real estate law Unit

Chapter 13: Zoning Houses under construction, Fairfax, VA, by Zachary Schrag, Aug. 24, 2015 Zoning is a way of answering the question: What—and where—do we want the places where we live to be? Our goals in this chapter are to understand the justifications for and modern varieties of zoning. As you read and review, consider how zoning compares to other types of land use controls, including nuisance, private covenants, and the implied warranty of habitability. a. The Dominance of the Single-Family Home Results from the 2013 American Household Survey (AHS) show that 64% of all occupied housing, and 62% of recently built units, are detached single-family homes. Even in central cities, 79% of owner-occupied units are detached single-family houses. The average owneroccupied dwelling takes up nearly a third of an acre, as does the average recently built dwelling; bus service usually requires at least seven dwellings per acre to be viable. 1 Homeownership has definite benefits. Homeowners are more likely to support school funding; even childless homeowners want their chief asset to be valuable because of its proximity to good schools. Homeowners participate more in local politics and community life than renters do, and their children seem to benefit as well. On the other hand, 1 Only 55% of housing units have sidewalks, and the percentage is lower for over-65 homeowners. Page 1 of 21 homeownership can be an anchor—when the structure of employment changes radically, and the best jobs are available in other regions, homeownership, and the resulting loss on a major asset, can deter people from moving, depressing economic growth and individual income. b. Defining the Family Any zoning scheme centered on the single-family home requires some definition of “family.” In Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), a zoning ordinance’s definition of “family” was invoked to prevent groups of unrelated college students from living together. That definition was restricted to “‘(o)ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit… [or] not exceeding two (2) [persons] living and cooking together as a single housekeeping unit through not related by blood, adoption, or marriage.” A group of cohabiting college students sued to challenge the ordinance, and the Supreme Court cited Euclid and similar cases in support of its holding that the legislature can decide what kinds of uses are detrimental to the peaceful and attractive character of the area, subject only to constitutional law’s “rational basis” standard of review: The regimes of boarding houses, fraternity houses, and the like present urban problems. More people occupy a given space; more cars rather continuously pass by; more cars are parked; noise travels with crowds…. The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people. Juan Monroy, Belle Terre, Sept. 7, 2014, CC-BY (despite the gates at the entrance to the town, this is not a private gated community, at least not in formal legal terms) Page 2 of 21 Justice Marshall’s vigorous dissent in Belle Terre would have distinguished between “uses of land … , for example, the number and kind of dwellings to be constructed in a certain neighborhood or the number of persons who can reside in those dwellings,” which zoning authorities could validly regulate, and “who those persons are, what they believe, or how they choose to live, whether they are Negro or white, Catholic or Jew, Republican or Democrat, married or unmarried,” which he would have found they could not. Justice Marshall invoked both the First Amendment freedom of association and the constitutional right to privacy— fundamental rights the regulation of which must survive constitutional law’s “strict scrutiny” standard: The choice of household companions — of whether a person’s “intellectual and emotional needs” are best met by living with family, friends, professional associates, or others — involves deeply personal considerations as to the kind and quality of intimate relationships within the home. That decision surely falls within the ambit of the right to privacy protected by the Constitution…. Because I believe that this zoning ordinance creates a classification which impinges upon fundamental personal rights, it can withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest…. In a subsequent case, Moore v. City of East Cleveland, 431 U.S. 494 (1977), Justice Marshall joined the plurality opinion of the Court (written by Justice Powell), which applied strict scrutiny to strike down East Cleveland’s more limited definition of “family,” 2 over several dissents. Inez Moore lived with her son, Dale Moore, Sr., and her two grandsons, Dale, Jr., and John Moore, Jr. The two boys were first cousins, rather than brothers; John came to live with his grandmother and the elder and younger Dale Moores after his mother’s death. This caused the household to violate East Cleveland’s family ordinance, resulting in criminal charges against Mrs. Moore. The Court distinguished Belle Terre on grounds that the ordinance in that case “affected only unrelated individuals,” whereas East Cleveland “has chosen to regulate the 2 The East Cleveland ordinance stated: ‘Family’ means a number of individuals related to the nominal head of the household or to the spouse of the nominal head of the household living as a single housekeeping unit in a single dwelling unit, but limited to the following: (a) Husband or wife of the nominal head of the household. (b) Unmarried children of the nominal head of the household or of the spouse of the nominal head of the household, provided, however, that such unmarried children have no children residing with them. (c) Father or mother of the nominal head of the household or of the spouse of the nominal head of the household. (d) Notwithstanding the provisions of subsection (b) hereof, a family may include not more than one dependent married or unmarried child of the nominal head of the household or of the spouse of the nominal head of the household and the spouse and dependent children of such dependent child…. (e) A family may consist of one individual. Page 