A source of federal power to control land use; negative restraint on the ability of and local governments to control land use.

Zoning technique. Typically historic districts are overlay zones. Area subject to two sets of zoning regulations. 

Permits large lots to be developed in a flexible manner. May involve set asides. Legislative spinoff of the floating zone

or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. Standing exists from one of three causes. Something to lose doctrine. 

Generally, one who has a legally protected interest and is able to show a subsantial or special harm different from that suffered by the public at large is granted standing to challenge a zoning decision. 

Consent Decrees :

too trivial or minor to merit consideration, especially in law.

as applied in zoning law refers to a doctrine that bars a court from interfering with a zoning decision that is supported by substantial evidence. According to this rule, if the application of a zoning classification to a specific parcel of property is reasonably subject to disagreement, that is, if its application is fairly debatable, then the application of the ordinance by the zoning authority should not be disturbed by the courts. However, it is always a matter for the court to determine whether a zoning authority acted reasonably or fairly or whether capriciously or arbitrarily.

Pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection. Lawyers informally define a demurrer as a defendant saying, "So what?" to the pleading

the theory of disparate impact holds that practices in employment, housing, or other areas may be considered discriminatory and illegal if they have a disproportionate "adverse impact" on persons in a protected class. Although the protected classes vary by statute, most federal civil rights laws protect based on race, color, religion, national origin, and gender as protected traits, and some laws include disability status and other traits as well. (Arlington Heights)   

 the doctrine under which legislative and executive actions are subject to review by the judiciary. A court with judicial review power may invalidate laws and decisions that are incompatible with a higher authority, such as the terms of a written constitution.

Legislative vs. Quasi-judicial decisions

Court of Appeals of Ohio, 1963 [Zoning]

Supreme Court of New Jersey, 1955 [Use Districts]

 Is there a public purpose in distinguishing motels from boarding and rooming houses, and is it reasonable means to bar them from the Borough or the residential districts of the Borough, given that the latter uses are permitted in both?

The Borough of Palisades Park, New Jersey, adopted a zoning ordinance in 1939. The subject property fell in District A, permitting one and two family houses as well as "boarding and rooming houses," defined as "any dwelling" where "more than 6 persons" (not related to the owner) are lodged and boarded for compensation. In 1954, plaintiff applied for a building permit for a 27-unit motel, which was denied. 6 days later, the Borough adopted a supplemental ordinance prohibiting "motels, motor courts, motor lodges, motor hotels, tourist camps, tourist courts, and structures of a similar character intended for a similar use" from anywhere in the Borough. Trial decision reversed, ordinance upheld.

Supreme Court of California (2007) [Use Districts]

Is the regulation by a municipality of retail establishments based on building square footage in a commercial district a constitutional use of police power or does it violate the equal protection clauses? 

In 1989, the City of Hanford amended its general plan to create an new commercial district, known as the Planned Commercial or PC district, intended to accommodate the location of malls, big box stores, and other retail uses. In order to protect the economic viability of Hanford’s downtown commercial district, which features regionally well-regarded furniture stores, the ordinance prohibited furniture stores and the sale of furniture in the new PC district. The decision rendered by the Court of Appeal was reversed.The ordinance was upheld. Rationale: protecting and preserving the economic viability of the CBD; attracting to, and retaining within, the city’s PC district the type of large department stores (rational basis test)

Supreme Court of Connecticut (2006) [Acessory Uses]

Despite a lack of explicit language pertaining to household pets in the accessory use section of the regulations, is the keeping of household pets an "accessory use" of land, and therefore subject to regulation by the zoning board?

Cease and desist order because too many dogs on property. Household pets are an accessory use, and thus subject to regulation. The court reversed the trial court decision, and upheld the cease and desist order.

Supreme Court of New Jersey (2003) [Height and Bulk Controls]

Is it valid for a municipality to enact a zoning ordinance that alters the definitions in the Municipal Land Use Law (MLUL). N.J.S.A. 40:55D-1 to 136 and apply a method other than a pure mathematical floor area ration to regulate the intensity of land use?

The plaintiff, Rumson estates, Inc owns a parcel of approximately 27,000 square feet in the municipality of Fair Haven. In 1999, Fair Haven changed the zoning of the William Street block from R-7.5 to R-5 (requiring fifty feet of frontage and a minimum lot area of 5,000 square feet). Limitations to size of house. The Supreme Court held that building cap in the Fair Haven zoning change is valid under the N.J.S.A because it does not alter any mandatory definitions in the MLUL.

