美国财产法Chapter-10-Land-use-regulation.docx

PKU-STL Hu
Chapter 10 Land Use Regulation
A. Basics of zoning
1. Introduction:
(1) Government had the inherent police power to protect the public health, safety, morals, and welfare through zoning laws.
(2) Zoning enabling act: Every state has a zoning enabling act that delegates power to municipalities to pass land use regulations - such regulations are lawful to the extent that they fall within the scope of the delegated powers.
(3) A comprehensive plan: zoning enabling acts mandate that zoning laws must be made in accordance with, or consistent with, a comprehensive plan - customary now for most municipalities to have a planning commission which prepares both the comprehensive plan (plans often include maps showing general divisions of the municipality, descriptions of the plan's objectives, as well as standards guiding real estate development in the jurisdiction) and the zoning law.
2. Constitutionality of zoning
(1) Constitutional provisions:
a. First Amendment -- e.g., some property owners have argued that some zoning ordinances are unconstitutional because they violate First Amendment protections on free speech, the Supreme Court held that a town could not prohibit the posting of "for sale" or "sold" signs even though the town's motive was to stem the flight of white owners from a newly racially integrated community.
b. Fourteenth Amendment (Due Process Clause) -- the clause on due process prohibits a state from depriving owners of property without due process of law -- some courts have interpreted the due process clause to impose substantive limits on what governments can constitutionally do – the Supreme Court has held that property owners have a "right to be free from arbitrary or irrational zoning actions".
c. Fourteenth Amendment (Equal Protection Clause) -- the equal protection clause requires, at a minimum, that government classifications be rationally related to a legitimate government interest, the Supreme Court shot down an ordinance that required a special permit to locate a home for retarded persons but did not require such a permit for other group homes, such as nursing homes or frat houses - the Court reasoned that the ordinance was being prejudiced against retarded persons.
d. Fifth Amendment (the Takings Clause) – “nor shall private property be taken for public use without just compensation" – some property owners have sued on the theory that the zoning law constitutes an unconstitutional "taking" of property.
(2) Village of Euclid v. Ambler Realty Co. (1926)
a. Facts: Ambler Realty owned an undeveloped 68-acre tract in Euclid, Ohio, situated between Euclid Avenue on the south and the Nickel Plate Railroad on the north. In 1922, the Euclid village council adopted a zoning ordinance which specified the uses permitted in certain areas, and imposed height and area restrictions as well. Ambler's land was worth more than $10k per acre for industrial development. But the zoning ordinance placed part of the land in the U-2 zone, another part in the U-3 zone, and the remainder in the U-6 zone (Where industrial uses were permitted). The ordinance therefore lowered the value of most of Ambler's U-2 and U-3 land to $2.5k per acre. Ambler sued for an injunction to prevent enforcement of the ordinance, claiming due process and equal protection violations. The trial court enjoined the ordinance as unconstitutional, and the Supreme Court reversed.
b. Issue: Does the Euclid ordinance violate the constitution protection to the right of property in the appellee by attempted regulations under the guise of the police power, which are unreasonable and confiscatory?
c. Rule: Rational basis test: a law is unconstitutional only if it is clearly arbitrary and unreasonably, having no substantial relation to the public health, safety, morals, or general welfare.
d. Reasoning: the Court reasoned that: 1) the source of zoning authority was the police power; 2) the due process and equal protection clauses would invalidate such a zoning ordinance only if its provisions were "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare" and 3) that standard was not met in this case. To prove its point, the Court discussed the justifications for keeping industrial use out of residential zones.
e. Points for discussion:
1) Strict scrutiny: a law is constitutional only if it is narrowly tailored to accomplish a “compelling state interest”—a higher standard than a mere retinal basis. It applies when a law discriminates against a suspect class or impairs a fundamental right.
2) The most favored use under the Euclid plan was the traditional single-family home.
