Administrative Property and the Bundle of Sticks

• The bundle of sticks we saw at the

beginning of the class has been significantly
eroded by regulations during the twentieth
century.
• We sometimes refer to administrative
property as the mixed form of landholding
between common law rights and
comprehensive schemes.

Prof. Lolita Buckner Inniss--Property 1

 Attributes of Administrative Property
• The bundle of sticks is smaller.
• The rights remaining in the bundle are
undetermined, since there can be variances and
exceptions.
• Rights removed from the bundle are scattered
among claimants, such as various agencies, such
that many agencies may have ability to stop a
particular use, but none the authority to allow the
use
• Transaction costs are higher in considering the
reallocation of the rights, since the interests of
taxpayers, landowners, neighbors, etc. must be
considered.
Prof. Lolita Buckner Inniss--Property 2
• Zoning is control of the use of land by
government regulation.
• It often involves
– administrative law
– constitutional law
– local government law

Prof. Lolita Buckner Inniss--Property 3

 Zoning vs. Common Law Property
• Zoning takes up where defeasible fees, servitudes,
and other common law doctrines leave off.
• While defeasible fees often specifically indicated
what behavior was required or forbidden, they
were mostly useful where one landholder
dispersed all the land.
• Similarly, servitudes reflected private agreements
between relatively few landowners.
• Zoning involves government control over private
property

Prof. Lolita Buckner Inniss--Property 4

 Early History of U.S. Zoning
• European cities in the late 19th century developed the controls that
would later evolve into what is known today as zoning.
• Chicago’s first zoning ordinance was in 1894 (height only, no
setbacks), New York City developed the first comprehensive zoning
ordinance in 1916, mostly as a response to construction of The
Equitable Building (which still stands at 120 Broadway).
• New York's 1916 Zoning Resolution established height and setback
controls on buildings and separated incompatible uses.
• As skyscrapers became popular at the beginning of the 20th century,
complaints were lodged about the buildings' ability to block sunlight.
– The zoning ordinance specified that buildings would be shaped like
wedding cakes and taper toward the top in a stair-step style.
– Later zoning ordinances and building regulations changed the size and
shape of buildings in the city over the following decades.
• By the 1920’s, many cities large and small had adopted zoning
ordinances. One noteworthy exception remaining is Houston, Texas.

Prof. Lolita Buckner Inniss--Property 5

Equitable Building

Prof. Lolita Buckner Inniss--Property 6

 Power to Zone
• Power to Zone--the power of the federal government to
regulate is derived from the various express power
delegations in the United States Constitution.
– State governments, on the other hand, may regulate
land use by virtue of their powers which are inherent.
– These powers are confirmed in the tenth amendment to
the United States Constitution.
– State governments may delegate these powers to units
of local government.
– There is no inherent power to zone vested in local
government.
– Local governments cannot be compelled to zone.

Prof. Lolita Buckner Inniss--Property 7

 Police Power
• Police Power-- when state and local governments
regulate land use, it is typically said that they are
exercising the “police power.” This flows from
the Tenth Amendment.
• Police power is usually defined as the power of
government to regulate human conduct to protect
or promote public health, safety, or the general
welfare. Although the word morals is sometimes
included here, morals is usually included as part
of the “general welfare.”

Prof. Lolita Buckner Inniss--Property 8

 Tenth Amendment
• “The powers not delegated to the
United States by the Constitution, nor
prohibited by it to the States, are
reserved to the States respectively, or
to the people.”

Prof. Lolita Buckner Inniss--Property 9

 Zoning Enabling Acts

• Zoning enabling acts--general legislation

by which states delegate zoning power to
individual municipalities. Such acts
typically define both the scope of the
powers delegated to municipalities and
procedures by which the zoning process
operates.

Prof. Lolita Buckner Inniss--Property 10

 Relevant Provision of the Fifth
Amendment of the U.S. Constitution
• “No person shall be... deprived of life,
liberty, or property, without due process of
law; nor shall private property be taken for
public use without just compensation. “

Prof. Lolita Buckner Inniss--Property 11

 Other Attributes of the Police Power
• Plenary—a complete and unqualified
legislative power
• Reserved—the power is reserved to the
states, though it may be and usually is
delegated to local governments

Prof. Lolita Buckner Inniss--Property 12

 Village of Euclid v. Ambler Realty
272 U.S. 365 (1926)

