped from enforcing the
zoning ordinance and special use permit. The city
does not dispute the fact that the garage was
substantially completed.
Good Faith


Dege did not act in good faith when he
received the building permit. He knew or
should have know that the special permit
excluded the garage for trailer parking.
The dollar amount expended on the
project does not create vested rights
sufficient to outweigh the public's interest
in zoning cases. The mere possession of a
building permit and the incurring of
expenses do not create vested rights
sufficient to justify estoppel.
Deges’ Building After the
Decision
Speedy Lewis
Speedy Lewis v City of North
Myrtle Beach
Lewis sells an ocean front lot
 He retains the 2 story house and
plans to move it to another lot
 He applies for a permit to move the
house and submits a “plot plan” as
required
 Plot plan is prepared by a local
surveyor and indicates that the
house would be 11 feet from the side
lot line. However, the plan does not
show the dimensions of the eaves

The Plot Plan
11 ft
setback
Speedy’s
House
Actions





Lewis is granted a moving and building permit
Digs a basement and places the house on the
new lot
Upon inspection it is determined that the house is
too close to the side lot line because of the size
of the eaves
Lewis applies for a variance but is denied
City grants permission to hook to electrical power
on condition that Speedy cut the eaves off the
house. He does not do so and the City revokes
the permit and orders the house to be removed
District Court Trial
Lewis says that the City should have
issued him a certificate of zoning
compliance – which they did not do.
He relied on their expertise
 Lewis says he also relied on the
surveyor and that the City should
have inquired into the Plot Plan
 District court issues estopple

Appeals Court
Lewis admits that he had knowledge
of the City’s setback requirement
 He had the means and opportunity
himself to measure the house
dimensions and the side yard
distances
 The City could have issued a
certificate of zoning compliance but
only if Speedy applied for it – he did
not

Decision




The essential elements of equitable estoppel are
(1) lack, on the part of the one claiming estoppel,
of the knowledge and means of gaining the
knowledge and/or truth as to the facts and
circumstances upon which his claim of estoppel is
predicated;
(2) conduct, representations or silence of the
party estopped, amounting to misrepresentation
or concealment of facts;
(3) reliance upon such conduct, representations
or silence; and
(4) resulting action, to his detriment, by the
party claiming the estoppel.
Speedy – After Trial
Storm v Town of Ponce Inlet
Florida - 2004
The Controversy

Gordis Preston, the chief building official
for the Town, is sued by Mr. Storm for:
• supplying false information to Storm, either negligently
or maliciously, concerning the proper building elevation
upon which his residence needed to be built to comply
with the Town's ordinances and the National Flood
Insurance Program, his reasonable reliance on those
misrepresentations, and the resulting damages to his
property because, among other things
He screwed me over
Richard “Dick” Storm
The Suit



Preston is cut lose from the suit and storm names
the City of Ponce Inlet as a party to the ‘Tort”
Storm alleges that the Town had a common-law
duty to supervise its chief officials, and that it
had negligently retained Preston as its chief
building official after knowing of his
incompetence, misfeasance in office, and refusal
to properly enforce compliance with the Town's
building codes.
This resulted in damage to Storm's property
because of Preston's malfeasance in repeatedly
misinforming Storm of the required building
elevations, failure to enforce the Town's building
codes, and Storm's reliance on Preston's express
misrepresentations.
Storms Loses
Preston’s wife convinces Richard Storm to release her
husband from the damage suit when she meets him at the
town’s annual watermellon eating contest
The Town Replies



The Town relies on a Florida case from 1985 as
precedent for its position that sovereign
immunity bars any remedy against the Town.
This case decreed that there was no waiver of
sovereign immunity for damages caused to
individuals when building officials negligently
enforced provisions of a municipal building code
“The government clearly has no responsibility to
protect personal property interests or ensure the
quality of buildings that individuals erect or
purchase. The proper remedy for faulty
construction lies in an action against the
contractor, developer, or seller”
The Court Notes That

