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)
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
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
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
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?