USSC (1976) [initative and referendum]

Does the city charter provision requiring proposed land use changes to be ratified by 55% of the voters violate the due process rights of a landowner who applies for a zoning change? 

In this case Respondent sought to have a parcel of property rezoned from “light industrial” to permit the construction of a high-rise multi-family apartment building. The application for rezoning was in the process of approval when the voters of the City of Eastlake amended the city charter to require land use changes to be ratified by 55% of the voters to become effective. Does this violate due process rights of landowner? No, reversed. The referendum is a power reserved by the people in the Ohio State Constitution, and as such is only required to be within the scope of legislative power to be valid.

USSC (2003)

After the City Council of Cuyahoga Falls, Ohio passed an ordinance authorizing construction of a low-income housing complex by the Buckeye Community Hope Foundation, a group of citizens filed a formal petition requesting that the ordinance be repealed or submitted to a popular vote. The voters passed the referendum repealing the ordinance. The Foundation filed suit, claiming that by submitting the site plan to voters, the City violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment and the Fair Housing Act. After the Ohio Supreme Court declared the referendum invalid under Ohio's Constitution, the District Court granted the City summary judgment. In reversing, the Court of Appeals found that the Foundation had stated a valid Fair Housing Act claim and that a genuine issue of material fact existed as to whether the City had engaged in arbitrary and irrational government conduct in violation of substantive due process.

In a unanimous opinion the Court reversed the Court of Appeals with regard to the Foundation's equal protection and substantive due process claims and vacated the appellate court's Fair Housing Act holding. Noting that the Foundation claimed injury from the referendum petitioning process and not from the referendum itself, the Court reasoned that statements made by private individuals during a citizen-driven petition drive do not, in and of themselves, constitute state action for Fourteenth Amendment purposes.

Mass Supreme Court (2003) [contract and conditional zoning]

Whether a town meeting vote to rezone an area of the town is invalid if the prospective owner (IDC) offered the town $8 million dollars if rezoning was approved and a power plant was built on the site.

DC owned a power plant in the town and wanted to build a second plant. To that end IDC offered $8 million dollars to the town if they rezoned that area. The $8 million was to be a gift to the town to use for any municipal purpose it seemed fit.  There was a new vote and by a majority vote the area was rezone for industrial purposes. A group from the town brought suit stating this was a contract zoning so the vote to rezone should be considered invalid.   Judge determined that the rezoning was not arbitrary or unreasonable. A zoning bylaw will not be held invalid for of the extraneous consideration of gift offers, only if there was a promise made based on that gift or there was a constitutional violation. 

Supreme Court of California (1974) [variances]

Was the zoning variance supported by administrative findings, which demonstrate that because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classifications, and do the findings support the conclusion that all applicable legislative requirements for a variance have been satisfied? 

The property is zoned for light agricultural and single-family residences with a one-acre minimum lot size.  The owner was granted a variance to establish a 93-space mobile home park on the sit...st exclusively on the qualities of the property for which the variance was sought, lacking comparative information about the surrounding properties to demonstrate that the owner of the property was being deprived of privileges being enjoyed by other property owners in the vicinity. The claim that the development would serve community needs was not relevant to the case at hand. The rezoning was disallowed. 

California Court of Appeal (1954) [Nonconformities]

In 1946, the city council passed Ordinance 90,500, reclassifying the zone including lots 220 and 221 as "R-4" (Multiple dwelling zone). Under this classification (and all other "R" zones), established nonconforming uses (such as Gage's plumbing business), were to be discontinued within five years of the ordinance.Ordinance 90,500, as applied to Gage's property, is a constitutional exercise of the police power; the court finds in favor of the plaintiff, the City of Los Angeles.

 Supreme Court of California (1976) [Vested Rights]

Does the developer of a subdivision acquire a vested right to construct buildings on its land if it has subdivided and graded property and made certain improvements pursuant to government authorization, but not applied for or received a building permit? (or even earlier, when the land is zoned as a planned unit development?)

In 1972, the county approved a final subdivision map for 74 acres known as Tract 7479 and issued a rough grading permit. By February 1 1973, Avco had completed or was in the process of constructing storm drains, utilities and similar facilities. The company had spent $2,2082,070 and incurred liabilities of $740,468. However, Avco had not completed the rough grading nor requested a building permit. The court ruled that Avco had no vested right to construct buildings on Tract 7479 without satisfying the building permit requirement

California Court of Appeal (2000) [Developer Agreements]

Is the granting of a development agreement between a private landowner and local government during the planning stages of a development project, before buildings and other structures have been designed and approved, in violation of the Development Agreement Statute and a contracting away the local government’s police power? 

