Halil's Land Use Outline PDF

Historical and Ethical Underpinnings of Land Use: ================================================= - **Land Use Law is the full range of laws and regulations that influence and affect, develop, and use of land** - Deals with a broad range of non-legal problem - It is important...

Historical and Ethical Underpinnings of Land Use: ================================================= - **Land Use Law is the full range of laws and regulations that influence and affect, develop, and use of land** - Deals with a broad range of non-legal problem - It is important to: - Lawyers - Planners - Civil Engineers - Architects - Landscape Architects - Public interest groups - Influenced by economics, environment, technology, science, etc. Evolving Ethics: ---------------- - **Silent Spring:** - This piece was published in the 1960s, and it conveys that the way we treat the land, such as how we live on it, has consequences and long term impacts. Conveys the idea that **humans shouldn't try and dominate nature.** - Such as, by using pesticides that poison the land, the land eventually poisons us - **Village of Euclid v. Amber:** - **This case is the foundation of zoning, here the court called apartment buildings a parasite** and looked to restricting height and providing clean air. - Court also noted that building inspectors enforce the zoning laws and their decisions can be appealed in order to acquire a variance - Spoke on the concept of police power: - **Police Power → Power to regulate and protect the health safety and welfare of the people** - **Home Rule → Power of local governments to adopt laws that relates to their property affairs and government??** - **Aldo Leopold's Land Ethic:** - "A thing is right when it tends to **preserve the integrity, stability and beauty of the biotic community.** It is wrong when it trends otherwise" - Value → Ranking of the importance of things - Ethics → Standard that we set - **Land Ethic → A thing is right when it protects the biotic environment, all else is wrong** - It is important to preserve undesirable areas, but we cannot expect people to make selfless decisions so the government needs to intervene. Nuisance & the Quest for Utopia: -------------------------------- - **The Early Beginnings of the U.S. Land Use System:** - In early American history, individuals were thought of having powerful control over their land. There was a rise and need of land use regulations because land was regulated by private conditions imposed through titles. - Between the 1870s and the 1920s, the US underwent a major transformation - People flocked to cities - America became "incorporated" - Great Migration → flock from the southern US into the northern US and their cities (black people mainly) - During the progressive era, there was a split belief between the poor and immigrants living in slums - One group believed that they were less evolved - The other believed that there was a material disadvantage - This notion was pushed by Jacob Riis through his famous photo showing how the poor people lived in slums - **3 Magnets and the Garden City:** - In 1898, people in England were flocking to the cities, - Howard envisioned a "Garden City" that decentralized congested cities, like London, into a ring of carefully organized garden cities that were surrounded by a country side and connected by railroads - **The three magnets:** - 1\. Cities - They have the greatest pull - 2\. Rural/Town - 3\. Country - Plan is to combine Rural and Country - This Town Country Magnet was considered the perfect combination of the beauty of nature and social opportunity; all with fields and parks that are easily accessible. - These would great the Garden Cities - **Three ways to regulate private property** - Covenant - Equitable Servitude - Nuisance - Nuisance is based on a reasonableness test, where you balance hardship, social values, and suitability of the property - **Introduction to Nuisance:** - **Nuisance →** A common law action that established that private landowners may not use their property in a way that injures the property held by another. - Relief can come as an injunction or damages. - Offensive intrusions such as smoke, dust, noise, odors, heat, or other effects that many diminish the normal use of property - 4 types of nuisance: - **Nuisance per se →** Any action that is always a nuisance, under all circumstances - **Nuisance in Fact →** Not inherently a nuisance, but under the circumstances or the way the action is conducted, it can be - E.g. Loud Music - **Public Nuisance →** Affects an entire community or neighborhood, or any considerable amount of people. However, the damage that can be caused to the people can be unequal among those people (some may be more damaged than others) - **They endanger people, their property, offend public morals, and violate criminal statutes** - "Significantly interfere with public health, safety, comfort or convenience" - "Undesirable interferences" - They are undesirable when significant interference is proved by evidence produced by the plaintiffs or when the conduct is proscribed by a duly enacted law, ordinance or admin regulation - **Private Nuisance →** A legal course of an invasion of another\'s interest in the private use and enjoyment of their land - Either done intentionally or - Unintentionally and otherwise actionable under the rules controlling liability for negligent or reckless conduct or for abnormally dangerous conditions or activities - **Restatement Second of Torts § 822:** - Gravity of harm to the plaintiff is weighed against the utility of the defendant's use to determine a reasonable and equitable solution - ***Clark v. Wambold:*** - **Facts:** - Clark bought a piece of property near Wambold, who owned a pig farm. Clark later brought a suit seeking to enjoin Wambold from running a pig farm under the claim of it being a nuisance. - **Holding:** - The court found that it was not a nuisance because the **doctrine of nuisance does not allow someone to obtain an injunction to force someone to stop the reasonable and lawful use of their property.** Especially one that is of minor annoyance to the neighbors. - **Nuisance is a reasonableness test**, and in this case the nuisance claim was dropped because the pig pens were kept as clean as reasonably possible - When you buy property, you take it as your own, limited to all land use laws on the land. Also you must perform due diligence in recognizing the pros and cons of the property. - **Moving from Nuisance to Zoning** - There was an interesting issue arising for people moving from cities/urban areas to farms/rural areas and bring nuisance claims. In these situations, most of the time, they were denied because they were moving to the nuisance. - - - - - - - - - It is reasonable (not arbitrary or capricious) - Protects health, wealth, safety or morals - Nor a total prohibition and - State legislature has not deemed the regulated activity a nuisance per se - **Cities and the Crisis of Civilization (1938):** - Lewis Mumford wanted to respond to the problems of an overcrowded industrial city by advocating for the decentralization of the populations to achieve a better balance of city and countryside - "Mind takes form in the city, and in turn, urban forms condition mind" - There was a fear that "warlike forces" would subvert human values and small-scale relationships he saw as characterizing pre-industrial cities - **Edward Murry Basset and the Origins of Zoning (1922):** - Basset made arguments for the adoption of Zoning. Speaks on the economic ways that zoning should be justified. He does not seem to be concerned about concentrating poverty and the continued make of sprawl. - Zoning prevents an arms race, to the bottom, of natural resources. - Equitable building blocks out windows and diminishes light - Basset, on the Euclid holding, thought that excluding specific housing in zoning was a bad decision and that the courts will strike it down - **Made 9 arguments for zoning:** - **1. Cooperation yield overall larger RoI for all property owners:** - His larges concern - **2. Zoning stabilizes building and property values:** - "Markets work when people know what they are buying, and zoning creates some assurances that the product will not change fundamentally" - **3. Constitutional limits on local "police powers" would prevent zoning excesses:** - To avoid the fear of a slippery slope toward the regulation of "aesthetics and sentimentality" - **4. Zoning is better than deed-restrictions:** - Zoning is applied comprehensively and can be adjusted by elected bodies to meet evolving needs - **5. Zoning is better than nuisance law:** - W/O zoning laws, disputes can only be handled via nuisance claims which is more expensive - **6. Zoning prevents the wealthy from leaving the city:** - Cities should zone for low density neighborhoods that the wealthy want so they can keep them there and not worry about losing that tax base - **7. Zoning limits land speculation:** - Claims that by eliminating large-scale buildings in low density areas, owners of vacant corner lots have in almost every case improved the property as high-class single-family residences - **8. Zoning maximized public infrastructure investment:** - Create natural business districts by giving access to numerous customers - If homes or other less suitable things are built on major streets, the full economic impact of the public infrastructure is not achieved - **9. Zoning manages and stabilizes growth:** - Encourages group and prevents