Land Use Law Commons^™

Understanding Sprawl: Lessons From Architecture For Legal Scholars, Mark S. Davies

Michigan Law Review

What is suburban "sprawl"? Why is it undesirable? Why do many Americans nevertheless choose to live in sprawl? Do local zoning laws contribute to sprawl? Can democratic institutions discourage it? Legal scholars are beginning to study these urgent and complex questions. This Essay reviews Suburban Nation: The Rise of Sprawl and the Decline of the American Dream, by Andres Duany, Elizabeth Plater-Zyberk, and Jeff Speck, leading architects of the influential New Urbanism or traditional town planning movement. This review makes five points about the legal study of sprawl. First, Suburban Nation provides a definition of "sprawl" that the law can …

Lawyers, Judges, And The Public Interest, John M. Payne

Michigan Law Review

Chares Haar, the Louis D. Brandeis Professor of Law Emeritus at the Harvard Law School and a certified elder statesman of the housing and land-use community, was one of those scholar-politicians of the 1960s who spun out innovative theories in law reviews and then moved into government to see them applied. His generation inspired mine to pursue law as a means to serve the public interest. But the days of the Kennedy brothers' Camelot are long past. Today, big government and "big courts" alike are seen as parts of the problem. In the more austere political climate of the 1990s, …

Determining Ripeness Of Substantive Due Process Claims Brought By Landowners Against Local Governments, David S. Mendel

Michigan Law Review

Landowners who sustain economic harm from arbitrary and capricious applications of land use regulations may sue the local government entities responsible for applying those regulations under 42 U.S.C. § 1983, alleging that the local government entities deprived them of substantive due process in violation of the Fourteenth Amendment. A landowner who brings this claim - an "as-applied arbitrary and capricious substantive due process" claim - may in appropriate cases seek declaratory and injunctive relief, damages, and attorney's fees. Despite controversy among courts and commentators over both the definition of property interests protected by the Due Process Clause and the standard …

Icons And Aliens: Law, Aesthetics, And Environmental Change, Scott Schrader

Michigan Law Review

A Review of Icons and Aliens: Law, Aesthetics, and Environmental Change by John J. Costonis

That Old Due Process Magic: Growth Control And The Federal Constitution, Keith R. Denny

Michigan Law Review

This Note argues that the interests of nonmunicipal federal citizens in being able freely to migrate about the nation are not adequately accounted for in a due process analysis which sanctions regulations with any, even a debatable, relation to the public welfare.

More adaptable and appropriate are the constitutional safeguards designed to protect the interests of nonmunicipal federal citizens: the privileges and immunities clause, the right of interstate travel, and the commerce clause. This Note concludes that GCOs should be measured against these safeguards and not the standards of the due process clause. When so reviewed, GCOs are found wanting. …

City Zoning: The Once And Future Frontier, Michigan Law Review

Michigan Law Review

A Review of City Zoning: The Once and Future Frontier by Clifford L. Weaver and Richard F. Babcock

Everything In Its Place: Social Order And Land Use In America, Michigan Law Review

Michigan Law Review

A Review of Everything in its Place: Social Order and Land Use in America by Constance Perin

Reflections On Stare Decisis In Michigan: The Rise And Fall Of The "Rezoning As Administrative Act" Doctrine, Roger A. Cunningham

Michigan Law Review

In an earlier article in this law review, I discussed the new doctrine that in certain municipalities a decision by the local governing body to rezone or not to rezone land should be deemed an "administrative" or "quasi-judicial," rather than a "legislative," act. This doctrine was introduced into Michigan law several years ago in a series of opinions signed by only three justices of the Michigan Supreme Court. The earlier article dealt principally with the merits of the new "rezoning as administrative act" doctrine. The present article discusses troublesome aspects of the Michigan Supreme Court's attitude toward the principle of …

The Role Of The Local Comprehensive Plan In Land Use Regulation, Daniel R. Mandelker

Michigan Law Review

This article will deal with the enlarged role of the comprehensive plan in the local land use control process. Part I examines traditional judicial views of the role of the comprehensive plan as a guide to zoning administration. Part II suggests that innovations in land use control and comprehensive planning techniques evidence a need for mandatory planning. Subsequent sections examine changes in the judicial attitude toward the role of the comprehensive plan in land use control administration, and survey some enacted and proposed state legislation that modifies the early planning acts by requiring comprehensive planning. This legislation is analyzed to …

