Morgan v. High Penn Oil

1. Morgan v. High Penn Oil • 1945 Πs purchase a 9 acre tract. They have a dwelling house, a restaurant and 32 mobile homes. • Πs take lodgers into their dwelling. • 1950, High Penn Oil begins operating a refinery about 1000 feet from Πs’ dwelling. • The area within 1 mile has very mixed uses, from residences to giant storage tanks to trucking companies to railroad facilities. • Evidence that, 2-3 days a week, refinery emits nauseating gases and odors in great quantities so as to render persons of ordinary sensitivities uncomfortable and sick. • Oil refiner is the only discharger “in annoying quantities” in the area. • Relief sought: temporary damages plus an injunction. Donald J. Weidner

2. Morgan v. High Penn Oil (cont’d) • Nuisance per se or at law “is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of the location or surroundings.” • No nuisance per se in Morgan because the activity is not illegal. • However, some nuisances have been called per se even though they are not illegal and even though questions of reasonableness have been involved • Nuisances per accidens or in fact “are those which become nuisances by reason of their location, or by reason of the manner in which they are constructed, maintained, or operated” • However, some have been held per se because of their location, and this involves questions of reasonableness • There can be a nuisance per accidens even if the facility is operated in a non-negligent manner. Donald J. Weidner

3. Morgan v. High Penn Oil (cont’d) • A nuisance can arise from a negligent act, but it need not • Nuisances often arise from intentional acts. • Morgan: If the nuisance is intentional, it is irrelevant that the defendant exercised great care to avoid it. • Sic utere tuo ut alienum non laedas—so use your own rights that you don’t alienate the rights of another • Begs the question • Hence, offers no guidance Donald J. Weidner

4. Morgan v. High Penn Oil con’t. • Rules: To be actionable, an interference must be: • Substantial; and • it must be either: • Intentional* • 3 different approaches • For purpose of causing harm • Knowing that harm will result • Knowing that harm is substantially certain AND • Unreasonable • 2 very different approaches • Look only at the level of interference (“threshold test”)** • Balance (“Restatement”) Gravity of harm vs. utility of conduct *”A person who intentionally creates or maintains a private nuisance is liable for the resulting injury . . . regardless of the degree of care or skill exercised by him to avoid such injury” ** Under the threshold test “for unreasonableness, at least one court has said that the social utility of the actor’s conduct is irrelevant →  balancing is not admissible into evidence. Donald J. Weidner

5. Morgan v. High Penn Oil con’t. Or • Unintentional AND • Resulting from activity that is • Negligent • Reckless or • Abnormally dangerous • Note: Intentional torts typically result in liability without regard to • Substantiality of harm or • Reasonableness of activity • In effect, there are extra defenses if there is no physical invasion. But see Martin. Martin subjected trespass to utilitarian analysis. Donald J. Weidner

6. “Utilitarian Analysis” of Restatement Utilitarian Analysis Balances the Gravity of the Harm against the Utility of the Actor’s Conduct • Gravity of Harm. Relevant factors: • Extent and character of harm; • Social value of neighbor’s use that is harmed; • Suitability to the locality of neighbor’s use that is harmed; • Burden on neighbor to avoid harm that is alleged. • Utility of actor’s conduct. Relevant factors: • Social value of actor’s conduct; • Suitability of actor’s conduct to locality in question; • Impracticality of actor’s preventing the harm. Donald J. Weidner

7. Morgan v. High Penn Oil con’t. • Text says: The utilitarian analysis suggests essentially a negligence analysis. • It also suggests you can identify the “actor.” • The essence of the Coase theorem is reciprocity: you simply have 2 conflicting land uses. • How do you apply the utilitarian analysis to a noisy apartment house air conditioning unit? Donald J. Weidner

8. Estancias Dallas Corp. v. Schultz • In 1969, an apartment house was completed with 155 apartments in 8 buildings. • An air-conditioning unit and tower that served the entire complex (all 8 buildings) was located at the back of the complex, about 5 feet from the neighbor’s property line – 55 feet from the neighbor’s back door. • Neighbor says: • Can no longer entertain in their back yard; • Can not carry on normal conversations in their home, even with doors/windows closed; • Interferes with their sleep at night. Donald J. Weidner

