Exam Guide 1 I. Right to Exclude v. Rights of Access 3

XI. Zoning

A. EXCLUSIONARY ZONING

Southern Burlington County NAACP v. Township of Mount Laurel, N.J. (1975)

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  Facts: NAACP sued Mount Laurel saying that their zoning scheme violated the NJ constitution by failing to provide for low-income housing outside of depressed areas. The trial court said it was sufficient that Mount Laurel had made a bona fide attempt to comply with the Supreme Court decision and upheld the new ordinance enacted in response. NAACP appealed contending a mere attempt to provide such zoning did not discharge Mt. Laurel’s constitutional obligation.
  
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  Rule: every municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing
  
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  Rule: Municipality may properly zone for and seek industrial ratables to create a better economic balance for the community vis-à-vis educational and governmental costs engendered by residential development, provided that such was done reasonably and as part of and in furtherance of a legitimate comprehensive plan
  
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  Holding: Municipalities must zone for living welfare of people and not benefit of local tax rate
  

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  Arguments for: efficient; prevent creation of protected subdivisions that fail to account for externalities of limiting low-income housing to urban areas; artificially increase cost of low-income housing
  
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  Arguments against: inefficient; effectively imposes tax on new construction; exacerbate existing shortage of low-income housing
  

B. ZONING PROCESS

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  Use zoning: divides municipality into districts regulating kinds of uses allowed within each district
  
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  Area zoning: regulates size of lots, height of buildings, and requirements to set back structures a certain distance from borders
  

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  Zoning ordinance (or “by-law”): governs land use in municipality; prepared by planning commission and adopted by city council
  
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  Rezoning petitions: petitions from particular landowners seeking amendments to zoning law
  

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  Variance: a permit to develop a parcel in a way that otherwise violates the zoning ordinance. Variances are granted in cases of special hardship
  
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  Special exception: permits to develop in ways conditionally authorized by zoning ordinance
  

C. CONDITIONAL/CONTRACT ZONING

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  Often challenged in court as: (1) unauthorized by zoning enabling act, (2) inconsistent with comprehensive plan, (3) illegal preferential ‘spot zoning,” or (4) unconstitutional law making on ground laws should not be negotiated with private party
  
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  Bilateral agreements: involve promises on both sides (“often called “contract” zoning)
  
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  Unilateral agreements: commitments by owner to agree to certain conditions to induce rezoning (often called “conditional” zoning)
  
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  Contract zoning is more likely to be struck down when bilateral than when unilateral
  
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  #Singer – Courts have become much more hospitable to contract zoning in last 25 years
  

Durand v. IDC Bellingham, L.L.C., Mass. (2003)

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  Facts: Defendant had sought unsuccessfully to develop a parcel of land and later offered the town an 8 million dollar gift if the town voted to rezone the parcel and allow development of a power plant. The town meeting voted to approve the rezoning of the site.
  
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  Rule: Enactment of a zoning bylaw by voters is a legislative act carrying a strong presumption of validity
  
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  Holding: Reversed
  
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  Dissent: A municipality may not relinquish its police power by contract
  

Town of Belleville v. Parrillo’s Inc., N.J. (1980)

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  Facts: Defendant operated a restaurant when Belleville enacted a zoning ordinance designating the area in which Parrillo’s was located as a residence zone. They then made certain renovations to the premises and opened it as a discotheque and shortly after applied for a discotheque license as required by the town’s ordinance. The application was denied but defendant continued business as usual.
  
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  Rule: an existing nonconforming use may continue only where it is a continuance of substantially the same kind of use as that to which the premises were devoted when the zoning ordinance was passed
  
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  Holding: Reversed and remanded for conviction
  

Cochran v. Fairfax County Board of Zoning Appeals, Va. (2004)

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  Facts: Cochran and other neighbors appealed three decisions of three local zoning boards that allowed variances in zoning ordinances for three families constructing buildings on their land. The landowners seeking the variances had other options but argued the plans for the additions or construction of their homes was most beneficial in the requested way.
  
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  Rule: No authority to grant a variance unless the effect of the zoning ordinance interferes with all reasonable beneficial uses for the property, taken as a whole
  
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  Holding: Reversed and vacated; each variance fails to meet standard
  

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  Variance not granted where hardship is self-imposed
  
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  Hardship will generally not be found as long as there is an alternative economically viable use for the property
  

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  Variances are generally granted to relax lot and building restrictions, not use restrictions and some states expressly prohibit use variances entirely.
  
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  In practice zoning boards routinely grant variances if the requested variance is not a dramatic change in the structure and if no one objects to the ranting of the variance, in effect the zoning boards ignore the law.
  

Stone v. City of Wilton, Iowa (1983)

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  Facts: Plaintiff purchased land for housing project depending on multi-family zoning of tract, incurring expenses for architectural fees and engineering services. Also secured federal loan commitment. Zoning subsequently changed to single-family homes due to inadequacies of sewer, water, and electrical services.
  
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  Rule: City’s comprehensive plan is always subject to reasonable revisions designed to meet the changing needs and conditions of a community
  
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  Holding: Affirmed; valid and applicable ordinance
  

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  Many states require granting of building permit to find vested right
  
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  Minority of states grants vested rights with site-specific plan approved for development
  

H. EQUAL PROTECTION, SUBSTANTIVE DUE PROCESS, AND FREE SPEECH

Village of Willowbrook v. Olech, US (2000)

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  Facts: Olech wanted to connect her property to the Village’s water supply, but the Village conditioned the connection on the grant of a 33 foot easement. Plaintiff objected because surrounding landowners were only subjected to a 15 foot easement and claimed that the village was seeking revenge because she had previously won an unrelated lawsuit against the Village.
  
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  Rule: purpose of the Equal Protection Clause is to secure every person within the state’s jurisdiction against intentional and arbitrary discrimination
  
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  Holding: Affirmed
  

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  Certain classifications, such as racial distinctions, are deemed inherently suspect and thus presumptively unconstitutional, upheld only if necessary to achieve a compelling governmental interest
  
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  Other classifications, such as sex distinctions, are subject to intermediate scrutiny, upheld if they bear a substantial relationship to an important governmental objective
  
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  Most socioeconomic legislation is subject to rational basis test, upheld only if classification is arguably rationally related to a legitimate government purpose