3 of 21 occupancy of its housing by slicing deeply into the family itself.” The City defended its goals with the same crowding and traffic justifications as Belle Terre, and additionally argued that the ordinance limited the burden on East Cleveland’s schools. The Court found that the ordiance’s exclusion of extended families served these legitimate goals “marginally, at best.” It further noted that there was a long tradition of “uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children…. Especially in times of adversity, such as the death of a spouse or economic need, the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life. This is apparently what happened here.” Justices Brennan and Marshall, in concurrence, specifically pointed out that the “nuclear family” was really the pattern of “white suburbia,” which could not impose its preference on others, and noted traditions among immigrants and African-Americans of living together in multigenerational arrangements as a matter of survival. The concurrence touted multigenerational families as stronger and more beneficial for children than isolated nuclear families. Justices Stewart and Rehnquist, in a dissent that defended Euclid’s and Belle Terre’s rational basis standard of review, argued that traditions of extended family cohabitation in such communities did not imply that “the residents of East Cleveland are constitutionally prevented from following what Mr. Justice BRENNAN calls the ‘pattern’ of ‘white suburbia,’ even though that choice may reflect ‘cultural myopia.’” But ultimately, the plurality wrote, “the Constitution prevents East Cleveland from standardizing its children — and its adults — by forcing all to live in certain narrowly defined family patterns.” Consider the Moore plurality’s argument that Belle Terre could be distinguished on grounds that “[t]he ordinance there affected only unrelated individuals.” What does this mean for unmarried couples with children from prior relationships? In City of Ladue v. Horn, 720 S.W.2d 745 (Mo. Ct. App. 1986), city authorities sued one such couple with three teenaged children from prior relationships, seeking to enjoin them from cohabiting in a zoned single-family neighborhood. The applicable ordinance’s definition of “family” specifically excluded groups of more than two people not related by blood, marriage, or adoption. The court cited Belle Terre and Moore together for the proposition that constitutional limits on zoning authorities’ definition of the family rest on protection of relationships of blood, marriage, or adoption, and affirmed the order enjoining them from living together in their home. The court opined that “maintenance of a traditional family environment constitutes a reasonable basis for excluding uses that may impair the stability of that environment and erode the values associated with traditional family life.” *** Page 4 of 21 c. Segregation of uses The key principle behind Euclidean zoning is segregation of uses, in order to protect the singlefamily home. One clear cost is sprawl. Living away from density has other consequences: Wages are about thirty-five percent higher in cities, and research shows that this is because urban residents tend to have greater wage growth than residents in rural areas, suggesting that growth in human capacity is enhanced by density and interacting with closely situated others. Density allows for greater specialization and more productive interactions with a greater variety of people. Another consequence of use segregation is that undesirable uses tend to get concentrated in ghettoes or red-light districts, or left to inner cities. However, even opponents of Euclidean zoning might consider some segregation of uses desirable. In 2013, a Texas fertilizer plant explosion leveled houses and destroyed the middle school across the street. A former city council member said that he couldn’t recall the town discussing whether it was a good idea to build houses and the school so close to the plant, which has been there since 1962. “The land was available out there that way … There never was any thought about it. Maybe that was wrong.” Theodoric Meyer, Could regulators have prevented the Texas fertilizer plant explosion?, SALON (Apr. 28, 2013). d. Churches It might fairly be said that many homevoters’ concern for their property values amounts to religious fervor. Numerous zoning disputes have involved the location of churches, to which neighbors often object on grounds of weekend congestion—or, in the case of minority religions, for other reasons. Congregation Temple Israel v. City of Creve Coeur, 320 S.W.2d 451 (Mo. 1959), involved a religious organization (a Jewish synagogue) that wished to construct a new building for religious purposes, including services and religious education. Two weeks after Temple Israel bought the land, residents petitioned to change the zoning. Before Temple Israel began construction, the City changed the zoning to exclude churches and schools. It also established a complex and burdensome procedure to seek an exception allowing church or school use, and made the exception discretionary rather than mandatory. The Missouri Supreme Court ruled that municipalities had no authority to regulate the placement of churches or schools. Under the state’s Zoning Enabling Act, Section 89.020 allowed them to regulate “the location and use of buildings, structures and land for trade, industry, residence and other purposes.” Given the constitutional interest in freedom of religion, and the history of locating churches in residential areas, the court interpreted “other purposes” to exclude control over the location and use of buildings for churches and schools, though municipalities could regulate the buildings for health and safety purposes. Page 5 of 21 The land use provisions of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc, et seq., now protect individuals, houses of worship, and other religious institutions from discrimination in zoning and landmarking laws. The Department of Justice has explained: Religious assemblies, especially, new, small, or unfamiliar ones, may be