“The negligent retention or supervision of an
incompetent, dangerous agent or servant under
circumstances which establish that the employer
knew or should have known of the agent's or
servant's incompetence and dangerousness, and
the likelihood or foreseeability that such agent or
servant would injure a third person, growing out
of the employment status has long been
recognized as a basis for tort liability in Florida”
The Basis of the Law

When one moves to rely on the duty and advice of a
ministerial official, that person then enters a “zone of
risk” and is assumed to proceed under due diligence
Not everyone can be
smart, nor should they!
Gordis Preston
Operational v Discretionary



The court, like most appellant courts in the U.S.,
will need to distinguish between operation duties
and discretionary duties
If the duties are discretionary, that is following
established rules, then the court will inquire no
further
If the duties are operational, then the court will
examine the actions to see if there is “right fit”
between the means used and the ends achieved
The Test

Duties are Discretionary if:
• Does the challenged act involve a basic
governmental policy, program, or objective?
• (2) Is the questioned act essential to the
realization or accomplishment of that policy,
program, or objective as opposed to one which
would not change the course or direction of the
policy, program, or objective?
• (3) Does the act, omission, or decision require the
exercise of basic policy evaluation, judgment, and
expertise on the part of the governmental agency
involved?
• (4) Does the governmental agency involved
possess the requisite constitutional, statutory, or
lawful authority and duty to do or make the
decision?
Decision
The duties are clearly discretionary
 Storm has no right to challenge the
wisdom of the City Manager in hiring
Preston

• Preston’s duities must be classified as a
discretionary governmental process and
nontortious, regardless of its unwisdom
The Nature of Standing



Standing is both a baseline and a
threshold principle in law. To gain standing
before the court a person must be
involved in the direct chain of
benefit/burden
As a baseline, a person must be aggrieved
before they can enter litigation
As a threshold, the case must be ripe
before a person can enter the judicial
arena
Storm Finds Jesus
Ripening + Standing
Ben Lomond Realty v
Anchorage


The S & S Apartments are a group of eight
wooden, two-story buildings.
In 1983 the United States Department of
Housing and Urban Development (HUD),
which insured the mortgage on the
apartments, determined that the buildings
had been vacant for over four years and
the property was "in very poor, abandoned
and condemned condition."
Background


In March of 1983, Norman Thompson,
President of Ben Lomond offered to sell his
interest in the apartments to
purchaser.Under the sales agreement the
total price was $ 2.5 million. That amount
was to be paid by a S350,000 deposit,
assumption of the HUD mortgage and the
balance by May 1, 1983.
Ben Lomond took possession of the
property and started to strip the buildings
down to the bare framing.
Round 1


Ben Lomond's architect prepared a report for the
entire project showing that the apartment complex
then contained 224 units and that when all the
buildings were renovated there would be a total of
280 apartment units.
On June 8, 1983, Ben Lomond applied to the city for
building permits to renovate all seven buildings. The
applications show an intent to renovate 264
apartment units. As required by the building code,
Thompson submitted architectural plans with the
applications; those plans showed a total of 280
proposed units. At that time the site was zoned R-3,
which allowed only 234 units.
The Permits


The zoning administrator realized that
there was a parking deficiency, but after
legal consultation, issued the permits
because he believed that Ben Lomond had
“grandfather rights.”
Later, after many local complaints, the
planning director reviewed the case and
concluded that the zoning designation only
allowed 234 units, and not 260. The
permits for the project were revoked
City’s Actions



Ben Lomond meets with the City but
decided not to pursue a variance or a
special use permit
Based the on a new plan Ben Lomond did
not make the second payment to HUD and
thereby lost all rights to the property
Ben Lomond filed a suit asking for 3
million in damages based on his claim that
he had a vested right to pursue his project
A New Park




