Morgan v. High Penn Oil
• 1945 Πs purchase a 9 acre tract. They have a
dwelling house, a restaurant and 32 mobile homes.
– Πs take lodgers into their dwelling.
• 1950, High Penn Oil begins operating a refinery about
1000 feet from Πs’ dwelling.
• The area within 1 mile has very mixed uses, from
residences to giant storage tanks to trucking
companies to railroad facilities.
• Evidence that, 2-3 days a week, refinery emits
nauseating gases and odors in great quantities so as
to render persons of ordinary sensitivities
uncomfortable and sick.
• Oil refiner is the only discharger “in annoying
quantities” in the area.
• Relief sought: temporary damages plus an injunction.
1
Donald J. Weidner
Morgan v. High Penn Oil (cont’d)
• Nuisance per se or at law “is an act, occupation,
or structure which is a nuisance at all times and
under any circumstances, regardless of the
location or surroundings.”
– No nuisance per se in Morgan because the activity is
not illegal.
• However, some nuisances have been called per se even
though they are not illegal and even though questions of
reasonableness have been involved
• Nuisances per accidens or in fact “are those
which become nuisances by reason of their
location, or by reason of the manner in which
they are constructed, maintained, or operated”
– However, some have been held per se because of
their location, and this involves questions of
reasonableness
– There can be a nuisance per accidens even if the
facility is operated in a non-negligent manner.
2
Donald J. Weidner
Morgan v. High Penn Oil (cont’d)
• A nuisance can arise from a negligent act,
but it need not
– Nuisances often arise from intentional acts.
– Morgan: If the nuisance is intentional, it is
irrelevant that the defendant exercised great
care to avoid it.
• Sic utere tuo ut alienum non laedas—so
use your own rights that you don’t alienate
the rights of another
– Begs the question
– Hence, offers no guidance
3
Donald J. Weidner
•
Morgan v. High Penn Oil con’t.
Rules: To be actionable, an interference must be:
1. Substantial; and
2. it must be either:
•
Intentional*
–
3 different approaches
1. For purpose of causing harm
2. Knowing that harm will result
3. Knowing that harm is substantially certain
AND
• Unreasonable
–
2 very different approaches
1. Look only at the level of interference (“threshold test”)**
2. Balance (“Restatement”)
Gravity of harm vs. utility of conduct
*”A person who intentionally creates or maintains a private nuisance is liable
for the resulting injury . . . regardless of the degree of care or skill
exercised by him to avoid such injury”
** Under the threshold test “for unreasonableness, at least one court has said
that the social utility of the actor’s conduct is irrelevant →  balancing is
not admissible into evidence.
4
Donald J. Weidner
Morgan v. High Penn Oil con’t.
Or
• Unintentional
AND
• Resulting from activity that is
– Negligent
– Reckless or
– Abnormally dangerous
• Note: Intentional torts typically result in liability without
regard to
– Substantiality of harm or
– Reasonableness of activity
• In effect, there are extra defenses if there is no
physical invasion. But see Martin. Martin subjected
trespass to utilitarian analysis.
5
Donald J. Weidner
“Utilitarian Analysis” of Restatement
Utilitarian Analysis Balances the Gravity of the
Harm against the Utility of the Actor’s Conduct
• Gravity of Harm. Relevant factors:
– Extent and character of harm;
– Social value of neighbor’s use that is harmed;
– Suitability to the locality of neighbor’s use that is
harmed;
– Burden on neighbor to avoid harm that is alleged.
• Utility of actor’s conduct. Relevant factors:
– Social value of actor’s conduct;
– Suitability of actor’s conduct to locality in question;
– Impracticality of actor’s preventing the harm.
6
Donald J. Weidner
Morgan v. High Penn Oil con’t.
• Text says: The utilitarian analysis
suggests essentially a negligence
analysis.
• It also suggests you can identify the
“actor.”
– The essence of the Coase theorem is
reciprocity: you simply have 2 conflicting land
uses.
• How do you apply the utilitarian analysis to
a noisy apartment house air conditioning
unit?
7
Donald J. Weidner
Estancias Dallas Corp. v. Schultz
• In 1969, an apartment house was completed
with 155 apartments in 8 buildings.
– An air-conditioning unit and tower that served the
entire complex (all 8 buildings) was located at the
back of the complex, about 5 feet from the
neighbor’s property line – 55 feet from the
neighbor’s back door.
• Neighbor says:
– Can no longer entertain in their back yard;
– Can not carry on normal conversations in their
home, even with doors/windows closed;
– Interferes with their sleep at night.
8
Donald J. Weidner
Estancias Dallas Corp. v. Schultz, con’t.
Estimated decline in value of land
(Neighbors’ estimate)
→
$ 15,000
Cost of this unit (single unit for all 8 bldgs.)
→
$ 80,000
Cost savings by this unit
(separate units for 8 bldgs. would have been
$40,000 more)
→
$ 40,000
Cost to relocate system
→
$150,000
Cost to buy the Neighbors’ land
→
$ 25,000
[Note: Here there was an award of past damages, $9,000 to the wife, $1,000
to her husband, for personal discomfort and health impairment].
Is there a nuisance here? Under what analysis?
Why didn’t the utility of Δ’s conduct ($40,000 savings) outweigh the harm
to neighbors’ land, which neighbor estimates to be only $15,000?
What are the arguments in favor of an injunction remedy?
What are the arguments in favor of a damage remedy?
9
Donald J. Weidner
Estancias Dallas Corp. v. Schultz, con’t.
