H. Reasons why takings cases have reemerged?

H. Reasons why takings cases have reemerged?

1. conservative supreme court

2. systematic budget problems -- more regulation instead of eminent domain b/c you don't have to pay for it

XV. Zoning

A. Introduction

1. Why zoning?

a. the question is not whether there is a problem but whether the govt can do a better job than the private market in controlling these problems

2. Enabling Legislation

a. Zoning is an exercise of police power -- the power of govt to protect health, safety, welfare and morals

b. SEE CB 1006 for text

c. Section 3 -- zoning regulations must be in accordance with the comprehensive plan

3. The Comprehensive Plan

a. SEE CB 1007

b. a statement of the local govt's objectives and standards for devlopemnt

c. zoning itself is but a means of giving effect to a larger planning enterprise that has led to formulation of the comprehensive plan

d. But does the zoning regulation always have to conform with the plan?

i. no -- SEE CB 1007-08

4. Zoning Ordinances?

a. a set of regulations enacted byt he local legislative body and enforced by local officials

b. typically specify the uses to which designated areas may be put, the types and sizes of structures that may be built within those areas, and the placement of the structures (setbacks, sidelots, etc)

5. Subdivision Controls? CB 1010

a. another means to implement planning

b. set out the standards and procedures to govern the breaking up of tracts of land into lots for sale b/f or after development

c. Purpose -- to ensure that appropriate attention is pad to such facts as light and air, transportation flows, recreational needs, and water and sanitary facilities

d. Also ensures that necessary public services and public improvements will be provided before a proposal is approved

e. Exactions?

i. before the subdivision is approved, the city may exact promises by the developer to provide piping, schools and other public facilities

a) assumes that the developer will pass the cost onto the buyers

ii. most courts have asked whether there is a rational nexus (reasonable relationship) betweent he particular requirement and the needs created by the new subdivision

iii. this always raises a NOLLAN isue

B. History?

1. Euclid v. Amber Realty Co. --- CB 993

a. Facts

i. Euclid is a suburb of Cleveland

ii. city divided into six use districts, four area districts and three height areas

a) the use districts are cumulative

iii. for any piece of property, these three requirements will be superimposed over it

iv. Amber realty tried to invalidate the zord under the 14th amendment claiming deprivation of property and liberty without due process (substantive due process) -- NASH

v. case not brought under takings because they wanted to knock out the entire legislation -- and the way to do this was to bring a substantive due process claim

b. Analysis

i. Sutherland applies a low level of scrutiny to the zord

ii. the ordinance is not arbitrary or unreasonable b/c he likes the idea of safety etc...

iii. is Sutherland protecting the upper class from invasions of the parisitical apt bldgs?

a) The district court excerpt -- CB 993 -- realized that zoning presented the danger of spearating people by income

iv. court says that it is appropriate to zone apt bldgs out of residential areas when it is based on health and safety grounds

a) not enough public facilities to sustain the development

v. Court held zoning in general to be constitutional but added that concrete applications of specific providsions could prove to be arbitrary and inreasonable -- would be dealt with on a case by case basis

a) What about Nectow -- see CB 1004 and handout

C. The nonconforming use CB 1011

1. PA Northwestern Distributors v. Zonig Hearing Board

a. Facts

i. town is trying to outlaw porno shops in certain areas

a) using the zoning ordinance to control where these go -- can't outlaw them altogether but can control their location

ii. Town enacts ordinance after porno shop is opened and provides 3 month amortization period for shop to come into compliance with the ordinance

b. Rule -- but remember this under PA constitution

i. a lawful nonconforming use establishes in the property owner a vested property right which cannot be abrogated or destroyed, unless it is a nuisance, it is abandoned or is extinguished by eminent domain

c. Analysis

i. Found that the amortization provision amounted to a taking under the PA constitution -- the effect of the amortization period here is to deprive owner of the lawful use of its property in that the ordinance forces the owner to cease using his property as an adult bookstore within 90 days

ii. In PA if the govt desires to interfere with the owner's use, where the use is lawful and is not a nuisanc enor is it abandoned, it must compensate the owner for the resulting loss

d. SEE concurring opinion -- CB 1016

i. Doesn't like the per se rule that all amortization provisions are confiscatory and unconstitutional

ii. Wants to adopt a reasonable standard

a) balance the public interest against the private loss?

b) the length of provision is crucial -- will it allow the owner to regain his investment?

iii. per se rule is too restrictive -- community should be able to change its character without being locked into pre-existing definitions of what is offensive

e. Why did the town adopt the amortization period?

i. nonconforming use will not likely go out of business

a) has a certain monopoly power b/c no one can compete with it -- no entry into the mkt allowed

ii. Town does not want to deal with a taking so it doesn't say that the owner has to stop immediately

f. Takings clauses in state constitutions

i. in bringing a takings claim, you can bring it under both the federal and state constitutions

a) you may lose on the federal claim but may win on the state claim -- the relative state law influences your decision to bring the action in state court or federal court

ii. Probably would not have been a taking under the US constitution

a) Cite Hadacheck but remember Lucas?

2. Notes -- CB 1017-1019

a. Is the SCt of PA outlawing zoning altogether?

i. CB 1014 -- says that this deals with the existing lawful use

ii. but what about prospective use?

a) court seems to be saying that as long as it has not become an existing use it is OK to zone it out of existence

b. Note 1 --- VIMP -- preexisting use vs. future use

i. A invests $50k in a vacant lot. Ten years later the property is zoned for single family homes and the property is reduced to $12500

ii. B invests $10K in lot next to A and builds a store on the premises for an additonal $40K and earns 10% net profit on the store each year -- same investment as A -- ten years later the city zoning B's land for single family homes reducing value of property to $12500

iii. Why should A be allowed but B be ruled inconstitutional?

a) B has got his money back but A has not?

iv. Does it matter that it is more likely to have a waste of resources in the preexisting use but not clear in the future -- deal with the future loss on a case by case basis?

c. The right to a nonconforming use runs with the land

i. see note 2 CB 1018

3. Amortization statutes in general?

a. Courts approving amortization technique claim to require a reasonable period for the particular nonconforming use in question. What factors determine reasonable?

i. the nature of the use in question

ii. the amount invested in

iii. the number of improvements

iv. the public detriment caused by the use

v. the character of the surrounding neighborhood

vi. and the amount of time needed to amortize the investment

b. For any given use, you can find cases upholding and invalidating periods ranging from 1-30 years

4. What about vested rights?

a. see CB 1019 note 4

b. amount of commitment made?

c. estoppel?