About a year later the City purchased the
property from HUD, demolished the buildings,
and created a park.
This appeal raises two major issues. First,
whether the permits were unconstitutionally
revoked and second, whether the Municipality
was immune from suit for such actions.
However, the case was not decided on these
issues.
The real issue was whether Ben Lomond has
standing because he did not exhaust his
administrative remedies (ripeness)
The Decision


We have observed that "the basic purpose
of the exhaustion doctrine is to allow an
administrative agency to perform
functions within its special competence -to make a factual record, to apply its
expertise, and to correct its own errors
without resort to judicial actions
Ben Lomond does not get standing to sue
so suck it up and get over it
Waitress says Hooters restaurant
promised her a Toyota, gave her a
toy Yoda
A former Hooters
waitress has sued the
restaurant where she
worked, saying she was
promised a new Toyota
for winning a beer sales
contest.
Jodee Berry, 26, won a
Copple v City of Lincoln



The City of Lincoln rezones a tract of land from
General Business to “Regional Shopping Center.”
Newt Copple owns a tract nearby. He had planned
to market his land for a shopping center
He claims that as a citizen, resident, and
taxpayer of Lincoln he has been damaged by this
decision since his proposal will no longer be
viable and he would suffer a hardship by having
the other shopping center so close to his project
District Court

The District Court, after a hearing on
the merits of the case, found that the
plaintiff was not a person aggrieved,
that he did not have standing to sue;
and that even if he had legal
standing, he had failed to prove he
suffered some special injury peculiar
to himself as required by law to have
standing to appeal the action of the
council.
Nebraska Supreme Court

The possibility that zone changes
may afford competition for
businesses which the plaintiff hopes
will be established on his property if
it is rezoned is not sufficient to give
standing. An increase in business
competition is not sufficient to confer
standing to challenge a change of
zone.
Newt Copple Fails
When your best just isn’t good enough
Governmental Relationships,
Sovereignty and Immunity
In a republic form of government there are two
sovereign entities – the States and the three
Commonwealths and the Federated Tripartite
Government
The local governments are simple creatures of
the States and have only those powers intended
by the states’ constitutions
Superior Sovereign and
Governmental Immunity
The basic question in this section is
whether one level of government, or
an agency of government, is superior
to and immune from the regulation
of another government
 Is the Federal or state government
immune from a local zoning
regulation

Brown v Kansas Forestry, Fish
and Game Comm.



In 1975 the Ks. Forestry, Fish and Game
Commission purchased 2 lots in the
middle of a 23 lot subdivision North of
Manhattan KS.
The commission intended to use the
property to construct a parking lot with
public toilets
The commission did not apply for rezoning
and proceeded to begin when residents
brought a suit for injunction
The Argument of the
Commission
As an agency of the state performing
a governmental function, we are
immune from the laws of a mere
political subdivision of the State
unless there is a legislative
declaration to the contrary
 The commission possesses the power
of imminent domain indicating the
legislative intent that its use of land
is not subject to a local jurisdiction

The Appeals Court


The Appeals Court selected a test which is based
on a balancing of interests
The court selected 5 points through which to view
the test
• Nature of duty
• Importance of duty
• Impact on the public
• Would the agency be impaired in their duty
• Would the neighborhood be impacted
The Five Points





This is a state agency and its judgment is
entitled to considerable deference
The general function, promotion of recreation
is important but not on the same level as
education or health
While some would find this parking lot more
convenient that others, the population
impacted is relatively small
Moving the lot to a none residential area
would inconvenience some but would not
impair its usefulness
The use would have a substantial impact on
the surrounding area that extends beyond a
mere convenience
Decision

The commission simply asserted its
immunity, without attempting to justify
the reasonableness of its decision, while
the court looked no further than the
admitted violation of the zoning
regulation. It seems to us that, on
balance, the initial decision on
reasonableness in this case can be made
more expeditiously and with greater
discernment by the local zoning authority
Things Do Not Always Go Well For
Native Americans
Narragansett Indian Tribe of Rhode
Island v Narragansett Electric Co
Background