rapid change, it can lead to steady growth without expanding or deflating real estate bubbles The Modern Origins of Land Use Law: =================================== The Advent of Zoning: --------------------- - **New Towns-in-the-Country:** - Following the conclusion of WW2, there were conflicting views on what America should continue to build towards: - **New Urbanists -** high density districts that are served by mass transit - Avoid what the call vacuous spark accessible only by automobile - **Neo Traditionalist -** They accept that the electorate (all the people of the country) are not prepared to invest in transit - Concept of corridors to be used to organize entire metropolitan regions - **New Town Advocates -** New towns are cheaper because they can be created on large properties and do not require costly, time-consuming sit assemblage. - There is a need to bring back village like organizations that may reduce conflict and increase social interaction - People started to develop towns outside the cities as "vacation refuges in order to decongest towns - Such as the town of Riverside - Appeal is away from congested city with benefits of city and country - Levittown: - First suburb for the working class - Part of the second suburb migration - Built in the 1950s - **1870s to 1920s:** - This is an essential period history for land use planning because there was a mad influence on land use patterns - **1881:** - We see a massive change in immigration. Until 1881, the majority of immigrants were protestant, Northern or Western Europeans came to the US with their families to work on farms. - Lead to the rise of urban slums and the tenements - Now we see a massive migration towards cities, which leads us into the **Progressive Era** - During the Progressive Era we saw a want to eliminate problems caused by urbanization and industrialization; as well as regulation of monopolies and corporations through antitrust laws in order to support equal competition. - There was also the rise of two different groups - Social Darwanists: - Believed that the new immigrant poor was the problem and were inferior due their genetics - Social Reformers/Progressives: - People are the product of their environment/it is materially unfair - **Background and First Comprehensive Zoning:** - NYC was the first city to adopt comprehensive zoning because **the city was experiencing increased congestion in the streets, deplorable housing conditions, new high rise buildings, new private subway lines and changing land use pattern tat raised numerous conflicts among private landowners; using nuisance lawsuits was too laborious, unpredictable, ponderous, and insufficient to address growth.** - **NYC adopted the City of New York Board of Estimate and Apportionment - Building Zone Resolution on July 25, 1916** - **Legislative authority of local governments is limited to what the state delegates to them and extends only to local government's geographic boundaries** - **Home Rule →** Constitutional or Statutory provisions which provide local governments with authority to make a wide range of legislative decisions that affect property and governmental affairs - **Specific enabling acts →** Provide more narrow authority to address a specific issue - **Zoning Enabling Act →** Narrow authority to handle zoning - In 1922, the US Department of Commerce published a model statute, the **Standard State Zoning Enabling Act** (SZEA) to promote zoning. It was adopted to encourage state municipalities to adopt zoning ordinances. - *Section 1* = grant of power mentions the police power of the legislative bodies. Empowering municipalities to regulate and restrict height, lot, size of yards (**bulk and area requirements**) - *Section 2* = Local legislative body may divide the municipality into districts of such manner and regulate (**uniformity requirement** -- buildings in a district must be treated the same) - *Section 3* = requiring that all regulations shall be made in accordance with a comprehensive plan" (**conformity requirement**) - *Section 6* = Establishes the zoning commission, to [recommend] the boundaries of the districts and uses. It is the legislature that adopts the zoning. - *Section 7* = legislative bodies may provide for the appointment of an adjustment board (Zoning Board of Appeals in NY) who can make special exceptions to terms of the ordinance in accordance with rules. - The essential function of the ZBA is to **grant variances**. To create zoning, you must create a ZBA. - NYS town law says that there needs to be 3-4 members - Decisions of the ZEO is either a denial or an approval, if there is a denial than the property owner can appeal - **Standard City Planning Enabling Act (SCPEA):** - Promoted the adoption of a local comprehensive land use plan as a document separate and distinct from zoning. This act gave rise to the notion that comprehensive land use planning should precede the zoning ordinance and serve as its predicate. - **Title 1: Municipal Planning and Planning Commission** - **§ 2 Grant of Power to Municipality →** "And create by ordinance a planning commission with the powers and duties set forth" is giving the local government the **[power to create the planning commission]** - **§ 6 General Powers and Duties→**It shall be the function and "duty \[Commission\] to adopt a master plan/comprehensive plan \[for development of municipality\]" - **§ 7 Purpose in View → Police Power again** - [No street, square, park, etc. shall be constructed or authorized until the location character has been submitted and approved by the commission. ] - **Title 2: Subdivision Control** - **§ 13. Scope of Control of Subdivisions →** No plat of a subdivision [shall be filed or recorded until it's been approved by a planning commission.] - **Title 4: Regional Planning and Planning Commission:** - **§ 26 Creation of Commission → States authorize regional planning commissions** - In some states, there is no need for a comprehensive plan, they just help the town legislature get the difference they need in court - **If a municipality adopts a regulations that is inconsistent with the state regulation than it is ultra virus** - **Ultra Vires →** Local Legislature/Government exceeded its authority delegated by the enabling act - ***Carter v. Harper:*** - **Facts:** - Carter wanted to compel his locality to issue him a building permit to expand his dairy business, even though the property was in a residential district and is a nonconforming use - **Holding:** - A city's zoning ordinance can prohibit the issuance of a building permit to enlarge a building that is devoted to a use not permitted in the district where the building is located. - This is a legitimate use of State Police Power, so long as the benefits gained from regulation rationalize use of police power and promote the general welfare. - Individual rights are held in subordination to the rights of society. - Separation of uses through zoning promotes the general welfare -- it is important to growth management and development control. - **Constitutional Protections and Regulations of Private Property**: - 5th amendment: - "No person shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for a public use, without just compensation" - Note the intentional semicolon. This separates the Due Process Clause from the Takings Clause. - - - - - - - - - - - - - - - - - - - - - - - To get an as applied challenge, one needs to exhaust all administrative remedies first (go through all the bases) - - - - - The City of Tomorrow -------------------- - **1880---1980: A Century of the Evil City:** The city was deemed as this terrible place to be and required cleaning up. - **Urban Redevelopment**: Following WW2, American cities experienced a dramatic change. We saw the clearing and rebuilding of decaying cities, section by section, until every corner had been transformed into an efficient, modern metropolis. - Cities were considered terminally ill because - Deteriorated Buildings - Vacant Buildings - Decreasing Populations - Declining Employment - Declining retail sales - Declining office occupancy - **Housing Act of 1949:** - Redevelopment prescription - Offered to reimburse cities, that used the remedy, up to 2/3s of their costs - This financed the elimination of large sections of the city, paved new highways and garages, and subsidized the development of superblocks. - **Redevelopment was a painful process. People did not want their cities rebuilt so the Nixon administration eventually terminated the program due to the populaces disapproval and failure in over 2,500 cities.