Understanding Special Exceptions in Zoning Laws: North Shore Analysis

1. Property II: Class #18Monday 10/22/18Power Point PresentationNational Nut Day & National Color Day I think Congress meant us!

2. Music to Accompany GageRicky Nelson, Ricky (1958) & Songs by Ricky (1959) On Course Page Now • Complete Chapter 3 Materials & Updated Syllabus • All Chapter 3 Assignments • Updated Mixed Chapter Qs Important Upcoming Dates • Thu 11/1: 4th Written Assignment Due @ 8 p.m. (Mixed Q M2) • Fri 11/2: Fajer Exam Workshop Room E352 @ 1-2:20 p.m.

3. Chapter 3: Selected Topics in Zoning: Flexibility Devices #2: Special Exceptions

4. Special Exception (SE) Analysis in North Shore • “SE allows the … owner to put his property to a use expressly permitted by the ordinance. The inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood.” • The burden of proof on an applicant for a SE permit is much lighter than that required for a hardship variance. It [requires] the applicant to show … that the use is contemplated by the ordinance subject only to "conditions" attached to its use to minimize its impact on the surrounding area.

5. Special Exception (SE) Analysis in North Shore • Assume the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood.” • Point of any conditions is only “to minimize impact of the use on the surrounding area.” • However, court lists some detailed facts without explicitly explaining relevance of each. DQ3.26 asks for possible relevance of some of these.

6. Possible relevance to special exception analysis in North Shore of .., • The lease term is from May 1, 1961 to February 28, 2003: • All available space within the 200 feet business district has been blacktopped for parking during the past nine years. (c) 22 parking spaces are needed for employees' cars.

7. Possible relevance to special exception analysis in North Shore of .., All these go to need for special exception; implicit part of analysis. • The lease term is from May 1, 1961 to February 28, 2003: Application is in 1969. If lease term ended in 1971, could argue that w/o evidence restaurant would continue longer, any benefit is not worth even minimal harm to surrounding area. • All available space within the 200 feet business district has been blacktopped for parking during the past nine years. No additional available space for parking w/in existing zoning rules. • 22 parking spaces are needed for employees' cars. Existing number of parking spaces insufficient for restaurant patrons when full w/o interfering w traffic.

8. Possible relevance to special exception analysis in North Shore of .., (d) A median was installed on Northern Boulevard three years ago preventing traffic traveling eastward from turning left into the driveway on Northern Boulevard. (e) There was an adjacent water tower, 80 feet to 100 feet tall. (f) North Shore has agreed to provide a 10-foot screen of shrubs or trees at the rear of the extension.

9. Possible relevance to special exception analysis in North Shore of .., All these go to “harm to surrounding area. “ (d) A median was installed on Northern Boulevard three years ago preventing traffic traveling eastward from turning left into the driveway on Northern Boulevard. Recent change outside O’s control makes effects of small parking lot worse on surrounding area. SE will improve. (e) There was an adjacent water tower, 80 feet to 100 feet tall. Probably showing not all residential & water tower lot won’t be harmed. (f) North Shore has agreed to provide a 10-foot screen of shrubs or trees at the rear of the extension. Helps minimize harms (view, noise, fumes)

10. Held to be Improper Delegation in Cope & Earlier Cases: • “That the use requested will not adversely affect the health, safety, or general welfare of the public. • “That the use requested will not tend to devaluate or alter the essential characteristics of the surrounding property.” • Power over "all major changes of uses of land, buildings or structures " considering “harmony with the comprehensive plan for municipal development and the purpose and intent of this ordinance, in accordance with the public interest and in support and furtherance of the health, safety and general welfare of the residents of the municipality,"

11. Held to be Improper Delegation in Cope & Earlier Cases: • The less restrictive regulations would apply to a lot split by two zones [like North Shore facts] "provided, however, that such extension of use into the more restricted portion shall meet the approval of the Board of Zoning Appeals." • Unguided authority to approve or disapprove of the location of proposed trailer parks. “To permit the broad legislative judgment to be delegated to the Board ‘would be equivalent to conferring upon the board of appeals the power to rescind the ordinance with respect to such uses.’"

12. The Maine Supreme Court in footnote 3 in Cope declines to address the “will not tend to devaluate” requirement of Section 1107(4). What arguments do you see about whether or not that requirement is unconstitutional under the court’s analysis?

13. The Maine Supreme Court in footnote 3 in Cope declines to address the “will not tend to devaluate” requirement of Section 1107(4). What arguments do you see about whether or not that requirement is unconstitutional under the court’s analysis? • May turn on: • Does court read statute to require expert evidence on impact on PVs? • Does court read “tend” to confer discretion or to mean something like “make likely” a devaluation of “the surrounding property”?

