Zoning Variance for Unique House Design: Challenges and Considerations

1. Property II: Class #19Wednesday 10/24/18 Power Point PresentationNational Food Day & United Nations Day

2. Music to Accompany Parrillo’sDonna Summer, On the Radio (Greatest Hits) (1979) Cancelled Class(10/10)  1 on 1 Meetings Pre-Exam 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. Review Problem 3B Non-Use Variance

4. 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. • 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.

5. 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 • aesthetic value of creek (reasonably) included in price of land; OR • environmental regs forbid running the stream underground; OR • very high cost of running stream underground or building on stream banks,

6. Commons: Exceptional & Undue Hardship • Consider whether self-inflicted. Probably not since didn’t change lot. • Meaning in Commons: If the property owner or his predecessors in title created the nonconforming condition, by having conforming lot when ordinance passed or subsequently, then selling off part. • Probably can’t claim paying for design as a hardship since it is non-compliant. • Consider attempts to buy/sell property to remedy Z problem (How might buying help?) Could see if possible transactions.

7. L.A. County: Practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance. • Total area of 1st floor is ~150 sqft smaller than req’d. • 2 corners are 18” closer to the property line than req’d.

8. L.A. County: Practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance. • Total area of 1st floor is ~150 sqft smaller than req’d. • 2 corners are 18” closer to the property line than req’d. Might focus on differences from using Commons. E.g., • Probably need smaller extra cost of “normal” house • Probably need smaller loss in PV from burying stream

9. No substantial impairment of Z Plan? • 2 corners are 18” closer to the property line than req’d. • Purpose of reqmt? Air/Space/Light, etc. • Substantially satisfied? Likely where only 2 small triangles over line & whole design pretty airy • Total area of 1st floor is ~150 sqft smaller than req’d. • Purpose of reqmt? Substantially satisfied?

10. Total area of 1st floor is ~150 sqft smaller than req’d. • 2 corners are 18” closer to the property line than req’d. No substantial impairment of Z Plan? No substantial detriment to public good? Other Arguments/Concerns?

11. Considerations Include… • Whether the arch house seems wildly out of place (are the houses otherwise uniform)? • Whether its value is comparable to that of neighboring houses? • Whether lots of other folks have similar problems that will give rise to lots of requests for variances (if not, can argue harsher problems than others in zone)? • Whether lots of variances to these or similar regulations already have been given out?

12. Written Submission #4: Due Thursday 11/1 @8pm • One 7-Page Question: Mixed Chapter Question M2 • Lawyering Question w Nuisance, HOA, Zoning • MultichapterLawyering Q on Final: Take Opportunity to Do Carefully & Get Feedback • Most of Old Lawyering Qs from Closed Book Exams; Because Yours will be Open Book, • I will expect you to be thorough • I will reward focus & detail on issues specific to your Q Specific

13. Written Submission #4: Due Thursday 11/1 @8pm • One 7-Page Question: Lawyering Question M2 • Specific Prep re Lawyering Qs • We’ve Done Several w Posted Comments/Models or Slides • We’ll Do Rev Prob 3F Next Week • I’ll Post Comments/Models on 3E & 3F Next Week • Handout Next Week with Presentation/Editing Tips Specific to Lawyering Qs

14. Chapter 4: DISABILITY ACCOMMODATIONS

15. Chapter 4:Disability Accommodations Key Words • Insurance (Elevator Story) • Diversity: • Physical Impairments, Diseases, Mental Impairments,Learning Disabilities • Visible v. Invisible (E.g., re Parking)

16. Chapter 4:Disability Accommodations Our Coverage: Primarily Fair Housing Act • Introduction: Statutes & Causes of Action • Reasonable Modifications • Accommodations & Private Defendants • Accommodations to Zoning • Physical Access Reqmts in Housing & Public Accommodations (Might Shift to Intro)

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

18. 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 Monday) • Validity of Alterations of Use or Facilities (Parrillo’sToday)

19. 3.31. Altering NCUs Generally States typically limit the ability of owners of NCUs to alter their use/facilities in the following ways. What concerns motivate limiting the ability to … • change the use of the lot in question; • enlarge or extend structures or physical elements; • repair or replace structures; AND • continue the NCU after destruction of facilities or abandonment of the use. • I’ll give you some other examples of state standards for these in Info Memo • Note standard in Rev Prob 3C requiring you to identify relevant interests (will be part of Written Assignment #5)

20. 3.31. Altering NCUs Generally States typically limit the ability of owners of NCUs to alter their use/facilities in the following ways. What concerns motivate limiting the ability to … • change the use of the lot in question; • enlarge or extend structures or physical elements; • repair or replace structures; AND • continue the NCU after destruction of facilities or abandonment of the use. • All of these designed in part to prevent O delaying disappearance of NCUs. So what might be the reasoning of the N.J. statute allowing a non-conforming structure to “be restored or repaired in the event of partial destruction thereof.”?

21. 3.32. NJ General Standards (2d to last para. Z53). • “[A]n existing nonconforming use will be permitted to continue only if it is a continuance of substantially the same kind of use as that to which the premises were devoted at the time of the passage of the zoning ordinance.” • “[N]onconforminguses may not be enlarged as of right [as opposed to applying for permission] except where the change is so negligible or insubstantial that it does not warrant judicial or administrative interference. • “Where there is doubt as to whether an enlargement or change is substantial rather than insubstantial, … it is to be resolved against the enlargement or change. “ • QUESTIONS?

