No Music: Technical Difficulties

1. Property II: Class #18Wednesday 10/17/18Power Point PresentationNational Pasta Day &National Fossil Day

2. No Music: Technical Difficulties By Saturday Noon on Course Page • Rest of Materials & Assignments for Chapter 3 • Model Answers from Written Assignment #2 • Comments/Best Answers for Rev Probs 2E & 3A

3. Chapter 3: Selected Topics in Zoning: Flexibility Devices #1: Variances

4. ARONSON • Z requires 10’ setback. • Residence is non-conforming along 1 side (6.5’) • Os want to build porch along same line; seek setback variance • ZgBd granted & Mass. Courts affirmed

5. 3.20 Massachusetts appears in Aronson to apply standards similar to the California test. • Unusual to be this strict for non-use variance. • For purposes of Qs asking you to apply tests, limit this test to Use Variances • For purposes of Lawyering Qs, can check for this test even for non-use variances

6. Hardship Claim in Aronson: Significant Personal Hardship • Fails California: NOT a condition “especially affecting such parcel or such building” because unique to people, not to parcel. • Fails NJ: NOT true that “no effective use can be made of the property absent the variance.” • Might meet L.A. County test: “practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance.” However, court interpreting might still limit to hardships any owner would experience.

7. Hardship Claim in Aronson: Significant Personal Hardship • Apparently, if not eligible for variance, remedy for O with personal hardship is to sell the lot. • What are the pros and cons of allowing variances on the basis of personal hardship? • Note re Relationship to Disability Accommodations

8. If asked to determine if variance available given facts: • For use variance, use Topanga test • For non-use, use both Commons test & L.A. County test unless one is specified. • In a Lawyering Q involving a possible variance: • For use variance, check if Topanga test or not allowed or other • For non-use, check if any of the three or other.

9. 3.21 Many states have “Negative Criteria” (assessing impact on the character of the neighborhood) like those applied in Commons. What kinds of proposals seem likely to violate these requirements? • No substantial detriment to public good? • No substantial impairment of Z Plan?

10. 3.21 “Negative Criteria” in Commons. • No substantial detriment to public good. • No substantial impairment of Z Plan. • Compare LA County: When granting a variance, “the spirit of the ordinance will be observed, public safety secured, and substantial justice done.” • How might this operate differently than the Commons tests?

11. 3.22 “Negative Criteria”: Application in Commons. • Seeking variance from • Minimum frontage reqmt • Minimum lot area reqmt (Note: different from minimum house size) What are the purposes of these reqmts?

12. 3.22 “Negative Criteria”: Application in Commons. • Purposes of Minimum Frontage/Minimum Lot Area Include: A.Air & space around residence • Lack of congestion(more houses on smaller lots make area feel crowded and increase traffic • Proxy for fewer people (because fewer houses in same area) • Proxy for more expensive lots(because larger lots cost more & allow larger houses) • Uniformity (per Fleming & Friedhoff) • Is the proposed use consistent with those purposes?

13. 3.22 “Negative Criteria”: Application in Commons. • Is the proposed use consistent with purposes? (This analysis part of “No Substantial Impairment of Z Plan”) A. Air & space around residence: Setback & side yard reqmts met • Lack of congestion: Maybe a little crowded w 4 bedroom house on small lot • Proxy for fewer people: Ditto • Proxy for more expensive lots: Testimony that PV similar to houses in area • Uniformity: Most lots in neighborhood already non-compliant

14. 3.22 “Negative Criteria”: Evidence in Commons. • No substantial impairment of Z Plan. • Mostly fulfills purposes of requirements (from last slide) • Lots of lots nearby non-conforming on same issues (incl. nearest neighbors) • Maybe congestion concerns w 4-bedroom house on little lot (from last slide) • Maybe aesthetic concerns b/c garage in front (not on side) • Valid concern about desirable visual environment. • Remember re Aesthetic Zoning that NJ takes this position

15. 3.22 “Negative Criteria”: Evidence in Commons. • No substantial detriment to public good. • Realtor testimony: purchase price in range for n-hood & won’t affect neighbors’ P values • Note significance of brand new house similar to mostly much older houses

16. 3.22 “Negative Criteria” in Commons. • Court reverses on this issue because the Board made insufficient findings and rerlied on one conclusory* statement. • They remand for the Board to revisit this. * Conclusory as vocabulary word.