• Doctrinally, the court says:
– After we have determined a nuisance exists, we must
– Balance the equities to determine whether an injunction
will issue [as opposed to damages]
• Injunctive relief should be granted unless an injunction would
harm the public interest
• How did the court balance the equities?
– Do the numbers show that the utility of the apartment
owner’s conduct outweighed the gravity of the harm to
the neighbors?
• Restatement looks at the social value of the actor’s conduct.
• “We find little or no testimony . . . reflecting benefit to the public
generally. There is no evidence that there is a shortage of
apartments in the City of Houston and that the public would
suffer by having no place to live.”
10
Donald J. Weidner
A Further Note on Coase
•
Two basic ways to view Estancias
1. Apartment has inflicted harm on Residence
–
What relief shall we provide against apartment?
2. The problem is reciprocal
–
•
To avoid the harm to Residence is to inflict harm on
Apartment
Under a reciprocity analysis
1. The real question that has to be decided is:
Should Apartment be allowed to harm Residence or
should Residence be allowed to harm Apartment?
2. The problem is to avoid the more serious harm
3. We need to know
1. the value of what is obtained and
2. the value of what is sacrificed to obtain it
11
Donald J. Weidner
More Coase
•
The authors conclude that, under the Coase approach
–
Coase would want us to compare the Oil Co’s abatement costs
to the plaintiff’s damages
•
–
•
•
or to the cost of plaintiff’s avoidance measures, whichever is less
Morgan is correct if the cost of abatement to the High Penn Oil
Co. is less than the costs its operations necessarily impose on
the plaintiffs
Does it follow that plaintiffs should bear the costs of
avoidance if they are the cheapest cost avoiders?
There are two separate questions:
1. What is the cheapest way to avoid the problem?
2. Who should bear the costs of avoidance?
•
For example, in Morgan, you might conclude that the
cheapest abatement measures can be taken by the
plaintiffs
–
but that as a matter of fairness the Oil Co. should bear those
costs
12
Donald J. Weidner
Nuisance – Introductory Recap
Text: An interference with use and enjoyment of land, in
order to give rise to liability, must be:
– Substantial; and
– it must be either:
• Intentional
– 3 different tests
» For purpose of causing harm
» Knowing that harm will result
» Knowing that harm is substantially certain
AND
• Unreasonable
– 2 fundamentally different approaches
» Level of interference (“threshold test”)
» Balance (“Restatement” “utilitarian” approach)
Gravity of harm vs. utility of conduct
13
Donald J. Weidner
Nuisance – Introductory Recap con’t.
Or
• Unintentional
AND
• Resulting from activity that is
– Negligent
– Reckless
– Abnormally dangerous
14
Donald J. Weidner
“Utilitarian Analysis” of Restatement
Utilitarian Analysis Balances the Gravity of the
Harm against the Utility of the Actor’s Conduct
• Gravity of Harm. Relevant factors:
– Extent and character of harm;
– Social value of neighbor’s use that is harmed;
– Suitability to the locality of neighbor’s use that is
harmed;
– Burden on neighbor to avoid harm that is alleged.
• Utility of actor’s conduct. Relevant factors:
– Social value of actor’s conduct;
– Suitability of actor’s conduct to locality in question;
– Impracticality of actor’s preventing the harm.
15
Donald J. Weidner
The Second Restatement
•
•
The Second Restatement moves an intentional
nuisance closer to an intentional trespass—limiting
somewhat the defense of reasonableness.
Under the Second Restatement, an intentional
nuisance is unreasonable:
1.
2.
•
•
if the gravity of the harm caused outweighs the utility of the
defendant’s conduct, or,
[Even if the utility of the conduct outweighs the gravity of the
harm,] if there is serious injury and the defendant could
compensate for this and like injuries and still stay in business.
The balancing under (1) is adequate if the suit is for an
injunction.
The question of the financial burden of the cost of
compensating for the harm under (2) is appropriate if
the suit is for damages.
16
Donald J. Weidner
Boomer v. Atlantic Cement
• Δ Cement company is sued by a group of
neighbors who allege that its operations cause
dirt, smoke, and vibrations that reduce the value
of their property. Πs seek damages and
injunctive relief.
• Court of Appeals says:
– Yes, nuisance;
– Yes, injunction, but
– Injunction lifted on payment of permanent damages.
• Stated differently, the Court give the neighbors
and entitlement but enforces it with a damage
remedy.
17
Donald J. Weidner
Boomer v. Atlantic Cement con’t.
• Boomer overrules the following old law:
– Where a nuisance has been found and where there has
been any substantial damage…an injunction will be granted.
• Is there balancing either
– To find a nuisance?
• None is discussed.
– To decide whether an injunction will be the remedy?
• Court denies an injunction because of “the large disparity in
economic consequences of the nuisance and the injunction.”
– “The total damage to plaintiffs’ properties [$185,000] is . . . relatively
small in comparison with the value of defendant’s operation
[$45,000,000] and with the consequences of the injunction which
plaintiffs seek [300 jobs].”
18
Donald J. Weidner
Boomer v. Atlantic Cement con’t.
• What is it about this case that moved the court to
change the law?
– There are many polluters and this single cement plant has
been the target of many neighbors.
– Any one neighbor could hold out.
– Many neighbors cold assert loss beyond “economic loss.”
– Issues of causal complexity.
– Cost to avoid nuisance? Rate of research is beyond the
control of cement co.
– Don’t want to shut down cement co. when it can not pass
on its cost.
– “all of the attributions of economic loss to the properties on
which Πs’ claims are based will have been redressed.”
