Land use and natural resources regulation

 Euclid: A zoning ordinance that prohibited industrial uses and caused a 75% reduction in the market value of
land was not an unconstitutional taking bc ordinance served a legitimate public interest  therefore not
clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, or general
welfare
 Motivation for zoning: (1) justified as a means of prospectively limiting the harms that might arise from the
proximity of incompatible land uses; (2) Tool that local govt use to influence the composition of their
communities and the tax and budgeting implications that flow from that composition
o Criticism: (1) Apt building – parasites  attempts at segregating who can live in what kinds (2) creates
modern suburbia (e.g. residential on one side and retail/industrial on another – have to be in the car all
the time – environmental disaster and social disaster/lack of mix and mingling – bleaching all of that out)
o Response:
 “smart growth” or growth management laws – limit and channel the overall development in a
jurisdiction, seeking to utilize existing urban infrastructure, preserve open space, etc (through a
combination of regulations that promotes the mixing, rather than separation of land uses)
 New urbanism: similar - an emphasis on compact communities that favor walkability and transit
 Forum based codes: used to advance New Urbanism (describe an allowable building envelope and
the aesthetics of new development but leave specific uses largely unregulated) – regulate through
illustrations enacted into law (as opposed to the text and map of traditional zoning to focus on the
experience and the form of the community rather than on potential conflicts)
 Performance zoning: shifts the focus of regulation from classifying uses to establishing standard for
the impacts of kinds of development (e.g. industrial performance zoning: set limits on emissions or
noise)
o States delegate their police power to local governments - so no sufficient reason to deny this power
o Leg judgments on appropriate uses of land should be upheld to prevent possible conflicts over land uses
o BUT it is possible where the general public interest would so far outweigh the interest of the municipality
(e.g. using the power to keep out people that are undesirable) – unconstitutional taking w/o just
compens.
o Typically zoning is legislative enactment – when there is doubt court won’t second guess the statutory
law
Amber v Euclid
Ambler Realty Co. (Ambler) (plaintiff) owned land in the Village of Euclid (Euclid) (defendant). Euclid is a largely
residential suburb of Cleveland, Ohio. In 1922, Euclid enacted comprehensive zoning ordinances and created a board
of zoning appeals charged with enforcement. The regulations created different districts based on the class of use,
including purely residential, mixed use, commercial, and industrial. As a result of the ordinance, Ambler’s land was
partitioned in terms of the types of uses that were permissible on it. Most notably, portions of Amber’s land were
zoned in such a way as to prohibit the development of industry. Ambler brought suit against Euclid, alleging that the
zoning ordinance violated the Fourteenth Amendment of the United States Constitution, as well as the Ohio
Constitution, by depriving Ambler of liberty and property without due process. Specifically, Ambler argued that the
ordinance significantly reduced the land’s value and deterred potential buyers. Euclid moved to dismiss on the
ground that the zoning regulations had not yet been enforced against Ambler, because Ambler had not applied for
any building permits. The motion was denied. The district court held that the ordinance was unconstitutional and
enjoined its enforcement. Euclid appealed to the United States Supreme Court.

Issue

May cities and municipalities constitutionally pass zoning regulations?

Holding and Reasoning (Sutherland, J.)