9. Estancias Dallas Corp. v. Schultz, con’t. Estimated decline in value of land (Neighbors’ estimate) → $ 15,000 Cost of this unit (single unit for all 8 bldgs.) → $ 80,000 Cost savings by this unit → $ 40,000 (separate units for 8 bldgs. would have been $40,000 more) Cost to relocate system → $150,000 Cost to buy the Neighbors’ land → $ 25,000 [Note: Here there was an award of past damages, $9,000 to the wife, $1,000 to her husband, for personal discomfort and health impairment]. Is there a nuisance here? Under what analysis? Why didn’t the utility of Δ’s conduct ($40,000 savings) outweigh the harm to neighbors’ land, which neighbor estimates to be only $15,000? What are the arguments in favor of an injunction remedy? What are the arguments in favor of a damage remedy? Donald J. Weidner

10. Estancias Dallas Corp. v. Schultz, con’t. • Doctrinally, the court says: • After we have determined a nuisance exists, we must • Balance the equities to determine whether an injunction will issue [as opposed to damages] • Injunctive relief should be granted unless an injunction would harm the public interest • How did the court balance the equities? • Do the numbers show that the utility of the apartment owner’s conduct outweighed the gravity of the harm to the neighbors? • Restatement looks at the social value of the actor’s conduct. • “We find little or no testimony . . . reflecting benefit to the public generally. There is no evidence that there is a shortage of apartments in the City of Houston and that the public would suffer by having no place to live.” Donald J. Weidner

11. A Further Note on Coase • Two basic ways to view Estancias • Apartment has inflicted harm on Residence • What relief shall we provide against apartment? • The problem is reciprocal • To avoid the harm to Residence is to inflict harm on Apartment • Under a reciprocity analysis • The real question that has to be decided is: Should Apartment be allowed to harm Residence or should Residence be allowed to harm Apartment? • The problem is to avoid the more serious harm • We need to know • the value of what is obtained and • the value of what is sacrificed to obtain it Donald J. Weidner

12. More Coase • The authors conclude that, under the Coase approach • Coase would want us to compare the Oil Co’s abatement costs to the plaintiff’s damages • or to the cost of plaintiff’s avoidance measures, whichever is less • Morgan is correct if the cost of abatement to the High Penn Oil Co. is less than the costs its operations necessarily impose on the plaintiffs • Does it follow that plaintiffs should bear the costs of avoidance if they are the cheapest cost avoiders? • There are two separate questions: • What is the cheapest way to avoid the problem? • Who should bear the costs of avoidance? • For example, in Morgan, you might conclude that the cheapest abatement measures can be taken by the plaintiffs • but that as a matter of fairness the Oil Co. should bear those costs Donald J. Weidner

13. Nuisance – Introductory Recap Text: An interference with use and enjoyment of land, in order to give rise to liability, must be: • Substantial; and • it must be either: • Intentional • 3 different tests • For purpose of causing harm • Knowing that harm will result • Knowing that harm is substantially certain AND • Unreasonable • 2 fundamentally different approaches • Level of interference (“threshold test”) • Balance (“Restatement” “utilitarian” approach) Gravity of harm vs. utility of conduct Donald J. Weidner

14. Nuisance – Introductory Recap con’t. Or • Unintentional AND • Resulting from activity that is • Negligent • Reckless • Abnormally dangerous Donald J. Weidner

15. “Utilitarian Analysis” of Restatement Utilitarian Analysis Balances the Gravity of the Harm against the Utility of the Actor’s Conduct • Gravity of Harm. Relevant factors: • Extent and character of harm; • Social value of neighbor’s use that is harmed; • Suitability to the locality of neighbor’s use that is harmed; • Burden on neighbor to avoid harm that is alleged. • Utility of actor’s conduct. Relevant factors: • Social value of actor’s conduct; • Suitability of actor’s conduct to locality in question; • Impracticality of actor’s preventing the harm. Donald J. Weidner

16. The Second Restatement • The Second Restatement moves an intentional nuisance closer to an intentional trespass—limiting somewhat the defense of reasonableness. • Under the Second Restatement, an intentional nuisance is unreasonable: • if the gravity of the harm caused outweighs the utility of the defendant’s conduct, or, • [Even if the utility of the conduct outweighs the gravity of the harm,] if there is serious injury and the defendant could compensate for this and like injuries and still stay in business. • The balancing under (1) is adequate if the suit is for an injunction. • The question of the financial burden of the cost of compensating for the harm under (2) is appropriate if the suit is for damages. Donald J. Weidner