Lands returned to this tribe in the 1970s
2,500 acre reservation set aside in
Western Rhode Island in 1979
Formal recognition of the Narragansett as
a tribe in 1982
Total number of tribal members about
3,000 persons
Historic tribal size was about 35,000
persons
Facts of the Case




In 1991 the Narragansett Housing Authority
[NHA] purchased 32 acres of land adjacent to
their settlement lands (across a road) to
construct an elderly/low income housing project
The land lies within the Coastal Management
Zone of Rhode Island
The land also lies within the town limits of
Charlestown and is zoned residential with a
maximum of two acres per residential unit
The project entails 52 units on 32 acres
The Controversy




The tribe began the project without obtaining
permits from the Town, a sanitary permit from
the State, or a permit from the Coastal Zone
Management
The project is in close proximity to Ninigret Pond
– a stressed, salt water estuary
A suit was filed in U.S. District Court
Court rules that the project is located on Indian
Land and is exempt for local and state
regulations but is subject to Coastal Zone
Management Regulations
The Appeal



The State appeals this decision claiming that the
project is not located on “Indian Land” and is not
entitled to pre-emption
The heart of the argument is that the housing
site was not part of the 1970s settlement with
the tribal and thus cannot be “Indian Land”
The tribe claims that the Settlement Act did not
abrogate their right to purchase other lands and
did not limit its ability to gain sovereign authority
over such lands that it acquires.
Court’s Analysis



The Court notes that, for the most part, the
original settlement lands for all Amerindians
constitute a separate nation and are exempt from
State control unless otherwise provided for by
the U.S. Congress
However, "land is 'validly set apart for the use of
Indians as such' only if the federal government
takes some action indicating that the land is
designated for use by Indians.“
In other words, the tribe holds this land
separately from their settlement and has not
established governmental intent to support their
claim to pre-emption
Intermission
National Beer Label Awards
Mechanics and Allowable
Actions
Interpretation of terms
 Making findings of fact
 Contract Zoning and condition in
zoning

“Never under estimate the power of stupid people in small
groups”
http://www.robrob8.com/sea
sonal/oldlady.htm
Definitions – A Couple of Rules

The heart of the zoning ordinance
• The word to be defined must not be
contained in the definitions
• If a definition is not given, the
“Webster’s” definition will be substituted
as the highest authority
• A definition is inclusive and exclusive:
“includes but is not limited to” “but does
not include the following”
Examples
Commodity and warehouse storage,
but this does not include “mini” or
“self storage.”
 … does not include, but is not limited
to the following items, inoperative
motor vehicles, house furniture,
washing or drying machines,
inoperative machinery, debris, scrap
materials and wood ….

Can You Say “Drive In”

Chanhassen Estate Res. Assoc. v
Mickey-Ds
• The McDonald's Corporation sought
approval of its acquisition of the
westerly 1.3 acres of an 8.5 acre
tract in the Chanhassen Estates
subdivision.
• The site has been zoned C-2 since it
was platted, and is surrounded by
commercial and industrial zones.
• Mickey Ds also applied for building
permits, which required design and
site plan review by the planning
commission and approval of the City
Council
The Twist

What type of use?
• Under the Chanhassen Zoning Ordinance, a
restaurant is a permitted use and a drive-in is
a conditional use of the C-2 zone
• McDonald's wished to construct a restaurant
with a "drive-thru" window. The city attorney,
city engineer, and city planner all
recommended approval as a permitted use
• A spokesman for the Chanhassen Estates
Residents Association (CERA) voiced opposition
at a public hearing
Approval?