** - Idea that the cities were dying because of infrastructure was incorrect, cities like Dallas, Phoenix and San Diego saw problems arise due an increase in population, while Cleveland and St. Louis saw a decrease in population - **Le Corbusier, the City of Tomorrow** (1924) - Proposed the creation of new cities, through the use of eminent domain, that consisted of three separate districts: - a business center of office towers, - a residential area of elevator apartment houses, - and a manufacturing warehouse district (Towers in the park) - Business and Residential areas are to be connected via super highways that lead to "ports" (parking) so people can walk through a green pedestrian area - Each skyscraper was meant to have everything for healthy living - Commercial services, nurseries, kindergartens, open air parks, etc. - At the ground level they skyscrapers were meant t come together and form a super park - This vision was never fully implemented because there was no mixed use. - Successful in Stuyvesant Town and Pittsburg (The Golden Triangle) - Said that municipalities needed to go beyond the traditional taking, and he wanted to spur private reconstruction. Condemnation of entire districts to allow area wide redevelopment - Assigning to government the functions of the real estate developer - **The New Residential Environment:** - People were leaving the city in hopes of having their own homes, backyards, and better schools. Cities could not match these opportunities. - **National Housing Act of 1934**: Catalyzed suburbanization, which was further catalyzed by the baby boom - Created the FHA mortgage loan program, - regulated the interest rate of every mortgage insured - By 1939, every house could be bought with a 10% down payment - Increased the amount of people who owned their home (44% to 68% by 2000) - **1939 GM Exhibit**: Futurama --commercialized the City of Tomorrow idea - **Robert Moses**: Emerged out of the Progressive Movement, had the paternalistic mentality of a god looking from above. - The Moses Method: - Step 1: Moses negotiated with buildings in private - Step 2: Moses printed brochures that presented the proposals (which were usually met with opposition) - Step 3: Project would be submitted the City Planning Commission - Step 4: After approval, it was sent to the Board of Estimate for another approval - Step 5: City would condemn the sites and sell the sites to developers - Goal to clean out slums - Three Critics - Ganes - Argued that the slums Moses wanted to clear were not slums but just low-income housing - Anderson - Argued that one does not fix a city by "bulldozing it" - Jacobs - It was a mistake to accept Le Combusier's vision of the ideal city; ads tell nothing but lies - B/C of opposition to Moses and similar ordeal, the public forced congress to amend the Housing Act of 1949 to require relocation plans for every project - **Housing and Community Development Act of 1974:** - Following Nixon, Congress passed this act in order to end the competition for federal funds and guaranteed each locality its fair share - This act created block grants that could be used for various purposes, not just redevelopment - **Ingredients of Success:** - Removing portions of cities that had a negative impact to the economy, as shown by Pittsburgh's Golden Triangle and Baltimore Charles Center - Taking cities on section by section is not politically, or financially possible - **Urban Renewal**: - Taught their communities what their wants and needs are, although it is painted to be the worst. Money doesn't solve the problems if you don't know what needs to be addressed. - In some places, urban renewal worked because they removed impediments to a prosperous economy - It was terminated in 1973 - **Jane Jacobs "Orthodox Planning and the North End"** - **Moral of the Story → Loved the city for what it was, she said it was challenging for all of these planners because they could not handle *organized complexity* and it was too hard for them.** - Jacobs was not a fan of mid-century orthodox planning - She believed that they did not pay attention to what the people truly wanted - Believed that neighborhoods should function like an **ecosystem** - City planning should be thought of as **organized complexity** - Rachel Carolson raised a nation within **Silent Spring** that is evident here, that being **do not dominate nature** - There is a narrative of engineering and domination over the environment - Ebenezer Howards' Garden City, Le Cobusier Radient Cities/Tower in the Parks, And the City Beautiful movement form the **Radiant Garden City Beautiful Approach** - All of them wanted **order through separation (she rejects this)** - She believed in **Organized Complexity**, she believed the notion of **order through separation was a bad thing** - **A Realistic Approach to City and Suburban Planning:** - **Planning:** - Public action that generates a sustained and widespread private market reaction, - which improves the quality of life of the affected community, - Thereby making it more attractive, convenient and environmentally healthy - Government agencies are not the only entities in the planning game. Planning is about change and preventing undesirable change and encouraging desirable change. - Nonprofit and private parties - **3 Mechanism to Planning:** - *Strategic Public Investment* - Making a location more attractive to prospective developers - E.g. is the federal highway act - Created the interstate highway state system with federal subsidies. - This increased the amount of land within the commuting distance of cities, which fostered further suburbanization, so it can have negative results too - - *Regulation:* - Incentive that pushes private investment - National Housing Act - Setbacks, Zoning, Etc - *Incentives for Public Action* - Intelligent spending on capital improvements and regulatory policies that provide stability and encourage market demand - Only good when public interest and regulation is not enough - E.g. density bonuses and tax breaks Land Use Plans and the Planning Process ======================================= - **The Consistency Doctrine:** - Standard State **Zoning** Enabling Act: - Zoning regulations shall be made in accordance with a comprehensive plan - It is in Section 3, Purpose in View. This section is a model for other states for what zoning ordinances should be like - Standard City Planning Enabling Act: - A municipality is authorized to establish a planning commission to make and adopt a master plan to accomplish harmonious development of the municipality and its environs - Can establish a planning commission to adopt a master plan, acn the Act specifies what goes into a master plan - **The Content and Effect of the Master Plan:** - Content of a Comp Plan and the Level of detail at which the subjects are addressed vary from jurisdiction to jurisdiction - Zoning came 1st and than planning came - In 1992, NYS made town, village, and city law the same - Counties do not zone in NYS - It is not mandatory for a town in NY to adopt a comprehensive plan - NYS 272-a(1)(h) - **Local Governments have the power, from state governments, to enact a comprehensive plan. They have wide latitude, in NYS, to implement comp plans but they must follow strict procedural processes** - **If local govs go beyond their authority = ulta virus** - **Comprehensive Land Use Plans:** - Comprehensive Plans, Master Plans, Site Plans are synonyms - Written document that is formally adopted by a local legislative body that contains **goals, objectives, and strategies** for the future development and conservation of communities - **Impact of these:** - The effect of adopting a comp plan is that all local land development regulations must be in conformance with its provisions - Other governmental agencies, such as state agencies, must consider the local comp plan in planning their capital plans within the locality - **The Majority View is that the adoption of comprehensive plans is not a statutory prereq to the adoption of zoning laws** - **If there is a comp plan in palace, any zoning or land use regulation created are usually required to be consisted with the comprehensive plan** - Some state statutes solely authorize local governments to adopt land use plans, providing no further guidance or mandates in them - NY Law provides that a comp plan **may** include 15 topics at the level of detail adapted to the special requirements of the town but does not require localities to follow a fixed format in developing plans(NYS TL 272-a(3)). - **The American Planning Association's GROWING SMART LEGISLATIVE GUIDE BOOK:** - Provides recommendations that state planning statues be broken up into a three tiered approach to local comprehensive plan elements - Mandatory - Issues and Opportunities - Land use - Transportation - Community Facilities - Housing - Program Implementation - Mandatory with an Opt-Out Alternative - Economic Development, - Critical and Sensitive Areas - Natural Hazards - Optional - Agriculture - Forese - Scenic Prervation - Human Services - Community design - Historic Preservation and - Sub-plans as needed - **Sullivan, "The Role of the Comprehensive Plan,":** - Broke the organization of case law into three separate categories - 1\. Traditional Approach - Case Law gives no significance to the plan - 2\. Planning Factor Approach - Case Law gives the plan a role in determination - 3\. Planning Mandate Approach - Case Law Treats the plan as a dispositive standard for land use regulations and standards - **Building Permit:** - A building permit is a certificate issued by the official charged with the enforcement of the Uniform Fire PRevention and Building Code (Uniform Code) in the municipality - Building permits certifies that the plan submitted for new construction or alterations conform with the standards and specifics of the uniform code - **NY Town Law §272-a (Supp.)