Onwer wants to develop property. Appelant sued the County to facilitate development by increasing the number of legal parcels in the Ranch all parties met.  The appellants contend that the agreement is invalid under the statute because it covers the planning stage of a development before buildings or other structures have been designed or approved. The also contend that the zoning “freeze” unconstitutionally contracts away the County’s police power. The court found that the agreement complies with the Development Agreement Statute and does not contract away the county’s police power.

Supreme Court of Idaho (2003) [PUD]

Is it reasonable for the Board of Commissioners to approve a PUD that does not conform to the Zoning and Subdivision Ordinances nor the Comprehensive Plan for a residential zone, or is it an invalid exercise of police power?

Teton Springs is a developer that proposes to convert 780 acres of mostly undeveloped farmland and wetland in southern Teton County into a PUD. Teton Bd and City 2 granted the requested zone change from A-2.5 to R-1 (agricultural to residential). The supreme court also affirmed the Board of Commissioner's approval and zone change.

Supreme Court of New Jersey (1983) [Inclusionary Zoning] 

May a developing municipality validly, with its zoning ordinances, make it physically and economically impossible to provide low and moderate income housing in the municipality...

The zoning ordinance of the Township of Mount Laurel (Defendant) only allows for homes within the reach of persons of at least middle income. The homes must be single-family detached dwellings with a certain minimum square feet. Plaintiffs represent the minority group seeking living accommodations in the town. They allege that the regulations exclude low and moderate-income families. A municipality must by its land use regulation create an appropriate variety and choice of housing. Actions under the police power are affirmatively required to promote general welfare. Conversely, the zoning enactment is contrary to the general welfare and is invalid. A municipality “must zone for the welfare of the people and not for the benefit of the local tax rate.”

California Court of Appeal (2001) [Inclusionary Zoning: Fair Share Olbigations]

The Court of Appeal has held that a Napa ordinance requiring developers of residential housing to make at least 10% of their units affordable to lower income persons or pay an in lieu fee does not facially violate prohibitions against taking property without compensation.

USSC (1974) [Reg. of Non Traditional Living]

Is an ordinance which limits the number of unmarried people who can live together unconstitutional?

Restricts landuse to single-family. Two people living together constitutes family. Six college students lease house and not under ordinace. Argue constituionality. The police power is a valid basis for establishing residential zones limiting the number of unrelated individuals that may inhabit a dwelling.

USSC (1985) [Reg. of Non Traditional Living] 

Is the mentally retarded part of a “quasi-suspect” class subject to a higher scrutiny under the Equal Protection Clause?

Is the special use permit requirement constitutional?

Possessing an intellectual disability is not a quasi-suspect classification calling for a heightened level of scrutiny, but nevertheless, the requirement of a special use permit for a proposed group home for people with intellectual disabilities violated the Equal Protection Clause of the Fourteenth Amendment because no rational basis for the discriminatory classification could be shown, and in the absence of such justification, the classification appeared to be based on irrational prejudice against the intellectually disabled

USSC (1995) [Discrimination Against Disabled under FHA] 

Does the Petitioners ordinance fall within the FHA exemption, which permits any reasonable restriction on the maximum number of occupants in a dwelling?

Parties stipulated that alcoholics and drug addicts were handicapped within the meaning of the FHA. The FHA prohibits discrimination to any buyer or renter because of handicap. Discrimination under the FHA includes failure to provide reasonable accommodation. The Edmonds Community Development Code (ECDC) defined who may live as a “family” in a single family dwelling. Family must be “an individual or two or more persons related by genetics, adoption, or marriage, or a group of five or fewer person who are not related by genetics, adoption or marriage.”

The Edmonds Community Development Code’s definition of family was not a maximum occupant restriction and thus was not exempt under the FHA. Justice Ruth Bader Ginsburg (J. Ginsburg) explained that the code provision governed family living and had been enacted to foster the family character of a neighborhood rather than the living space per occupant. Particularly, since an unlimited number of related persons could live together under the Code, it was not enacted to set a maximum occupancy.

Appellate Division of the Supreme Court NYS [1971]

Whether the the phased development controls were intended to prohibit subdivisions and restrict population growth, which is not permitted under zoning enabling legislation?