– The risk of being required to pay permanent damages to
injured property owners is a reasonable effective spur to
research for improved techniques to minimize nuisance.
– Theory of damages: the “servitude on land’ of Πs imposed
by Δ’s nuisance.
19
Donald J. Weidner
Spur Industries v. Del Webb
• In 1956, feedlots were developed by Spur’s
predecessor in interest.
– “This area is well suited to cattle feeding.”
• In 1959, Del Webb begin to plan Sun City,
several years after feedlots were established in
this primarily agricultural area.
– Del Webb purchased 20,000 acres of farmland at
$750 an acre, considerably less than land closer to
Phoenix.
• In 1960, Spur purchases the feedlots and begins
expanding.
• By 1962, Spur had gone from 35 to 114 acres.
20
Donald J. Weidner
Spur Industries v. Del Webb con’t.
• At the time of suit, Spur was feeding up to
30,000 head of cattle, producing over
1,000,000 pounds of wet manure a day.
• Spur’s activity was not ultra-hazardous,
nor was it recklessly or negligently
conducted.
– Spur used good feedlot management and
good housekeeping practices.
• By the time of suit, Spur and Del Webb
had expanded to within 500 feet of each
other.
21
Donald J. Weidner
Spur Industries v. Del Webb con’t.
• “neither the citizens of Sun City, nor Youngstown [a
small retirement community (adjacent to Sun City)
formed just two years before Spur’s predecessor
commenced the feedlot] are represented in this
lawsuit and the suit is solely between Del E. Webb
Development company and Spur Industries, Inc.”
• Del Webb “[alleged] that in excess of 1,300 lots in the
southwest portion were unfit for development for sale
as residential lots because of the operation of the Spur
feedlot.”
– If the lots became marketable at, say $5,000 each, sale of
the lots alone would yield Del Webb $5,000 per x 1,300 lots
= $6,500,000.
– Perhaps more profit would lie in home construction and sale.
22
Donald J. Weidner
Spur Industries v. Del Webb con’t.
• 2 Issues:
– May a feed lot be enjoined at the suit of a real estate
developer when the feedlot becomes a nuisance only
because of the developer’s activities that bring
residences into the area?
– If the feedlot is enjoined, may the developer be
required to indemnify the feedlot for losses caused by
the injunction?
• Arizona statute declares this to be an enjoinable
“public nuisance” “dangerous to the public
health” in a “populous area” “as far as the
people in the southern portion of…Sun City were
concerned.”
23
Donald J. Weidner
Spur Industries v. Del Webb con’t.
• Court cited Boomer for the proposition that, in
the balancing of the conveniences cases,
[presumably, private nuisance cases] damages
may be the sole remedy
– noting, further, that “[w]here the injury is slight, the
remedy for minor inconveniences lies in…damages
rather than in …injunction.”
– Approving and applying these notions, the court
said that “At most, residents of Youngstown [the
earlier, smaller retirement community that did not
come as close to Spur as Sun City] would be
entitled to damages rather than injunctive relief.”
24
Donald J. Weidner
Spur Industries v. Del Webb con’t.
• The court said the statute declared Spur’s
operation of the feedlot to be a public nuisance
viz-a-viz the citizens in the southern part of Sun
City.
– Even though those citizens were not a party to the
suit, they “could have successfully maintained an
action to abate the nuisance.”
– “Del Webb, having shown a special injury in the loss
of sales, had standing to bring suit to enjoin the
nuisance.”
• Even though:
– if Del Webb were “the only party injured, we would feel justified in
holding that the doctrine of ‘coming to the nuisance’ would have
been a bar to the relief asked by Webb.”
25
Donald J. Weidner
Spur Industries v. Del Webb con’t.
• Was Del Webb guilty of tortious confiscation?
• Is a judicial “taking” avoided because
compensation was paid?
• The first user with sunk cost of investment gets
investment protected with a damage remedy
– Del Webb is forced to internalize the cost it has
imposed on the first user, Spur.
• Del Webb can presumably pass on the costs to new buyers
– Second users will have to choose among competing
locations, selecting one with the lowest total costs
– Some have said this prevents “demoralization costs”
that might arise from an injunction against a longestablished user in favor of a newcomer
26
Donald J. Weidner
Nuisance – Four Outcomes
• Common law courts “fiddled around with
rules of reasonableness” to locate the
entitlement
• And with doctrines like “balancing the
equities” to decide the appropriate remedy.
• Law and economics suggests a clearer or
more functional way
– either to rationalize what courts have done (a
positive view)
– or suggests what they should do (a normative
view)
27
Donald J. Weidner
Nuisance – Four Outcomes
•
Some Terms
– P = Polluter
– R = Receptor
– E= Entitlement
1. If P and R are placing competing
demands upon, say, the air, which of
them should have the right to use the
air—the Entitlement?
2. How should the Entitlement be
protected?
28
Donald J. Weidner
Nuisance – Four Outcomes
• To protect E with an injunction is to say
that E may not be interfered with except
upon payment to the holder of E of an
amount acceptable to the holder of E.
– There must be a voluntary transaction.
• To protect E with damages is to say that E
may not be interfered with except upon
payment to the holder of E of an amount
determined by the court to be acceptable
compensation.
– There is no voluntary transaction.
29
Donald J. Weidner
Nuisance – Four Outcomes
• The goal: Locate E and protect it by the
rule that, in a given case of conflict over a
resource, yields the best chance of
achieving
– efficiency and
– fairness.
• Efficiency means maximizing the value of
the resource, given the conflicting wants of
P and R.
• Fairness means everything else that
suggests who should have E and how E
should be protected.