** - Encourages but does not require comprehensive plans - **Land use regulations must be in accordance with an adopted comprehensive plan** - Legislature says that this is one of the **most important powers of local governments because it involves all aspects of a community** - Notice and public participation ar important to the political process - Adopted by the New York State legislature, says that the most important of town powers is the responsibility to undertake town comprehensive planning and to regulate land use for the purpose of protecting the public health, safety, and general welfare of its citizens. - It provides that a comprehensive plan may include: - General statements of goals, objectives, principles, policies, and standards upon which proposals for the immediate and long-range enhancement, growth and development of the town are based - Consideration of regional needs - The existing and proposed location and intensity of land uses - Definitions: - **Comprehensive Plan**: The materials that identify the goals, objectives, principles, guidelines, policies, standards, devices, and instruments for the immediate and long-range protection and enhancement of the city. - **Land Use Regulation**: Ordinance or law that is enacted to regulate any aspect of land use. - The town board by resolution may prepare a comprehensive plan and amendments thereto - Any proposed comprehensive plan or amendment *[may be referred]* to the town planning board - Subject to environmental review - The town board will provide intervals at which the adopted plan can be reviewed (**periodic review**) - Under Section 11(b), **all town land use regulations must be in accordance with a comprehensive plan adopted pursuant to this section.** - **Wawayanda Comprehensive Plan: Review full Table of Contents and read Sections 1-3 (Supp.)** - Wawayanda values the rural character of the community - **Section 1: Introduction** - Purpose - Vision, with four major themes - Background and Process - Regional and Local Planning Efforts to Date - Contents - GIS - SEQRA - **Section 2: Major Themes** - Promoting Economic Development and Diversity - Maintaining and Supporting Wawayanda's Rural Character - Protecting Natural Resources and Open Space - Cultivating a Sense of Community - **Section 3: Setting** - Location - History - Land Use --- a survey how how the town is looking now - Zoning - **Chapter 3, Planning and Land Use Regulation, A. Comprehensive Planning (Supp.)** - Zoning and all other land use regulations must be in conformance with the comprehensive plan - **Process of a Challenged Regulation:** - When courts need to determine whether a challenged regulation conforms to a comp plan, when one has not been adopted, they look to - All relevant evidence - Zoning laws in previous studies - Policy Statements - Land Use decisions of the locality - When a regulation is challenged, claiming it is spot zoning or that the zoning is arbitrary and capricious. The **court will look into whether the regulation significantly advanced a legitimate public interest** - When judges find that it was enacted to achieve an objective of a comp plan, they will usually rule in favor of the community - **Court's Various Approaches to Comp Planning:** - Zoning ordinance is the comprehensive plan - Comprehensive plan is just one factor cities by the courts to determine the validity of land use regulations (NY is in this category) - Comp plan is used to decide whether a land-use regulation is valid - **Spot zoning**: - Is illegal, but if a single parcel of land is removed and the local government can show that it was removed to accomplish a specific public objective of the comprehensive plan, and not to benefit a private owner (solely), the complaint is put to rest. - *Udell v. Haas*: The comprehensive plan is the essence of zoning. Without it, there can be no rational allocation of land use. - ***Creative Displays, Inc. v. City of Florence*** - **Facts:** - Boone County and Florence, KY merged existing comprehensive plans for the jurisdictions to form new comprehensive plan for several counties and cities as part of a new planned development unit. There was no public hearing on the proposed plan, no research or outreach, etc. Plan conformed to minimum KY state law in that it had goals, a land use plan, a transportation plan, and a community facilities plan. - **Holding:** - Where a new, area-wide plan is developed, **it is not sufficient to simply compile the existing individual comprehensive plans for the jurisdictions in the area and merge them into one new area-wide comprehensive plan,** as these pre-existing individual plans are **not likely to address the proper needs and goals** for the new area-wide planning unit - A comprehensive plan is insufficient if it relies on elements of individual, local plans that do not reflect the planning unit as a whole. - The City did not follow the procedure set out by KY, therefore it was ultra virus and they have no authority to enforce it because the statue is now void - A statement of goals and objectives, principles, policies, and standards, which shall serve as a guide for the physical development and economic and social well-being of the **entire planning unit** is required. Goals of only a portion of the parties does not address the goals. - Court emphasizes the value of a public hearing (the most significant factor) in addition to the difference in specialized research, analysis, and projections. - ***Elysian Heights Residents Assoc. v. City of Los Angeles*** - **Facts:** - Developer issued a building permit for construction of a 45-unit apartment complex. Existing plan only allowed 12 units. Permit conformed w/ zoning ordinance but not comprehensive plan. - **Holding:** - You do not need to stop development to comply with a comprehensive plan - Building permits do not need to, according to the california plan, be in conformance with the comprehensive plan. **They just need to be abide by the City's ordinances (zoning) not their comprehensive plan** - To hold building permits up so zoning can come into conformance of comp plans disincentivizes changing a comp plan. - ***Cochran v. Planning Bd. Of City of Summit*** - **Facts:** - Ps (homeowners) challenged adoption of new town master plan, specifically the portion that would allow Ciba Corp to expand its parking, research, and office space that adjoins the rear of Ps' property. Plan required a buffer zone between development and neighborhood. NJ law required master plan be adopted by legislative body before it can take effect. Ps claimed the adoption was an abuse of discretion in that it was contrary to wishes of citizens, arbitrary, discriminatory, capricious, unreasonable and an abuse of the planning board\'s discretion, that it was procedurally defective, ultra vires of the planning board's power, and did not conform to the neighborhood. - **Holding:** - A comprehensive plan is not regulatory, it is advisory, **they are just a guide**. They have no legal consequences. - If necessary legislative implementation is taken, then this would be a zoning ordinance case and not a master plan case. A master plan requires legislative implementation before its proposals have binding effect and legal consequences. - The power of a municipality to plan for the future is part of the police power. - A plaintiff cannot obtain relief for an anticipated decrease in their property value resulting from the adoption of a comprehensive municipal development plan - Claim was premature, it was not ripe, because the plaintiff **must allege and prove injury to their property rights** and an **anticipated injury, such as property value decrease,** is not an injury that has remedy. - ***Bone v. City of Lewiston*** - **Facts:** - P submitted application with zoning commission that his land be rezoned from low-density residential use to limited commercial use. City land use map showed P's land as being zoned commercial. Commission recommended to city council that P's request be denied, and city council agreed. P sued requesting declaratory relief and a writ of mandamus forcing the city to enact a zoning ordinance in conformity with its comprehensive plan pursuant to Idaho law that requires zoning to be in conformance with the comprehensive plan - **Holding:** - **A city's land use map does not require a particular piece of property, as a matter of law, to be zoned exactly as it appears on the land use map.** The map is only advisory, **it does not reflect actual zoning**. - The law states that if a rezone request is in accordance with the comprehensive plan, the P&ZC ***may*** recommend, and the governing board ***may*** adopt or reject the amendment request as proposed. - Whether zoning in accordance with comprehensive plan **is a question of fact.** - Planning board explained that map was intended for "suitable projected land uses" and not a map of how the city was presently zoned. - **If you're told you can't have rezoning that would be in compliance with a comp plan, and you're not given a reason, that would be arbitrary and capricious.