PROPERTY F FALL 2007
Information Memo #6: Chapter Eight: Zoning
TABLE OF CONTENTS
(A) Coverage Overview
(B) List of Relevant Old Exam Questions
(C) Write-Ups of Selected Discussion Questions
(D) Review Problems: Comments & Best Answers
(A) Coverage Overview
1. General Information
a. Basic Operation and Common Provisions
b. Purposes & Relevant Policy Concerns
2. Exceptions to the Zoning Plan
a. Non-Conforming Uses (NCUs)
i) Rules for Eliminating NCUs (Amortization Periods; Village of Valatie)
ii) Rules re Operation of Existing NCUs (See Notes 5-8 on P987-88)
b. Standards for Getting Variances (Commons & North Shore Steak House)
c. Special Exceptions (North Shore Steak House)
3. Zoning & Family Shape
a. Federal Constitutional Standards (Belle Terre, Moore & the line between them)
b. Policy Arguments re Purpose, Existence & Precise Form
(B) List of Relevant Old Exam Questions
1A 1G 1N
(C) Write-Ups of Selected Discussion Questions
(1) DQ138 (S166) & Note 7 (P987): Additional comment: The rule in most jurisdictions that you usually can’t rebuild an NCU if it’s destroyed parallels a similar rule for easements by estoppel. I draw your attention to this because it brings into focus the idea that one reason for allowing NCUs is reliance:
· The landowner invests money to develop the parcel in a particular way in reliance on the then-existing zoning and land use rules.
· The government, having not stepped in to intervene before the landowner invested, should not then be able to casually say, “Sorry, we don’t want it, tear it down.”
· Amortization rules honor the reliance interest by allowing the NCU to continue until the owner receives a reasonable return on the investment.
· Of course, the landowner’s reliance interest is much weaker (and unlikely to be honored) if she is causing nuisance or other significant harm.
(2) DQ142 (S171): In Note 2 on P999, the casebook authors suggest that the requirement that a hardship not be self-imposed or self-created merely shifts risks between the buyer and seller of the lot in question. Can you think of situations where this wouldn’t be true?
(a) First note that the authors assume that an interest is “self-imposed” any time the owner purchased the land subsequent to the imposition of the zoning requirement.
(b) The gist of their risk-sharing argument is this:
· Adam wants to buy a parcel of land from Olivia to use it in a way that is inconsistent with the current zoning.
· Adam will not be able to get a variance after he purchases because he is aware of the zoning, so his hardship was self-imposed
· Adam should then make his purchase of the parcel contingent on Olivia acquiring the variance for him. The parties can then negotiate specifics of the agreement and adjust the purchase price to cover costs and risks. E.g., Adam might agree, in the event the variance is denied and Adam doesn’t buy, to reimburse Olivia for any fees related to the variance application.
(c) I think the authors intend the Note to suggest that the self-imposed limitation is a bad idea if sophisticated buyers get around it by having the seller get the variance, and the rule thus limits only unsophisticated buyers.
(d) Even under the authors’ assumption about the definition of self-imposed, their risk shifting argument doesn’t work if the first buyer of the parcel after the zoning goes into effect doesn’t intend to develop it in a way that is inconsistent with the zoning.[1] Under this scenario:
(i) If Adam then approaches the owner, the owner cannot get a variance, because the owner now falls within the definition of “self-imposed”
(ii) Similarly, if the new owner later decides to develop the property in a way that requires a variance, the new owner will be ineligible.
(e) Commons seems to define hardship differently, to mean that (i) the owner had altered the property after the zoning in question so as to then leave it worthless or (ii) the owner did not make reasonable attempts to purchase adjoining property to make development possible. If either of these scenarios occurs, the authors’ risk-sharing argument would not occur. Note that Commons involves an area variance, so its discussion of “self-imposed” might be limited to that context.
(D) Review Problems: Comments & Best Answers
(1) Review Problem 8A
(a): What I Was Looking For: The question asked students to make policy arguments about a zoning ordinance banning public parking of pickup trucks. I was looking for nicely elaborated arguments both in favor and against the ordinance. I gave points for the number of arguments made, for how well students presented them and backed them up, for making arguments both pro and con, and for arguments I thought were particularly clever. Incidentally, for those students who expressed horror at the thought of this ordinance, a version of it exists in Coral Gables, and it apparently is not uncommon in upsclae residential communities.
Good arguments in favor of the ordinance in addition to those listed below included crime prevention (trucks often contain tools, etc. and are a magnet for theives; trucks often used by theives, so gives police ability to identify any truck parked at night as problem); concerns about commercial looking vehicles and/or frequently dirty/scuffed up vehicles undercutting the look of residential neighborhoods; and allowing the democratically determined will of the people to prevail. Arguments against include the vagueness of some of the language; allowing people to drive/park vehicle of their choice; the distastefulness of a city trying to signal class divisions; and the relatively high burden on truck owners compared to the benefits to the community.
(b) Common Errors: The question said to assume that the ordinance would be constitutional. The many students who discussed its constitutionality in the face of express instructions to the contrary lost points. Several students suggested the ordinance would be unconstitutional under Belle Terre. It almost certainly wouldn’t. It is rational for the city to believe that pick-up trucks which are associated with manual labor and working class folks reduce the aesthetic appearance of neighborhoods and lower property values. Since the city can legitimately try to improve aesthetics and property values, the ordinance would be OK.
In addition, many students made arguments about why zoning in general or aesthetic zoning in general is good or bad. When you are given a specific statute like this, you need to make sure to tie your arguments to what’s in front of you. Zoning does, for example, provide places where families can be free from the noise and traffic of commercial areas, but it is not clear that the truck ban particularly furthers that ideal.