The Inadequacy Of Judicial Remedies In Cases Of Exclusionary Zoning, Michigan Law Review

Michigan Law Review

This Note presents and evaluates the possible judicial responses to cases, like Mount Laurel, that involve challenges to entire zoning ordinances on exclusionary grounds. It argues that pragmatic and legal difficulties militate against any judicial imposition of affirmative relief not tailored to specific tracts of land and suggests that the most effective resolution of the problems confronted by low-income housing advocates lies in comprehensive legislative programs.

Rezoning By Amendment As An Administrative Or Quasi-Judicial Act: The "New Look" In Michigan Zoning, Roger A. Cunningham

Michigan Law Review

The traditional view in zoning law has been that the enactment of an original zoning ordinance and any amendments thereto by a local governing body is a "legislative" act, as contrasted with the granting of a "special exception" or a "variance" by the zoning board of appeals (or board of adjustment), which is an "administrative" or "quasi-judicial" act. Recently, however, the Oregon and Washington supreme courts have challenged this view, concluding that, under some circumstances at least, the enactment of a zoning amendment should be considered an "administrative" or "quasi-judicial" act, and thus subject to more extensive judicial review. Although …

Metropolitanization And Land-Use Parochialism--Toward A Judicial Attitude, Michael H. Feiler

Michigan Law Review

The purpose of this Article is to explore those situations in which courts have given meaning to the Euclid caveat in operation, and, from those instances, to attempt to evolve a judicial approach to the problems posed by the conflict between purely local interests on the one hand and more comprehensive regional interests on the other. Four basic premises are herein indulged: (1) that strictly local zoning is unsatisfactory; (2) that new and innovative legislation will not be readily forthcoming; (3) that the burden of mediating these conflict situations will continue to fall upon the judiciary; and (4) that present …

Constitutional Law--Equal Protection--Zoning--Snob Zoning: Must A Man's Home Be A Castle?, Michigan Law Review

Michigan Law Review

This Note will analyze and evaluate the legal theories that may be employed to attack snob zoning in the courts. First, the feasibility of attacking snob zoning via the equal protection clause of the fourteenth amendment will be examined. The second part of this Note will delineate alternative judicial responses to snob zoning that are couched in more conventional zoning-law terms.

Public Control Of Land Subdivision In Michigan: Description And Critique, Roger A. Cunningham

Michigan Law Review

Michigan seems to be unique in having three separate subdivision control statutes. The Plat Act of 1929, like the Subdivision Control Act of 1967 which will soon replace it, is largely mandatory, prescribing standards and procedures required in all cases of land subdivision (as defined in the statute), whether the municipality in which the land is located has a planning commission or not. The Municipal Planning Act, on the other hand, is simply an enabling act, permissive both with respect to establishment of a planning commission and with respect to the exercise by that commission, once established, of the power …

Statute Prohibiting Maintenance Of Billboards Adjacent To Interstate Highway Is Valid As Applied To Existing Billboards- Ghaster Properties, Inc. V. Preston, Michigan Law Review

Michigan Law Review

In order to qualify for additional aid under the 1958 Federal-Aid Highway Program, the Ohio legislature prohibited the erection or maintenance of billboards for advertising purposes within 660 feet of an interstate highway and declared billboards in violation of the statute to be public nuisances subject to abatement. As the owner of seven signs which violated the statute, plaintiff sought an injunction against the enforcement of the statute on the ground that it bore no substantial relation to the public health, safety, morals, or general welfare. The trial court granted the injunction and the court of appeals affirmed, holding the …

Zoning Law In Michigan And New Jersey: A Comparative Study, Roger A. Cunningham

Michigan Law Review

It is one thesis of this article that the "lawyer's view" has generally prevailed in Michigan and that the "planner's view" has generally prevailed in New Jersey. Since the zoning law of these two states is thus fairly representative of the opposing judicial attitudes set forth in the preceding paragraph, they are especially suitable for comparative study. This study begins with a look at the constitutional bases and statutory provisions for zoning. It then proceeds to examine judicial attitudes toward zoning determinations in general and continues by focusing on specific current zoning problems. The conclusions to be drawn from these …