17. Boomer v. Atlantic Cement • Δ Cement company is sued by a group of neighbors who allege that its operations cause dirt, smoke, and vibrations that reduce the value of their property. Πs seek damages and injunctive relief. • Court of Appeals says: • Yes, nuisance; • Yes, injunction, but • Injunction lifted on payment of permanent damages. • Stated differently, the Court give the neighbors and entitlement but enforces it with a damage remedy. Donald J. Weidner

18. Boomer v. Atlantic Cement con’t. • Boomer overrules the following old law: • Where a nuisance has been found and where there has been any substantial damage…an injunction will be granted. • Is there balancing either • To find a nuisance? • None is discussed. • To decide whether an injunction will be the remedy? • Court denies an injunction because of “the large disparity in economic consequences of the nuisance and the injunction.” • “The total damage to plaintiffs’ properties [$185,000] is . . . relatively small in comparison with the value of defendant’s operation [$45,000,000] and with the consequences of the injunction which plaintiffs seek [300 jobs].” Donald J. Weidner

19. Boomer v. Atlantic Cement con’t. • What is it about this case that moved the court to change the law? • There are many polluters and this single cement plant has been the target of many neighbors. • Any one neighbor could hold out. • Many neighbors cold assert loss beyond “economic loss.” • Issues of causal complexity. • Cost to avoid nuisance? Rate of research is beyond the control of cement co. • Don’t want to shut down cement co. when it can not pass on its cost. • “all of the attributions of economic loss to the properties on which Πs’ claims are based will have been redressed.” • The risk of being required to pay permanent damages to injured property owners is a reasonable effective spur to research for improved techniques to minimize nuisance. • Theory of damages: the “servitude on land’ of Πs imposed by Δ’s nuisance. Donald J. Weidner

20. Spur Industries v. Del Webb • In 1956, feedlots were developed by Spur’s predecessor in interest. • “This area is well suited to cattle feeding.” • In 1959, Del Webb begin to plan Sun City, several years after feedlots were established in this primarily agricultural area. • Del Webb purchased 20,000 acres of farmland at $750 an acre, considerably less than land closer to Phoenix. • In 1960, Spur purchases the feedlots and begins expanding. • By 1962, Spur had gone from 35 to 114 acres. Donald J. Weidner

21. Spur Industries v. Del Webb con’t. • At the time of suit, Spur was feeding up to 30,000 head of cattle, producing over 1,000,000 pounds of wet manure a day. • Spur’s activity was not ultra-hazardous, nor was it recklessly or negligently conducted. • Spur used good feedlot management and good housekeeping practices. • By the time of suit, Spur and Del Webb had expanded to within 500 feet of each other. Donald J. Weidner

22. Spur Industries v. Del Webb con’t. • “neither the citizens of Sun City, nor Youngstown [a small retirement community (adjacent to Sun City) formed just two years before Spur’s predecessor commenced the feedlot] are represented in this lawsuit and the suit is solely between Del E. Webb Development company and Spur Industries, Inc.” • Del Webb “[alleged] that in excess of 1,300 lots in the southwest portion were unfit for development for saleas residential lots because of the operation of the Spur feedlot.” • If the lots became marketable at, say $5,000 each, sale of the lots alone would yield Del Webb $5,000 per x 1,300 lots = $6,500,000. • Perhaps more profit would lie in home construction and sale. Donald J. Weidner

23. Spur Industries v. Del Webb con’t. • 2 Issues: • May a feed lot be enjoined at the suit of a real estate developer when the feedlot becomes a nuisance only because of the developer’s activities that bring residences into the area? • If the feedlot is enjoined, may the developer be required to indemnify the feedlot for losses caused by the injunction? • Arizona statute declares this to be an enjoinable “public nuisance” “dangerous to the public health” in a “populous area” “as far as the people in the southern portion of…Sun City were concerned.” Donald J. Weidner

24. Spur Industries v. Del Webb con’t. • Court cited Boomer for the proposition that, in the balancing of the conveniences cases, [presumably, private nuisance cases] damages may be the sole remedy • noting, further, that “[w]here the injury is slight, the remedy for minor inconveniences lies in…damages rather than in …injunction.” • Approving and applying these notions, the court said that “At most, residents of Youngstown [the earlier, smaller retirement community that did not come as close to Spur as Sun City] would be entitled to damages rather than injunctive relief.” Donald J. Weidner