• The iconic case that establishes “Euclidean”

cumulative zoning
• Landmark U.S. Supreme Court case that
established the principle and practice of land-use
zones in the U.S. The Court reversed a lower
federal court ruling in a 6-3 decision.
• Until then, zoning land in municipalities for
specific uses had been a popular "city efficient"
technique receiving lukewarm support in the
nation's state courts.
Prof. Lolita Buckner Inniss--Property 13
 Euclid

Prof. Lolita Buckner Inniss--Property 14

 Background
• Euclid largely was a farming community in the
1920’s, but one that had become connected to
Cleveland by inter-urban rail.
• There was fear that the wealthy from next-door
Cleveland (think Rockefellers, etc.) would move
unpleasant uses to Cleveland
• Euclid enacted its zoning code in 1922 with 6 use
districts:
– U-1, single family detached homes
– U-2, U-1 plus duplex units
– U-3, U-2 plus apartments
– U-4, U-3 plus office & commercial
– U-5, U-4 plus warehouses and some manf.
– U-6, U-5 plus allProf.
other industries.
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• This is termed “cumulative” or “Euclidian” zoning,
meaning that . . .
• All more restrictive uses are permitted in the less
restricted area, so . . .
– Single family is permitted in all 6 districts
– Duplexes are permitted in 5 districts, U-2 thru U-6
– Apartments are permitted in 4 districts, U-3 thru U-6
– Office & Commercial are permitted in 3 districts, U-4, U-5
& U-6.
– Limited manufacturing is permitted in 2 districts, U-5 and
U-6.
– All other activities are only permitted in 1 district, U-6.

Prof. Lolita Buckner Inniss--Property 16

The property . . . .
• Ambler Realty Co. owned 68 acres of land in
Euclid, Ohio.
• Purchased in 1911.
• Euclid’s zoning code would restrict the
property to:
– Industrial development – 60% or 41 acres
– Apartments – 6% or 4 acres
– Duplex units – 33% or 22 acres
• Note, none of the property is single family
Prof. Lolita Buckner Inniss--Property 17
 Lower Court
• District Judge David Westenhaven ruled, in
January 1924, that the ordinance was an
improper use of the Village’s police powers
and thus unconstitutional.

Prof. Lolita Buckner Inniss--Property 18

 Appeal
• City argued that zoning was a form of nuisance
control and thus a reasonable exercise of the
police power.

• Plaintiff claimed that zoning deprived an

owner of property without due process.

Prof. Lolita Buckner Inniss--Property 19

 Opinion by Justice Sutherland
• Justice George Sutherland, a
conservative perhaps best
known for his opposition to
FDR’s “New Deal.”
• He moved the court to favor
Euclid, accepting zoning as a
legitimate means of addressing
problems arising from the
nation’s growth.

Prof. Lolita Buckner Inniss--Property 20

Sutherland’s observation
• “Until recent years, urban life was
comparatively simple;
but with the great increase and concentration of
population, problems have developed, and
constantly are developing,
which require, and will continue to require,
additional restrictions in respect of the use and
occupation of private lands in urban
communities.”

Prof. Lolita Buckner Inniss--Property 21

 What is Southerland talking about?
• Urban America was on the ascendancy
• In the 1920 census 50% of nation’s
population were in urbanized areas (2,500
persons or more)
• The problems of urbanization where before
society. Ignoring them was not option.
• The only question was who would deal with
them and under what legal theory.
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Solid waste disposal in New York
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Prof. Lolita Buckner Inniss--Property 24
Chicago traffic -- 1906

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South Chicago – about 1900

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Gerry, Indiana early 20th
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 Regarding Apartments
• “Apartment houses are often mere parasites,
taking advantage of the residential character
created by surrounding single-family use.
And, one apartment house is followed by
another, creating noise, congestion, traffic
until the residential character is utterly
destroyed.”
• Are there class implications here?
Prof. Lolita Buckner Inniss--Property 28
 Exclusion of business will
• Achieve . . .
• Easier provision of fire apparatus
• Increase safety and security of homelife
• Prevent street accidents, especially to children
• Reducing traffic
• Reducing noise
• Reducing other conditions that produce or intensify
nervous disorders
• Preserve a more favorable environment in which to
raise children
Prof. Lolita Buckner Inniss--Property 29
 More on business exclusion
• “. . .the exclusion of buildings devoted to
business, trade, etc. from residential districts,
bears a rational relationship to the health and
safety of the community.”