illegally discriminated against on the face of zoning codes and also in the highly individualized and discretionary processes of land use regulation. Zoning codes and landmarking laws may illegally exclude religious assemblies in places where they permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes. Or the zoning codes or landmarking laws may permit religious assemblies only with individualized permission from the zoning board or landmarking commission, and zoning boards or landmarking commission may use that authority in illegally discriminatory ways. To address these concerns, RLUIPA prohibits zoning and landmarking laws that substantially burden the religious exercise of churches or other religious assemblies or institutions absent the least restrictive means of furthering a compelling governmental interest. This prohibition applies in any situation where: (i) the state or local government entity imposing the substantial burden receives federal funding; (ii) the substantial burden affects, or removal of the substantial burden would affect, interstate commerce; or (iii) the substantial burden arises from the state or local government’s formal or informal procedures for making individualized assessments of a property’s uses. U.S. Dep’t of Justice, Religious Land Use and Institutionalized Persons Act, Aug. 6, 2015. On the other hand, there are limits on the extent to which zoning ordinances can be put at the service of religious institutions, in light of the First Amendment’s Establishment Clause. See Larkin v. Grendel’s Den, 459 U.S. 116 (1982) (Massachusetts statute prohibiting sale of alcohol within 500 feet of a church “if the governing body of such church or school files written objection thereto” was an unconstitutional establishment of religion under the First Amendment). Page 6 of 21 e. Other First Amendment Concerns To what extent may zoning ordinances limit the exercise of First Amendment rights to freedom of expression? The City of Ladue, a wealthy St. Louis suburb we will learn more about shortly, has a history of testing this question. To take one example, may a zoning ordinance permissibly prohibit the posting of “lawn signs” of the type that are typical in political campaigns? In City of Ladue v. Gilleo, 512 U.S. 43 (1994) the Court struck as unconstitutional Ladue’s zoning ordinance banning from residential districts all signs except “residence identification” signs, “for sale” signs, and signs warning of safety hazards. But the Court left open the possibility that some regulations short of an outright ban—such as “time, place, and manner” restrictions typical of judicially permitted government regulation of expression—might pass First Amendment scrutiny. What types of signage regulations should be available to zoning authorities? Could a zoning ordinance, for example, place heavier restrictions on temporary leaflets advertising upcoming events or meetings than it does on more durable lawn signs demonstrating support for a political candidate? See Reed v. Town of Gilbert, 576 U.S. — (2015) (striking a complex hierarchy of sign regulations as drawing impermissible and unjustified content-based distinctions). To take another example with implications for freedom of expression, is “aesthetic zoning”— the use of zoning ordinances to require all homes within a community to conform to certain styles of architecture, for example—permissible? In State ex rel. Stoyanoff v. Berkeley, 458 S.W.2d 305 (Mo. 1970), Ladue refused a building permit to a family that proposed to build the following home in a neighborhood of stately colonial and Tudor style homes: Artist’s rendering of proposed house Page 7 of 21 The Stoyanoffs challenged the zoning ordinance—which gave an appointed “Architectural Board” the authority to refuse new home designs unless they are “in general conformity with the style and design of surrounding structures”—on grounds that it was vague and arbitrary. The court disagreed, holding that such aesthetic criteria are a permissible exercise of the police power to preserve the “character of the district, its suitability for particular uses, and the conservation of the values of buildings therein.” Are you persuaded? Should the Stoyanoffs have challenged the ordinance on First Amendment grounds instead? Would the result have been any different? Should it have been? What about so-called “erogenous zoning”—the practice of prohibiting certain sex-themed businesses such as strip clubs, adult video parlors, and the like, in or near residential districts, schools, and churches? If a zoning ordinance has the effect of herding all such businesses into undesirable, remote, dangerous areas, is there a First Amendment problem? City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (such a restriction upheld as a reasonable “time place and manner” restriction); accord Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). What if an ordinance has the effect of making it literally impossible to operate such a business within the jurisdiction covered by the ordinance? See, e.g., City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (upholding a zoning ordinance that requires nude dancers within city limits to wear “pasties and G-strings” because the effect on the expression of nude dancers was de minimis and the regulation was a justifiable response to the “secondary effects” of allnude dancing); but see Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) (reversing convictions of adult bookstore and peep show operators under a zoning ordinance that prohibited all live entertainment within the jurisdiction, and noting that the Court in Young v. American Mini Theatres, Inc. “did not imply that a municipality could ban all adult theaters -much less all live entertainment or all nude dancing — from its commercial districts citywide.”). B. Nonconforming Uses, Variances and Exceptions At times, new zoning precludes uses that were previously allowed. The remaining allowed uses may be inappropriate for a particular parcel of land within a zone. Conditions may have changed, making previous zoning inappropriate, or developers may wish to build more