30
Donald J. Weidner
Nuisance – Four Outcomes
•
Since Entitlement can be in either Polluter or Receptor,
and protected by either an injunction or damages, there
are 4 possible outcomes
1. Use continues – no relief to Receptor
•
Gives the E to P that P can choose to sell or not to sell
–
Protect P’s E with a property rule
2. Use continues if Polluter pays damages to Receptor (Boomer)
•
Recognizes a property right in Receptor but forces Receptor to sell it to
Polluter if Polluter is willing to pay for it
–
Protect Receptor’s Entitlement with a liability rule
3. Use must stop (Estancias)
•
Gives the property right to the Receptor that Receptor can choose to
sell or not to sell
–
Protect Receptor’s entitlement with a property rule
4. Use must stop if Receptor pays damages to Polluter (Spur)
•
Recognizes a property right in Polluter but forces Polluter to sell it to
Receptor if the Receptor is willing to pay for it
–
Protect Polluter’s right with a liability rule
31
Donald J. Weidner
Remedy for Nuisance (cont’d)
For Damages
For Injunction
Many polluters.
Firmest support of property rights in
neighbors.
Any neighbor granted the injunction
could hold out [and prevent
bargaining]
Protects land in natural condition.
Protects against non-economic
injury.
Even in two-party situation, bi-lateral
monopoly problems arise.
Provides continuing incentive to find
cleaner ways of doing business.
Theory of damages: “The servitude
imposed on land.”
Forces polluter internalize all cost.
Can’t put burden of all R&D on one
polluter.
Damages may be hard to calculate
Avoid shutting down a plant when it
cannot pass on its costs.
Can fully address all claims to
economic loss.
Can encourage efficiency by
internalizing all economic cost.
32
Donald J. Weidner
Village of Euclid v. Ambler Realty Co.
LAKE 3 ½ miles ERIE
Lake Shore Blvd.
3½
miles
Zoned
St. Clair Ave.
HEAVY INDUSTRY [Heavy part of Ambler Realty’s tract]
Lake Shore Railroad
Nickel plate railroad
Euclid Ave.
Appellee’s
tract in Q: 68
acres
Restricted
residential plats to
East and West
5,000-10,000 people
Primarily vacant land [nothing there except farms].
In 1922, the Village Council adopted an ordinance
establishing a comprehensive zoning plan.
33
Donald J. Weidner
Euclid (cont’d)
Because the scheme is
cumulative zoning, U6
can have in it all uses
other than those
completely prohibited
Nickel Plate Railroad
130
Max. Apt. Houses U3
620’
Max. 2 family dwellings
U2
E. 204th St.
E. 196th Street
U6
U6 Max: Heavy Industry
U3 Max: Apt. houses (no
industry)
U2 Max: 2 family dwellings
Euclid Ave.
Primarily
U1
LO’s 68 acre tract “comes
under U2, U3 and U6. The
larger part of LO’s tract is
U6 [none of Ambler
Reality’s parcel is in U1].
Relief sought: enjoin enforcement of zoning ordinance.
Attack: apparently to the ordinance “on its face.”
34
Donald J. Weidner
Euclid (cont’d)
• Underlying principles of Euclidean zoning:
– Segregation of uses is desirable.
• Different uses harm each other.
– Wholesome housing is the central problem, to which all else
is subsidiary.
• Wholesome housing is, preferably, single-family detached homes
with a yard around.
• 2 family homes if single family is not feasible;
• Apartment houses, if necessary.
– Open spaces are desirable for healthy living.
• Open spaces should surround houses.
• Hence, setback lines in front, back, sides, minimum lot size
requirements, etc.
• If feasible, there should be open spaces around factories (industrial
parks).
– Good planning protects against change.
35
Donald J. Weidner
Village of Euclid v. Ambler Realty Co. (cont’d)
• Adjoining Ambler Realty’s tract, “both on the
east and on the west, there have been laid out
restricted residential plots on which residences
have been erected.”
• Court seems to accept as a matter of fact that:
– “the normal and reasonably to be expected use and
development of that part of appellee’s land
adjoining Euclid Avenue is for general trade and
commercial purposes” and
– “the normal and reasonably to be expected use and
development of the residue of the land is for
industrial and trade purposes.”
36
Donald J. Weidner
Village of Euclid v. Ambler Realty Co. (cont’d)
• Ambler Realty claimed that the 14A’s (due process
and equal protection) clauses were violated [in
addition to clauses of the Ohio constitution].
• Ordinances such as that in Euclid “must find their
justification in some aspect of the police power
asserted for the public welfare.”
• Nuisance law can provide helpful analogies.
• Rational relationship test:
– “If the validity of the legislative classification for zoning
purposes be fairly debatable, the legislative judgment must
be allowed to control.”
37
Donald J. Weidner
Euclid (cont’d)
• Things other than those clearly offensive are
excluded.
– “But there is no more than happens in respect of many
practice–forbidding laws…although drawn in general terms
as to include individual cases that may turn out to be
innocuous in themselves.”
– “The inclusion of a reasonable margin, to insure effective
enforcement, will not put upon a law, otherwise valid, the
stamp of invalidity.”
• Court then emphasizes that Euclid “is politically a
separate municipality.”
– If it is proper to separate industrial from residential, it is no
less so because it takes the industrial flow from where it
would otherwise go.
38
Donald J. Weidner
Village of Euclid v. Ambler Realty Co. (cont’d)
• In the future, there may be
– “cases where the general public interest would so
far outweigh the interest of the municipality that the
municipality would not be allowed to stand in the
way.”