City Council approves the site plan
by a narrow margin
• The Chanhassen Resident’s Association
files for a permanent injunction in the
“the permit was improperly issued”
• Ronald McDonald is happy
Court Says “NO”

The Trial Court
• A "drive-thru" window would not be a
permitted use because the product could be
consumed in the vehicle on the same site
• The trial court determined that the proposed
facility was not a "drive-in" as defined in the
ordinance because the customers do not wait
in parked cars. They determined that a use
specifically excluded from the permitted use
should be considered a conditional use
Minn. Supreme Court

Minn. Supreme Court reverses
• Because the terms "drive-in" and "drive-thru" are not
synonymous, a drive-thru would be neither a permitted
or conditional use, and would be effectively excluded
from the city
• To be effective, any restriction on land use must be
clearly defined
• They concluded that therefore that the McDonald's
restaurant, as proposed with a drive-thru window, is a
permitted use
The First McDonald’s – Where?
The First Ray Kroc McDonalds Des Plaines - Illinois
San Bernardino
Swift v Sublette Co. Planning Bd.



Wyoming Supreme Ct. – 2002
This case illustrates the zoning principle of “customary
accessory uses” or “associated uses/supporting use,” as
they are often called.
Typical ordinance language – “The following uses are
permitted by conditional use permit along with those accessory uses
the are normal and customarily associated with the principle use.”
The Issues

Joe’s Concrete and Lumber, Inc. operates a gravel pit on
land near Boulder, Wyoming
Joe’s applies for a conditional use
permit (CUP) to continue using the
extraction site to include a concrete
batch plant
The owner of the land adjacent to
the site objects – dust, noise, traffic,
plagues of locusts and flies
Board approves the CUP
Adjacent land owner files for
injunction in district court and court
refuses – land owner appeals
Basic Review



The Zoning Regulations of Sublette County
allow for the issuance of a conditional use permit
For gravel pits and “associated extraction activities” within land
zoned Agriculture (A-1).
Resolution of this dispute is dependent then upon a determination
of whether a concrete batch plant can be considered part of the
“associated extraction activities” of a gravel pit.
Joe’s argument –The batch plant is
closely associated with the extraction
of sand and gravel
Appellant's argument- the batch plant
is a processing activity while sand
and gravel is an extraction activity
Court Views Plain Meaning



Extraction - a: to draw forth (as by research) . . . b: to pull or
take out forcibly . . . c: to obtain by much effort from someone unwilling . .
. 2: to withdraw (as a juice or fraction) by physical or chemical process;
also: to treat with a solvent so as to remove a soluble substance 3: to
separate (a metal) from an ore
Associate - closely connected (as in function or office) with another 2:
closely related esp. in the mind. Merriam-Webster’s Collegiate Dictionary
Conclusion





There is nothing in the record to indicate that the batch plant bears
any relation to the actual physical extraction of the gravel from the
ground.
There is no indication that a batch plant refines or processes the
gravel in a manner that removes or separates the gravel from other
substances
The batch plant processes the gravel with other ingredients to
create a product – concrete – it does not extract or assist in the
extraction of the gravel from the ground
There is no rational relationship between sand and gravel extraction
and the batch plant
The relationship between the two is mere convenience. Reversed
Today’s Thoughts
Putnam Associates v City of
Mendota Heights MN

Findings of Fact
• Land near the airport is zoned R-1
residential
• Increasing air traffic becomes a concern
• There is a proposal to rezone the
property to HD – Planned Development
• The proposal is rejected but the Metro
Council does change the designation to
HD in the Land Use Map of the Comp
Plan
Several Years Later

Moves and Countermoves
• Several proposals for commercial
development are rejected by the City
• Rottlund Corp buys the property from
Putnam Co.
• Proposes townhouses
• Request rezoning to HD, asks for a
conditional use permit and sketch plan
approval
• City Planning Commission votes 7 – 0 to
not recommended the proposal
Further Action