25. Spur Industries v. Del Webb con’t. • The court said the statute declared Spur’s operation of the feedlot to be a public nuisance viz-a-viz the citizens in the southern part of Sun City. • Even though those citizens were not a party to the suit, they “could have successfully maintained an action to abate the nuisance.” • “Del Webb, having shown a special injury in the loss of sales, had standing to bring suit to enjoin the nuisance.” • Even though: • if Del Webb were “the only party injured, we would feel justified in holding that the doctrine of ‘coming to the nuisance’ would have been a bar to the relief asked by Webb.” Donald J. Weidner

26. Spur Industries v. Del Webb con’t. • Was Del Webb guilty of tortious confiscation? • Is a judicial “taking” avoided because compensation was paid? • The first user with sunk cost of investment gets investment protected with a damage remedy • Del Webb is forced to internalize the cost it has imposed on the first user, Spur. • Del Webb can presumably pass on the costs to new buyers • Second users will have to choose among competing locations, selecting one with the lowest total costs • Some have said this prevents “demoralization costs” that might arise from an injunction against a long-established user in favor of a newcomer Donald J. Weidner

27. Nuisance – Four Outcomes • Common law courts “fiddled around with rules of reasonableness” to locate the entitlement • And with doctrines like “balancing the equities” to decide the appropriate remedy. • Law and economics suggests a clearer or more functional way • either to rationalize what courts have done (a positive view) • or suggests what they should do (a normative view) Donald J. Weidner

28. Nuisance – Four Outcomes • Some Terms • P = Polluter • R = Receptor • E= Entitlement • If P and R are placing competing demands upon, say, the air, which of them should have the right to use the air—the Entitlement? • How should the Entitlement be protected? Donald J. Weidner

29. Nuisance – Four Outcomes • To protect E with an injunction is to say that E may not be interfered with except upon payment to the holder of E of an amount acceptable to the holder of E. • There must be a voluntary transaction. • To protect E with damages is to say that E may not be interfered with except upon payment to the holder of E of an amount determined by the court to be acceptable compensation. • There is no voluntary transaction. Donald J. Weidner

30. Nuisance – Four Outcomes • The goal: Locate E and protect it by the rule that, in a given case of conflict over a resource, yields the best chance of achieving • efficiency and • fairness. • Efficiency means maximizing the value of the resource, given the conflicting wants of P and R. • Fairness means everything else that suggests who should have E and how E should be protected. Donald J. Weidner

31. Nuisance – Four Outcomes • Since Entitlement can be in either Polluter or Receptor, and protected by either an injunction or damages, there are 4 possible outcomes • Use continues – no relief to Receptor • Gives the E to P that P can choose to sell or not to sell • Protect P’s E with a property rule • Use continues if Polluter pays damages to Receptor (Boomer) • Recognizes a property right in Receptor but forces Receptor to sell it to Polluter if Polluter is willing to pay for it • Protect Receptor’s Entitlement with a liability rule • Use must stop (Estancias) • Gives the property right to the Receptor that Receptor can choose to sell or not to sell • Protect Receptor’s entitlement with a property rule • Use must stop if Receptor pays damages to Polluter (Spur) • Recognizes a property right in Polluter but forces Polluter to sell it to Receptor if the Receptor is willing to pay for it • Protect Polluter’s right with a liability rule Donald J. Weidner

32. Remedy for Nuisance (cont’d) For Damages Many polluters. Any neighbor granted the injunction could hold out [and prevent bargaining] Even in two-party situation, bi-lateral monopoly problems arise. Theory of damages: “The servitude imposed on land.” Can’t put burden of all R&D on one polluter. Avoid shutting down a plant when it cannot pass on its costs. Can fully address all claims to economic loss. Can encourage efficiency by internalizing all economic cost. For Injunction Firmest support of property rights in neighbors. Protects land in natural condition. Protects against non-economic injury. Provides continuing incentive to find cleaner ways of doing business. Forces polluter internalize all cost. Damages may be hard to calculate Donald J. Weidner