• According the Court:
– “The serious question…involves the validity of what
is really the crux of the more recent zoning
legislation, namely, the creation and maintenance of
residential districts, from which business and trade
of every sort, including hotels and apartment
houses, are excluded.”
39
Donald J. Weidner
Village of Euclid v. Ambler Realty Co. (cont’d)
• Court: “before the ordinance can be declared
unconstitutional,” “it must be said…that such
provisions are clearly arbitrary and
unreasonable, having no substantial relation to
the public health, safety, morals, or general
welfare.”
40
Donald J. Weidner
Village of Euclid v. Ambler Realty Co. (cont’d)
[Legitimate
General welfare goal]
Presumption
of validity
[Now, the: rational
relationship “test”]
Having “No substantial relation” to a
legitimate goal
“Arbitrary and Unreasonable”
Basically a
presumption
of validity [no
suspect
class]
RECALL:
14A, §1: “No state shall…deprive any person
of…property, without due process of law; nor deny to any
person…the equal protection of the laws.”
5A: “No person shall…be deprived of property without due
process of law; nor shall private property be taken for
public use, without just compensation.”
Euclid was not decided as a “taking” case.
41
Donald J. Weidner
Village of Euclid v. Ambler Realty Co. (cont’d)
• Euclid Tests:
– Presumption of validity. “If the validity of the
legislative classification…be fairly debatable, the
legislative judgment must be allowed to control.”
– “[I]t must be said before the ordinance can be
declared unconstitutional, that such provisions are
clearly arbitrary and unreasonable, having no
substantial relation, to the…general welfare.”
• Leaving the Door Open:
– “It is true that when, if ever, the provisions…come to
be concretely applied to particular premises [they]
may be found to be clearly arbitrary and
unreasonable.”
42
Donald J. Weidner
Nectow v. City of Cambridge
• Π signed a contract to sell land.
• Before the sale was closed, 29,000 square feet
out of 140,000 of Π’s land was put in R-3, in
which dwellings and hotels are permitted (along
with schools, churches, clubs).
– The new zone excludes all business and industry.
– “The effect of the zoning is to separate from the west
end of [Π’s] tract a strip 100 feet in width.”
• The buyer refused to close the sale.
• Relief sought: Enjoin enforcement of ordinance
as it applies to Π; issue Π a building permit.
• Attack: Unlike Euclid, attack is “as applied”
43
Donald J. Weidner
Nectow v. City of Cambridge (cont’d)
RESTRICTED
RESIDENTIAL
Some residences
Henry Street
304 Feet
Brooklyn Street
RESTRICTED
RESIDENTIAL
Some residences
100 Feet
V
A
C
A
N
T
Π owns
UNRESTRICTED
140,000 Square Feet
RR
Tracks
Ford Motor
Co. Factory
Soap Co.
UNRESTRICTED
44
Donald J. Weidner
Nectow v. City of Cambridge (cont’d)
City of Cleburne v. Cleburne Living Center
Equal Protection
Legitimate Goal
Assumption
of validity
Intermediate
Review
No suspect
class
Quasisuspect
class
[gender]
1
Rationally Related
2
Important Goal
Substantially further
[narrowly tailored 1A]
Compelling Goal
Suspect
Strict
3
Necessary
Class*
scrutiny
[race]
*Strict scrutiny will also apply if thee is arguably a direct assault on
a fundamental right, such as speech, association.
45
Donald J. Weidner
Nectow v. City of Cambridge (cont’d)
• Consider the findings of the master in Nectow:
– “No practical use can be made of the land in question for
residential purposes.”
• [there would be “no adequate return” on any investment to develop
the property for residential purposes].
– “the districting of plaintiff’s land in a residence district would
not promote the general welfare.”
• “A court should not set aside the determination of
public officers in such a matter unless it is clear that
their action ‘has no foundation in reason and is a mere
arbitrary or irrational exercise of power having no
substantial relation to the public health, the public
morals, the public safety or the public welfare in its
proper sense.”
46
Donald J. Weidner
Nectow v. City of Cambridge (cont’d)
• Other statements in Nectow:
– “the locus is of comparatively little value for the
limited uses permitted by the ordinance.”
– Although the Court cited the “no foundation in
reason” language of Euclid, it said
• “the inclusion of the locus in question is not indispensable
to the general plan.”
• The finding that the health, safety, general welfare will not
be promoted “is determinative of this case.”
• “[t]he ban of the 14A” is violated.
– Substantive due process?
47
Donald J. Weidner
Nectow v. City of Cambridge (cont’d)
• One additional fact that might explain why the
court appeared so solicitous for the plaintiff:
– “It further appears that provision has been made for
widening Brookline street, the effect of which, if
carried out, will be to reduce the depth of the locus
to 65 feet.”
• The ratio of Nectow:
– Because no substantial relation to general welfare,
the zoning “comes within the ban of the 14th
Amendment.”
• What is “the ban of the 14th Amendment” that
operates in Nectow?
48
Donald J. Weidner
Standard State Zoning Enabling Act
• Section 1, entitled “Grant of Power,” provides
“For the purpose of promoting health, safety,
morals or the general welfare of the community,
the legislative body of cities . . . is hereby
empowered to regulate and restrict” etc.
• Section 2, entitled “Districts,” provides that “For
any or all of said purposes the local legislative
body may divide the municipality into districts . . .
and within such districts it may regulate . . . . All
such regulations shall be uniform for each class
or kind of building throughout each district . . . .”
