1. Property II: Class #16 Monday 10/15/18 Power Point Presentation National I Love Lucy Day & National Grouch Day

2. Music to Accompany Aronson The Mamas & the Papas, Greatest Hits ( ) featuring “California Dreaming”
Offdays & Absent-Minded Professors Additional Postings for Wednesday by Mid-Day Tomorrow World Mental Health Day: Last Wednesday

3. Wednesday 10/10/18 (Postponed Class) World Mental Health Day & National Bring Your Teddy Bear to Work/School Day

4. Written Submission #3: Due Tonight @ 10 pm (Recap)
Two 3-Page Questions
See Specific Formatting Instructions on p.13 of Overview Memo (Avoid Add’l Penalties)
(1) Mixed Chapter Exam Question M1C:
(2) Rev. Prob. 2I

5. Written Submission #3: Due Tonight @ 10 pm
(1) Mixed Chapter Question M1C: Belle Terre/Moore
Legal Task: Address Set of Facts Between Two Cases
Assume Facts Violate Ordinance (Don’t Discuss)
Key Q = Level of Scrutiny
Is Hypo More Like BT? ( Rational Basis = Govt Wins)
Is Hypo More like Moore ( Htnd Scrutiny = Govt Loses)
Hard Q Because Moore Announces that Ordinance as Applied to Particular Family is Unconstitutional w/o Articulating a Clear Rule
Protect Any Family Member? Maybe (But 5th Cousins?)
Protect Only Family Members? Maybe (But Nannies?)

6. Written Submission #3: Due Tonight @ 10 pm
(1) Mixed Chapter Question M1C: Belle Terre/Moore
Legal Task: Address Set of Facts Between Two Cases
Key Q = Level of Scrutiny = Hard Q
Hard Q Because Moore Announces that Ordinance as Applied to Particular Family is Unconstitutional w/o Articulating a Clear Rule
Protect Any Family Member? Maybe (But 5th Cousins?)
Protect Only Family Members? Maybe (But Nannies?)

7. Written Submission #3: Due Tonight @ 10 pm (Recap)
(1) Mixed Chapter Question M1C: Belle Terre/Moore
Legal Task: Address Set of Facts Between Two Cases
Key Q = Level of Scrutiny = Hard Q
Use BT Majority & Moore Plurality to Create Arguments:
Facts, Language, Ideas, Distinctions  Line-Drawing
Two Sides & Tie-Breakers
Questions?

8. Written Submission #3: Due Tonight @ 10 pm
(2) Rev. Prob. 2I: Very Full Q = Good Editing Exercise
Maybe Helpful to See as 2 Possible Challenges by Owner
(a) Original Rule in Declaration Violated FL Law
Use test for rule in original documents
Assume no state law rule would require the same sort of approval
(b) Even if Original Rule OK, Board Decision to Apply Rule to Facebook Post Violated FL Law
Use test for Exercise of Discretion, since not clearly part olf original rule
1990 Start Date = No Internet/Social Media = Not Foreseeable
Questions?

9. Chapter 3: Selected Topics in Zoning: BACKGROUND
Statutory
& Administrative
Structure 
Different Types
of Legal Challenges

10. Local Legislative Authority
CHAPTER 3
SELECTED
TOPICS IN
ZONING
BACKGROUND:
Statutory &
Administrative
Structure
State Statutes
Enabling Statutes Giving Powers & Limits to Local Govts
Specific Statutes Providing Legal Standards (e.g., Calif. Variance Rules)
Local Legislative Authority
Creates Comprehensive Plan (States Usually Require)
Creates Zoning Rules (Zones, Specific Reqmts, Procedural Rules)
Local Administrative Authority (Sometimes Same Entity)
Handles/Adjudicates Specific Requests & Disputes
Investigates/Creates Administrative Record to Support Decisions

11. Federal & State Constitutions (SUPERCEDE ZONING STRUCTURE)
CHAPTER 3
SELECTED
TOPICS IN
ZONING
BACKGROUND:
Statutory &
Administrative
Structure
Yields Types
of Legal
Challenges
Federal & State Constitutions (SUPERCEDE ZONING STRUCTURE)
Due Process Challenges (RULES Vague/Arbitrary)
SUBSTANTIVE CHALLENGES (Eq. PROT./1st AMDT/TAKINGS)
State Statutes
Local Legislative Authority
Local Administrative Authority (Sometimes Same Entity)