** - **Overall, the differences between planning and zoning can come to these:** - Planning is long range; zoning is immediate - Planing is general; zoning is specific - Planning involves political processes (policy action); zoning is a legislative function and an exercise of police power - **Conformance with the Comprehensive Plan** - Municipal authority comes, primarily, from discrete enabling acts that are adopted by the state legislature and modeled after the Standard Zoning and Planning Enabling Acts - **All Town land use law regulations must be in conformance with a comprehensive plan** - Standard Zoning Enabling Act (1922) - Zoning Regulations must be made in accordance with a comprehensive plan - **New York as the same rule through NYTL 272-a** - **N.Y.T.L. 272-(a)(11) -** All town land use regulations must be in conformance with a comprehensive plan adopted pursuant to this section - **N.Y.T.L. 272-(a)(2)(b) -** Land use regulations include: - Zoning - Subdivision - Special use permits - Site Plan regulations or - Any regulation which prescribes the appropriate use of property or the scale, location, and intensity of development - If a legislative body attempts to adopt or amend zoning laws in a way that is inconsistent with enabling laws, it could be challenged as **ultra virus** - State statutes provide the subject matter of local land use and their mode of adoption so a failure to adhere to this will make it ultra virus - **Spot zoning** → singling out by zoning amendment of a small parcel of land and permitting the owner to use it in a manner inconsistent with the permissible uses in the area - ***Bartram v. Zoning Commission:*** - **Facts:** - A property owner, Rome, approached the Zoning Commission of the City of Bridgeport to request that his lot in the neighborhood be rezoned so that he could construct a building that would house a drugstore, a grocery store, a hardware store, a bakery, and a beauty parlor. Some, but not all, of the residents in the neighborhood registered their opposition to the proposal. The zoning commission granted Rome's request, and the property was rezoned from a residential lot to a business lot. Bartram, a resident of the city, sued the zoning commission for this decision, alleging that it was an abuse of the zoning commission's authority and amounted to spot zoning - **Holding:** - Action by a zoning authority must conform to a comprehensive plan that is applicable to the community as a whole - If the rezoning is consistent with the comprehensive plan, it cannot be spot zoning - Zoning determinations that appear to amount to spot zoning, may be allowable if the **determination aligns with an overall comprehensive zoning plan**. In that case, the zoning decision that affects one property differently but is part of a comprehensive plan will not be overturned **as long as it is not unreasonable or arbitrary.** - In this case, the zoning commission stated that the decision to rezone allowed business development in outlying areas and helped decentralize shopping in the city, reduce traffic congestion and encourage neighborhood stores - ***Enterprise Partners v. County of Perkins:*** - **Facts:** - The zoning board became aware of proposal to build hog confinement facilities. The Department of Environmental Quality couldn't do anything about it, and told the board to use their authority to do something. The Board passed an ordinance to regulate the use of the lagoons, that required an owner or operator of a large livestock containment facility to cover their storage facilities. The ordinance also included that the county had the right to inspect sites to ensure compliance with the cover requirement - **Holding:** - A county board must adopt a comprehensive development plan before regulating the use of lands within its jurisdiction. - Here the board **failed to adopt a comprehensive development plan,** so the **board did not have the authority to pass any such zoning-related regulations.** Therefore, the board had no authority to pass the cover-requirement ordinance. - If a state legislature says you can regulate but you have to do it a specific way, and you don't do it that way it is ultra vires. - **The power delegated to a municipality by the state must be strictly construed** - ***Osiecki v. Town of Huntington:*** - **Facts:** - Osiecki owned a parcel of land that was zoned for low density residential use, and the town's plan designated the property for commercial development. Osiecki wanted his property to be zoned in conformance with the comprehensive plan, as the nearby parcels were also zoned for commercial use. - **Holding:** - A town's **zoning classification is invalid if it is not consistent with the town's comprehensive zoning plan.** - A town is **not required to follow the master plan but must justify a determination to act inconsistently** with the comprehensive zoning plan. - **If you are denied a rezoning b/c it would not be in compliance with the comp plan, the legislature needs to give you a reason for it. If they don't it is arbitrary and capricious and thus invalid.** - **Normally legislature does not need to give you a reason, but if you argue that it is in compliance with comp plan, than they do** The Basics of Zoning ==================== - **Introduction:** - **Steps in Zoning and its Amendments:** - Original zoning law is adopted - Zoning Amendment - Text amendment (change of the code itself) - Map amendment (change of the map, changing to something already in the code like going from Residential to Business ) - Legislature adopted the amendment - **Dillon's Rule:** - The powers of a municipality are strictly construed - Municipalities are instruments of the state - **Home Rule:** - Gave local governments broad judicial interpretation of powers in order to achieve public health, safety and welfare within their jurisdiction - **Gradual flexibility is provided for local governments, such as being able to:** - Rezone - Conditionally Rezone - Acquire Judicial Deference - Give Variances - Special Use Permits - **A Standard State Zoning Enabling Act, Sec. 1-3** - **Section 1: Grant of Power:** - Legislative body can regulate things \-- such as height, \# of stores, size of buildings, yards \-- for the purpose of promoting health, safety, morals or the general welfare of the community - **Section 2: Districts:** - Local legislative body may divide the municipality into as many districts as they believe necessary to carry out the purpose of this act - **Section 3: Purpose in View:** - States what the comprehensive plan should do; such as lessen congestion, secure safety, promote health and general welfare, etc. - **NY Town Law §§ 261-263** - **N.Y.T.L § 261: Grant of Power; Appropriations for Certain Expenses Incurred under this Article:** - Provides the town the ability to regulate \-- in order to promote public health, safety, morals or general welfare \-- aspects related to the use and development of property (think size, height, yard, structures) - Town is allowed to make an appropriation for changes and expenses that can be incurred due to zoning - **N.Y.T.L § 262: Districts:** - A town can divide parts of the town, that are outside any incorporated village or city, into any shape and area as they deem best fit for the area - Within each district, they can regulate the erection, construction/reconstruction, alteration, use of buildings/structure; **but all the regulations must be uniform across the plots (residential in the north is same as in the south)** - **N.Y.T.L § 263: Purposes in View:** - Outlines the purpose of the regulation, such as what the point of the comprehensive plan is - e.g., secure safety from fire, flood, panic, promote health and general welfare, provide adequate life, prevent overcrowding etc. (aka good things for society) - Regulations must be made in accordance with a comprehensive plan - Regulations shall be made with reasonable consideration of things such as the character of the district, peculiar suitability for particular uses, conserving the value of buildings and encouraging the most appropriate use of the land - **Zoning Administration and Flexibility** - Power to amend the zoning ordinance and change district lines and designations on a zoning map provide the town with a degree of flexibility - The zoning ordinance establishes a number of zoning districts and contains a map indicating which parts of the community are within each district. - Zoning provisions are adopted by the local legislative body after being drafted by a zoning commission or a planning body and subjected to public scrutiny. +-----------------------------------------------------------------------+ | A Typical Zoning Chapter Layout | +=======================================================================+ | [Article 1. General Provisions] | | | | [Article 2. Definitions] | | | | [Article 3. Zoning Districts and Map] | | | | [Article 4. District Regulations] | | | | [Article 5. Supplementary Regulations] | | | | - Accessory Uses | | | | - Home Occupations | | | | - Mobile Homes | | | | - Planned Unit Development | | | | - Prohibitions | | | | - Etc. | | | | [Article 6. Special Use Permits] | | | | - Submission of Application | | | | - General Standards | | | | [Article 7. Planning Board/ Commission] | | | | [Article 8. Zoning Board of Appeals] | | | | [Article 9. Administration and Enforcement] | | | | [Article 10. Amendments] | +-----------------------------------------------------------------------+ - ***Church v. Town of Islip:*** - **Facts:** - Town consented to a zoning change from residential to business for Charles Housler's lot. At the time, the town did not have a comp plan in place. The board found that Housler's property was more desirable for business than residential use. Neighbors got mad because this wasn't in conformance with the nonexistent plan and was therefore arbitrary. Ps said that this was illegal contract zoning. - **Holding:** - This is a map amendment case - A town is allowed to amend the zoning of a parcel of land that is not in conformance with the comprehensive plan as long as it is supported by a factual basis - The act is void if it is arbitrary, preferential or discriminatory - Meaning of contract zoning is unknown, however in NY there is no law on the matter. - But all legislation by contract is invalid b/c as legislature cannot bargain or sell their power. - ***Giger v. City of Omaha:*** - **Facts:** - Midlands applied to the city of Omaha (the city) (defendant) to have the property rezoned to permit the construction of a mixed-use