Yes. Euclid’s zoning ordinance is constitutional. Zoning restrictions are unconstitutional if “clearly arbitrary and
unreasonable” and without “substantial relation to the public health, safety, morals, or general welfare.” The power
to pass zoning regulations derives from states’ police powers. Zoning ordinances are a relatively recent development,
created to deal with the difficulties created by increasing urban populations. As a result of this, the application of
constitutional guarantees must have some “elasticity.” That said, the propriety of a zoning ordinance depends upon
the situation. The common law of nuisance is built upon the maxim that one should not use her property to harm
another’s use of theirs, and that principle provides guidance for determining the scope of the power to regulate
property use. There is no real doubt that localities have the power to pass these types of regulations. Ordinances
restricting industrial use of property may be over-inclusive, going beyond dangerous and offensive uses and
forbidding the innocent as well, but this is unavoidable. Such ordinances do not “pass…the bounds of reason and
assume…the character of a merely arbitrary fiat.” Purity Extract Co. v. Lynch, 226 U.S. 192 (1912). Thus, they are
generally valid. A more difficult question arises as to the validity of purely residential districts that exclude all
commercial activity. More state courts seem to sustain such ordinances than overturn them. Further, experts
generally agree that such zoning laws make fire and accident prevention easier, reduce noise, and preserve
residential areas. Such regulations are thus valid so long as not arbitrary and unreasonable or without connection to
the general welfare. In this case, Euclid may be restricting the current course of industrial development from
Cleveland, but it is acting well within its rights as a separate municipality. Euclid has the right to exercise its police
powers to separate industrial development from its residential sector. Further, there was no need for Ambler to wait
until a building permit had been denied to challenge the ordinance. The zoning restriction scheme here may well
prove to be unconstitutional as applied, but it is constitutional on its face. The judgment of the court below is
reversed.

Town of Belleville: D’s restaurant -later zoned for residential purposes - prior nonconforming use BUT when D
converted the restaurant into a disco and changed (1) the days and hrs of operation; (2) the primary use of the
facility; and (3) the type of activities occurring at the facility, this is “changing the use” and demonstrably affected
adversely the general welfare of the neighborhood, warranting the municipalities action to now bring the use into
conformity
Parrillo’s (defendant) operated as a restaurant in the Town of Belleville (plaintiff). Subsequently, Belleville enacted
zoning ordinances itemizing permitted uses for each zone. In the zone where Parrillo’s was located, operating a
restaurant was not permitted under the new zoning laws. However, because Parrillo’s operated as a restaurant
prior to the enactment of the laws, it was permitted to continue operating as a restaurant because of its
preexisting nonconforming use. However, some years later, Parrillo’s ceased its primary operation as a restaurant
and began operating as a discotheque, which was also not permitted under the new zoning regulations. Parrillo’s
applied for a discotheque license, but was denied. When Parrillo’s continued to operate as a discotheque, the
town filed charges. The municipal court found against Parrillo’s. The New Jersey Superior Court, Law Division
affirmed the finding against Parrillo’s. The New Jersey Superior Court, Appellate Division reversed. The Town of
Bellville appealed.
Issue
In terms of zoning ordinances, is the operation of a discotheque substantially the same as the operation of a
restaurant?
Holding and Reasoning (Clifford, J.)
No. The operation of a discotheque is substantially different than the operation of a restaurant. In the present
case, there were a number of significant changes to Parrillo’s after its switch to a discotheque, including a
reduction in tables, a change in lighting, an addition of loud music, and dancing replacing eating as the primary
activity. It is clear that Parrillo’s abandoned its operation as a restaurant and began operation as a discotheque.
This is a substantial change which cannot be upheld as a preexisting nonconforming use. The use is in violation of
the Belleville zoning law. The decision of the New Jersey Superior Court, Appellate Division is reversed.

 Zoning legislation and planning process

o States often delegate zoning power through legislation (zoning enabling acts) to local governments
o Voters in the local govt elect a governing body (has power to adopt local laws governing land use)
o ZEA require local govt to establish comprehensive plan (residential etc) prepared by planning commission
(comm members appointed by local legislative body) aided by planning depart (professional planners)
o ZEAs authorize municipalities to delegate power to an administrative agency called the zoning board
(evaluate requests for administrative relief from zoning requirements)
 The Planning Commission: No power to pass a zoning law itself
o Receives petitions for rezoning from particular landowners who are seeking amendments
1. Hold public hearings,
2. Investigate and obtain relevant information,
3. Develop the comprehensive plan (and often the zoning law as well)
4. Recommend changes over time in the local zoning law or in standards for applying or administering it

o When the conditions warrant changing the ordinance - Most ZEA require any changes in the zoning
ordinance to accord with the general plan (This plan can change over time but zoning decisions are
intended to be made with a large, long-range view of how uses harmonize in the city as a whole)
 SPLIT – In deference to zoning amendments:
o Some cts will hold strictly to the requirement that the zoning proceed in accord with the general
plan (strike down any zoning amendments that are not sufficiently justified - comprehensive
plan)
o Others grant greater discretion to the governing body
o In either case, strategy for owner aggrieved by a zoning amendment is to argue: The change is
not in accord with the existing comprehensive plan or that it is inconsistent with any rational
plan