33. Village of Euclid v. Ambler Realty Co. LAKE 3 ½ miles ERIE Lake Shore Blvd. 3 ½ miles St. Clair Ave. Lake Shore Railroad HEAVY INDUSTRY [Heavy part of Ambler Realty’s tract] Zoned Nickel plate railroad Euclid Ave. Appellee’s tract in Q: 68 acres Restricted residential plats to East and West 5,000-10,000 people Primarily vacant land [nothing there except farms]. In 1922, the Village Council adopted an ordinance establishing a comprehensive zoning plan. Donald J. Weidner

34. Euclid (cont’d) Because the scheme is cumulative zoning, U6 can have in it all uses other than those completely prohibited Nickel Plate Railroad U6 U6 Max: Heavy Industry E. 204th St. 130 E. 196th Street Max. Apt. Houses U3 U3 Max: Apt. houses (no industry) Max. 2 family dwellings 620’ U2 U2 Max: 2 family dwellings Euclid Ave. LO’s 68 acre tract “comes under U2, U3 and U6. The larger part of LO’s tract is U6 [none of Ambler Reality’s parcel is in U1]. Primarily U1 Relief sought: enjoin enforcement of zoning ordinance. Attack: apparently to the ordinance “on its face.” Donald J. Weidner

35. Euclid (cont’d) • Underlying principles of Euclidean zoning: • Segregation of uses is desirable. • Different uses harm each other. • Wholesome housing is the central problem, to which all else is subsidiary. • Wholesome housing is, preferably, single-family detached homes with a yard around. • 2 family homes if single family is not feasible; • Apartment houses, if necessary. • Open spaces are desirable for healthy living. • Open spaces should surround houses. • Hence, setback lines in front, back, sides, minimum lot size requirements, etc. • If feasible, there should be open spaces around factories (industrial parks). • Good planning protects against change. Donald J. Weidner

36. Village of Euclid v. Ambler Realty Co. (cont’d) • Adjoining Ambler Realty’s tract, “both on the east and on the west, there have been laid out restricted residential plots on which residences have been erected.” • Court seems to accept as a matter of fact that: • “the normal and reasonably to be expected use and development of that part of appellee’s land adjoining Euclid Avenue is for general trade and commercial purposes” and • “the normal and reasonably to be expected use and development of the residue of the land is for industrial and trade purposes.” Donald J. Weidner

37. Village of Euclid v. Ambler Realty Co. (cont’d) • Ambler Realty claimed that the 14A’s (due process and equal protection) clauses were violated [in addition to clauses of the Ohio constitution]. • Ordinances such as that in Euclid “must find their justification in some aspect of the police power asserted for the public welfare.” • Nuisance law can provide helpful analogies. • Rational relationship test: • “If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” Donald J. Weidner

38. Euclid (cont’d) • Things other than those clearly offensive are excluded. • “But there is no more than happens in respect of many practice–forbidding laws…although drawn in general terms as to include individual cases that may turn out to be innocuous in themselves.” • “The inclusion of a reasonable margin, to insure effective enforcement, will not put upon a law, otherwise valid, the stamp of invalidity.” • Court then emphasizes that Euclid “is politically a separate municipality.” • If it is proper to separate industrial from residential, it is no less so because it takes the industrial flow from where it would otherwise go. Donald J. Weidner

39. Village of Euclid v. Ambler Realty Co. (cont’d) • In the future, there may be • “cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way.” • According the Court: • “The serious question…involves the validity of what is really the crux of the more recent zoning legislation, namely, the creation and maintenance of residential districts, from which business and trade of every sort, including hotels and apartment houses, are excluded.” Donald J. Weidner

40. Village of Euclid v. Ambler Realty Co. (cont’d) • Court: “before the ordinance can be declared unconstitutional,” “it must be said…that such provisions are clearly arbitraryand unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Donald J. Weidner

41. Village of Euclid v. Ambler Realty Co. (cont’d) [Legitimate goal] General welfare Basically a presumption of validity [no suspect class] Presumption of validity [Now, the: rational relationship “test”] “Arbitrary and Unreasonable” Having “No substantial relation” to a legitimate goal RECALL: 14A, §1: “No state shall…deprive any person of…property, without due process of law; nor deny to any person…the equal protection of the laws.” 5A: “No person shall…be deprived of property without due process of law; nor shall private property be taken for public use, without just compensation.” Euclid was not decided as a “taking” case. Donald J. Weidner