development consisting of retail, office, and residential buildings. Midlands submitted a final development plan and entered into four agreements with the city that incorporated the plan. The four agreements, known as the development agreement, were submitted to the city for approval. - **Holding:** - Text amendment case - A city can utilize a development agreement when rezoning land, if the agreement constitutes conditional zoning that imposes a stricter standard on the developer than the zoning law itself. - However, these restrictions must be reasonably related to the interest of public health, safety, morals, and the general welfare of the public - "Court gives great deference to the city's determination of which laws should be enacted for the welfare of the people" - To successfully challenge the validity of conditional rezoning, a plaintiff must prove that the conditions imposed by the city in adopting the rezoning ordinance were unreasonable, discriminatory, or arbitrary and that the regulation bears no relationship to the purpose or purposes sought to be accomplished by the ordinance. - **Overall Takeaways:** - Conditional rezoning is legal - Uniformity flexibility interpreted - Powers broadly construed - Delegating statutes have general words - Courts defer to local legislators regarding which laws to adopt to the public interest - 1970-99 Euclidean straight jacket loosened - **Administrative Treatment -- Variances:** - Zoning administrative process - Application - ZEO - Planning Board - Zoning Board of Appeals - Variance and Special/Conditional Use Permits provide flexibility in local zoning and relief to individual parcel owners; while also protecting the surrounding neighborhood. - **A Variance →** Allows a property owner to use their land or buildings in a manner that is normally prohibited; two types, Area and Use - **Area Variance →** Allows someone to use land in a manner that is not allowed by the dimensional or physical requirements of the applicable zoning law - Deals with setbacks, heights, or area requirements - **Use Variance →** Allows someone to use land for a purpose that is now allowed or is prohibited by the zoning law - Think area being zoned residential and someone wants to run a business out of it - Variances provide a relief from unnecessary hardships and also provide a safety valve that responds to unique circumstances, avoids as-applied legal challenges by property owners, and preserves the spirit of the ordinance - **Special Use Permits →** Permits in order to use property, for a permitted use that is declared hazardous - Needed in order to protect the surrounding properties from any potential adverse impact - **Zoning Board of Appeals →** State enabling statutes requires towns to establish a zoning board of appeals in order to adopt zoning ordinances - You go to a ZBA after the Zoning Administrative/Enforcement Officer denies a permit. The ZBA can reverse any ruling or order by the ZEO - **Variance v. Special Land Use:** - **Variance -** allows a property owner to use her land or buildings in a manner that is prohibited - **Special Land Use -** permits that authorize uses that are allowed and encouraged by the ordinance and declared to be harmonious with the applicable zoning district - **Wawayanda Zoning Code § 80 and § 83:** - **§ 80 →** Building inspector has the power to take legal action against anyone who does not comply with the code, the building inspector issues permits and certificates of occupancy. - **§ 83 →** Establishes the Zoning Board of Appeals - 5 members, a quorum is 3 members - ZBA has power to interpret and grant variances - Courts tend to defer to the ZBA, unless the applicant can prove that the decision is **arbitrary or unreasonable, not based on facts on record, or does not conform with applicable standards** - **NY Town Law §267:** - Each town board which adopts a zoning ordinance **shall** appoint a board of appeals (267(2)) - Defines Use and Area Variance - How to appoint members - **N.Y.T.L. § 267b :Permitted Action by the ZBA \-- Four Permitted Powers:** - **Power 1 →** Orders, Requirements, Decisions, Interpretations, Determinations - ZBA's can reverse, affirm, or wholly/partially modify the ZEO's decision - **Power 2 →** In order for a Use Variance to be granted, the Applicant **must show RUNS:** - **R →** Cannot realize a Reasonable Return - **U →** Alleged hardship in unique - **N →** Variance will not alter the essential character of the neighborhood - **S →** Hardship was not self-created - **Power 3 →** In order for an Area Variance to be granted, the ZBA **must balance COSAS:** - **C →** No undesirable change in the character of the neighborhood nor a detriment to nearby properties - **O →** Benefit cannot be achieved by some other method, other than an area variance - **S →** The request is not substantial - **A →** Adverse impact on the physical or environmental conditions in the neighborhood - **S →** Alleged difficulty was not self created - Just b/c it is self created, does not bar area variance - - - - - - - **Power 4 → Imposition of Conditions;** ZBA has the authority to impose reasonable conditions and restrictions that are directly related to the use of the property - **Special Use Permits** - Authorizes a land user to use the property in a way that is expressly permitted by the zoning law. - Special use permits are tantamount to a legislature finding that **the permitted use is in harmony with the general zoning plan** and **will not adversely affect** the neighborhood - - - - - - - - **Wawayanda Zoning Code, Art. V, IX:** - **Article 5: Special Use Permits** - Purpose of a Special Use permit is to provide for the location of certain uses which are deemed desirable within the given district or districts, but may be incompatible with the typical uses of the area. - Wawayanda town code gives the requirements and conditions that may be imposed - **Article 9: Interpretation** - **Well Grounded, Chapter 4, Section E, Special Use Permits:** - Ask Emily if she got anything on this. - **NY Town Law, § 274-b -- Special Use Permit Authority:** - 8 notes on this: - 1\. Acquiring a special use permit is **equivalent to a legislature finding that a permitted use is in harmony with the zoning plan and does not adversely affect** the community - 2\. Planning board or other admin body is **authorized to grant the special use permit** - 3\. When the special use permit contains one, or more, features which do not comply with zoning regulations, the **party can also still apply for an Area variance** - 4\. Board has the **authority to impose conditions and restrictions** that are **directly related** to the special use permit - However, there needs to be an amendment of a site plan? - 5\. **Board as the authority to:** - impose requirement for the approvals, - approve with modifications or - disapprove of the special use permit - 6\. There **must be a public hearing**, with public notice - 7\. **30 days** after getting a decision from the ZBA, the **person can request a court review** - 8\. **No costs against the planning board**, unless malice or gross negligence - **Pathway:** - - **Nonconforming Uses:** - The point of nonconforming uses is to be fair to the uses of property before the zoning law changes - These are created when existing land use law is amended and it turns a previously permitted use into a prohibited one - **Single or Separate Ownership Rule:** - When an individual owns a property as a single and separate ownership, and a zoning change occurs which renders it a nonconforming use; then that individual acquires a vested right in the property. - Articles that address nonconforming uses typically prohibit or limit any changes to the building or lot uses; as well as provide a way to become a conforming use - **Such as prohibit enlargement, alteration, or extension of the nonconforming use.** - However, owners are allowed to make general repairs that **do not increase the degree** **or create any new noncompliance** within the zoning regulation - **Questions that may arise from nonconforming cases:** - What was the existing situation when the zoning was instituted? - Extent of the nonconforming use? - Termination of the nonconforming use? - Subject to termination as a nuisance through an injunctive relief? - **Wawayanda Zoning Code §§ 68-71** - The definition of "non-conforming" is found in article 2 of the T.C., under "Use, Nonconforming" - **§ 68:** - Provisions apply to all buildings and structures except nonconforming farm buildings or structures - **§ 69:** - Can continue indefinitely, however there will be no enlargement or extension, or place on a different portion of the occupied lot - **You also cannot use an external source to increase the use, like in *State v. Perry* with the Ice Cream Truck:** - ***State v. Perry*:** - **Facts:** - Perry held a nonconforming use property, brought a trailer on to act as a refrigeration unit for the property - **Holding:** - A nonconforming use **cannot be indirectly extended or expanded by adding facilities** that were not there before - The trailer was intended, designed and arranged to be used to expand, enlarge and extend the nonconforming use - You also cannot change it to another nonconforming use, without a special use permit. - Also, the use cannot be reestablished if the use was discontinued for a period of 1 year or more; as shown in ***Toys "R" Us v. Silva:*** - ***Toys "R" Us v. Silva:*** - **Facts:** - Toys R Us purchased a portion of a building that used to be used as