Transcript AMERICAN WAY OF ZONING - College of Architecture, Planning

AMERICAN WAY OF ZONING
A ROAD WELL TRAVELED
Lecture 1
Developmental History
Formation period – inception to 1900
Comprehensive nuisance controls
“Let Each Use His Own So As Not To Injure
Others”
Private and Public Nuisances
Nuisance Concepts
Unreasonable interference with a property
right
Non-Trespassory Invasion
Nuisance Per Se – At all times and places
Nuisance Per Accidens – Times and
Location
Nuisance Regulations
Not necessary to show neglect or reckless
use
Suitability of the use to the character of the
neighborhood]
A person may not come to the nuisance
Remedy is abatement or injunction
Conceptual Period 1900 - 1926
Developing formation of the police power
Concurrent movements – housing, pure
food and drug, parks, good government, and
City Beautiful
Formation of the American Institute of
Planners and the visits to Europe
The discovery of Swiss ‘Zoning’
New York City - 1916
First comprehensive zoning ordinance
adopted
Zoning shapes the city. Through zoning, a city regulates
building size, population density and the way land is
used. Zoning recognizes the changing demographic and
economic conditions of the city and is a key tool for
carrying out planning policy. New York City enacted the
nation's first comprehensive zoning resolution in 1916
Nature of the NYC Ordinance
Pyramidical
Housing
Commerce
Industry
Heavy Manufacturing
Cumulative
NYC Ordinance Based Legislation
Enabling Legislation
The Players
Planning Commission
Governing Body
BZA or Board of Adjustment
The Comprehensive Plan
The Zoning Text and Map
Purpose of the Ordinance
To divide the community into use zones and
intensity districts
To establish the district regulations
Create the enforcement powers
Create the terms of art and definitions
Create the supplemental regulations
governing the operation of the ordinance
The Original Map
The Interim 1916 - 1924
Zoning is America is a revolutionary step in
the face of unbridled and unfettered use of
private property
However, there is no serious appellate
court test of the constitutionality of this
instrument
Adoption Spreads Rapidly
The rush to adopt state legislation (Kansas
in 1921) is fueled by the efforts of the
various state chambers of commerce and
key planners in major cities.
Within 6 years after the NYC ordinance, at
least 1,800 American towns and cities
adopt zoning as a land use control tool.
The Opponents
Rapid adoption does not escape the notice
of many organized lobby groups
Notable – The National Realty Association
and the Homebuilders Association
The Stage is set in Euclid, Ohio
Village of Euclid, Ohio
Euclid, in 1922, is a small town – a suburb of
Cleveland Ohio
Summary of facts:
Ambler owned property in Village of Euclid that it
intended to sell for industrial purposes. A new zoning
ordinance (1922) in Euclid, however, prevented
industrial uses on significant portions of the property,
only allowing development that commanded a
considerably lower sale price than Ambler expected.
Ambler Realty v Euclid
 What is the plaintiff's complaint?
Zoning that excludes industrial uses in a growing industrial
corridor reduces the value of the land and constitutes a
taking. In addition, zoning in general could significantly disturb
the metropolitan real estate market by thwarting natural market
forces.
 What is the basis for the plaintiff's legal claim?
14th Amendment to the U.S. Constitution guarantees that liberty
and property cannot be taken without due process of law and
payment of just compensation. Claim is that the zoning
ordinance violates this amendment. (This is a question of
substantive due process, rather than procedural due process.)
District and Ohio Supreme Court
The district court (Ohio) finds for the
Village of Euclid.
The Supreme Court of Ohio upholds the
district court decision finding that the use
of zoning based on police power objectives
is a constitutionally permissible action
Federal District Court
Ambler Realty jumps jurisdictions and files
and parallel suit in U.S. District Court under
federal questions.
Judge Westerhaven finds an equal
protection issue and rules for Ambler
Realty
The controversy is now set for the the U.S.