Rottlund makes some design changes but:
• Council votes 3-2 to deny the change
• AFTER the meeting the City Attorney prepared
from his notes “findings of fact” that were
incorporated into the final resolution
• Rottlund/Putnam bring suit and the trial court
rules against the City
• Trial Court says the action is unreasonable in
that Council should have made
contemporaneous findings
Supreme Court Reverses

Why?
• What we seek to prevent is “offering
after the fact reasons” for a decisions
• This rationale is not served by denying a
city a reasonable amount of time to
prepare a record or formalize its
findings. We conclude that as long as
the necessary record is prepared within
a reasonable time of a zoning decision,
a municipality should not be presumed
to have acted in an arbitrary manner.
Nuns and Zoning
Contract Zoning

This case explores the nature of
contract zoning
• Contract zoning is said to be a written
or oral agreement between the owner
and governing body to file certain
private restrictions or limitations in
return for the rezoning
• The basic idea is that government
cannot “contract” to have a law passed
Draculich v City of San Antonio




In May 1998, the Sisters of the Sacred
Heart of Jesus of St. Jacut applied to
rezone four acres
The four acres were part of a larger tract
of land owned by the Sisters in that area
zoned to permit single-family and duplex
residences but not multi-family residences
The Sisters planned to sell the land to a
non-profit to provide a shelter for
homeless people
Neighbors protested the zoning change
Homeless Shelters Are
BANANA


Banana – Build absolutely
nothing anywhere near
anything
Proposed by the CAVE People
– Citizens Against Virtually
Everything
Background



During discussions with the Sisters the Planning
Commission Chair (Martindale) suggests that
they file numerous restrictive covenants to satisfy
the neighbors
The Chair of the Planning Commission contacted
Bannwolff, the City Councilperson that
represents the district, in order to communicate
the nature of the restrictions
Planning Commission approved and City Council
vote 9 –1 to approve. Bannwolf votes against
Follow up





After the rezoning the Sisters sold the
tract to the non-profit agency
The neighbors in opposition sue
The suit claims an illegal uses of the
zoning power based on “contract zoning.”
Neighbors claim that the rezoning
ordinance is not legislation – but a
contract providing for the bargaining away
and selling of the police power
The District Court rules in favor of the City
Appeals Court Review


The appellants contend the rezoning was the
result of an illegal contract between the City
Council and Martindale under which the City
agreed to the rezoning in exchange for promises
made by Martindale.
Martindale specified for Bannwolf the restrictions
the Sisters were willing to put on the use of the
property; for example, that it would not be used
as a half-way house for substance abusers, no
on-site soup kitchen meals would be provided,
and twenty-four hour on- site security monitoring
would be provided
The Nuns Are Pissed
City’s Comments

Mayor Peak's statement to the City Council made it
clear that the agreement to place restrictions in the
deed was the result of negotiations conducted on
behalf of the residents of the nearby neighborhoods.
At trial, Mayor Peak testified that Martindale was not
promising anything that the R-3 zoning would not
have already restricted him from doing. Mayor Peak
agreed that the restrictions were to allay the
concerns of the neighbors, and were not conditions
requested by the City. Mayor Peak said he never
promised Martindale, any representative, or the
Sisters that placing the restrictions in the deed would
guarantee a favorable vote by the City Council.
Further Allegations – Spot
Zoning


Spot zoning is an unacceptable ordinance
that singles out a small tract for treatment
that differs from that accorded similar
surrounding land without proof of changes
in conditions. "Spot zoning is regarded as a
preferential treatment which defeats a preestablished comprehensive plan. It is
piecemeal zoning, the antithesis of planned
zoning.
To address this allegation the court
characterized the neighborhood
Spot Zoning!
Aminty
Street
Convenience
Store
Convenience
Store
Ville
Street
Character of the Neighborhood