a warehouse (a nonconforming use), and applied for a permit in order to use it as a retail toy store. Neighbors of the property argued that the nonconforming use of the property had been discontinued. - **Holding:** - Court here imposes a standard of substantial cessation, rather than complete cessation, in order to prove a discontinuation - Duty of weighing the evidence to determine whether an owner abandoned their nonconforming use is at the sole discretion of the administrative agency - In this case, the BSA (NYC's ZBA) considered objective factors \-- such as insurance records, tax documents, advertisements, liability coverage and consumer records \-- and dictated that since the warehouse was not in use for 20 months, the nonconforming use was substantially discontinued - A variance can be used, subject to approval from the proper board, to enlarge a nonconforming use - **§ 70:** - Nonconforming structures shall not be extended or enlarged, moved to an alternate location. - They can be restored, **but cannot be enlarged**, following an accident (such as fire or other act of god) **if the restoration occurs with one year** - In the end, you can restore within one year or provide normal maintenance, but you cannot increase the degree of nonconformity. - ***Moffat v. Forrest City:*** - **Facts:** - In 1951, the Moffatts bought a home in Forrest City and later added a meat market and processing plant to the property. In 1959, the city rezoned the area as entirely residential, making the market a nonconforming use. The ordinance prohibited restoring nonconforming uses if more than 60% of a building was destroyed. In 1960, a fire severely damaged the home and market. When the Moffatts attempted repairs to resume business, the city sued to block reconstruction, arguing the damage exceeded the allowable threshold. - **Holding:** - A building that is dedicated to a nonconforming use and, partially, a residence constitutes a **single structure** - Zoning ordinance is to be strictly construed in favor of property holders? **Ask about this, seems to contradict the deference to legislatures** - Moffatts argued that they were separate structures, however the residence and the market were housed in a single structure. - **In the end the court affirmed that the property cannot be built with any aspect of a market since it was a shared building, must be built strictly residential** - **§ 71:** - Junkyards are a nonconforming use; that must be registered within 18 months. There also must be a notarized or affirmed statement by the record owner saying there was no extension since '67 and a survey needs to be done to establish the limits of the property. - If not registered, it will be deemed a personal right only passed through blood or marriage - **Amortization:** - Point of Amortization is to allow an owner to recoup their investment in a nonconforming property - **Amortization is likely to be upheld when:** - Common law of nuisance would allow a neighboring property owner to enjoin the continuation of the nonconforming use - However, if someone challenges the amortization the municipality can that owner's property interest is slight b/c of their vulnerability to nuisance actions - ***AVR, Inc. v. City of St. Louis Park*** - **Facts:** - AVR bought property in order to produce ready-mix concrete; however the city rezoned it for high-density residential use and to phase out ready-mix plants. The city undertook trying to establish a - **Holding:** - A city can mandate that a property owner cease certain land uses after a determined period through a zoning ordinance, as long as the ordinance is rationally related to public health, safety, morals or general welfare - **Does the use promote public welfare** - In determining the reasonableness of the amortization period set, courts look at several factors; such as if the property recouped the original investment - **Accessory Uses:** - Uses of land, on the same lot as a principal use, that are subordinate to, incidental to and customarily found in connection with the principal use (basically **extra uses that are allowed on top of the principal use**) - **Incidental -** Reasonably related to the principal use - **Subordinary -** Proportionately smaller than the principal use - **Customary -** Use that is commonly, habitually, and by long practice has been reasonably associated with a principal use - **Example:** - In a single family zone, the principal use is the house and the garage is an accessory use - Accessory uses provide needed flexibility, and are presumed to serve public interest if they are incidental to a principal use. - They can sometimes be used to expand the intensity of use, establish a unique or novel use, expand a nonconforming use or even change the use of a property when a variance cannot be obtained - **5 different approaches that can be used to regulate an accessory use:** - 1\. Permit them by accepting those uses that meet the qualifications of that is customary, subordinary, and incidental - 2\. Zoning law can permit some and bar others - Done by listing out what is allowed, if not listed it is prohibited - 3\. List and prohibit problematic accessory uses - Meant to eliminate any foreseeable problems that occur through the 3 requirements - 4\. Provide guidelines to ZEO's and ZBA to interpret what an accessory use is and adopt a list of acceptable uses - 5\. List some accessory uses that are allowed by special use permit and subject them to certain requirements - ***Parks v. Board of Adjustment of the City of Killeen*** - **Facts:** - Charles and Margaret Baxter operated a music school from their home in a single-family residential zoning district in Killeen, teaching up to 110 student hours per week. A neighbor, Charles Parks, filed a complaint, arguing that the school violated the zoning ordinance, which allowed accessory uses like customary home occupations. Parks contended that the size and income of the school exceeded what could be considered a customary home occupation under the ordinance. - **Holding:** - **In determining whether something is an accessory use, you have to utilize what the zoning ordinance states;** here the ordinance states that accessory buildings and uses are allowed if they are customarily incident to the home occupation and permitted on the residential lot (so long as they do not conduct retail). - You also cannot consider the size of the business or the income it generates in determining customary home occupation and permitted accessory uses - ***Greentree v. Good Shepherd Episcopal Church*** - **Facts:** - The church was operating as a temporary emergency shelter for 10 homeless men for 3 nights a week. Greentree argued that, even though nobel, they were not allowed to under NYC Zoning Resolution. The Church countered saying they can because they are classified as a place of assembly under NYC's charter and could be used for religious, recreational, political, or social purposes. - **Holding:** - The operation of the church as a temp homeless shelter was a permissible accessory use. - The NYC resolution defined accessory use as a ***use conducted on the same zoning lot as the principal use that is clearly incidental to and customarily found in connection with the principal use.*** The court found that church acting as a temp homeless shelter was incidental to and customary to the principal use of a church. - From Class - Churches have been used for 100s of years as sanctuaries - **Wawayanda Zoning Code:** - **Art. III →** Any use that is not deemed, or listed under, permitted use, special permit use, or accessory use in this chapter are prohibited - **Art. IV →** Provides all accessory uses - **Home Occupations:** - Some municipalities utilize accessory uses to define other uses allowed. Others define **home occupations in their zoning law** - **Home Occupations →** Required homeowners to conform to the occupational uses defined in the zoning law - For Example; In a single-family zoned neighborhood, the permitted occupations would be those that homeowners would expect to have, have been historically permitted, and are within the bundle of rights purchased with the single-family home - When dealing with the occupational uses of home and offices, **municipalities utilize a variety of techniques,** such as: - 1\. Let the definition of accessory use govern the matter, leaving it up to the interpretation of the ZEO - **2. Provide a general definition and provide ZEO's guidance on how to apply it** - 3\. Swap out the general definition of home occupation with a list of permitted occupations, prohibited occupations, and a definition of permitted professional offices - 4\. Require a special use permit, designated by a reviewing board, to utilize a specific home occupation - - - - Must be carried on within the dwelling - Cannot occupy more than ½ of ground floor - No more than 1 employee that is not immediate family - Time period for renewal can be implemented, within the power of the planning board (in its advisory capacity) - ***Town of Sullivans Island v. Byrum:*** - **Facts:** - The Byrum's home was damaged by fire and they renovated the house to be partially utilized as a bed and breakfast so they included six extra bedrooms and bathrooms and a separate apartment and a kitchen for the Byrums to live in. The town permitted home occupation uses that are incidental and secondary to the use as a residential purpose, does not change the character of the home, and does not take up more than 25% of the structure. Byrums in turn sought