 The mechanics of Euclidean zoning

o Use zoning: into districts and regulates the kinds of uses allowed (agricultural, residential, commercial etc)
o Area zoning: the size of lots, the height of the buildings, requirements to set back structures a certain
distance from property borders and other aspects of the physical configuration of the property
o Zoning map: where specific zones are physically located in a given jurisdiction
 Other land use regulatory regimes (large-scale development in general requires site-plan review)
o Subdivision regulation: to subdivide a large parcel (to build a neighborhood of single-family homes) must
go through rigorous review process to ensure e.g. subdivision will have sufficient infrastructure such as
streets, sidewalks, etc and that the subdivision will conform to legal require. for lot sizes, etc
o Housing, building, and development codes: focus on structural safety, the quality of building materials,
public health concerns (sufficient light and air in residential buildings)
 Recent years: building codes increasingly focus on issues of energy efficiency and sustainability
 Modernizing zoning
o Euclidean: focus on separating uses in order to prospectively manage land use conflicts
o Modern land use regulation: focus as much on development incentives, community aesthetics, combating
big box development, and history preservation as it does on classifying land

 Vested Rights: Most states agree that owners have vested rights to existing zoning regulations if they have
invested substantially in reliance on those regulations
 Basic elements for a claim of vested rights (Paaske): The type of project; The project’s location; The
ultimate cost; and Principally: The amount accomplished under conformity
 Stone: P purchased undeveloped land with the intent of developing a low-income housing project - The
court found that these steps were only the most preliminary steps towards construction (not VR)

Stone v City of Wilton

The Stones (plaintiffs) bought an undeveloped parcel of land with plans to build a multi-family housing project. In
preparation for construction, they paid architecture and engineering fees and secured a loan for the construction.
However, before the start of construction, the City of Wilton (defendant) rezoned the land to permit single-family
residences only because of insufficient sewer, water, and electric services. The Stones brought suit seeking a
declaratory judgment invalidating the rezoning of their property.
Issue

Does paying for architectural and engineering services and devising a construction plan constitute effort so
substantial that it creates vested rights in a zoning classification in the landowner?

Holding and Reasoning (McGiverin, J.)

No. For a court to determine that a property owner has a vested right in a zoning classification, it must find that the
owner has made substantial efforts under the classification toward accomplishing the proposed project. A court
makes this determination by analyzing the type of the project, its location, its cost, and most importantly, the
amount the property owner accomplished under the classification up to the point of rezoning. In this case, the
Stones’ efforts towards construction and completion of the project are only preliminary. The architect’s plans are in
the preliminary stages, they have not entered into any construction contracts, no materials have been brought to
the site, and no construction has started. As a result, the Stones’ expenditures prior to the rezoning were not so
substantial as to create vested rights. Therefore, because the rezoning is reasonable in light of the town’s police
power and the inadequacies of the sewer, water, and electric services, the rezoning is valid.

 Advantage of substantiality test vs. bright line rule (picking specific points – this is the point at which you
as the developer will vest) would be too inclusive or not enough
 Issue of standing: rigidly enforced in fed ct – you cannot bring a lawsuit unless you show (1) You have
been injured, (2) Traceable to some govt act (3) Relief you seek address the injury
o If you are the owner – no q but if the neighbor have to show I was injured somehow
 Many states require the granting of a building permit before they will find a vested right
o The granting of building permit is generally not enough
o The owner must make substantial expenditures in good faith reliance on the existing law
 How substantial: One approach: compare the ratio of expenses incurred to the total cost of the
project measuring those expenses that related exclusively to the proposed development VS.
 Broader approach adding to the ratio analysis other factors (good faith of the landowner, the
type of expenditures, whether or not he had notice of zoning or before starting his
improvements etc
 Minority of states grants developers vested rights if they have obtained site-specific approval for
development, such as a preliminary subdivision plan (early vesting approach – promote certainty)