12. Enabling Statutes Giving Powers & Limits to Local Govts
CHAPTER 3
SELECTED
TOPICS IN
ZONING
BACKGROUND:
Statutory &
Administrative
Structure
Yields Types
of Legal
Challenges
State Statutes
Enabling Statutes Giving Powers & Limits to Local Govts
CLAIM: Local Legislation or Administration not Authorized by Enabling Statute
Specific Statutes Providing Legal Standards (e.g., Calif. Variance Rules)
CLAIM: Local Legislation Inconsistent with State Law

13. Local Legislative Authority
CHAPTER 3
SELECTED
TOPICS IN
ZONING
BACKGROUND:
Statutory &
Administrative
Structure
Yields Types
of Legal
Challenges
Local Legislative Authority
Creates Comprehensive Plan (States Usually Require)
CLAIM: Local Legislation inconsistent with Comprehensive Plan
Creates Zoning Rules (Zones, Specific Reqmts, Procedural Rules)
CLAIM: Local Legislation improperly Delegates Legislative Authority to Administrative Body
CLAIM: If Rule Generally Makes Land Unprofitable, Can Seek Rezoning (to Avoid Takings Lawsuit)

14. Local Administrative Authority
CHAPTER 3
SELECTED
TOPICS IN
ZONING
BACKGROUND:
Statutory &
Administrative
Structure
Yields Types
of Legal
Challenges
Local Administrative Authority
Handles/Adjudicates Specific Requests & Disputes
CLAIM: Exercises Discretion Not Given by Statutes/Ordinances
CLAIM: Acts in Ways Inconsistent with Statutes/Ordinances
Investigates/Creates Administrative Record to Support Decisions
CLAIM: Insufficient Record to Review
CLAIM: Findings Don’t Support Result
CLAIM: Evidence Doesn’t Support Findings

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

16. CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
INTRODUCTION
Tension between efficiency/fairness of requiring municipality to adhere to Comprehensive Plan and its need for flexibility to deal with changing times or special circumstances.
DQ3.14: Once a municipality sets up a comprehensive plan, why should it allow variances at all?
Justice in indiv case/peculiar circumstancess:unduly harmful
Make sure lot is not worthless (policy re alienability/utilization of land; avoid uinconstitutional Taking)
Deal w changing times

17. Municipalities Use Several Mechanisms to Gain Flexibility Our Coverage
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
INTRODUCTION
Tension between efficiency/fairness of requiring municipality to adhere to Comprehensive Plan and its need for flexibility to deal with changing times or special circumstances.
Municipalities Use Several Mechanisms to Gain Flexibility
Our Coverage
Variances (One-Time Exception)
Special Exceptions (Exceptions if Built in Criteria Met)
Non-Conforming Uses (Rules re Incompatible Pre-Existing Uses)

18. CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Generally DQ
(McLaughlin)
Mandel
Fleming
TOPANGA
28 Acres zoned for light agriculture and single family residences
1 acre min lot size
Variance requested to construct 93 space mobile home park
Zg Bd recommended & LA County regional planning committee approved

19. CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Generally DQ
(McLaughlin)
Mandel
Fleming
3.14 In cases like Topanga where the landowner requests a use variance what are the interests of the municipality?

20. Interests of the neighbors?
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Generally DQ
(McLaughlin)
Mandel
Fleming
3.14 In cases like Topanga where the landowner requests a use variance, interests of the municipality include:
Efficiency/Easier to administer if stick with Comprehensive Plan
Uniformity of treatment
Property Values/Tax Base (note that LA Countyty less concerned w small change than, e,g., Belle Terre or Euclid)
BUT: no interest in lot being worthless
Interests of the neighbors?

21. CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Generally DQ
(McLaughlin)
Mandel
Fleming
3.14 In cases like Topanga where the landowner requests a use variance, interests of the neighbors include:
Direct interest in harms from unwanted use
Property values generally
Reliance interest (court describes as likew a contract)

22.  Easier Standards for granting non-use
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Generally DQ
(McLaughlin)
Mandel
Fleming
3.15 With Non-Use Variances, difference in interests largely Q of degree.
i) Changes in USE have bigger impact & n-bors more likely to rely. Non-use regs mostly affect only nearest neighbors and small differences may not be very apparent.
ii) Much less likely to really need a particular use to make property profitable; as opposed to the kinds of adjustmentas at stake in Commons
 Easier Standards for granting non-use

23. CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Generally DQ
(McLaughlin)
Mandel
Fleming
3.15 In footnote 5 in Topanga, the court tells us that California subsequently banned use variances. Was that a good idea?

24. CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Generally DQ
(McLaughlin)
Mandel
Fleming
3.16 Both Topanga & Commons insist that zoning boards ruling on variances create a detailed record. Reasons in Topanga:
Procedural
Need to give parties notice of reasons so can decide whether to appeal
Need to give reviewing ct record to work with, so can see reasoning
Force decision-maker to articulate logic: minimizes likelihood of arbitrary acts
Public relations function: show parties that decision-making is careful, reasoned, and equitable.
Substantive
Protect limited role of variances in z scheme
Protect reliance interests of neighbors

25. Possible Unarticulated Reasons?
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Generally DQ
(McLaughlin)
Mandel
Fleming
3.16 Both Topanga & Commons insist that zoning boards ruling on variances create a detailed record.
Possible Unarticulated Reasons?
Note CalSCt says if zoning board makes findings, courts give deference on review
3.16. What is the significance of the practice the court disapproves in footnote 16?

26. NOTE for your own legal work: Repeating standard isn’t analysis!!
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Generally DQ
(McLaughlin)
Mandel
Fleming
3.16. What is the significance of the practice the court disapproves in footnote 16?
Simply repeating statutory language as finding:
Statute: For a variance, applicant “must show substantial hardship & no harm to the Z plan”
Z Board: “We find substantial hardship & no harm to the Z plan”
Exactly what Z Board did in Commons: NJSCt spanks both Board & Claimant (for vague proposal)
NOTE for your own legal work: Repeating standard isn’t analysis!!

27. COMMONS Lot zoned residence only
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Hardship DQ
Friedhoff
Ramos
Mandel
COMMONS
Lot zoned residence only
Frontage Reqmt – 75’ (30 in fact)
Minimum Lot Area Reqmt = 7500 sq ft (5190 in fact)
Variance requested to construct house on existing lot
Zg Bd denied & state courts affirmed

28. CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Hardship DQ
Friedhoff
Ramos
Mandel
Most states have some hardship requirements to get a variance. Commons requires “exceptional & undue hardship,” which means (at least )that no effective use can be made of property absent the variance.
Note that you are not entitled to the most profitable use.
What is the relevance of “self-inflicted” harm?
Of attempts to buy or sell land?
What was the evidence of hardship in Commons?

29. What was the evidence of hardship in Commons?
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Hardship DQ
Friedhoff
Ramos
Mandel
What was the evidence of hardship in Commons?
Can’t build at all w/o variance.
Not Self-inflicted: lot in present configuration when Z passed
Tried to avoid problem with transactions:
Tried to purchase strip to make bigger
Tried to sell lot
Evidence couldn’t reach reasonable agreements
Reversal b/c BdAdj said “no evidence of hardship;” clearly untrue

30. 3.18 Comparing Tests: Differences
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Hardship DQ
Friedhoff
Ramos
Mandel
3.18 Comparing Tests: Differences
NJ: Need “exceptional & undue hardship,” which means (at least )vthat no effective use can be made of property absent the variance & not self-inflicted
Cal. Gov’t Code § Variance “only when, because of special circumstances applicable to the property, … the strict application of the zoning ordinance deprives [it] of privileges enjoyed by other property in the vicinity and under identical zoning….”
LA County: Need “practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance.”

31. 3.19 Application in Topanga
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Hardship DQ
Friedhoff
Ramos
Mandel
3.19 Application in Topanga
Cal. Gov’t Code § Variance “only when, because of special circumstances applicable to the property, … the strict application of the zoning ordinance deprives [it] of privileges enjoyed by other property in the vicinity and under identical zoning….”
Why were the administrative findings insufficient to support this test?
Why does the CALSct suggest a large lot is unlikely to meet the standard?

32. 3.19 Application in Topanga
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Hardship DQ
Friedhoff
Ramos
Mandel
3.19 Application in Topanga
Cal. Gov’t Code § Variance “only when, because of special circumstances applicable to the property, … the strict application of the zoning ordinance deprives [it] of privileges enjoyed by other property in the vicinity and under identical zoning….”
Why were the administrative findings insufficient to support this test?
Nothing on differences from other lots in the zone
Why does the CalSct suggest a large lot is unlikely to meet the standard?
Unlikely to be unrepresentative of zone
Also too big a change to overall Z

33. 3.19 Application in Topanga
CHAPTER 3
SELECTED
TOPICS IN
ZONING
Flexibility
Devices #1
Variances
Hardship DQ
Friedhoff
Ramos
Mandel
3.19 Application in Topanga
Cal. Gov’t Code § Variance “only when, because of special circumstances applicable to the property, … the strict application of the zoning ordinance deprives [it] of privileges enjoyed by other property in the vicinity and under identical zoning….”
Why doesn’t the hardship claim of significantly reduced profitability meet the test?
What point is the court making in footnote 22?