3) Applying the Euclid Test: The most important thing is to remember that it is generally highly unlikely that an ordinance would be unconstitutional under the Euclid Test. Then policy questions are irrelevant in applying this test. All the five hypos on P 779 are constitutional because the ordinance has a substantial relation to the public health, safety, morals, or general welfare and also because the Euclid test is an easy test.
3. Nonconforming uses
(1) For a nonconforming use to be allowed to continue, it must have been lawful and in existence at the time the zoning ordinance was passed.
(2) However, at the same time, the municipality wants to limit this prior nonconforming use (while tolerating it) - usually by prohibiting any intensification of the use or changes to the use.
(3) Most courts have upheld the amortization technique, but they usually require that the amortization period is long enough for the landowner to recover his investment (note that the period in the AVR case was 2 years, which may be a bit too short) - they require a reasonable period. Some courts, however, do not permit the amortization theory – they consider any retroactive prohibition whatsoever unfair and arguably unconstitutional under the Fifth Amendment.
(4) AVR, Inc. v. City of St. Louis Park (1999)
a. Facts: In 1959, the City of St. Louis Park amended its zoning ordinance by placing new restrictions on ready-mix cement plants; at that time, the plant involved in this case became a nonconforming use. AVR purchased the plant in 1974 for US$260,000 - one year after the City amended its ordinance to prohibit ready-mix plants, except for non-conforming uses. Note that the plant was a legal use when it was built in 1954, but became a non-confirming use in 1959, long before AVR bought it. In 1980, the City notified AVR that it intended to phase out the plant and rezone the site; AVR successfully challenged the decision in litigation. In 1992, the City rezoned the plant site from I-4 industrial to R-4 multifamily residential. It also established a procedure for the zoning administrator to determine a reasonable amortization period for nonconforming uses such as the AVR plant. In 1995, the City established a 2-year amortization period for the plant. AVR challenged this decision and lost on summary judgment.
b. Issue: whether the two-year amortization is reasonable
c. Rule: The factors to determine whether the length of the amortization period is reasonable:
1) information relating to the structure located on the property
2) nature of the use
3) location of the property in relation to surrounding uses
4) description of the character of and uses in the surrounding neighborhood
5) cost of the property and improvements to the property
6) benefit to the public by requiring the termination of the non-conforming use
7) burden on the property owner by requiring the termination of the non-conforming use
8) the length of time the use has been in existence and the length of time the use has been non-conforming
d. reasoning:
1) Recall that amortization is permitted in most jurisdictions as long as a reasonable period is allowed for the landowner to recover his investment.
2) Listed the eight factors.
3) The court suggests that AVR had already recovered its investment actually before the amortization period began, citing the City's 1995 determination that AVR had earned a return of about 560 percent on its investment.
4) Court reasons the useful life of the plant is over as well and has had reasonable opportunity to recover its economic investment and thus closing the plant would not impose a burden on AVR. à
One potential problem with the court's analysis is that it relies on the depreciation of the plant for tax purposes, but this doesn't really have a strong connection with actually determining the plant's useful life in the real world.
e. Points for discussion
1) Vested rights: if the zoning changes before a new project is completed, in most jurisdictions, the landowner acquires vested rights in the current zoning and is protected under the nonconforming use doctrine if she has already acquired the necessary permits and spent a substantial amount of money in good faith reliance.
f. Hypos:
P789(d)(1): The most important factors are benefit to the public / burden to the owner / length of time the use has been nonconforming. The benefit to the public from closing the store is not large, since most residents actually appreciate the grocery store. The impact on G seems similar to the impact on AVR, in the sense that G has recouped his investment many times over, perhaps by 20 times ($150,000 original cost, but $95,000 in yearly profits). But an order closing the store would appear to cost G $755,000 ($800,000 minus the $45,000 value of the lot), a significant impact, unless G can successfully reopen the business in another location. On the other hand, this has been a nonconforming use for 14 years - quite a long time. One way to approach the problem is to note that G could recoup the net FMV of the store ($755,000) by operating it for another eight years (95,000 multiplied by 8 = 760k). Taking into account some negative effects on the public, probably a period of 6-8 years would be reasonable.
