Module 07 Practice Essay Question Model Answer
Issue:
What challenges can be made to the archeological protection ordinance?
Rules:
All land privately owned is held subject to some controls by the police power included in the state and
federal constitutions. If the power is exercised under the police owner then no compensation is due the
landowner, even if the landowner will suffer a decrease in the projected value of the land.
Zoning ordinances must be justified as protecting the heath, safety, orals or welfare of the public. Such
ordinances must be reasonable and not arbitrary.
One of the key concepts of challenging zoning ordinances is that if the validity of the ordinance is fairly
debatable, there is a presumption of constitutionality.
Ordinances can only be challenged if they are unreasonable or arbitrary in a case such as this because
the courts will use the rational basis test. There is no fundamental right involved so the more stringent
test of strict scrutiny would not be applied.
Analysis
It would seem that Ned has little chance of challenging the archeological protection act on its face given
that the city based its passage on recent scientific investigations. Preservation of historical sites could
be said to enhance the public morals and welfare and would be viewed by many as generally beneficial
and worthwhile. Ned may try to apply for a variance or a zoning amendment but he must be able to
show that as applied to him, the ordinance should not be applied, or if it is applied he should be
compensated for his loss. Ned’s property can still be used for a park or some other non-development
use. He should have a strong argument however that a bar to all development should be compensated.
Issue:
Can Ned challenge the weekend regulation or seek a variance or zoning amendment regarding the
weekend regulation for convenience stores?
Here the same constitutional arguments stated above will apply. Ned may be able to seek a variance. In
order to seek a variance, Ned has to argue that the land in question cannot yield a reasonable return if
used solely as zoned, the plight is due to unique circumstances and the use to be permitted by the
variance will not alter the essential character of the neighborhood.
Ned should argue that convenience stores derive a lot of business from weekend shoppers. To close
during the first two Saturdays and Sundays of each month for a year or more would make it difficult for
customers to plan on when the store will be open. Moreover, Ned should note that the store is a mile
and a half from the neighborhood. Although protection of the safety of children in the neighborhood is
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a legitimate goal, Ned can argue that he is far enough away from the neighborhood that traffic should
not be a concern.
An amendment to the zoning ordinance would be harder to justify because some communities might
argue that this is “spot” zoning which is often illegal. Spot zoning is zoning that singles out a particular
property for different treatment. Unless all convenience stores in the area would be exempted from the
regulation, an argument against an amending the ordinance might likely be successful.
A special exception would not apply to this situation. A special exception is a permitted departure from
the restrictions when the ordinance authorize permits for parks, schools or churches in a residential
zone under stated conditions --- usually extra parking or lighting. From the facts given, it is not clear
that Ned’s property is in a residential zone since the facts state that his proposed convenience store is a
mile and a half from a residential development.
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