a variance for the 25% percent limitation. - **Holdings:** - Conduct is not permitted if it changes the character of the dwelling so that the principal use (residential) becomes a secondary purpose - In this case: - Bed and breakfast dominated the residence - Even if the bed and breakfast was a home occupation that did not exceed the 25%, the amended ordinance prohibited the bed and breakfast so to get a licenses for it, it must have been a legal use - ***Toussaint v. Town of Harpswell*** - **Facts:** - Waddle constructed an addition to their home so they can operate a, for profit, dog kennel which was located in a Commercial Fishing II District. The zoning ordinance of that district permitted home occupations as long as they provide public restrooms or showers or serve food to the public through a CEO permit. Toussant's owned a property in the town and did not like the use and tried to get them to get rid of the use. - **Holdings:** - If conduct complies with the applicable zoning ordinances and is compatible with the community, the conduct is a permitted home occupation - The town has a broad definition of home occupation, so the board utilized their judgement to determine that the use as a dog kennel was appropriate and the court will not substitute its judgment for that of the board. Subdivision Controls ==================== - **Introduction:** - Negotiated Development, Bargaining for Development, Contract Transformation in Land Use are all synonymous - **The point is to enhance the "one-project-at-a-time" entitlement process that arises from projects that are proposed by private sponsors** - It is not uncommon for a modest development in a mid-sized city to require - Annexation of land - Rezoning - A Planned Unit Development - Impact Fees - HOAs - Development agreements - These new new approaches come out of a need for flexibility caused by the strictness of Euclidean Zoning - **Caused by:** - Property tax revolts in the 70s - Developer needs in order to retain control of large subdivision buildouts (this made HOA's popular) - Increasing interest in empowering sub-local governance - **Subdivision →** Division of any parcel of land into a number of lots w/ or w/o streets for the purpose of ownership or development - Subdividing is done to ensure orderly growth and development, conservation, protection and proper use of land; and a provision for circulation, utilities, and services needed. - **Examples of matters regulated by subdivision**: Sidewalks, street lighting, location of curbs, sewage disposal systems, the location of all trees over one foot in diameter - **Origins and Purpose:** - **Subdivision Control →** Regulations on the division of raw land into building lots - Regulates the use of privately owned land for public interest - Point is to protect the community, home buyers and mortgage lenders, and Subdividers - **Communities are protected by allowed:** - Permanence of Development (Consider future affect) - Future Services (How will needed services be provided) - Health Considerations (Need town to be safe to live in) - Fiscal Considerations (Take in account tax affect) - Accurate Records (Clear and Accurate descriptions) - **Home Buyer and Mortgage Lenders are protected by** - Preventing deterioration - Accurant boundary lines (no boundary disputes) - **Subdivider is protected by:** - Having another subdivider surround the property with undesirable uses - Excessive subdivision from areas far from community services can cause financial ruin - **NY Town Law §276:** - **1. Purpose →** "For the purpose of providing for the future growth and development of the town..." - **2. Authorization for Review of Previously Filed Plats:** - Planning board is authorized to approve of, either partially or fully developed, plats. - **Undeveloped →** Plats where 20% or more of the lat is unimproved; - Caveat → unless existing conditions, such as poor drainage, have prevented the development - **3. Filing of Cert:** - If plat approved by the board, it must be filed with the clerk or register of the county in which the town is located - **4. Definitions:** - **Subdivision →** Division of any parcel of land into a number of lots, blocks or sites as specified in a local ordinance, law, rule or regulation, with or without streets or highways, for the purpose of sale, transfer of ownership or development - **Preliminary Plat →** A drawing prepared in a manner prescribed by local regulation, that shows the layout of the subdivision at a suitable scale in as much detail as the local reg may require; including, but not limited to: - Road and lot layout with approximate dimensions - Key Plan - Topography and drainage - Proposed facilities unsized - Preliminary plans and profiles - **Preliminary Plat Approval →** Approval of a layout of a proposed subdivision but is overall approval of the subdivision is still subject to approval of final plat - **Conditional Approval of a Final Plat →** Approval of a plat depends on developer meeting conditions that the board outlines. - ***Ridgefield Land Co. v. Detroit*** - **Facts:** - P was upset the city conditions their plat approval on them giving up portions of their land to widen the streets; argued that others did not conform, they did not have the power, and it was unconstitutional. - **Holding:** - Cities can require that any reasonable conditions be complied with before a subdivision is accepted for recording. - Aka they can refuse to approve and record a plat that does not comply with street width requirements - **SUBDIVIDING IS A PRIVILEGE NOT A RIGHT** - **Final Plat Approval →** Final plat is signed by an authorized board official after the board gives full approval or conditions that were imposed are met - **5. Approval of Preliminary Plats:** - No building permit will be provided until the conditions are met - ***A. Submission of Prelim Plats:*** - All plats need to have a final plat submit, but some may require a preliminary plat be provided - ***B. Conditions with SEQRA:*** - Have to follow SEQRA requirements - ***C. Receipt of Complete Preliminary Plat:*** - Prelim plat is only complete after SEQRA requirements are met - ***D. Planning Board as Lead Agency:*** - Need a Public Hearing (62 days after complete plat provided) - Need to provide proper notice to public (5-15 days) - Decision needs to be made within 62 days of public hearing - Reasons for modifications or denial must be recorded and required changes for final plat need to be provided in writing - ***E. Planning Board NOT as Lead Agency:*** - Hearing are held jointly or independently and similar timeline needs to be provided - ***F. Cert and Filing:*** - Approved prelim plats must be filed within 5 business days, certified by the clerk, and have a copy sent to the clerks office for filing and a resolution sent to the owner - ***G. Filing of Decision on Prelim Plat:*** - Within 5 days of adoption, the approached member needs to send a copy of the resolution to the clerk - ***H. Revocation of Prelimin Approval:*** - Final plat must be submitted within 6 months, if not planning board may revoke preliminary approval - **6. Approval of Final Plats:** - ***1. Submission of Final Plats:*** - Plats must conform to the stated definition and planning board must decide on it within 62 days - ***2. Final Plats without Preliminary Plat:*** - Prelim plat is not required, a final plat is not complete without appropriate enviro review steps being completed. Review timelines began once a negative declaration is made - ***3. Final Plat Not in Agreement with Prelim Plat:*** - When a final plat deviates from prelim plat (or there is none), a public hearing must be held within 62 days of receipt, board must make a decision within 62 days and if needed file an EIS - ***4. Public Hearing and Decision Making:*** - Planning board must make a public hearing (5 days), advertise it properly (town newspaper in general circulation within 5 days), make a decision within the specified time (62 days), and initiate an EIS if need be - ***5. Grounds for Decision:*** - Decision must be made within 62 days, and the board must record reasons for approval, modification or denial. - **7. Approval and Certification of Final Plats:** - ***1. Cert of Plat:*** - Final plat certification occurs within 5 bus days of approval with copy sent to the owner - ***2. Approval of Plat in Sections:*** - Board can approval a plat in sections and grant conditional approval for different section - ***3. Duration of Conditional Approval:*** - Conditional approval expires within 180 days, unless requirements are completed but there are 90 day extensions - **8. Default Approval of Prelim/Final Plat:** - Time periods, meant to provide sufficient time to review and make decisions, can be extended by mutual consent of the owner and board. However, failing to act within time period constituted approval and the town clerk must cert submission date and failure to act which will serve as proof of approval - **9. Filing of Decision on Final Plat:** - Within 5 days of adoption of resolution, copy must be sent and filed with Town Clerk - **10. Notice to County Planning Board/Agency/or Regional Planning Council:** - If needed, the clerk must provide all applicable prelim and final plats to the county planning board or regional planning council for review - **11. Filing on Final Plat:** - Approved final plat must be filed, to the county clerk, within 62 days or approval will expire. If filing in section, the entire plat must be filed within 30 days or the approved sections wi