22. 3.32. NJ General Standards (Application to Facts) • Existing NCU can continue only if it is substantially the same kind of use • “The focus … must be on the quality, character and intensity of the use, viewed in their totality and with regard to their overall effect on the neighborhood and the zoning plan.” • Change from Restaurant to Disco is too great even each it contains same basic elements (food, music, dance floor). Partial list of differences on next slide

23. OLD USE NEW USE Advertised as Disco Open one day + 3 eves/few tables Music primary use DJs Several bars Psychodelic lighting Long lines/Neighbor complaints • Advertised as Restaurant • Open every day/many tables • Music incidental use • Live bands • One bar • Normal lighting • No long lines/no complaints

24. 3.32. NJ General Standards (2d to last para. Z53). • Existing NCU can continue only if it is substantially the same kind of use … • NCUs may not be enlarged except where the changeisnegligible or insubstantial • Doubt is resolved against the enlargement or change. The NJ SCt then “fully approve[s] of and adopt[s] the approach and analytical framework of the Hantman court.” How do you think the Hartman analysis explains and/or adds to the general standard?

25. 3.32. NJ General Standards • Existing NCU can continue only if it is substantially the same kind of use … Doubt is resolved against the change. Hartman info includes … • Can find unlawful extension from "an increase in the time period during which a nonconforming use is operated” OR “changes in the functional use of the land or increases in the area of use …." • Change to full-time use can be substantial even if a few had been used full-time in past” • NCUs disfavored, so if in doubt, rule against NCU (tho elsewhere in case)

26. 3.33. Examples in Parrillo’s The court provides a large number of other examples from NJ cases (top of Z54) to further illustrate the meaning of the standard. • Do you find problematic any of the examples where courts found the change too great?

27. 3.33. Examples in Parrillo’s The court provides a large number of other examples from NJ cases (top of Z54) to further illustrate the meaning of the standard. • Do you find problematic any of the examples where courts found the change too great? Can you explain: • Morris vocational school woodworking business • Scerbohand tailor shop dry cleaning business

28. 3.33. Examples in Parrillo’s • Can you think of reasonable explanations for each of the three examples where courts found the change insubstantial? • Moore: right to conduct nonconforming quarrying operation not limited to portion of tract used at time prohibitive zoning ordinance adopted • Kramer: change from parking 1 1/2 ton trucks to parking 6 ton trucks not substantial • Stout: conversion of dairy farm to horse raising enterprise not unlawful.

29. Note Tensions Implicit in Variances & NCUs • Pro-Variance/NCU/Flexibility • Justice in Individual Cases/Peculiar Circumstances • Ensure Property is not Worthless • policy re alienability/utilization of land • avoid constitutional probs • Deal w Changing Times

30. Note Tensions Implicit in Variances & NCUs • Anti-Variance/NCU/Flexibility • Efficiency easier to administer • Reliance by others on zoning • Uniformity of treatment I’ll Give You Some Examples of Other Flexibility Devices in Info Memo

31. Chapter 3: Selected Topics in Zoning: Aesthetic Zoning (& Beyond)

32. Last Section of Chapter & Last 2 Cases • Lots of Zoning that is Primarily Aesthetic (Coral Gables) • Our Key Issues • Types of Challenges that are Possible (for Lawyering Qs) • Policy: • When/Whether Aesthetic Z Should be Allowable (DQ3.39) • Feeds into Larger Qs re Strengths & Weaknesses of Z (Especially compared to Nuisance & HOAs)

33. Application to build single family house in form of pyramid • LaDue, MO (roughly = Coral Gables) • Meets all technical Z reqmts except not approved by Architectural Board b/c of design • STATE ex rel. (on behalf of) STOYANOFF, so parties in interest are “Relators” (not Realtors) • Property Values in Neighborhood = $55,00-80,000 • Lot of $ in Mo. In late 1960s • Cf.Commons: NJ & long decade of inflation later, so similar PV is much less house

34. 3.34. Relevant Interests in Stoyanoff (Similar to Prior Cases) • Interests of the municipality? • overall property values/tax base • maybe appearance that suggests wealth? • ease of administration • Of the neighbors? • property values • avoiding eyesores/looks way out of place • lack of surprise/reliance on Z OTHERS?

35. 3.34. Relevant Interests in Stoyanoff • Of the owner? • Desired home in desired location • Self-expression • Notice of what’s allowed • OTHERS? • Is, “You can always build it somewhere else,” a sufficient response to a landowner whose architectural creativity has been limited by aesthetic zoning?

36. Legal Challenges in Stoyanoff • Unauthorized by Enabling Statute • Unreasonable exercise of police power b/c arbitrary • Improper delegation of authority to Arch Bd (includes vagueness)

37. 3.35. Court holds the zoning at issue was authorized by Missouri’s enabling statutes. Key points: • Both Statutes allows Z to promote General Welfare, • Caselaw says that includes stabilizing PV and supporting tax base • 89.040 specifically refers to Z w consideration for “character of district” and “conserving value” Comfortable with This Reading of Statutes?