Conservation And Rehabilitation Of Housing: An Idea Approaches Adolescence, J. Michael Warren

Michigan Law Review

From the time of construction, buildings are subject to the physical elements, the wear and tear of time, and the constant march of progress which transforms yesterday's luxuries into today's necessities. Left unchecked, these forces tend to produce the slums and blight that traditionally have been the curse of urban areas. Private, charitable, and civic organizations were the first to deal with the problem of improving conditions in slum areas. Later, state and local governments joined the effort, and although they were somewhat more successful than the pioneers in the field, without federal assistance the task proved to be beyond …

Municipal Corporations-Master Plans-Power Of Cities To Zone For Future Conditions, Walter A. Urick

Michigan Law Review

After purchasing land which was subject to a zoning ordinance requiring a minimum lot size of 21,780 square feet, plaintiffs, real estate developers, challenged the ordinance as unreasonable and confiscatory. Defendant city argued that the ordinance was based upon a comprehensive master plan and had the purpose of limiting future density of population in accordance with sewage capacity. On appeal from the circuit court order invalidating the zoning ordinance as applied to plaintiff's property, held, judgment affirmed, three judges dissenting. A city zoning ordinance requiring a minimum lot size for the purpose of limiting future density of population in …

Zoning--Townships--Complete Exclusion Of Trailer Camps And Parks, Rolfe A. Worden S.Ed.

Michigan Law Review

Plaintiff challenged the validity of an amendment to the zoning ordinance of the defendant township which barred all trailer camps and parks from its industrial district. As trailer parks had previously been zoned out of the business, residential, and agricultural districts, this amendment had the effect of completely excluding them from the entire township, although approximately half of its twenty-three square miles consisted of open rural area. The parties stipulated that the plans of the plaintiff, who wanted to develop a trailer park on his premises, met all of the applicable health standards. The trial court sustained the amendment, but …

Real Property - Easements By Implication - Creation Of Easements By Implied Reservations In Michigan, Ralph W. Aigler

Michigan Law Review

In 1910 K occupied an "old" house located on the westerly portion of her lot fronting on H Street. She built a "new" house on the east side of the lot, moved into it, and rented the "old" house to tenants. As a means of access to the west side and rear of the "new" house, she built and used a sidewalk which led from H Street between the two houses and which was one foot from the west side of the "new" house. This walk "was the only outdoor means of access to the new house's coal chute."

Acquisition And Protection Of Water Supplies By Municipalities, Wilbert L. Ziegler

Michigan Law Review

Among the prime functions of a municipal government is the furnishing of a potable supply of water for its inhabitants. In view of the increasing demand for water and the shortage of available supply, a number of problems have been or will be encountered by municipalities in fulfilling that function, apart from the problem of financing.

Municipal Corporations - Zoning - Disqualification Of Councilman For Personal Interest, Joel N. Simon

Michigan Law Review

An amendatory zoning ordinance was enacted by the city council of Miami Beach for the purpose of changing the zoning of an extensive area fronting on the Atlantic Ocean from a private residential to a hotel district. The amendment received the required affirmative votes of five of the seven members of the council, including the vote of one councilman who owned land in the area affected by the amendment which would be increased in value by $500,000 because of the zoning change. Plaintiffs, owners of near-by property, filed suit in the circuit court to have the amendatory ordinance declared invalid …

Municipal Corporations - Zoning - The Granting Of A Variance Based On Unnecessary Hardship, Frank D. Jacobs S.Ed.

Michigan Law Review

Defendant purchased a tract of vacant land located in the most highly restricted residence zone of his city. The local zoning ordinance prescribed minimum area, width, and depth measurements for building plots in that district. Defendant desired to subdivide the property into two building plots in order to build a one-family residence on each plot. Although the first plot complied with the minimum requirements of the ordinance, the other plot was deficient in area and depth measurements. Defendant was unsuccessful in his attempts both to purchase adjoining land and to sell parts of his property to adjoining owners. He then …

Municipal Corporations - Zoning - Exclusion Of Churches From Residential Area, William R. Luney S.Ed.