49
Donald J. Weidner
SSZEA (cont’d)
• Section 3 provides that “Such regulations shall
be made in accordance with a comprehensive
plan” to promote the general welfare, etc.
– Note the authors say the emphasis has been on
whether the zoning ordinance is a comprehensive
plan rather than “in accordance with” a plan.
• Section 7 provides for a board of adjustment
(also known as a board of appeals) has the
power: * * *
– 2. “To hear and decide special exceptions to the
terms of the ordinance upon which such board is
required to pass under such ordinance.”
– 3. “To authorize . . . such variance from the terms of
the ordinance as will not be contrary to the public
interest, where, owing to special conditions, a literal
enforcement . . . will result in unnecessary hardship . .
. .”
50
Donald J. Weidner
PA Northwestern Distributors, Inc. v.
Zoning Hearing Board
• May 4, 1985, Π opens an adult bookstore in
Moon Township.
– After obtaining the necessary permits and certificates
to open business
– On leased premises
• 4 days later, Moon Township Board of
Supervisors published a notice of intent to amend
the ordinance to regulate “adult commercial
enterprises.”
• 2 weeks later, after a public hearing, the Board
adopted an ordinance that imposed extensive
restrictions on the location and operation of “adult
commercial enterprises.”
– The ordinance included a 90-day “amortization”
provision
51
Donald J. Weidner
PA Northwestern Distributors (cont’d)
• The amortization provision
– Said pre-existing uses that would be in
conflict with the ordinance had “90 days from
the date that the ordinance becomes effective
to come into compliance with the ordinance.”
– “This 90-day grace period is designed to be a
period of amortization for those pre-existing
businesses which cannot meet the standards
set forth in this amendment to the . . . Zoning
Ordinance.”
• Appellant’s adult book store violated the
“place restrictions” in the ordinance
– it was too close to specified uses
52
Donald J. Weidner
PA Northwestern Distributors (cont’d)
• Π appealed to the Zoning Hearing Board to
challenge the validity of the amortization provision.
– The Zoning Hearing Board upheld the amortization
provision
• Π appeals that decision to the courts.
• The lower court rejected the challenge, citing
language from the Sullivan case:
– The “distinction between an ordinance restricting future
uses and one requiring the termination of present uses
within a reasonable period of time is merely one of
degree….”
– Recall, Euclid approved a zoning ordinance that
allegedly reduced the value of vacant land by threefourths.
53
Donald J. Weidner
PA Northwestern Distributors, Inc. v.
Zoning Hearing Board (cont’d)
• Sullivan said, to determine whether the
amortization provisions are reasonable:
– “The true issue is . . . whether, considering the
nature of the present use, the length of the
period for amortization, the present
characteristics of and the foreseeable future
prospects for development of the vicinage and
other relevant . . . circumstances, the
beneficial effects upon the community that
would result from the discontinuance of the
use can be seen to more than offset the
losses to the affected landowner.
54
Donald J. Weidner
PA Northwestern Distributors (cont’d)
• This court rejects Sullivan’s balancing:
– A lawful nonconforming use establishes in the property
owner a vested property right which cannot be
destroyed, unless it is a nuisance, it is abandoned, or it
is extinguished by eminent domain.
• It views “amortization” very differently than
prospective zoning:
– A gradual phasing out of nonconforming uses which
occurs when an ordinance only restricts future uses
differs in significant measure from an amortization
provision which restricts future uses and extinguishes a
lawful nonconforming use on a timetable which is not of
the property owner’s choosing.
55
Donald J. Weidner
PA Northwestern Distributors (cont’d)
• Note: the Township argued that there is
no “taking” of “property” here because:
– Book store can relocate to a site that
complies with the place restrictions in the
ordinance, or
– Book store can use the same site and
structure to sell another commodity.
56
Donald J. Weidner
PA Northwestern Distributors (cont’d)
• Which view would you take and why?
• Court says: A Pennsylvania property owner has
a “constitutionally guaranteed right to use.”
• Court says the Pennsylvania Constitution
defines the property that cannot be taken.
– A use may not be taken
• If government desires to interfere with the owner’s use,
where the use is lawful and is not a nuisance nor is it
abandoned, it must compensate the owner for the resulting
loss.
• Therefore:
– “[T]he amortization and discontinuance of a lawful
pre-existing nonconforming use is per se confiscatory
and violative of the Pennsylvania Constitution.
57
Donald J. Weidner
PA Northwestern Distributors (cont’d)
• The concurring opinion focuses more narrowly
on this specific amortization provision – 90 days
shut down:
– Not enough time for a merchant to close a
business.
– Specifically, the merchant’s contractual obligations
may extend beyond 90 days.
– 90 days may not give him time to arrange an
alternative method of earning an income.
– Forcing a liquidation within 90 days might prevent
the owner form obtaining a reasonable return on
investment.
58
Donald J. Weidner
PA Northwestern Distributors (cont’d)
• Concurring Opinion: Factors in
Reasonableness of Amortization Period
– Nature of the use
– Amount invested in the use
– Number of improvements
– Public detriment caused by the use
– Character of the surrounding neighborhood
– Amount of time needed to “amortize” the
investment.
– Any circumstance bearing on a balance of
public gain versus private loss.
59
Donald J. Weidner
PA Northwestern Distributors (cont’d)
• Because of the approach the Court took, it did
not get to any 1A issues.
• See FN 6 at p. 975. The Moon Township
Ordinance, adopted in May, 1985, adopted the
dispersion technique approved in 1976 in Young
v. American Mini-Theaters.
– That and City of Renton v. Playtime Theatres are the
two major S. Ct. cases.