14. Chapter 3: Selected Topics in Zoning Flexibility Devices #3: Non-Conforming Uses

15. Definition from Gage: “[A] lawful use existing on the effective date of the zoning restriction and continuing since that time in nonconformance to the ordinance.” Our Two Issues: • Validity of Termination/Amortization (Gage Today) • Validity of Alterations of Use or Facilities (Parrillo’sWednesday)

16. Riff on 1954: Gage (NCUs are biggest problem w zoning), Ricky Nelson, Christian Dior, Joseph McCarthy + Note on Length of Case What are the harms caused by allowing non-conforming uses to continue?

17. Harms caused by allowing non-conforming uses to continue include: • Lack of uniformity • Tangible harms that led to exclusion & resulting drop in surrounding PVs (noise in Gage itself) • Possible monopoly status of NCU (e.g., gas station or deli in residential zone) What are the harms caused by shutting down non-conforming uses immediately?

18. Harms caused by allowing non-conforming uses to continue include: Lack of uniformity Tangible harms & harm to PV; Monopoly status Harms caused by shutting down non-conforming uses immediately include: • Loss of investment in construction of structures tied to use & unmovable fixtures • Loss of investment in land (if worth less under allowed use) • Costs of relocating and re-establishing business Does an amortization period adequately balance these concerns?

19. Gage distinguishes Jonesbecause… • Only applied to single type of use (v. all business) • Operated retroactively (v. only prospectively) • Shut down existing businesses with large investments • Immediately (v. time to recover investment) • In buildings specific to use (v. usable for conforming uses) Are these distinctions convincing?

20. Different Rules for Shutting Down NCUs • Hadacheck: Always Constitutional if NCU is Plausibly Viewed as Public Nuisance (even if not w/in technical definition). Otherwise: • Some states: Cannot shut down with or without amortization (e.g., NJ) • Some states: • OK if reasonable amortization period (e.g., CA, FL) • Our Issue: Whenis amortization period reasonable/valid? • Note Louisiana case allowing one year (for small drug store.).

21. What considerations does Gage make relevant to validity of amortization period? (Consider facts in last paragraph) These go to ability to recoup investment: • The ordinance does not prevent the operation of defendants' business; it merely restricts its location. • Discontinuance of the nonconforming use requires only that Gage move his plumbing business to property that is zoned for it. Such property can be found within a half mile of Gage's property. • The cost of moving is $5,000 or less than 1 per cent of Gage's minimum gross business for five years, or less than half of 1 per cent of the mean of his gross business for five years. • He has had eight years within which to move. • The property is useable for residential purpose. Since 1930 Lot 221 has been used for residential purposes. Lot 220, now unimproved, can be improved for the same purposes.

22. What considerations does Gage make relevant to validity of amortization period id? (Consider facts in last paragraph) These seem to go to extent of harm to Z plan, which Gage doesn’t explicitly make relevant. • Lots 220 and 221 are several blocks from a business center and it appears that they are not within any reasonable or logical extension of such a center. • All of the land within 500 feet of Gage's property is now improved and used for such purposes. Are there other considerations you think should be relevant?

23. Can a local government rely on Gage to uphold a five-year statutory amortization period in all future cases or must it expect to address the validity of the time limit on a case-by-case basis? Long list of facts strongly suggests case-by-case.

24. Review Problem 3B Non-Use Variance

25. li • To build a house, M bought an undeveloped square 1/2-acre lot in a residential n-hood. Creek runs diagonally across the property • To retain creek, M’s architects house design = shaped like large arch. • 1st floor = 2 rectangles (each w 2 rooms + sm bath) located on either side of creek and parallel to it. • 2d floor (4 bedrooms + two baths) atop both 1st floor sections + space betw, completing the arch. • CLEAR TO EVERYONE? • Design conforms to zoning is every way but two. • Total area of 1st floor is ~150 sqft smaller than req’d. • Due to diagonal orientation of house, 2 corners are 18” closer to the property line than req’d. • Zoning Bd suggests M use “normal” house design + run water from Creek thru a pipe below house.

26. Commons: Exceptional & Undue Hardship • No effective use can be made of property absent the variance. • Total area of 1st floor is ~150 sqft smaller than req’d. • 2 corners are 18” closer to the property line than req’d. • Seems unlikely unless (i) aesthetic value of creek included in price of land; OR (ii) environmental regs forbid running the stream underground; OR (iii) very high costof running stream underground • Consider whether self-inflicted. Probably not since didn’t change lot. • Consider attempts to buy/sell property to remedy Z problem (How might buying help?) Could see if possible transactions.