17. 3.23 “Negative Criteria”: Application in Aronson. • Seeking variance from side setback requirement What are the purposes of this reqmt?

18. 3.23 “Negative Criteria”: Application in Aronson. • Purposes of Side Setback Reqmt Include: A. Privacy to both neighboring lots • Limits noise affecting neighboring lot C. Air & light to both neighboring lots • Maybe safety (emergency access to both lots). • Is the proposed use consistent with those purposes?

19. 3.23 “Negative Criteria”: Application in Aronson. • Is the proposed use consistent with purposes? • Privacy to both neighboring lots (Hedge blocking) • Limits noise affecting neighboring lot (Hedge blocking) • Air & light to both neighboring lots (Not big difference; just extending existing line by 8 feet) • Maybe safety. (Ditto)

20. 3.23 “Negative Criteria”: Evidence in Aronson. • No substantial impairment of Z plan (from last slide) • No substantial detriment to public good: Evidence?

21. 3.23 “Negative Criteria”: Evidence in Aronson. • No substantial impairment of Z plan (from last slide) • No substantial detriment to public good: Evidence? • Finding that won’t harm n-bors PV • Bigger porch likely increases PV of house itself • Court might allow evidence of benefits to disabled child here.

22. 3.24 “Negative Criteria”: Evidence/Arguments in Topanga. • No substantial detriment to public good?

23. 3.24 “Negative Criteria”: Evidence/Arguments in Topanga. • No substantial detriment to public good? • Would blend in to natural surroundings • Would satisfy need for new low-cost housing • Fire break • Might attract further investment

24. 3.24 “Negative Criteria”: Evidence/Arguments in Topanga. • No substantial impairment of Z plan? • Appears to be difficult claim because look and density so different • Might argue: • Mobile homes are type of single-family residence • Terrain, wall & landscaping will limit visual impact • Area currently very under-utilized, which minimizes harm of denser use • OTHER?

25. Hardship Requirement (Friedhoff & Mandel) • Apply test from Commons • Apply test used by L.A. County • Negative Criteria (McLaughlin & Ramos) • Just use test from Commons

26. Review Problem 3A Household Composition & Zoning Policy

27. Violates Public Policy?: Pros & Cons The zoning ordinances for suburban Vidas County only allow “single-family residences” in many areas. One particular Vidas County ordinance defines “family” for this purpose to mean, one or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit; or a number of persons, but not exceeding three (3), livingand cooking together as a single housekeeping unit though not related by blood, adoption, or marriage. Assume that Vidas County has the authority to pass the ordinance under both the state and federal constitutions and under its state’s enabling legislation.

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

29. Variance = Exception from Zoning Plan Not Specifically Provided for in Plan • Special Exception= Exception Specifically Permitted by Comprehensive Plan if Stated Requirements Met • Might use to address foreseeable difficulties in Z Plan (as in North Shore) • Might use to address use that planners would like to see in particular zones in limited numbers • Apartments in Cope • Gas Stations or Convenience Stores in Residential Areas

30. Variances v. Special Exceptions • Variance Requirements Much Stricter b/c Outside Plan • Need to Prove Significant Hardship to Justify • Even if Hardship, need to show limited harm to public & to Z Plan • Purely adjudicative decision, so no worry re improper delegation • Special Exception intended as part of Plan; • No proof of hardship needed; just need to meet stated criteria • No need to prove absence of negative criteria; compliance with Z plan and public good assumed from inclusion in Z Plan • Based in legislative decision to include in plan, so need to limit agency discretion (to avoid effectiuve delegation of legislative power)

31. Variances v. Special Exceptions • Both cases contrast the two devices • Very clear delineation of procedures in North Shore • Very tough on Application for Use Variance • Commercial parking in residential zone • Uses version of California standard • Much more generous on special exception • QUESTIONS?