– 10 years after Detroit v. American Mini-Theaters,
Renton v. Playtime Theaters approved a
concentration strategy.
60
Donald J. Weidner
1A Analysis is Unclear
• As far as we can tell, this ordinance would not
apply to a Christian Science book store [which
presumably would not be classified an “adult
commercial enterprise.”]
• 1A analysis: Ordinarily, a content based
ordinance is subjected to strict scrutiny.
– Compelling goal
– necessity
61
Donald J. Weidner
1A Analysis is Unclear (cont’d)
• Renton says the goal is not to restrict the
content (speech itself);
– rather, the goal is to eliminate or reduce the
secondary effects of the speech – decline in
quality of neighborhood, prostitution.
– If there are alternative channels of
communication, then that is a good indication
that it is not aimed at content.
62
Donald J. Weidner
1A Analysis is Unclear (cont’d)
• Once you decide that the ordinance is one that
does restrict speech (although not content
based), that is, it is a “time, place and manner”
regulation that is aimed only at secondary
effects; then you have to decide whether it
meets intermediate review.
– Important (substantial) goal
– Narrowly tailored
• [vs. “substantially further” in equal protection cases]
• Does it leave other channels of
communication?
63
Donald J. Weidner
Vested Rights/Estoppel
• Text says “vested rights” doctrine varies
– with some jurisdictions having statutes.
• The “critical variables” include:
– How far the developer has gone in obtaining
governmental approvals;
– How much money has been spent in good
faith; and
– On what the money has been spent.
64
Donald J. Weidner
Vested Rights/Estoppel (cont’d)
• Note that the plans to engage in some
particular activity are generally not sufficient.
• However, some cases say that sufficient
commitments have been made when:
– Plans drawn
– Permits obtained
– Site prepared
– Construction begun.
• Estoppel: It is a matter of “conjecture’ whether
estoppel differs in any significant way from the
vested rights theory, says text.
65
Donald J. Weidner
Flexibility in Euclidian Zoning
• 4 basic ways of putting flexibility into
Euclidean zoning:
– Continuation of nonconforming uses
– Variance
– Special exception
– Zone change
66
Donald J. Weidner
Commons v. Westwood Zoning Board
of Adjustment
• Plaintiff, a builder, contracted to buy a lot
on the condition that he be permitted to
construct a single-family residence on it.
• A variance was applied for to permit him
to do that.
• The request was for a variance from the
– Area requirement
• (min. of 7500 sq. ft. to build [vs. 5190 sq. ft.])
– Minimum frontage requirement
• (75’ requirement but a 30 foot wide lot)
67
Donald J. Weidner
Commons v. Westwood (cont’d)
• Recall SSZEA §7 provides that a Board of
Adjustment may be appointed, inter alia, to
grant variances:
– “where, owing to special conditions, a literal
enforcement…will result in unnecessary hardship”
PROVIDED
– The variance “will not be contrary to the public
interest”
• [what Commons v. Westwood calls “the negative criteria].
68
Donald J. Weidner
Commons v. Westwood (cont’d)
•Property in question was a vacant lot –
– the only undeveloped property in a neighborhood of one and
two-family dwellings.
•Π’s and their predecessors in the title have owned the
property since 1927.
•The ordinance was adopted in 1933, with no minimum
frontage or minimum area requirements.
•In 1947, an amendment to the ordinance adopted
minimum frontage and minimum area requirements.
– Fewer than 25% of the homes in the area satisfied the new
minimum frontage requirement.
•In over 30 years, only 2 more homes have been built,
one of them not meeting the minimum frontage
requirement.
69
Donald J. Weidner
Commons v. Westwood (cont’d)
Zoning: the minimum frontage to build is 75 feet. The
lot in question is only 30 feet wide.
– Π wants to put up a house that is 19 feet wide.
Why did the neighbors appose the Π’s application for a
variance?
– House on a 30 foot lot would be aesthetically displeasing;
– Proposed house would differ from scheme because garage
would be in front;
– Proposed house would impair the value of property in the
are;
– Concern about privacy – spillover effects – noise and
trespassing.
70
Donald J. Weidner
Commons v. Westwood (cont’d)
• Why did the court reverse the denial of the variance/
– Unnecessary hardship
– The negative criteria
Undue Hardship
• The test for “undue hardship?”
– “When the regulation renders the property unusable for any
purpose, the analysis calls for further inquiries which may
lead to a conclusion that the property owner would suffer an
undue hardship.”
71
Donald J. Weidner
Commons v. Westwood (cont’d)
• So, only if the property is “unusable for
any purpose,” do you look further?
• If you look further, look to:
– The origin of the existing situation.
• Was the hardship self-inflicted?
– Ex: Did the owner of a conforming lot convey away a
portion of that lot leaving herself with a nonconforming
lot?
72
Donald J. Weidner
Commons v. Westwood (cont’d)
– Has the owner attempted to bring the lot into
compliance or end the unusability?
• In this case:
– the owner could have offered to buy additional properties
from the neighbors; or
– the owner could have offered to sell some of the land (or
all of the land) to the neighbors.
» “If . . . an owner is willing to sell at a ‘fair and
reasonable’ price and the adjoining property owners
refuse to make a reasonable offer, the ‘undue
hardship’ would exist.”
73
Donald J. Weidner
Commons v. Westwood (cont’d)
The Negative Criteria
• Assume that the test is the one in SSZEA:
– The variance cannot be issued if it would be
“contrary to the public interest.”
– The less of an impact, the more likely the
restriction is not vital to the public interest.
• Who is the public?