than current zoning allows. Zoning authorities may have determined that particular uses are acceptable, but only under specified conditions requiring a more detailed permit process. All these possibilities require some way of addressing unusual conditions and ongoing change. This section reviews various techniques zoning authorities use in such circumstances. Page 8 of 21 1. Nonconforming uses When zoning first began, there were a number of existing uses that would be prohibited by the new regimes. Zoning authorities expected these to die out naturally, but in fact, they often persisted for decades, in part because they often had local monopolies—a nonconforming use might be the only gas station in a residential neighborhood, for example. Many supporters of zoning wanted to do more to get rid of such uses. Moreover, because zoning often changes—usually in the direction of becoming more restrictive—existing uses that were fine under the previous zoning regime can become newly unlawful. This is especially true when an unanticipated use begins and the rest of the neighbors want to change the zoning in response. But what about the interests of the property owner with the disfavored use, now known as a nonconforming use? *** b. Procedure Most jurisdictions have a formal process setting out the deadlines and providing guidance to applicants on what they need to show to get a variance. See, e.g., St. Louis Board of Zoning Adjustment, Citizen’s Guide to the Board of Zoning Adjustment Variance Process (n.d.). By contrast, the city of Ladue has no formal variance procedure at all. Instead, an applicant must seek a permit, and after the permit is denied, the City of Ladue Building Department sends the applicant a formal denial letter with Zoning Board of Adjustment instructions for an appeal. Page 9 of 21 Zoning Hearing, Valdosta County, Georgia, by John S. Quarterman, Aug. 26, 2013, CC-BY 3 Matthew v. Smith 707 S.W.2d 411 (Mo. 1986) WELLIVER, Judge. This is an appeal from a circuit court judgment affirming the Board of Zoning Adjustment’s decision to grant Jim and Susan Brandt a variance. The Brandts purchased a residential lot containing two separate houses upon a tract of land zoned for a single-family use. The court of appeals reversed the circuit court judgment, and the case was then certified to this Court by a dissenting judge. We reverse and remand. The Brandts own a tract of land comprising one and one-half plotted lots. When they purchased the property in March of 1980, there already were two houses on the land, one toward the front of Erie Street and one in the rear. Each of the buildings is occupied by one residential family as tenants of the Brandts. The two houses apparently have been used as separate residences for the past thirty years, with only intermittent vacancies. The property is zoned for Single Family Residences. At the suggestion of a city official, the Brandts applied for a variance which would allow them to rent both houses with a single family in each house. After some delay, including two hearings by the Board of Zoning Adjustment of Kansas City, the Board granted the application. Appellant, Jon Matthew, a neighboring landowner challenged the grant of the variance and sought a petition for certiorari from the Board’s action. The circuit court affirmed the Board’s order; on appeal, the court of appeals held that the Board was without authority to grant the requested variance. A dissenting judge certified the case to this Court…. Under most zoning acts, these boards have the authority to grant variances from the strict letter of the zoning ordinance. The variance procedure “fulfil [s] a sort of ‘escape hatch’ or ‘safety valve’ function for individual landowners who would suffer special hardship from the literal application of the … zoning ordinance.” It is often said that “[t]he variance provides an administrative alternative for individual relief that can avoid the damage that can occur to a zoning ordinance as a result of as applied taking litigation.” The general rule is that the authority to grant a variance should be exercised sparingly and only under exceptional circumstances. 3 See http://www.l-a-k-e.org/blog/2013/09/dollar-general-teramore-development-glpc-2013-08-26.html for a detailed recap of a zoning hearing and many more pictures. Page 10 of 21 Both the majority of courts and the commentators recognize two types of variances: an area (nonuse) variance and a use variance. The two types of variances with which cases are customarily concerned are “use” variances and “nonuse variances.” The latter consist mostly of variances of bulk restrictions, of area, height, density, setback, side line restrictions, and restrictions coverning miscellaneous subjects, including the right to enlarge nonconforming uses or to alter nonconforming structures. As the name indicates, a use variance is one which permits a use other than one of those prescribed by the zoning ordinance in the particular district; it permits a use which the ordinance prohibits. A nonuse variance authorizes deviations from restrictions which relate to a permitted use, rather than limitations on the use itself, that is, restrictions on the bulk of buildings, or relating to their height, size, and extent of lot coverage, or minimum habitable area therein, or on the placement of buildings and structures on the lot with respect to required yards. Variances made necessary by the physical characteristics of the lot itself are nonuse variances of a kind commonly termed “area variances.” Many zoning acts or ordinances expressly distinguish between the two types of variances. When the distinction is not statutory, “the courts have always distinguished use from area variances.” Some jurisdictions, whether by express statutory directive or by court interpretation, do not permit the grant of a use variance. [The Brandts] seek a variance to use the property in a manner not permitted under the permissible uses established by the ordinance. The ordinance clearly permits only the use of the property for a single family residence. The applicant is not seeking a variance from the area