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

2. Cancelled Class (10/10)  1 on 1 Meetings Pre-Exam
Music to Accompany Parrillo’s Donna 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 8 p.m. (Mixed Q M2)
Fri 11/2: Fajer Exam Workshop Room 1-2:20 p.m.

3. Review Problem 3B
Non-Use Variance

4. li CHAPTER 3 SELECTED TOPICS IN ZONING Key Facts (Recap)
Rev Prob 3B
Non-Use
Variance
Key
Facts
(Recap)
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 sq ft 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
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3B
Non-Use
Variance
Hardship
Requirement
Friedhoff
Mandel
Recap +
Commons: Exceptional & Undue Hardship
No effective use can be made of property absent the variance.
Total area of 1st floor is ~150 sq ft 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
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3B
Non-Use
Variance
Hardship
Requirement
Friedhoff
Mandel
Recap +
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. CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3B
Non-Use
Variance
Hardship
Requirement
Friedhoff
Mandel
& Friends
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 sq ft smaller than req’d.
2 corners are 18” closer to the property line than req’d.

8. Might focus on differences from using Commons. E.g.,
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3B
Non-Use
Variance
Hardship
Requirement
Friedhoff
Mandel
& Friends
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 sq ft 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?
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3B
Non-Use
Variance
Negative
Criteria
[McLaughlin]
Ramos
Fleming
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 sq ft smaller than req’d.
Purpose of reqmt? Substantially satisfied?

10. Other Arguments/Concerns?
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3B
Non-Use
Variance
Negative
Criteria
[McLaughlin]
Ramos
Fleming
Total area of 1st floor is ~150 sq ft 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…
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Rev Prob 3B
Non-Use
Variance
Negative
Criteria
[McLaughlin]
Ramos
& Friends
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
Multichapter Lawyering 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. CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #3
Non-Conforming
Uses
GENERALLY
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’s Today)

19. 3.31. Altering NCUs Generally
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #3
Non-Conforming
Uses DQ
ALL
Except
McLaughlin
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
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #3
Non-Conforming
Uses DQ
ALL
Except
McLaughlin
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).
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #3
Non-Conforming
Uses DQ
ALL
Except
McLaughlin
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]onconforming uses 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)
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #3
Non-Conforming
Uses DQ
ALL
Except
McLaughlin
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 Restaurant Open every day/many tables
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #3
Non-Conforming
Uses DQ
ALL
Except
McLaughlin
OLD USE
NEW USE
Advertised as Restaurant
Open every day/many tables
Music incidental use
Live bands
One bar
Normal lighting
No long lines/no complaints
Advertised as Disco
Open one day + 3 eves/few tables
Music primary use
DJs
Several bars
Psychodelic lighting
Long lines/Neighbor complaints

24. 3.32. NJ General Standards (2d to last para. Z53).
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #3
Non-Conforming
Uses DQ
ALL
Except
McLaughlin
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 change is negligible 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. CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #3
Non-Conforming
Uses DQ
ALL
Except
McLaughlin
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
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #3
Non-Conforming
Uses DQ
ALL
Except
McLaughlin
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
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #3
Non-Conforming
Uses DQ
ALL
Except
McLaughlin
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
Scerbo hand tailor shop  dry cleaning business

28. 3.33. Examples in Parrillo’s
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #3
Non-Conforming
Uses DQ
ALL
Except
McLaughlin
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
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices
Closing Up
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
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices
Closing Up
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
SELECTED
TOPICS IN
ZONING
Aesthetic
Zoning
& Beyond
Generally
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
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Aesthetic
Zoning
& Beyond
Overview of
Stoyanoff
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)
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Aesthetic
Zoning
& Beyond
DQs
Friedhoff
Fleming
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
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Aesthetic
Zoning
& Beyond
DQs
Friedhoff
Fleming
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
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Aesthetic
Zoning
& Beyond
DQs
Friedhoff
Fleming
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. Comfortable with This Reading of Statutes?
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Aesthetic
Zoning
& Beyond
DQs
Friedhoff
Fleming
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
specifically refers to Z w consideration for “character of district” and “conserving value”
Comfortable with This Reading of Statutes?