Michigan Law Review

In two recent New York cases churches sought permits to use residential property for church purposes, including worship, social gatherings, construction of an adjacent parking lot, and, in one case, establishment of a school and playground. In each case the zoning board denied the permit on grounds that a church would change the residential character of the neighborhood, decrease the enjoyment of neighboring property, depreciate property values, and that the contemplated use of the property for other than worship was prohibited by the ordinance. The lower court upheld the decisions of both zoning boards. On appeal to the New York …

Real Property - The Effect Of Zoning Ordinances On The Law Of Nuisance, Robert B. Fiske, Jr. S.Ed.

Michigan Law Review

One of the most interesting and least explored questions in the law of property is the effect of zoning ordinances on the law of nuisance. Particularly interesting is the extent to which statutory authorization by zoning can legalize a use of land which, in the absence of a zoning ordinance, would constitute a nuisance. In order to understand this problem fully it is necessary to begin with a general analysis of the law of nuisance and the various classifications into which it has been divided by the courts.

Constitutional Law- Zoning - Private High Schools Excluded From Zone In Which Public High Schools Permitted, William D. Keeler S.Ed.

Michigan Law Review

Among the uses permitted in the "A" residence zone by the Wauwatosa, Wisconsin zoning ordinance were "(e) Public Schools and Private Elementary Schools." The city building inspector denied to plaintiff, a private, non-profit religious corporation, a permit for the construction of a private high school in that zone. Plaintiff brought an action in mandamus to compel the issuance of such a permit, alleging that the ordinance deprived plaintiff of property without due process of law, and denied to it the equal protection of the laws guaranteed by the Fourteenth Amendment. The lower court granted the writ. On appeal, held, …

Municipal Corporations - Zoning - Amortization Of Existing Noncomforming Uses, James W. Beatty S.Ed.

Michigan Law Review

ln 1930 defendant Gage acquired several lots in the City of Los Angeles. He constructed a residential building in which he established a wholesale and retail plumbing business, using one room as an office for the conduct of his business. Also used in the business were a garage and racks, bins, and stalls for the storage of materials and supplies. The use to which defendant put the property was permitted under the applicable zoning ordinance of 1930. Later the ordinance was changed so as to make defendant's use of both lots nonconforming. In 1946 another rezoning ordinance provided that the …

Defeasance As A Restrictive Device In Michigan, William F. Fratcher

Michigan Law Review

Quite apart from any question of their validity, the imposition of use restrictions by means of a prohibition was not practicable before the development of equitable remedies because the common law afforded no method of enforcing such a prohibition. One who conveyed land in violation of a prohibition on alienation might attempt to enforce the prohibition by attacking the validity of his own conveyance but one who violated a prohibition on use had neither motive nor method for challenging his own acts. Hence attempts to restrict use by common law devices are necessarily confined to penalty restraints and to limitations …

Municipal Corporations - Police Power - Billboard Regulations For Aesthetic Purposes, Bertram H. Lebeis

Michigan Law Review

Plaintiff applied to defendant superintendent of buildings for permits to erect billboards for general advertising purposes on plaintiff's, property in the city of Troy. Defendant refused to issue the permits on the authority of an ordinance which made it unlawful to erect any billboard and/ or signboard within the city limits, except upon real property owned or leased by the occupants thereof and for the sole purpose of advertising the sale of such property or of merchandise kept for sale upon such premises. Plaintiff petitioned for a writ of mandamus to compel defendant to issue the permits. Held, that …

Constitutional Law - Zoning - Amendment Of Zoning Ordinance As Impairing Vested Rights, Ralph Winkler

Michigan Law Review

The town plan commission amended the municipal zoning ordinance to permit the erection of an incinerator in a class C residence district. The particular tract upon which the incinerator was to be located had been a municipal garbage dump, and as such, a non-conforming use under the zoning ordinance. The board of health by ordinance declared the garbage dump to be a nuisance. The facts revealed there was an immediate need to dispose of the garbage, etc.; that the erection of an incinerator was the best means of so doing; that the proposed site was a suitable location; that the …