and yard restrictions which are no doubt violated because of the existence of the second residence. Such an area variance is not necessary because the applicant has a permissible nonconforming structure under the ordinance. … [T]he express language of § 89.090, RSMo 1978, … grants the Board the “power to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures, or the use of land” (emphasis added). We, therefore, hold that under the proper circumstances an applicant may obtain a use variance. Section 89.090, RSMo 1978 delegates to the Board of Adjustment the power to grant a variance when the applicant establishes “practical difficulties or unnecessary hardship in the Page 11 of 21 way of carrying out the strict letter of such ordinance … so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.” …. Almost all jurisdictions embellished the general concepts of “unnecessary hardship” or “practical difficulties” by further defining the conditions an applicant must satisfy before obtaining a variance…. Unfortunately, any attempt to set forth a unified structure illustrating how all the courts have treated these conditions would, according to Professor Williams, prove unsuccessful. Williams observes that the law of variances is in “great confusion” and that aside from general themes any further attempt at unifying the law indicates “either (a) [one] has not read the case law, or (b) [one] has simply not understood it. Here far more than elsewhere in American planning law, muddle reigns supreme.” Yet, four general themes can be distilled from variance law and indicate what an applicant for a variance must prove: (1) relief is necessary because of the unique character of the property rather than for personal considerations; and (2) applying the strict letter of the ordinance would result in unnecessary hardship; and the (3) imposition of such a hardship is not necessary for the preservation of the plan; and (4) granting the variance will result in substantial justice to all. Although all the requirements must be satisfied, it is generally held that “‘[u]nnecessary hardship’ is the principal basis on which a variance is granted.” Before further examining the contours of unnecessary hardship, jurisdictions such as Missouri that follow the New York model rather than the Standard Act need to address the significance of the statutory dual standard of “unnecessary hardship” or “practical difficulties.” Generally, this dual standard has been treated in one of two ways. On the one hand, many courts view the two terms as interchangeable. On the other hand, a number of jurisdictions follow the approach of New York, the jurisdiction where the language originated, and hold that “practical difficulties” is a slightly lesser standard than “unnecessary hardship” and only applies to the granting of an area variance and not a use variance. The rationale for this approach is that an area variance is a relaxation of one or more incidental limitations to a permitted use and does not alter the character of the district as much as a use not permitted by the ordinance. Page 12 of 21 In light of our decision to permit the granting of a use variance, we are persuaded that the New York rule reflects the sound approach for treating the distinction between area and use variances. To obtain a use variance, an applicant must demonstrate, inter alia, unnecessary hardship; and, to obtain an area variance, an applicant must establish, inter alia, the existence of conditions slightly less rigorous than unnecessary hardship. … It is generally said that Otto v. Steinhilber, 282 N.Y. 71, 24 N.E.2d 851, 853 (1939) contains the classic definition of unnecessary hardship: Before the Board may exercise its discretion and grant a variance upon the ground of unnecessary hardship, the record must show that (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality. Quite often the existence of unnecessary hardship depends upon whether the landowner can establish that without the variance the property cannot yield a reasonable return. “Reasonable return is not maximum return.” Rather, the landowner must demonstrate that he or she will be deprived of all beneficial use of the property under any of the permitted uses: A zoning regulation imposes unnecessary hardship if property to which it applies cannot yield a reasonable return from any permitted use. Lack of a reasonable return may be shown by proof that the owner has been deprived of all beneficial use of his land. All beneficial use is said to have been lost where the land is not suitable for any use permitted by the zoning ordinance. Most courts agree that mere conclusory and lay opinion concerning the lack of any reasonable return is not sufficient; there must be actual proof, often in the form of dollars and cents evidence. In a well-reasoned opinion, Judge Meyer of the New York Court of Appeals stated: Whether the existing zoning permits of a reasonable return requires proof from which can be determined the rate of return earned by like property in the community and proof in dollars and cents form of the owner’s investment in the property as well as the return that the property will produce from the various uses permissible under the existing classification. Page 13 of 21 N. Westchester Prof. Park v. Town of Bedford, 458 N.E.2d 809 (N.Y. 1983). Such pronouncements and requirements of the vast majority of jurisdictions illustrate that, if the law of variances is to have any viability, only in the exceptional case will a use variance be justified. …[T]he record is without sufficient evidence to establish unnecessary hardship. The only evidence in the record is the conclusory opinion of Brandt that they would be deprived of a reasonable return if not allowed to rent both houses. No evidence of land values was offered; and, no dollars and cents proof was presented to demonstrate that they would be deprived of all beneficial use of their property. Appellant, in fact, was not permitted to introduce such evidence. The Board, therefore, was without authority to grant a use variance upon this record. The record, however, indicates that the Brandts may be entitled to a nonconforming use under the ordinance.