Adjoining the northern boundary of the tract is a
Diamond Shamrock training center which originally
was a convenience store. Also adjoining the north
boundary of the four-acre tract, and immediately
east of the Diamond Shamrock training center, is a
retail strip center. At the northeast corner is Castle
Hills Apartments.
South of the tract is a San Antonio Christian
secondary school. Southeast of the tract is an
elementary school operated by the Sisters. South of
the two schools, is a complex owned by the Oblate
Fathers that includes a seminary, a home for retired
priests, a retreat house, and retreat apartments.
Decision
Given the fact that the City (1) never
induced the Sisters to bargain for the
rezoning, and (2) the condition and
character of the nearby
neighborhood are certainly conducive
to multi-family living
 The Court upholds the decision to
dismiss and held for the City

Bird-Kendal Homeowner’s
Association v Dade Co

A 1997 case involving spot zoning
• This action involves a request for a
rezoning on a tract that is 0.23 acres –
it is part of a larger lot of 5 acres
• The tract is part of a large rurban
residential area know as “Horse
Country”
• The area is currently zoned AU “agriuse”
• The request for zoning is BU “business
use’
Horse Country
The Tract
The Action

The Rezoning Request
• The .23 acre rezoning is admittedly and
solely for the purpose of a feed store
and tack shop
• There are no BU3 zoned tracts within
miles of this area
• The Homeowner’s Association in “Horse
County” files suit
• They content that this is a spot zone
and therefore unreasonable, arbitrary,
and capricious
The Hearings

Legal sequence
• District court finds that this constitutes an
illegal use of the zoning power and is
unreasonable
• The Florida Court of Appeals defines “spot
zoning”
 Piecemeal rezoning of smaller lots to greater
densities leading to disharmony with the
surrounding area
 A rezoning that a small is land of property
with restrictions different than surrounding
parcels solely for the benefit of a particular
property owner
Examination of the Four Part
Test

The Appeals Court uses a four part
test to determine if this is a spot
zone
• The size of the spot
• Compatibility with surrounding area
• The benefit to the owner
• The detriment to the surrounding area
Melanoma Zoning

The court says that this goes beyond
spot zoning
• It is melanoma zoning or
“melanomanizing”
• Has no relation to anything with 2 miles
• Is out of character with the surrounding
property
• Is a pure benefit to the property owner
• Is detrimental to nearby property
The Court Says “No Way” To
the Horse Store
THE LATEST SIGN CONTROVERSY
Mothers Against Genetically
Altered Food Have
Sponsored Some 14 Signs
In the Auckland Region at
the Cost of $2,500 each
The Homeland Planning
Agency in Auckland has
been asked to remove them
because they are obscene
Foresight, Inc v Weston
Disposal

This case explores the difference between
a non-conforming use that would be
allowed to continue when the ordinance is
changed, and an illegal use that was never
granted “grandfather” status
A Non-Conforming Use


A use of the land that was once legal but
due to changed circumstances is no longer
permitted.
Typically, non-conforming use rights run
with the land and:
• Are allowed to continue without a change
in use, scope, activity, or nature
• Can be lost if the use ceases for a
specified period of time
• Is amortized for a specified period of time
• Or is destroyed by fire or natural disaster
Facts of the Case
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
Weston Disposal (referred to as Disposal)
was operating a disposal site in the “John
Ryan Pit” in the Town of Weston.
In December of 1992, the Village of
Rothschild annexed Weston. Rothschild
rezoned the parcel AR from RE (residential
estate); The permit was issued by Weston
while the parcel was zoned A/R agricultureresidential
Foresight, Inc. purchased property adjacent
to the Ryan Pit in 1995. Foresight desired to
develop the area and alleged that Weston’s
use of the property violated Rothschild’s R-1
zoning.
And It Continues


