SZEA, p. 35, ¶ 3

1. SZEA, p. 35, ¶ 3 “. . . 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 of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.”

2. Topanga • Existing zoning? • Proposed development? • Why was it wrong to grant the variance? • What does court require? • Why? • What should landowner do now?

3. “Variances from the terms of the zoning ordinance shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification." Cal. Govt. Code

4. “Variances from the terms of the zoning ordinance shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification." Cal. Govt. Code

5. The Otto Test (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality.

6. C R C R C Seeks variance because across the street from commercial uses R C R C R

7. C R These “R: zoned lots all being used for commercial purposes as non-conforming uses C R C R Seeks variance C R C R

8. Use Variance A “no no” in many states

9. Area Variances • In order to build a garage need to violate setback. • Poor soil for basement; want to build one story higher than height limit

10. “Where literal enforcement will result in unnecessary hardship “Where literal enforcement will result in practical difficulties or unnecessary hardship Compare SZEA with N.C. & other states The disjunctive “or” may be critical

11. What about . . . ? • To build a deck on the side of the house because of a ravine in the back

12. What about . . . ? • guy who wants to build a 3 car garage to store his antique autos

13. What about . . . ? • widow with 22 room house who wants to rent out rooms

14. What about . . . ? • an enclosed porch for asthmatic child

15. What about . . . ? • fellow who builds an addition to his house and then, when someone complains, seeks a variance

16. Assume the owner/applicant just bought a lot zoned residential for $10,000, which represents its value for residential use. If he gets the variance the lot will be worth $100,000.

17. Conditions In Topanga, (1) a wall (2) Developer to dedicate 80’ strip for proposed realignment of Topanga Creek Blvd.

18. Forms of Action • Rezoning • Text Amendment • Map Amendment • Floating Zones • Conditional Zoning • Special Permits • Variance • Judicial Challenge

19. Judicial ChallengeKey is type of action challenging • Administrative Action: by certiorari • Legislative Action: Declaratory Judgment • Caveat: Highly State Specific

20. Rezoning: General, Use of right Flexibility Devices Floatzone: Community Needs, Site specific Cond.&Kzone: Unanticipated Needs; Site specific SpecUsePermit: Problem Uses; site specific Variance: Hardships, site specific

22. Nonconforming Uses: Blots on the purity of the district

23. The Ordinance did what? • Basis of Gage’s Objection? • Why did City do this? • Purpose • Means • Effect

24. Hadacheck v. Sebastian (1915) “It is to be remembered that we are dealing with one of the most essential powers of government,--one that is the least limitable. It may, indeed, seem harsh in its exercise, usually is on some individual, but the imperative necessity for its existence precludes any limitation upon it when not exerted arbitrarily. A vested interest cannot be asserted against it because of conditions once obtaining.”

25. Means other than amortization • No resumption after discontinuance • No conversion to more intensive use • No rebuilding if destroyed • No improvements • No enlargement

26. From non-conforming uses to vested rights . . . You are not yet finished building, and maybe you haven’t started building but you have a permit ,and then . . . STOP The rules have changed

27. STOP • When neighbors hear that a Wal*Mart is proposed next door and are shocked to hear that the zoning code allows it, they may do what? • When developer, who has a permit to build, hears that neighbors are seeking a downzoning that, if passed, would stop his project it will do what?

28. Common Law Vested Rights Rule: for immunity, you need . . . STOP • substantial expenditures • incurred in good faith reliance • on a validly issued • building permit (or other final discretionary approval) Where did Avco fail?

29. County of Kauai v. Pacific Life • 1974 Developer bought land • Feb. ‘79 county upzoned to resort • Mar. ‘79 citizen petition drive started to repeal the upzoning • Dec. ’79 Dev. applied for permit • Jan. ‘80 Petition certified for vote • Aug. ‘80 county issued building permit • Nov. ‘80 voters vote to downzone

30. County of Kauai v. Pacific Life • 1974 Developer bought land • Feb. ‘79 county upzoned to resort • Mar. ‘79 citizen petition drive started to repeal the upzoning • Dec. ’79 Dev. applied for permit • Jan. ‘80 Petition certified for vote • Aug. ‘80 county issued building permit • Nov. ‘80 voters vote to downzone

31. Moral of the Story? Get a permit, which is pretty specific, and then spend money fast before city can change law? What does “good faith” meant in this context?

32. The race . . . • Where you have a valid permit but also know that consideration of a zoning change is imminent and that if adopted it would forbid your project, proceeding in reliance on the permit will not be in good faith. • Any expenses you incur will not count.

33. The Race • March 19 Option to buy $100 • April 15 Downzoning proposal announced • May 3 Building permit issued • May 22 Purchase closed $9400 • May 24 Contract to build executed • May 27 Downzoned to residential use • June 5 Contracted to buy equipment • June 11 Permit revoked • July 8 Broke ground • July 11 Injunction sought

34. If it sounds too good to be true it isn’t. What to take into account in terms of zoning and other land use laws when buying real property?

35. FOR SALE Unimproved lot in the prestigious Russian Hill area of San Francisco with a view of the Bay; zoned multi-family, high rise; great deal, all surrounding uses low density. MUST SEE IT TO BELIEVE IT

36. FOR SALE Unimproved lot in the prestigious Russian Hill area of San Francisco with a view of the Bay; zoned multi-family, high rise; great deal, all surrounding uses low density. MUST SEE IT TO BELIEVE IT

37. Out of town developer took the bait Zoned for high rises, 300 foot height limit paid $2,000,000 city downzoned to 40 foot limit now worth $100,000

38. FOR SALE Unimproved lot in the prestigious Russian Hill area of San Francisco with a view of the Bay; zoned multi-family, high rise; great deal, all surrounding uses low density. MUST SEE IT TO BELIEVE IT Out of town developer took the bait Zoned for high rises, 300 foot height limit paid $2,000,000 city downzoned to 40 foot limit now worth $100,000

39. Common Law Vested Rights Rule • substantial expenditures • incurred in good faith reliance • on a validly issued • building permit (or other final discretionary approval)

40. Estoppel • Often interchangeable with vested rights • Where no permit or where illegal permit estoppel is the only route • But, it is an uphill struggle

41. Parkview Associates “A remarkably tangible rebuke” • NY Times Asleep at the Wheel

42. N.C.Gen.Stat § 160A-385.1(a). “necessary as a matter of public policy to provide for the establishment of vested rights in order to ensure reasonable certainty, stability, and fairness in the land‑use planning process, secure the reasonable expectations of landowners . . .”

43. N.C.Gen.Stat § 160A-385.1(c) and (d) A vested right shall be deemed established upon the valid approval of a site specific development plan [and] shall remain vested for two years.

45. Development Agreements • Authority • Dozen or so expressly authorize • If not, is there implied authority?

46. California Statute The “rules governing permitted uses of the land applicable to development of the property subject to a development agreement shall be those . . . in force at the time of execution of the agreement.” § 65866

47. New Laws Atop or Alongside Old Ones “A development agreement shall not prevent a city from applying new rules which do not conflict with those rules, applicable to the property.” Cal. Code §65866

48. Sidebar: Municipal Authority vis-à-vis the State • Inherent Powers • Home Rule

49. Municipalities have noinherent powers The law is well-settled that "a municipality has only such powers as the legislature confers upon it."

50. Dillon, Commentaries on the Law of Municipal Corporations, § 237 (5th ed. 1911). Dillon's Rule suggests a narrow construction, allowing a municipal corporation only those powers "granted in express words, ... necessarily or fairly implied in or incident to the powers expressly granted, ... and those essential to the accomplishment of the declared objects and purposes of the corporation."