P789(d)(2): The key here is that P's store is operating in leased premises. It would be relatively easy for P to move the store to a new place, assuming that P can assign/sublease his interest and also the zoning ordinance allows the operation of pornographic bookstores elsewhere in the city. Nothing in the facts suggest that the existing location is crucial for P's business. True, he will have some expenses for moving, and he will lose income during the move. But they are quite minimal compared to his yearly profits. So, a smaller period - 1 to 2 years - may be reasonable.
B. Rigid zoning or flexible zoning
1. The Standard State Zoning Enabling Act provided only three ways for an owner to escape a zoning ordinance: Amendment; Variance; Special exception. However, in recent decades, new tools for zoning flexibility have emerged
2. Zoning amendment
(1) Most jurisdictions review the constitutionality of rezoning under the same general standard normally applied to a new zoning ordinance is valid unless it is “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”
(2) Minority of jurisdictions: change or mistake approach rezoning is valid only if conditions in the zone have significantly changed or a mistake was made in the original zoning ordinance à
Policy Reasons: Rezoning presents special dangers a. It threatens the goal of comprehensive land use planning; b. It creates a heightened risk of governmental corruption
(3) Smith v. City of Little Rock （1983）
a. Facts: The Little Rock City Board of Directors (legislation branch) voted unanimously to change the zoning classification of property from a single family and quiet office classification to a general commercial classification as requested by the property owners. A Wendy’s restaurant is to be constructed on that site if rezoned. The appellants, who are property owners in that vicinity, filed suit to have the rezoning set aside.
b. Issue: whether the rezoning is arbitrary
c. Rule: the Euclid test and the burden of proof is on the persons attacking the rezoning
d. Reasoning:
1) explains that its role is limited to determining whether the rezoning is arbitrary
2) The rezoning and the restaurant will help the local economy by providing jobs and tax revenue - sufficient to show the rezoning is not arbitrary.
3) The Heights/Hillcrest Plan is merely a general guide for city planning, and the rezoning in this case is not inconsistent with the plan.
4) Spot zoning involves zoning one lot in a manner entirely different from the surrounding area, which was not done here. Because the lots are located not far from a commercial area on West Markham Street and the lots themselves are not quiet streets, the rezoning from single family and quiet business to commercial use is a reasonable classification
e. Dissent:
1) The dissent criticizes that the majority did not answer the question of whether this was spot zoning.
2) Arkansas criteria to determining whether there is a spot zoning (2 elements):
i. Rezoning a small parcel of land (met here)
ii. In a manner inconsistent with the other predominant land uses in the area
If we apply the broad definition of “area”, this may not inconsistent.
f. Points for discussion
1) Spot zoning
i. General factors :Spot zoning exists when a zoning amendment:
Singles out a small parcel of land for different treatment;
Primarily for the benefit of the private owner, rather than the public;
In a manner inconsistent with the general plan for the community
ii. Spot zoning may be found even if one or more of these criteria are absent, depending on the jurisdiction
iii. Spot zoning is a specific application of the doctrine that zoning ordinances should be consistent with a comprehensive plan.
3. Variance
(1) Variance are permissions to deviate from the zoning law when application of the ordinance to a particular parcel would:
a. impose an unnecessary hardship; and
b. the proposed use would not be contrary to the public interest and would not substantially impair the purpose of the zoning plan and ordinances
(2) variances vs. special exceptions:
a. special exceptions: uses permitted by the zoning law as long as certain conditions are met vs.
b. variances: uses prohibited by the zoning law, but allowed b/c the ordinance, as applied, would effectively constitute a unconstitutional taking of the owner's property rights
(3) In most states: use strict test to determine a variance
a. The hardship is not self-imposed.
Some jurisdictions have said that an owner's refusal to sell property for fair market value to a neighbor who is willing and able to buy is an example of a self-imposed hardship.
b. Hardships will generally not be found unless there is no economically viable use of the property (or reasonable return on the owner's investment) if the zoning law is applied and enforced.
c. Many states require that the property must be diffe