… ROBERTSON, Judge, concurring in result. [Judge Robertson concurred on the ground that the Brandts sought an area variance, not a use variance, but, under the zoning ordinance, they still needed to demonstrate that the property couldn’t earn a reasonable return without the variance.] [A separate concurrence is omitted.] Notes and Questions 1. Were the Brandts seeking a use variance or an area variance? 2. Note that the prior nonconforming use alternative is both more stringent and more relaxed than the variance: it requires the use to predate the zoning, but it also requires no showing of hardship once that priority is established. 3. Mistakes. Is a good-faith mistake a self-inflicted hardship? The answer is usually yes. See, e.g., Wehrle v. Cassor, 708 SW 2d 788 (Mo. Ct. App. 1986) (board erred in granting variance where violation, and hardship involved in curing violation, resulted from builders’ measurement errors). 4. Purchase with knowledge of the problem. Suppose undeveloped land is purchased by someone who knows or should know that the land can’t be developed in accordance with current restrictions without a variance. Does purchase with knowledge of a hardship count as a self-inflicted harm, disentitling the owner to a variance? See, e.g., Conley v. Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 309 (N.Y. 1976) (self-imposed hardship through purchase with notice of restrictions didn’t preclude the Page 14 of 21 zoning board from granting an area variance); Somol v. Board of Adjustment of the Borough of Morris Plains, 649 A.2d 422 (N.J. Super. Ct. Law Div. 1994) (as long as a prior owner didn’t create the hardship, purchase with knowledge of the restrictions is no barrier to a variance); In re Gregor, 627 A.2d 308 (Pa. Commw. Ct. 1993) (“The right to develop a nonconforming lot is not personal to the owner of property at the time of enactment of the zoning ordinance but runs with the land, and a purchaser’s knowledge of zoning restrictions alone is insufficient to preclude the grant of a variance unless the purchase itself gives rise to the hardship.”). In what way could a prior owner or a purchase create the hardship? For use variances, by contrast to area variances, purchase with knowledge precludes a claim for a variance. Why distinguish area variances from use variances in this context? c. The Americans with Disabilities Act/Fair Housing Act Both the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA) have provisions that can affect local zoning and variance procedures. 4 People with disabilities, defined as a substantial impairment to a major life activity such as walking or seeing, as well as people who are perceived as having disabilities, are entitled to reasonable accommodations for their disabilities, which means that otherwise applicable laws and regulations may have to be waived. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, The ADA and City Governments: Common Problems (n.d.) Common Problem: City governments may fail to consider reasonable modifications in local laws, ordinances, and regulations that would avoid discrimination against individuals with disabilities. 4 The ADA had even more profound effects on local building codes, which mandate particular building features. Along with fire and electrical codes, building codes—which specify matters such as the minimum width of doors and the maximum pitch of stairs—also profoundly shape the built environment, though we will not separately consider them here. Under the ADA, new construction of places of public accommodation must be accessible, which includes considerations such as entrance ramps and Braille labeling. See U.S. Architectural and Transportation Barriers Compliance Board (Access Board), Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities (2002). Page 15 of 21 Result: Laws, ordinances, and regulations that appear to be neutral often adversely impact individuals with disabilities. For example, where a municipal zoning ordinance requires a set-back of 12 feet from the curb in the central business district, installing a ramp to ensure access for people who use wheelchairs may be impermissible without a variance from the city. People with disabilities are therefore unable to gain access to businesses in the city. City zoning policies were changed to permit this business to install a ramp at its entrance. Requirement: City governments are required to make reasonable modifications to policies, practices, or procedures to prevent discrimination on the basis of disability. Reasonable modifications can include modifications to local laws, ordinances, and regulations that adversely impact people with disabilities. For example, it may be a reasonable modification to grant a variance for zoning requirements and setbacks. Notes and Questions 1. Suppose a business will be in violation of the ADA if it doesn’t install a ramp, in violation of a setback requirement. Is it entitled to a variance under this guidance? What if the business should have known about the problem before constructing its building? (In that case, the zoning authority is also implicated—it shouldn’t have approved any buildings that would violate the ADA. See United States Dep’t of Justice, Civil Rts. Div., ADA Standards for Accessible Design (2010).) What considerations might Page 16 of 21 nonetheless justify denying the variance? What if the board argues that ramps are ugly and will decrease the value of the area? What if the board has safety concerns because the ramp will extend far enough to interfere with bicyclists? The rule that ADA requires reasonable modifications to zoning laws may mean that the standard requirement of exceptional and undue hardship to the property owner isn’t applicable. But another element of the test, detriment to the overall value of the area, is relevant in determining whether a modification is reasonable. 