Supreme Court
U.S. Supreme Court
Supreme Court reverses lower court's decision that
Euclid's zoning ordinance was unconstitutional. It
decides that the municipality can use its police power to
enforce zoning ordinances that are established to
ensure the public good. It determines that industry can
be excluded from residential areas, even in a growing
industrial village. It also determines that even retail
trades and apartment buildings can reasonably be
excluded from single-family areas in order to preserve
an order, safety, and preferred character. It notes that
the value lost on the land in question is irrelevant.
Sutherland’s Decision
A 5-4 vote of the U.S. Supreme Court
Based on solid studies and a plan
Value of property is speculative – a mere
diminishment is not a taking
Protects injury to the residential public
Review of Constitution Basis
The Police Power – The power reserved to
the states to protect the public health,
safety and welfare
The 5th Amendment - “nor be deprived of
life, liberty, or property, without due
process of law; nor shall private property
be taken for public use, without just
compensation”
Applicable to the States
The 14th Amendment - No State shall make
or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any State deprive
any person of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction the equal
protection of the laws.
In Simple Terms
The government must not take private
property for a public purpose
Due process of law is required to deprive
anyone of a property right
Equal protection requires that people must
be treated the same unless there is a
compelling reason for the difference
Taking
A “taking” is a touching or a physical
invasion of property.
A regulatory taking occurs when the
governmental restriction or burden on
property is so great that in renders the
property valueless or practically valueless
Due Process
Due Process
Procedural – Related to fairness and equity of
treatment. In other words “reasonable”
Substantive – Relates to the very substance
and spirit of the law. It goes to the fundamental
purpose of the legislation
A Break in Subject
Private v Public Regulation
Simple put, public land use regulation is
only a part of the burden placed on the use
of private property
A simpler way is to do it to ourselves
Why Private Regulation
Empowers the market – guarantee of useful
ownership
Protect sellers from buyers and sellers
from buyers
Swift and merciless enforcement
Avoids governmental entanglement
Private Regulation – Fee or
Contact
Private Regulation as Ownership
In this mode, an instrument is created to
run with the title to property giving
adjacent owners (appurtenant) or remote
owners a right on the land of another (in
gross)
By Contract – Its Elements
Mutual Agreement – Free informed consent
Offer and Acceptance – expression of
mutual agreement, offer must be identical
to substance
Consideration – of value
Object – purpose must be lawful/valid
Time – specifies the frame for duties
Contractual Instruments
Servitudes
Negative – To refrain from a specified action
Positive – An affirmative duty to perform some
act
Equitable servitudes – Benefit and burden is
reciprocal
Covenants – Deed Restrictions
A contractual agreement to restrict the use
and enjoyment of property
Covenants, as a contract, must run for
specified periods of time
Method of amendment or repeal
Must serve a substantial purpose and not
violate a protected constitutional right
Covenant Examples
Must have a two car garage
All building plans approved by developer
No business in homes
No external color change
No metal roofs
Pickup trucks must be screened
Fences constructed from 1st quality wood
Public – Private Relationship
First, you can’t fight City Hall. Our
regulations take precedence over private
when ours are more restrictive
Second, the government will not enforce or
honor private regulations between two
parties
Third, hell has no fury like a civil suit
between two property owners
Back to the Zoning Ordinance
First Things First
Know where you are!
Understanding legal description
Reading legal descriptions
Understanding a survey
Section – Range - Township
A section is a square unit of land (almost)
surveyed as one mile on each side
Each section is given a unique
identification number
A township is a square grouping of 36
section (usually) 6 X 6 miles – it is not a
political township
Numbering
Sections are number beginning
in the NE corner of the
township and then falling
sequentially to the next
descending tier
Township - Range
N
W
Baseline
S
E
Locating Within the Section
640 Ac
NW ¼ of
the NE ¼
SE 1/4
SE ¼
NE ¼
SE 1/4
SW ¼ SW ¼ NE ¼
The System
N
T 10 N – R 1 E
10
W
Baseline
10
10
S
E
10
Try it – Identify the “X’s”
NW
Finding the Exact Location
POB
N 90 E 348’
N 00 285’