1. Chapter 18 Zoning

2. Zoning Basics Standard State Zoning Enabling Act. This act was passed by the U.S. Department of Commerce to allow local government authorities to pass zoning laws that “lessen congestion…promote safety…prevent overcrowding…avoid undue concentration of population…and promote health and general welfare. Constitution – Not a Taking. U.S. Supreme Court declared zoning constitutional in Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926) based on the welfare/police powers clause. It’s not a taking even if re-zoning reduces value. – Health – Safety – Moral Interests – Cannot be: Arbitrary or Discriminatory Purposes. – Divide community into districts – Permit and prohibit certain activities in each zone – Controls community development – Prevents the problems of nuisances

3. Types of Zoning Use restrictions (see next slide) Cumulative zoning. Higher uses are allowed in lower categories. Residential is permitted in commercial but not vice versa. Noncumulative zoning Zoning Categories 1. Residential, single-family 2. Residential, multiple-family 3. Residential, apartment 4. Commercial, office 5. Commercial, business 6. Industrial

4. Intensity Zoning 1. Height Limitations. Building-height limitations 2. Setbacks for buildings (minimum distance between the street or sidewalk and the structure) 3. Minimum lot sizes (may be total square feet or minimum length and width) 4. Maximum structures per area (often called density—specifies, for example, the number of houses that may be built in an R-1 tract) 5. Floor area ratios Aesthetics Zoning 1. Protects Beauty 2. Welfare Purpose

5. Aesthetic Zoning Must be coupled with health and welfare – strictly aesthetic zoning not allowed in most states (low standard for health and safety). Mountainside construction prohibited because of concerns about slides as well as aesthetics. Prohibitions on signs because of distractions to driving. End-of-Chapter Q 8 – Traditional Homes Only: Can zoning prevent a person from building a modern house design in a neighborhood of traditional homes? Not actual house

6. Too large of a sign? Catsiff v. McCarty (#X) 274 P3d 1063 (Wash. App 2012) Sign Ordinance – Walla Walla Wa. To coordinate downtown revitalization and to further central business district renovation as well as to preserve the historical resources. Octopus Toy Store. He was issued a sign permit. Later Painted Store. He later painted the back of the store and the front with a hidden octopus. Unconstitutional? Is the sign ordinance unconstitutional? 6 Sign coving multiple windows

7. Mississippi Manufactured Housing Ass’n v. Board of Sup’rs of Tate County (#x) 878 Sou2d 180 (Miss App 2004) Tate County revised its zoning plan. Old Plan. Allowed manufactured homes in R-3 and in A-1 (agricultural). New Plan. Has five zones and allows manufactured homes in R-M (Low population density manufactured and modular homes and AG (agricultural – low density). Mississippi Manufactured Housing Association Sues. Arbitrary and capricious and therefore unconstitutional. Also argued that the express purpose was to exclude manufactured housing. – New Law Requires Larger Lots for Manufactured Housing.. – Manufactured homes are no different than site built homes. 7

8. Gardner v. City of Tupelo (#X) 76 So.3 rd 204 (Miss.App. 2011)j 45 Acre Plot Intended for Large Lot Residential. The owner wanted to develop the plot as large lot residential but later changed his mind. Request for Rezoning. He requested a change to Planned Unit Development (PUD) consisting of single family homes and a retirement community. The zoning change was approved but a lawsuit was filed. Changes. Toyota plan scheduled to be built 7 miles away and a school built nearby. No clear testimony on how that changes character of the land. Rezoning Not Allowed – Arbitrary and Capricious. There needed to be a change in the character or use of the land to change the zoning. 8 Sign coving multiple windows Consider 18.1 – Rezoning a concrete factory into a junk yard. Arbitrary?

9. Salib v. City of Mesa (#x) 1333 P2d 756 (Az App 2006) Window Sign Size Restriction Restriction on size of window signs. Not more than 30%. Salib (owner of Winchell’s sued) – Free speech issue. Test – Substantial Interest – Material Advances that Interest – Narrowly Drawn 9 Doughnut window sign Sign coving multiple windows

10. Consider 18.2: Prohibition on signs with backlighting. Tourist City. Conway, New Hampshire is a historic town and a tourist destination. Prohibits Signs Illuminated from Within. The town did this solely for aesthetic reasons. 10 Illuminated from within External Illumination

11. City of Edmonds v. Oxford House, Inc. (#X) 514 US 725 (1995) Zoning Requires Single Family. The group home had 12 unrelated occupants. Americans with Disabilities Act and FHA Act. The law prohibits discrimination against people with disabilities and recovering addicts are disabled. State of Washington Law. Not allowed to treat persons with handicaps differently than a similar residential structure shared by unrelated individuals. Edmonds Agrees to Allow Group Homes in Multi-Family Zoned Areas. Single “Family” Restrictions vs. “Occupancy” Restrictions. Because there is no restriction on the number of related occupants there is no limit? 11

12. Consider 18.4, : HIV home. “family group home” defined. A home of no more than eight unrelated persons which is sponsored and operated by a non-profit group, organization, or corporation for a group of persons to live together in a single communal living arrangement where the residents permanently live together as the functional equivalent of a traditional family in a non-profit dwelling unit maintaining a non-transient common household with single cooking and dining. 12

13. Consider 18.1, p. 515: Legal Challenge to Zoning Ordinances. 13 Wants Multi-family. Land owner wants to get approval for multi-family development in violation of zoning. Area to Have Fastest Growth Rate in State. Holding: "[t]owns may not refuse to confront the future by building a moat around themselves and pulling up the drawbridge."

14. Lucas v. South Caroline Coastal Council (#X) 505 US 1003 (1995) Takings Case Paid $975,000 for Two Lots. He wanted to build a beach front cabin on it. He purchased in 1985 State passed a Beachfront Management Act that banned building on his two lots. Renders the land valueless. Law passed in 1985. Takings Case. He sued for a taking under the constitution. 14

15. Change to zoning for gun club – Non-Conforming Use Grandfathered In Re Hale Mountain Fish and Game Club, Inc. (#x) 969 A2d 692 (Vt 2009) Gun club grandfathered in under zoning rules. Noise increased per neighbors and club agrees some practices have changed over 30 plus years. The zoning board permitted the club to continue its use. Neighbors sued seeking an overturn of the board’s holding based on a “substantial change” to the usage. 15 Ethical Issue: Community Garden on private land. “I’m very confident this is the morally right thing to do, to take a principled stand in solidary with the farmers.” Actress Daryl Hanna

16. End-of-Chapter Q 5: Grandfathered fair ground Fairground Grandfathered Zoning. Change to Race Track? 16 Change from Grandfathered Fairgrounds to a New Nonconforming Use?

17. Telecommunications & Zoning Telecommunications Act of 1996 Local zoning cannot prohibit cell phone towers Time limits for reviewing applications for towers NIMBYs have less control

18. Procedural Steps in Zoning Enabling Act Interim Zoning Master plan Zoning commission Board of Adjustment Enforcement – Special permits – Variance – Nonconforming use

19. Hold Fast Tattoo, LLC. V. City of North Chicago (#X) 580 F Supp2d 656 (ND Ill 2008), p. 517 1 st Amendment Right to Tattoo? Tattoo Shop Denied Special Use Permit. – “not the kind of business” we want. First Amendment. Speech protected. Are tattoos speech? Is the process of tattooing speech? 19 Consider 18.3: Adult entertainment business zoning – valid? Yes, if the city offers reasonable areas that the businesses could move to or start.