Land Use – Class 1

Euclid- 1926 zoning is police power

Who are land use disputes between?

Local government v. land owner disputes

- City ordinance/ state power (inherent power) argument #1: the city didn’t have the
power to do that because the state didn’t give it to them. (state power only comes
into question if there’s a supremacy issue
- Local gov. can have trouble financing against a public interest group

Land owner v. Land owner disputes

- Often times one has the local gov. on their side

- Hard to finance to big courts, almost all financed by a public interest group

Large land owner (developer) v. city and neighbors

Police Power: 10 amd. Reminds of state power: health, safety, welfare, morals

Delegated to the local government through which they can establish police, adopt laws, secure
general safety, morals, health, and prosperity of citizens. Preventing a conflict of rights between
citizens (brings to nuisance law)

Due process: can’t be deprived of property without due process of law (applies to land use) Land
owner says you’ve violated my right to due process; substantive and procedural: not many win.
Can’t take private property for public use without just compensation. (takings clause) limitation
on eminent domain

Land owner=taking. Government says = mere regulation and allowed under police power.

There can be an equal protections case if the city doesn’t like you as a class.

Religion can qualify if the religious practices are violating the zoning etc.

First amend. Speech: billboards etc.

Adult uses under the first amend. (bars in one section, land owner says no that’s expensive and
not competitive)

Government regulation: given through nuisance law

& get it through zoning. Euclid; scotus=power to zone in police powers.

Public Nuisance automatically a violation of the law. No individual neighbor has to prove, the
city ordinance does that for you. (ex. Drug house)

Private Nuisance, one land owner bringing a tort action against a neighboring land owner
claiming that the neighbor’s use of the property is infringing on his use of the property. (ex.
Noise, smells, trespass) zoning tries to get on top of the harm and prevent it, other option public
nuisance. Can get damages, can be retrospective zoning cannot.

NUISANCE LAW:

City of Monterey ::

Guy made nonprofit to sell med weed. City said pub. Nuisance. The city zoning code listed
permitted uses in certain zones.

Rule of Reason= Reasonableness test ex. Hotel vs. boarding house

Hernandez: zoning, must have state powers. Is there a conflict with constitution?

Econ/fiscal zoning: dormant commerce clause says this is a federal power not a state.

Ordinance: to protect the Downtown area furniture business, also attract big box stores to
commercial district. Prohibit furniture sales in this area, small exception for macys furniture etc.

This was a facial challenge to the police power bc they were picking business winners and losers

It is expressly economic protectionism.

Courts struggle most when ord. looks neutral on its face but it’s really a preference for one
among many competitors.

Arguing that exception in ord. it’s reasonably related to legit gov. interest ((LOOK IF IT SAYS
LEGIT OR IMPORTANT GOV. INTEREST))

SCOTUS says zoning is fiscal, and it picks winners and losers but it can’t pick them individually or
privately.

Slapp suit: strategic lawsuit against public participation

ACCESSORY USES: pigeon case. Can never be built before the primary use.
Not expressly allowed= not allowed

Impliedly allowed= depends on circumstances: determined by closely/reasonably related to

primary use and naturally and normally incident and subordinate, and customary look.