42. Village of Euclid v. Ambler Realty Co. (cont’d) • Euclid Tests: • Presumption of validity. “If the validity of the legislative classification…be fairly debatable, the legislative judgment must be allowed to control.” • “[I]t must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation, to the…general welfare.” • Leaving the Door Open: • “It is true that when, if ever, the provisions…come to be concretely applied to particular premises [they] may be found to be clearly arbitrary and unreasonable.” Donald J. Weidner

43. Nectow v. City of Cambridge • Π signed a contract to sell land. • Before the sale was closed, 29,000 square feet out of 140,000 of Π’s land was put in R-3, in which dwellings and hotels are permitted (along with schools, churches, clubs). • The new zone excludes all business and industry. • “The effect of the zoning is to separate from the west end of [Π’s] tract a strip 100 feet in width.” • The buyer refused to close the sale. • Relief sought: Enjoin enforcement of ordinance as it applies to Π; issue Π a building permit. • Attack: Unlike Euclid, attack is “as applied” Donald J. Weidner

44. Nectow v. City of Cambridge (cont’d) RESTRICTED RESIDENTIAL Some residences Henry Street 100 Feet VACANT Π owns Some residences 264 Feet Brooklyn Street 304 Feet RESTRICTED RESIDENTIAL UNRESTRICTED 75 Feet 140,000 Square Feet Ford Motor Co. Factory Soap Co. RR Tracks UNRESTRICTED Donald J. Weidner

45. Nectow v. City of Cambridge (cont’d) Important Goal Substantially further [narrowly tailored 1A] Intermediate Review Quasi-suspect class [gender] 2 Compelling Goal Necessary Suspect Class* [race] Strict scrutiny 3 City of Cleburne v. Cleburne Living Center Equal Protection Legitimate Goal Rationally Related Assumption of validity No suspect class 1 *Strict scrutiny will also apply if thee is arguably a direct assault on a fundamental right, such as speech, association. Donald J. Weidner

46. Nectow v. City of Cambridge (cont’d) • Consider the findings of the master in Nectow: • “No practical use can be made of the land in question for residential purposes.” • [there would be “no adequate return” on any investment to develop the property for residential purposes]. • “the districting of plaintiff’s land in a residence district would not promote the general welfare.” • “A court should not set aside the determination of public officers in such a matter unless it is clear that their action ‘has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.” Donald J. Weidner

47. Nectow v. City of Cambridge (cont’d) • Other statements in Nectow: • “the locus is of comparatively little value for the limited uses permitted by the ordinance.” • Although the Court cited the “no foundation in reason” language of Euclid, it said • “the inclusion of the locus in question is not indispensable to the general plan.” • The finding that the health, safety, general welfare will not be promoted “is determinative of this case.” • “[t]he ban of the 14A” is violated. • Substantive due process? Donald J. Weidner

48. Nectow v. City of Cambridge (cont’d) • One additional fact that might explain why the court appeared so solicitous for the plaintiff: • “It further appears that provision has been made for widening Brookline street, the effect of which, if carried out, will be to reduce the depth of the locus to 65 feet.” • The ratio of Nectow: • Because no substantial relation to general welfare, the zoning “comes within the ban of the 14th Amendment.” • What is “the ban of the 14th Amendment” that operates in Nectow? Donald J. Weidner

49. Standard State Zoning Enabling Act • Section 1, entitled “Grant of Power,” provides “For the purpose of promoting health, safety, morals or the general welfare of the community, the legislative body of cities . . . is hereby empowered to regulate and restrict” etc. • Section 2, entitled “Districts,” provides that “For any or all of said purposes the local legislative body may divide the municipality into districts . . . and within such districts it may regulate . . . . All such regulations shall be uniform for each class or kind of building throughout each district . . . .” Donald J. Weidner

50. SSZEA (cont’d) • Section 3 provides that “Such regulations shall be made in accordance with a comprehensive plan” to promote the general welfare, etc. • Note the authors say the emphasis has been on whether the zoning ordinance is a comprehensive plan rather than “in accordance with” a plan. • Section 7 provides for a board of adjustment (also known as a board of appeals) has the power: * * * • 2. “To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance.” • 3. “To authorize . . . such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement . . . will result in unnecessary hardship . . . .” Donald J. Weidner