Business Law Chapter 49 Homework Ii Public And Private Controlsa Zoningis The

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II. PUBLIC AND PRIVATE CONTROLS

A. ZONING

• Is the principal method of public control over land use.

• The validity of zoning is rooted in the police power of the state, which

is the inherent power of the government to provide for the public

health, safety, morals, and welfare. Police power can be used only to

regulate private property, never to “take” it.

• It is !rmly established that regulation having no reasonable relation to

public health, safety, morals, or welfare is unconstitutional as a denial

of due process of law.

Enabling Acts and Zoning Ordinances

The power to zone is generally delegated to local city and village authorities

by statutes known as enabling statutes. A typical enabling statute grants

municipalities the following powers:

(1) to regulate and limit the height and bulk of buildings to be erected;

(2) to establish, regulate, and limit the building or setback lines on or along

any street, tra)cway, drive, or parkway;

(3) to regulate and limit the intensity of the use of lot areas and to regulate

and determine the area of open spaces within and around buildings;

(4) to classify, regulate, and restrict the location of trades and industries and

the location of buildings designated for speci!ed industrial, business,

residential, and other uses;

(5) to divide the entire municipality into districts of such number, shape,

area, and class(es) as may be deemed best suited to carry out the purposes

of the statute; and

Variance

A variance permits a deviation from the zoning ordinance. It may be granted

by zoning authorities to a landowner when application of the zoning

ordinance would cause the owner “particular hardship” that is unique or

peculiar to the property. It must a)rmatively appear that the property as

presently zoned cannot yield a reasonable return on the owner’s investment.

Nonconforming Uses

A zoning ordinance may not immediately terminate a lawful use that existed

before it was enacted. Rather, this nonconforming use must be permitted to

continue for a reasonable time. A nonconforming use may be terminated

(1) when the use is discontinued,

(2) when a nonconforming structure is destroyed or substantially damaged,

(3) when a nonconforming structure has been permitted to exist for the

period of its useful life, as !xed by authorities.

Judicial Review of Zoning

whole either because it bears no reasonable relation to public health, safety,

morals, or welfare; because it involves the exercise of powers not granted to

the municipality by the enabling act; or because it violates the State or U.S.

Constitution.

Zoning Amounts to a Taking Another form of attack is to show that zoning

restrictions amount to con!scation or a “taking.” It is not suffcient that the

property owner will sustain a !nancial loss if the restrictions are not lifted.

But when the owner can show that the restrictions make it impracticable for

him to use the property for any bene!cial purpose, he should prevail.

Deprivation of all bene!cial use is con!scation.

Subdivision Master Plans

B. EMINENT DOMAIN

The power to take private property for public use, known as the

power of eminent domain, is recognized as one of the inherent powers of

government both in the U.S. Constitution and in the constitutions of the

States. Under both Federal and State constitutions, the individual from

whom property is to be taken is entitled to due process of law.

Public Use

The power to take private property for public use is known as the power of

eminent domain. It is one of the fundamental powers of government,

recognized in the U.S. Constitution and the state constitutions.

But there is also

• a direct constitutional prohibition against taking private property

without just compensation (Fifth Amendment to the U.S. Constitution)

and similar provisions in the state constitutions;

Just Compensation

The measure of just compensation is the fair market value of the property as

of the time of taking.

NOTE: See Figure 49-2: Eminent Domain.

CASE 49-2

KELO v. CITY OF NEW LONDON

Supreme Court of the United States, 2005

545 U.S. 469, 125 S. Ct. 2655, 162 L.Ed.2d 439

http://scholar.google.com/scholar_case?case=1101424605047973909&q = 545+U.S. =

469&hl=en&as_sdt=2,10

Stevens, J.