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Later Foresight Developers purchase a
tract next to the Ryan Pit and planned to
construct single family homes
Foresight complained that Weston’s use
violated the R-1 regulations of Rothchild’s
ordinance
Weston claims that they have a
nonconforming use right to continue using
its earlier permit from the Town of Weston
The Appeal
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Foresight appeals
The court notes that the issue will turn on
the question of the original permit
When the City of Weston originally issued
the permit, the land was zoned AR
This zoning district, at the time, never
permitted dumping, mining, material
storage, or the like
Weston Disposals Counterclaim


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Well, since the original AR never PROHIBITED
dumping, then it must have been permitted
The court says I guess you can’t read since the
ordinance says: "no building or tract of land shall be
devoted to any use other than a use permitted
hereinafter in the zoning district in which such
building or tract of land shall be located," with the
exception of conditional uses and legal
nonconforming uses.
A permit issued for a use prohibited by the ordinance
is invalid and constitutes an illegal permit –
therefore, no ticket – no laundry.
Of Cows and Non-Conforming
Uses
BAXTER V CITY
PRESTON
The Background
Starting in 1969 Thayne Corbridge
allowed about 20 head of cattle to
graze on two adjoining parcels of
land that he owned
 The parcels were separated by a
concrete ditch
 Each year he would farm one parcel
and then allow the cattle to graze on
it
 The cattle never remained
throughout the winter

And Then Came More Cows
Facts
In 1984 Corbridge erected a portable
manager, haul in Hay, and fed cattle
throughout the year – manure
accumulated.
 Baxter tried to get the City to
enforce its ordinance against
Corbridge. The City refused and
Baxter brough suit for
a mandamus

Court Decision
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The nature of the use had changed by
“expansion” and intensification
Corbridge’s historic use was for 20 cattle
on one parcel
This had expanded to 40 cattle on both
properties
In addition, he erected a building in
support of the expanded use and
converted the operation to a feedlot rather
than natural grazing
The Bottom Line
This is an illegal expansion of a nonconforming use
 Corbridge is entitle to continue his
historic use

• 20 cattle on one parcel to be removed
during the winter months
• No on-site feeding
• Cannot erect structures
Of Cows and Bulls
Ugly Building #5 – City Hall
A Twist in The Law

Can a local regulation terminate the
use of a non-conforming mobile
home upon transfer of ownership?
Village of Valatie v Lynette
Smith

In 1968, the Village enacted a to prohibit
the placement of mobile homes outside
mobile home parks. Under the law, any
existing mobile home located outside a
park which met certain health standards
was allowed to remain as a nonconforming
use until either ownership of the land or
ownership of the mobile home changed.
One owned by Lynette Smith’s father fell
within this exception at the time the law
was passed
Litigation

The Court acknowledged that a
municipality had the authority to
phase out a nonconforming use with
an "amortization period", but it
concluded that this particular law
was unreasonable, and therefore
unconstitutional, because the period
of time allowed "bears no
relationship to the use of the land or
the investment in that use".
Lynett’s House
The Appeals Court
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The narrow issue is whether the Village acted
unreasonably by establishing an amortization
period that uses the transfer of ownership as an
end point
Most often elimination is accomplished by
amortization periods such as 3, 5, or 15 years
depending on value
Typically, the period of time allowed has been
measured for reasonableness by considering
whether the owners had adequate time to recoup
their investment in the use
Analysis
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Defendant's argument is premised on the
"fundamental rule that zoning deals
basically with land use and not with the
person who owns or occupies it"
The hallmark of a case like this is that an
identifiable individual is singled out for
special treatment in land use regulation.
No such individualized treatment is
involved in the present case. All similarly
situated owners are treated identically.
The same is true for all prospective buyers
Argument
Mrs. Smith claims that the law is
discriminatory because the time is
not fixed
 Some may be allowed to remain in
the mobile home for many years
while others for only a short period
of time
 Mrs. Smith failed to show that the
Village’s method of amortization is
unreasonable

Lynett’s New House
Ugly Building # 6 London
Ugly Building #7 - Denver
Public Library
And, A Statement From New York
Most Ugly Building Contest