– General public interest being asserted?
– Property values (or other interests) of the
immediate neighbors being asserted?
74
Donald J. Weidner
Commons v. Westwood (cont’d)
•
•
•
•
“Lurking in the Background: The “Taking” Issue
Is a denial of a variance that will “zone the property
into inutility” an exercise of the eminent domain power
such that compensation must be paid?
Complete denial of use,
BUT
Variance would be contrary to public interest.

Taking if denial.
75
Donald J. Weidner
Commons v. Westwood (cont’d)
• Court suggests possible remedy:
– Deny the variance on the condition that the neighbors
purchase the land for a fair price. [“reverse
damages”—analogous to the termination of covenant
and Spur situations].
– This remedy puts the economic burden on the
immediate neighbors, who will receive the most direct
benefit from leaving the land in an undeveloped state
• As opposed to the taxpayers at large, who would have to pay
if this were treated as a “taking”
• How do you determine price?
– “on the assumption that the variance has been
granted” so that a home can be constructed.
76
Donald J. Weidner
Commons v. Westwood (cont’d)
• Reviewing the decisions of Board of
Adjustment:
– Undue hardship?
• Record does not support conclusion of no evidence of
undue hardship.
• The board must make “specific finding of fact”
– Negative criteria?
• Not sufficient for Board to issue “the conclusive statement
that the variance would substantially impair the intent and
purpose of the zone plan and ordinance.”
– Board must explain reasons for this conclusion.
77
Donald J. Weidner
Commons v. Westwood (cont’d)
• The size of the resulting house “in and of
itself would not justify a denial of a
variance.”
– No health goal
– No safety goal
• Possibly: If character of neighborhood
was affected
– both as to aesthetics and
– value
then a denial may be appropriate.
78
Donald J. Weidner
State v. City of Rochester
•
•
•
Owner and buyer entered into a contract for
the sale of a 1.18 acre parcel in a singlefamily and low-density zone, contingent upon
re-zoning the property to permit a 60-unit
condo (later amended to 49-unit condo).
Planning Commission held a public hearing
and recommended to the City Council that the
rezoning be denied as inconsistent with the
City’s land use plan.
City Council rejected the recommendation,
amending the zoning ordinance and placing
the parcel into a high-density residential zone.
–
Thus permitting the building of a 6-story, 49-unit
condominium.
79
Donald J. Weidner
City of Rochester (cont’d)
• The City Council
– Gave no written finding of fact
– Gave no reasons
– Although minutes indicated they thought the
change appropriate in light of the
circumstances
– Subsequently amended the land use plan to
conform to their zone change.
80
Donald J. Weidner
City of Rochester (cont’d)
• Neighbors argue:
1.This was a quasi-judicial act presumptively
invalid because not supported by written
findings of fact based on substantial evidence
– Citing Fasano
2. If it was a legislative act, it was arbitrary and
capricious because it
1. Was inconsistent with the City’s land-use plan;
and
2. Had no reasonable relationship to the general
welfare.
3. Was invalid “spot zoning.”
81
Donald J. Weidner
City of Rochester (cont’d)
• Fasano had said
– A zone change that affects very few parties as
opposed to the public general
– Is adjudicative in nature
– The burden of justifying the zone change falls
on those moving it
• including the local legislature
– The procedural requirements of adjudication
must be met
• there must be written finding of fact
• and a written statement of reasons
• before an impartial tribunal
82
Donald J. Weidner
City of Rochester (cont’d)
•
Minnesota Rejects Fasano
1. When a municipality adopts or amends a
zoning ordinance, it acts in a legislative
capacity under its delegated police powers.
2. Its legislative acts are given a presumption
of validity.
3. Zoning legislation is good unless it:
1. Has no rational relationship to the general
welfare or
2. Is a taking of property without compensation.
83
Donald J. Weidner
City of Rochester (cont’d)
• Special exception distinguished
– not the same presumption of validity
– Indeed, if a landowner requests a “special use which
conforms with the zoning ordinance,”
• a denial is “prima facie arbitrary and unreasonable” if the
denial is not supported “by written findings of substantial
evidence showing the use impermissible under the permit
standards of the ordinance”
– Substantive difference from a zone change:
• In granting or denying a special use permit, a city council has
the function . . . adjudicative in nature, of applying specific
use standards set by the zoning ordinance to a particular use
and must be held strictly to those standards.”
• No special-use permit was available her because the
proposed high-density use was not in accordance with
existing zone classifications.
84
Donald J. Weidner
City of Rochester (cont’d)
•
Variance also distinguished:
–
By statute, a variance may not be granted to permit
any use that is not permitted under the zoning
ordinance.
•
Variances are available only with respect to other
requirements of the ordinance, such
–
–
•
setback requirements and
similar provisions.
Given it is a legislative act, court refuses:
1. To require it to conform to the existing land use
plan, or
2. To lift the presumption of validity because of the
failure to conform.
3. But nevertheless looks at rational factors.
85
Donald J. Weidner
City of Rochester (cont’d)
• Nor is this invalid “spot zoning”
– Same presumption of validity applies when “spot
zoning” is raised
– “Spot zoning” is a claim of no relation to the general
welfare
– “Spot zoning” “applies to changes, typically limited to
small plots of land, which establish a use
classification inconsistent with surrounding uses and
create an island of nonconforming use within a larger
zoned district, and which dramatically reduce the
value for uses specified in the zoning ordinance for
either the rezoned plot or abutting property.”
• Variances and special exceptions are sometimes
invalidated by reference to this concept.
86
Donald J. Weidner