2. Variances usually preclude consideration of personal characteristics that aren’t inherent in the land. Where the entity seeking a variance is a business, that question isn’t particularly important—even if the business changes hands, the next owner will need a ramp to make the store accessible. But suppose zoning regulations require a particular elevation for residential beachfront property, in order to address concerns about danger from flooding. A property owner uses a wheelchair and wants a variance from the elevation requirement because otherwise he won’t be able to get into his house. Does the ADA require the variance? 3. Special exceptions and zoning amendments There are a variety of other refinements or complications in the zoning process that provide flexibility. In theory, they should all have to conform to the general development plan or the plan itself should have to be changed; practice is somewhat more messy. This section provides only a brief introduction to the relevant concepts. A class in land use law or local government will provide substantially more detail. a. Special exceptions/special uses/conditional uses A special exception (varyingly known as a special use or conditional use in different states) is a ban on particular types of uses, such as apartment buildings, unless certain criteria are met. One might wonder how they differ from variances. The basic idea is that variances are necessary though not desirable, designed to deal with unexpected situations in which land uses that are otherwise banned should be allowed, usually for parcel-specific and therefore unpredictable reasons. We know that there is, in general, a need for the ability to grant variances, but we don’t know which variances we will need. So the standards for variances are worded generally. By contrast, special exceptions are authorized when the zoning body anticipates that particular uses will be appropriate, but should be carefully scrutinized. When a special exception is Page 17 of 21 authorized by the zoning code, that reflects a determination that the use is generally appropriate for the zone. As a result, the zoning board must not be left with only vague criteria that do not constrain its discretion when assessing whether a particular application should be granted. With variances, the risk of arbitrary decisions has to be borne to provide the necessary flexibility. But when the zoning authority can anticipate the issues that will predictably arise with a particular use—apartments, for example, are likely to raise questions about how many parking spaces are needed—then there is no need to take the risk of arbitrary or biased enforcement. “The issuing of a permit is a ministerial act, not a discretionary act, which may not be refused if the requirements of the applicable ordinance have been met.” State ex rel. Kugler v. City of Maryland Heights, 817 S.W.2d 931 (Mo. Ct. App. 1991); see also Curry Inv. Co. v. Board of Zoning Adjustment of Kansas City, 399 S.W.3d 106 (Mo. Ct. App. 2013) (finding that the zoning board unlawfully made approval of a special use permit conditional on the removal of two nonconforming signs; signs were lawful as prior nonconforming uses, and the board’s staff concluded that all the criteria for a special use permit were met); Waeckerle v. Board of Zoning Adjustment, 525 S.W.2d 351 (Mo. Ct. App. 1975) (allowing the zoning board to treat a conditional use application as requiring a variance “would amount to permitting the Board to exercise legislative power,” conflicting with its administrative role; zoning board cannot repeal authorization for uses given by legislature). Relatedly, no special showing of hardship is required to grant a special use permit, unlike a variance. The inevitable legal debate over when rules are preferable to standards, or vice versa, is actualized in zoning by using both. When a state is concerned about equalizing the burden of particular uses, it may mandate that a sub-state jurisdiction provide for them through special exceptions. Missouri law, for example, requires municipalities with more than 500 persons to allow substance abuse treatment facilities as a permitted, conditional special use. Municipalities may establish density standards and require that exterior appearance conform to area standards. MO. REV. STAT. § 89.143. b. Floating zones Floating zones are something like special exceptions, in that they contemplate that a particular use or combination of uses will be appropriate for an area under certain circumstances, but it’s not yet clear exactly where that use should be. Once a development plan is proposed by a developer and accepted by the zoning authority, the floating zone “lands.” See Treme v. St. Louis County, 609 S.W.2d 706 (Mo. Ct. App. 1980) (accepting floating zones so long as the determination to rezone a particular piece of property in a floating Page 18 of 21 zone is not arbitrary, capricious or unreasonable). Floating zones are useful for extensively planned developments that may need more flexibility in use than the current zoning allows. The plan can also be overlaid onto an existing zoning district if there’s a proposal with no need to “float”; either way, the rezoning usually only takes place once a plan is approved. See, e.g., Heidrich v. City of Lee’s Summit, 916 S.W.2d 242 (Mo. Ct. App. 1995) (dealing with a planned district); McCarty v. City of Kansas City, 671 S.W.2d 790 (Mo. Ct. App. 1984) (approval of plan is a legislative act). c. Planned Unit Development (PUD). A Planned Unit Development (PUD) is a self-contained development, often with a mixture of housing types and densities, in which the subdivision and zoning controls are applied to the project as a whole rather than to individual lots. Densities are thus calculated for the entire development, which allows clustering of houses and common open spaces. See Turner v. City of Independence, 186 S.W.3d 786 (Mo. Ct. App. W.D. 2006) (upholding high density residential mixed use planned unit development rezoning ordinance enacted by City as lawful and reasonable). Within a PUD, the number of uses expressly permitted is limited and the number of conditional uses is expanded, allowing the zoning authority more control over the development of the land. Developers may use a PUD to get more flexibility in terms of open space, parking, and