In 2000, the city of New London approved a development plan that, in the words of the

Supreme Court of Connecticut, was “projected to create in excess of 1,000 jobs, to increase

tax and other revenues, and to revitalize an economically distressed city, including its

downtown and waterfront areas.” [Citation.] [The plan proposed to replace a faded

residential neighborhood—Fort Trumbull—with office space for research and development,

a conference hotel, new residences, and a pedestrian “river-walk” along the Thames River.

The project, to be built by private developers, is intended to build upon a $350 million

research center built nearby by the Pfizer pharmaceutical company.

In assembling the land needed for this project, the city’s development agent has

purchased property from willing sellers and proposes to use the power of eminent domain to

* * *

Two polar propositions are perfectly clear. On the one hand, it has long been accepted

that the sovereign may not take the property of A for the sole purpose of transferring it to

another private party B, even though A is paid just compensation. On the other hand, it is

equally clear that a State may transfer property from one private party to another if future

“use by the public” is the purpose of the taking; the condemnation of land for a railroad with

common-carrier duties is a familiar example. Neither of these propositions, however,

determines the disposition of this case.

* * *

Those who govern the City were not confronted with the need to remove blight in the

Fort Trumbull area, but their determination that the area was sufficiently distressed to justify

a program of economic rejuvenation is entitled to our deference. The City has carefully

formulated an economic development plan that it believes will provide appreciable benefits

to the community, including—but by no means limited to—new jobs and increased tax

revenue. As with other exercises in urban planning and development, the City is endeavoring

to coordinate a variety of commercial, residential, and recreational uses of land, with the

hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the

City has invoked a state statute that specifically authorizes the use of eminent domain to

promote economic development. Given the comprehensive character of the plan, the

thorough deliberation that preceded its adoption, and the limited scope of our review, it is

appropriate for us, as it was in [citation], to resolve the challenges of the individual owners,

* * *

Alternatively, petitioners maintain that for takings of this kind we should require a

“reasonable certainty” that the expected public benefits will actually accrue. Such a rule,

however, would represent an even greater departure from our precedent. “When the

legislature’s purpose is legitimate and its means are not irrational, our cases make clear that

empirical debates over the wisdom of takings—no less than debates over the wisdom of

other kinds of socioeconomic legislation—are not to be carried out in the federal courts.”

[Citation.] * * * A constitutional rule that required postponement of the judicial approval of

every condemnation until the likelihood of success of the plan had been assured would

unquestionably impose a significant impediment to the successful consummation of many

such plans.

Just as we decline to second-guess the City’s considered judgments about the efficacy of

its development plan, we also decline to second-guess the City’s determinations as to what

lands it needs to acquire in order to effectuate the project. “It is not for the courts to oversee

the choice of the boundary line nor to sit in review on the size of a particular project area.

Once the question of the public purpose has been decided, the amount and character of land

to be taken for the project and the need for a particular tract to complete the integrated plan

rests in the discretion of the legislative branch.” [Citation.]

*** Chapter Outcome ***

Describe the nature and types of restrictive covenants.

C. PRIVATE RESTRICTIONS ON LAND USE

Private restrictions on the use of land, imposed by the owners of the land,

are called restrictive covenants.

Covenants Running with Land

A restrictive covenant that binds not only the present owners of the land but

also subsequent owners is said to “run with the land.” Such a running

covenant involves promises that are enforceable under the law of contracts.

• Thus, most courts require restrictive covenants to be in writing.

• Also, the parties who agree to the covenant must intend that the

covenant bind their successors.

Restrictive Covenants in Subdivisions

In subdivisions, the more common restrictive covenants include those that

• limit the use of property to residential purposes,

• restrict the area of the lot on which a structure may be built,

• provide for a special type of architecture,

• and specify a minimum house size.

Restrictive covenants will bind purchasers of lots in the subdivision if they

Termination of Restrictive Covenants

A restrictive covenant may end by the terms of the original agreement — for

example, after 35 years unless a speci!ed majority of the property owners

rea)rm the covenant. A court will not enforce a covenant if changed

circumstances make enforcement inequitable and oppressive.