Rational basis existed, since "the existing physical and financial resources of the community were inadequate to furning the essential services which a substantial increase in population would require." "phased growth is well within the ambit of existing enabling legislation." The court upheld a growth management system that awarded points to development proposals based on the availability of public utilities, drainage facilities, parks, road access, and firehouses. A proposal would only be approved upon reaching a certain point level. Developers could increase their point total by providing the involved facilities themselves. This case validated growth control measures, including goals, objectives, and techniques contained in the comprehensive plan - then adopted into a variety of local laws-

Supreme Judicial Court of Mass (2011); [standing]

Zoning granted special permit to owners to expand house. Neighbors file complaint. Standing based on "aggrieved persons" is erroneous; traffic concerns speculative; diminution of value speculative. Neighbors don't have standing. Remanded to Land court for judgment dismissing neighbors complaint.  

Court of Appeals of WA (2003)

This land use case presents two issues, one procedural and one substantive.   The procedural question is whether the case has been rendered moot because a building permit has been issued for a challenged project, construction is proceeding, and the homeowners have not superseded or tried to enjoin development.   We conclude that the homeowners are not required to either enjoin or supersede an adverse zoning decision to proceed with this appeal.   The substantive question is whether the City of Spokane, acting through its City Council, can authorize a zone change based on the Comprehensive Plan, absent specific zoning regulations (regulations which were anticipated by the Plan but never promulgated).   We conclude that it cannot.   We therefore reverse the judgment of the trial court that affirmed the City's rezone.

Supreme Cout of North Carolina (1994); [Statutes of Limitations]

City enacte billboard amortization ordinacne providing all billboards over certain size must be taken down after a length of time (5.5 yrs). Having determined that the trial judge did not err in entering the order of dismissal out of term and that the plaintiffs' complaint was not timely filed, we now reverse the decision of the Court of Appeals and remand the case for reinstatement of Judge Hight's order dismissing the plaintiffs' complaint. Federal statue limit is 3 years; NC statue is 9 months. Plantiff failed to appeal in timely fashion. 

Plains Grains Ltd. Partnership v. Board of County Com’rs of Cascade County (135)

USSC (1977); [Equal Protection Clause]

Was the denial of the rezoning application unconstitutionally or statutorily discriminatory?

Respondent applied to Petitioner for rezoning of a 15 acre parcel from single-family residential to multi-family residential, intending to build federally subsidized low to moderate income housing. The request was denied and Respondent sued for injunctive and declaratory relief, claiming that the effect of the denial of rezoning was discriminatory in nature and thus violative of the Fourteenth Amendment and the Fair Housing Act of 1968, 42 U.S.C. Section:3601, et. seq. Zoning ordinance did not violate 14th amendment based on application of Disparate Impact/Purposeful Discrimination test. (Disparate impact not enough; need intent)

ISLAND SILVER SPICE INC v. ISLAMORADA

United States Court of Appeals,Eleventh Circuit, 2008, Commerce Clause

Islamorada enacted Ordinance 02-02, which prohibited “formula restaurant[s]” and restricted “formula retail” establishments to limited street level frontage and total square footage. Island Silver brought a complaint against Islamorada in district court (wanted to sell to Walgreens), seeking damages, injunctive relief, and a writ of mandamus on the grounds that the ordinance's formula retail provisions violated its rights to Due Process, Commercial Speech, Equal Protection, Privileges and Immunities, the Commerce Clause, the district court did not err in concluding that the ordinance's formula retail provision violated the Dormant Commerce Clause. 

Certiorari

Prescritive, not proscriptive.

1. A form-based code is a land development regulation that fosters predictable built results and a high-quality public realm by using physical form (rather than separation of uses) as the organizing principle for the code. Aform-based code is a regulation, not a mere guideline, adopted into city, town, or county law.

Will ordinarily include proof of the municipality’s fair share of low and moderate income housing in terms of immediate needs and the future. 

Two types:

(1) encouring or requiring the use of a available state or federal housing subsisides

(2) provide incentives to developers to set aside a portion of their development ot low income housing

Incentive Zoning

(1) The racial impact of the decision

(2) the historical background of the decision, official actions taken for invidious purposes

(3) specific sequence of events,departures as well

(4) the legislative or administrative history (statements from members; mtg mins,)

(1) How strong is the plaintiffs showing of discriminatory effect

(2) What is the defendant’s interest in taking the action complained of?

(3) Does the plaintiff seek to compel to provide housing or restrain or merely to restrain the defendant from interfering with property owners that want to provide such housing