setback requirements, in return for giving zoning authorities more control than they would normally have in matters of building appearance and landscaping. See, e.g., State ex rel. Helujon, Ltd. v. Jefferson County, 964 S.W.2d 531 (Mo. Ct. App. 1998) (accepting PUD as legitimate legislative rezoning technique). Ladue has now provided for a PUD in its zoning ordinance: This section is intended to enable the creation of a Planned Unit Development (P.U.D.) District on properties with a minimum size of twelve (12) acres that abut a City border. The purpose of the Planned Unit Development District overlay is to provide a means of achieving greater flexibility in development of land in a manner not possible in the underlying zoning district; to encourage development of downsized luxury housing; to encourage a more environmentally sustainable development; to promote a more desirable community environment; and to maintain maximum control over both the structure and future operation of the development. A Planned Unit Development District overlay is not a rezoning of the property; only those uses permitted in the underlying zoning classification shall be allowed …. Lot area, yard setbacks, lot frontage, lot width, and other requirements and regulations Page 19 of 21 contained in the underlying zoning districts may be altered or amended as set forth in the authorized Planned Unit Development District. There shall be no increase in unit density in residentially zoned districts…. Ladue, Missouri’s Zoning Ordinance, Ordinance 1175, as amended through Jan. 2015. d. Rezoning Rezoning more generally is exactly what it sounds like. As long as it is part of a comprehensive plan, it is usually acceptable, even if it changes the rules substantially (and doesn’t just exclude specific businesses, the way the rezoning in prior nonconforming use cases often does). Missouri Municipal League, Planning and Zoning Procedures for Missouri Municipalities (Sept. 2004) [Under Missouri law, t]he requirement for passage of the rezoning ordinance is a simple majority. It takes a two-thirds vote, however, if the owners of thirty percent or more of the land within 185 feet of the boundaries of the area of land (exclusive of streets and alleys) that is being rezoned sign and acknowledge (before a notary public) a written protest against the rezoning. In some cities there are additional self-imposed limitations on rezoning amendments. These limitations state that, if the planning commission recommends against the proposed amendment, then it will take a three-fourths vote of the council to overturn that action. Should we treat rezoning as legislative in nature, and thus entitled to very deferential judicial review the way the initial adoption of a zoning plan is treated under Euclid, or rather as quasijudicial like a variance and subject to less deference? The courts are divided on this question. e. Contract zoning Contract Zoning is an often derogatory term for a rezoning in which a developer promises to provide certain benefits to the zoning jurisdiction in return for zoning that allows the developer to accomplish its goals. In theory, it should not be allowed, because it makes the idea of general planning seem like a sick joke. In practice, it is hard to distinguish from acceptable rezoning, and courts have increasingly tolerated it, perhaps reflecting the commodification of all other values. Christopher Serkin, Local Property Law: Adjusting the Scale Page 20 of 21 of Property Protection, 107 COLUM. L. REV. 883 (2007). Nonetheless, most suburban communities have not accepted contract zoning, as a political matter. f. Spot zoning Spot Zoning is another kind of rezoning, in which a particular parcel is rezoned (rather than being given a variance, for which the standard would be much higher). Because it can be used as a variance workaround when the zoning board is on the owner’s side, some courts are skeptical of spot zoning. The classic scenario involves a parcel that is zoned to “higher” use, often single-family residential, but abuts a less restrictive zone. The developer wishes to use the parcel for apartments, and argues that the neighborhood is already transitional in character and that another apartment building will be consistent with the overall area. What responses can you imagine the residential neighbors making? Because of the potential for collusion between a zoning board and the owner of a benefitted parcel, spot zoning is more often the legal conclusion of a court striking down a zoning change than a characterization adopted by a zoning board to describe what it is doing. Courts tend to be particularly suspicious when a change confers unique benefits on a specific parcel, making it distinctly more valuable than its neighbors. It is not necessary that the new use cause hardships to the neighbors; the problem is one of unjustified favoritism. g. Upzoning and downzoning You may expect that rezoning often favors developers trying to take advantage of desirable locations. In fact, “downzoning”—making it harder to build at higher densities, which are the most profitable for developers—may often be more successful than upzoning. Homevoters, it seems, are likely to have the political power to protect new housing from coming in and diluting the value of prized locations, or attracting the “wrong” sorts of residents. See Vicki Been, Josiah Madar & Simon McDonnell, Urban Land-Use Regulation: Are Homevoters Overtaking the Growth Machine?, 11 J. EMPIR. LEG. STUD. 227 (2014) (finding, in study of New York City, that areas in proximity to high-quality infrastructure and services were more likely to have zoning changes than other areas, but almost always in the direction of downzoning, so that parcels in high-performing school districts were 43% more likely than the typical parcel to be upzoned but 392% more likely to be downzoned; downzoning was also highly correlated with race, with parcels in areas that were 80% white more than seven times more likely to be downzoned than parcels in areas that were under 20% white.). Page 21 of 21

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