(c) Best Student Answers: I chose the model answers out of a number of strong responses that elaborated several nice policy arguments both pro and con and refrained from addressing constitutional questions outside the scope of the question. I particularly liked the safety arguments in the first answer (Coral Gables would be pleased) and the where-will-it-end argument in the second.
(i) Student Answer #1: In favor of ordinance:
1) the neighborhood’s small lots are not fit for pick-up trucks to be parked on them because they severely limit the space in front of the houses many running into and blocking the sidewalks so people can’t walk along and kids can’t safely play in them and are forced to walk/play on the street which is a safety risk.
2) Many pick-up tricks are utility vehicles and extra cars in the household and owners due to limited parking space park them on the grass which is both unattractive and limits the open space in the neighborhood because it is an aesthetic problem. It is lowering property values.
3) The high/large trucks are interfering with the trees that hang over onto many of the yards/parking driveways and sidewalks cutting off branches and leaves which are dangerous to have in the sidewalks and streets (the branches) and takes way from the neighborhood’s natural beauty. [protect property values]. [MF: This seems a stretch]
4) The trucks, driving and/or turning on/off during “non-working hours” are noisy and disturbing to residents (a possible nuisance).
5) Big trucks block views for many residents who enjoy looking across their yards/streets and for whom the beauty of the neighborhood was a key factor in buying a home here.
6) Trucks are utility/commercial/industrial vehicles and this is a residential zone.
Arguments against the ordinance:
1) Pick-up trucks are both a way of transportation and a means to make a living for many work class people (gardeners/construction employees, pool cleaners, delivery men, etc.) Having 2 vehicles may be too expensive and impossible, the truck allows them to do both
2) Pick-up truck owners boought houses there before the ordinance expecting to be able to park their truck outside their home. Where would they possibly leave it now and how would they get to/from it each day. It would be too much of a burden. The trucks probably don’t fit in a garage and some houses may not even have a garage. [substantial impact/hardship]
3) To many people the truck may be a company vehicle, a plus for their employment, which means they receive lower pay but get a company car. This would be a hardship on them not to mention a possible loss of employment. Furthermore, those who use their truck for their own business would be forced to park it outside the area or sell it. If they park it somewhere else it could increase the risk it would be stolen/broken into because of the time it would be unattended or if they sell it, their business could fail decline or worse, they would have to move. This is a much bigger hardship than any benefit the neighborhood could get.
4) If they are parking the trucks in the grass, the grass is theirs and not being able to park their car on it infringes on the right to use and enjoy their property.
It would follow that pick-up trucks parked in the neighborhoods not offensive to the average person and does not depress property values enough to be restricted.
(ii) Student Answer #2: The immediate issue that I see in this scenario would be the reasoning behind why a municipality finds it necessary to suggest these type of restrictions. Objections to pick-up trucks could be:
- Aesthetics -- pick-up trucks are often used for construction/manual laboring type jobs and therefore often get distressed, i.e., dirty and dented. Parking them in front of a residence detracts from the beauty of the neighborhood.
- A deterrence to a certain class/type of people/population to prevent them from buying homes in the area. If the area is attempting to acquire or maintain a certain “class” or “type” of resident, this is not an attractive reason -- but, unfortunately I think in many areas (like Coral Gables) this reasoning is a major impetus for this type of rule.
Are these type of restrictions (or is this one) desirable?
Well, on one hand, it is up to the neighborhood to control their area, if they desire, but on the other hand this type of rule does appear to unfairly discriminate and/or burden homeowners who choose to own trucks. A person should be able to drive what they like.
It is however, possible for people with trucks to live elsewhere, or park their truck in a garage, so ownership of a truck doesn’t preclude someone -- immediately -- of a new place to live. However, I guess the question to ask is, how far can a municipality take zoning regulations? If the truck rule passes, are neighbors prepared for the next thing -- perhaps how many bushes you can plant, the kind of car you can drive -- whether your kids can play in the front yard?
On the other hand, it could be said that if these zoning rules pass, it could largely be because no one actively opposed them. There are ways neighbors can fight or deflect unwanted zoning ordinances.
Therefore I guess what it boils down to is as long as the proposed ordinance (like this one) does not offend the state or federal laws and Constitutions, and as long as the people affected do not oppose them then I guess the proposed ordinance is “desired.” Plus, ordinances can always be amended or repealed...
(2) Review Problem 8B
(a) My Comments: I was looking for a discussion of the gap between Belle Terre and Moore and which case this problem most resembled. Although the question specifically said to assume the ordinance was violated, almost all students (including the 1st model) argued that there was no violation. Because of the prevalance of this error, I gave some credit for these statutory interpretation arguments, but there is no guarantee I would do so on a future exam. I also gave some credit for discussions of whether Jason could get a variance.
(b) Student Answer #1: The question here in challenging the ordinance is whether the zoning restrictions are rationally related to a governmental purpose, as set forth in Belle Terre. We already know zoning is constitutional (Euclid), and that Jason probably cannot get a variance, because he could always move, and he would not cause undue hardship to him if he didn't have a maid. (Unless he was a real slob.)
The problem is the definition of family, and his success is based on Moore and Belle Terre. Belle Terre did not allow unrelated students to live together, under the same circumstances as this. Moore took it further affecting only unrelated individuals. Belle Terre and Moore would make it difficult for Jason to win under a definition by blood. Both exclude unrelateds but don't intrude on family because family unity is a government interest.