CASE 49-3

CAPPO v. SUDA

Appellate Court of Connecticut, 2011

126 CONN.APP. 1, 10 A.3D 560

http://scholar.google.com/scholar_case?

q=private+restrictive+covenants+ON+REAL+PRoperty&hl=en&as_sdt=2,34&as_ylo=2011&case=87148732364

7805637&scilh=0

Dupont, J.

[Plaintiffs, Thomas Cappo and certain other neighbors who reside on Ox Yoke Lane in

Norwalk, Connecticut, seek to enforce a restrictive covenant against the defendants, Mark R.

Suda, Jr., and Michelle L. Suda, from resubdividing the defendants’ property and from

constructing a second dwelling. The defendants admit that the properties belonging to the

plaintiffs and the defendants are depicted on a “Map Showing Section Two of Cricklewood,

Norwalk . . . as Map No. 3714″ (Section Two) and admit that their deed contains a reference

to restrictive covenants as set forth in volume 416 at page 118 of the Norwalk land records.

This restriction, as provided in their warranty deed, states, “Said tract is subject to the

following restrictions: 1. No more than one dwelling together with an attached garage shall

be constructed thereon.” The trial court granted summary judgment in favor of the plaintiffs,

and the defendants appealed.]

In general, restrictive covenants fall into three classes: (1) mutual covenants in deeds

exchanged by adjoining landowners; (2) uniform covenants contained in deeds

* * *

The defendants claim that, although a restrictive covenant that prohibits resubdivision

for the purpose of building an additional dwelling was contained in their deed, that

restriction has been abandoned because resubdivisions have occurred in surrounding

properties, which the defendants contend are part of the same subdivision as their property.

The parties reside in a subdivision referred to as Section Two. All thirteen of the lots in

Section Two have been developed, and none of the lots contain more than one dwelling. Two

other parcels originating from the same grantor and developed into abutting subdivisions

* * *

When uniform covenants are contained in deeds executed by the owner of property who

is dividing his property into building lots under a general development scheme, any grantee

under such a general or uniform development scheme may enforce the restrictions against

any other grantee. [Citation.] The owner’s intent to develop the property under a common

scheme is evidenced by the language in the deeds. [Citation.]. * * *

There are several factors that help to establish the existence of a common grantor’s intent

to develop the land according to a uniform plan. These factors include (1) the common

grantor’s selling or stating an intention to sell an entire tract of land, (2) the common

grantor’s exhibiting a map or plot of the entire tract at the time of the sale of one of the

parcels, (3) the actual development of the tract in accordance with the restrictions, and

(4) a substantial uniformity in the restrictions imposed in the deeds executed by the

common grantor. [Citation.]

the original restriction making enforcement inequitable because of the altered condition

of the property involved. [Citation.]

Any such change in conditions must be so substantial so as to frustrate completely the intent

of the original covenant so that it would be inequitable to enforce it. [Citation.] Such a

change in circumstances includes repeated violations of the restrictions without effective

action to enforce them. [Citation.]

* * * The defendants admitted that the thirteen parcels in Section Two were developed

under a common scheme using substantially uniform restrictions. Excepting the defendants’

property, none of the owners of the parcels in Section Two have sought or received

resubdivision approval, nor have repeated violations of the restrictions occurred in Section

Two. Thus, the deed restrictions have not been abandoned. The plaintiffs met their burden to

obtain summary judgment by demonstrating the absence of any genuine issue of material

fact and showing, as a matter of law, that they were entitled to enjoin the defendants from

resubdividing their lot and building a second dwelling in contravention of the restrictive

covenant.

* * *

Validity of Restrictive Covenants

Although restrictions on land use have never been popular in the law, the

courts will enforce a restriction that apparently will operate to the general

bene!t of the owners of all the land the restriction will affect. The usual

method of enforcing such agreements is by injunction to restrain a violation.