Notable Case Law (cont.) and Zoning
Basics
• Announcements and news
– Policy memos, SoCRs, Jan (Coase) and Joe,
presentations, TIF?
• Case examples (cont. from last lecture)
• Zoning
URBDP 598A: Land Use Planning I, Winter AY 2006-2007
Judicial tests and some cases (woo!)
• Going “too far” (Penn coal v. Mahon 1922)
• Three factor balancing test: character of the regulation; the
economic impact on the landowner; and the extent of
interference with investment-backed expectations (Penn
Central v. NYC 1978)
• Two-part test: substantially advances state interest and not
deny all economic use (Agins v. Tiburon 1980) (Questioned in
Lingle v. Chevron 2005 on first part of test)
• Logical nexus: means and end to be achieved need to be linked
(Nollan v. California Coastal Comm. 1987)
• Temporary taking=taking (First English Lutheran v. County of
Los Angeles 1987)
• If regulation prevents all economic use, it’s a taking (Lucas v.
South Carolina Coastal Council 1992)
URBDP 598A: Land Use Planning I, Winter AY 2006-2007
More cases!
• Rough proportionality of impact to dedication as condition of
development (Dolan v. Tigard 1994)
• Rough proportionality inapplicable in denial of development
permit (City of Monterey v. Del Monte Dunes 1999)
• Acquisition of title after the effective date of a regulation does
not automatically bar a regulatory taking claim (Palazzolo v.
Rhode Island 2001) (However, Lucas logic applied, case
remanded for Penn Central three factor balancing test)
• No per se rule regarding the issue of whether a temporary land
use restriction (even if a complete denial of all use is imposed
for a finite and reasonable period), such as a moratorium, can
constitute a taking. (Tahoe-Sierra Preservation Council, Inc. v.
Tahoe Regional Planning 2002)
• Land can be condemned for public good even if turned over to
private interest. (Kelo v. New London 2006)
• GREAT REFERENCE:
http://www.mrsc.org/Subjects/Legal/takings.aspx
URBDP 598A: Land Use Planning I, Winter AY 2006-2007
Zoning
• First in 1916 NYC, defining court case 1926 (Euclid)
• Conceptually in conflict with equal protection clause
but courts rationalized uniformity is achieved
within/between zones (all R zones regulated similarly)
• Came out of urban areas and separation of uses for
nuisance reasons.
– 3 main uses: Residential, Commercial, Industrial
• Historically cumulative, or hierarchical
– R into I&C, C into I
URBDP 598A: Land Use Planning I, Winter AY 2006-2007
Zoning Ordinance (handout)
• Article 1: Preamble
– References enabling legislation and police power
• Allow for local govt as creatures of the state
• Express power of Feds (war, treaties, coin money, interstate
commerce, etc.) and all other powers go to states.
• Home rule states: State-municipality relationship mimics that
of fed-state. State holds onto some powers.
– Police power: to protect public health, safety, general
welfare
URBDP 598A: Land Use Planning I, Winter AY 2006-2007
Zoning Ordinance II
• Article 2: Definitions
– Attempt to limit ambiguity of terms. Can be used to change
law without changing statutes
• Article 3: Land Use Zones
– Separate incompatible land uses
– Ordinance will include map and text
– Zone descriptions and purposes for the zones. In simple
areas boundaries are referenced.
URBDP 598A: Land Use Planning I, Winter AY 2006-2007
Zoning Ordinance III
• Article 4: Principle Zone Regulations
– 3 types of uses: permitted, conditional, prohibited
– Historically specifications were for access to air, light, fire
protection. Currently, privacy, limit nuisance, internalize
externalities as possible.
– Administratively 4 parts:
• Legislative body-enacts and amends ordinances
• Staff (Zoning Administrator)-handles permitted uses, no
discretionary authority
• Zoning board/appeals-conditional uses, discretionary, functions in
quasi-judicial fashion. Original jurisdiction for conditional uses,
variances, appellate jurisdictions
• Courts-handle appeals (after board of appeals)
URBDP 598A: Land Use Planning I, Winter AY 2006-2007
Zoning Ordinance IV
• Article 5: Supplementary Zone Regs
– Non-conforming: use was conforming prior to zoning
change. Generally allowed to continue in perpetuity. Not
allowed “more non-conforming,” and amortization schedule
to phase out use is possible
– Non-complying structure: similar to above, but if destroyed
>50%, not allowed to rebuild non-compliantly
– Discontinued use ok if limited time (specified in ord.)
– Zoning applied to land not ownership: transfers with title
– Accessory uses: incidental to primary use, special setbacks
or supplemental regulations relative to use with primary use
URBDP 598A: Land Use Planning I, Winter AY 2006-2007
Zoning Ordinance V
• Article 6: Administration and Enforcement
– Enforced compliance
– Conditional use permit will specify criteria of health, safety, welfare to
protect against arb & capricious charge and inform applicant
– Variances: 2 types—use and site
• Granted only on basis of hardship, no fault of owner
• Use variances are the sticky wickets
• Subject to de minimus concept: the minimum allowed variance to mitigate
problem
• Spot zoning, or the granting of use variances, is not appreciated by courts
• Miscellaneous:
– Validity or separability clause: if any portion is found invalid, only that
portion is invalid, not whole ordinance
– Effective date: key, for non-con uses
– Map: on TOC, reaffirms presence, validity
URBDP 598A: Land Use Planning I, Winter AY 2006-2007
Other Zoning Types: Variations on a Theme
• Post WWII moved to exclusive—not cumulative—zones,
making cities delightfully sterile (question: how to allow for
multi-use while maintaining principle of separation of
incompatible uses?)
• Floating Zone: described in ordinance text, unmapped. Can be
placed if allowed as conditional use, described in definitions, is
descriptive of what it includes. Takes expertise, rarely used
• Performance zoning: with regard to land, area, structures,
make standards explicit, allow anything that meets standards
– People want certainty, FZ and PZ don’t give it
• Extraterritorial zoning: city zones outside boundaries
• Interim, holding, emergency zones: short process for adoption
of simple form for specific time
URBDP 598A: Land Use Planning I, Winter AY 2006-2007