• Therefore the exclusion of buildings devoted to

business, trade, etc. from residential districts
would be an exercise of the police power to
protect public health, safety etc.
Prof. Lolita Buckner Inniss--Property 30
Facial attack
• Southerland – “[We] determine . . . that the ordinance
in its general scope and dominant features, so far as
its provisions are here involved, is a valid exercise of
authority, leaving other provisions to be dealt with as
cases arise directly involving them.

• [meaning that “other provisions” will be dealt with as

they are applied in individual cases]

Prof. Lolita Buckner Inniss--Property 31

After Euclid
• The Ambler site remained vacant until World
War II, when it was rezoned by the city to
industrial as a site for a General Motors aircraft
plant.
• After the war GM used it as a Fisher body
plant, assembling Cadillac bodies.
• In 1994 GM closed the plant – permanently
• In 1996 the site sold for $3 million [$44,000 per
acre].

Prof. Lolita Buckner Inniss--Property 32

 Limits on the Zoning Power
• The power of the federal government to regulate land use
is expressly limited by the "due process" and "takings"
clauses of the Fifth Amendment to the United States
Constitution, made applicable to the states by the
Fourteenth Amendment.

• State statutes and local ordinances regulating land-use are

frequently challenged on the ground that they deprive
landowners of property without "substantive due process".
Such statutes and ordinances are also sometimes
challenged as de facto "taking a private property for public
use without just compensation."

Prof. Lolita Buckner Inniss--Property 33

 Critiques of Zoning
• Most of the critiques of zoning fall into four broad
categories. Two concern fairness or equity and the
other two are based on considerations of economic
efficiency.
• Zoning is said to be:
– (A) unfair because it benefits some landowners at the
expense of others;
– (B) exclusionary, and therefore unfair to those excluded
from a particular community;
– (C) inefficient insofar as it adds large transaction costs
to development decisions, outweighing the benefits (if
any) of zoning; and
– (D) inefficient in that it "distorts" land use allocation
decisions, resulting in inefficient patterns of land use.
Prof. Lolita Buckner Inniss--Property 34
 Comprehensive Plan vs. Master
Plan
• Zoning is typically done in accord with a
“comprehensive plan” by which the municipality
balances uses and which meets particular state
requirements.
• There may also be a “master plan”, which is a
separate statement which is broader and states
general plans, themes and ideals.
• Note that zoning differs from both of the above.

Prof. Lolita Buckner Inniss--Property 35

 Hearing Bodies
• In most communities, the city council or board of supervisors
has appointed one or more hearing bodies to assist them with
planning matters. Here are some of the more common types of
hearing bodies and their usual responsibilities:
– The Planning Commission: considers general plan and specific plan
amendments, zone changes, and major subdivisions.
– The Zoning Board of Adjustment: considers conditional use permits,
variances, and other minor permits.
– Architectural Review or Design Review Board: reviews projects to
ensure that they meet community aesthetic standards.
• In some cities and counties, these bodies simply advise the legislative
body on the proposals that come before them, leaving actual approval
to the council or board of supervisors.
– More commonly, these bodies have the power to approve proposals,
subject to appeal to the council or board of supervisors.
– These hearing bodies, however, do not have final say on matters of policy
such as zone changes and general or specific plan amendments.

Prof. Lolita Buckner Inniss--Property 36

 Zoning Cases in Court
• As a general rule, property owners must exhaust their
administrative remedies before going to the courts.
• A court may not consider a declaratory judgment action to
challenge the zoning ordinance which appears on its face
to be unconstitutional unless the person raising the claim
has been adversely affected by a permit denial or other
detrimental local government action.
• This is not necessary where the claimant can show that
there is no adequate administrative remedy or where the
claimant shows that the regulations are invalid on their
face rather than invalid as applied.
• Such a judgment before a court may also not be available
when there is a specific provision in the enabling statute
for a different and exclusive means of judicial review.
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 Area Zoning

• Area zoning--regulates the size of

lots, the height of buildings, and
requirements to set back structures
a certain distance from the property
borders.

Prof. Lolita Buckner Inniss--Property 38

 Use Zoning

• Use zoning--this is a type of

zoning where the municipality is
divided into various types of uses
allowed in certain districts.

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 Limits to Zoning Laws
• prior nonconforming use
• variances
• vested rights
• special exception
• spot zoning--selective zoning to
benefit a few
• economic/racial issues
Prof. Lolita Buckner Inniss--Property 40
 Variances
• Variance--a permit to develop a parcel in a way
which would otherwise violate the zoning
ordinance; generally lot and building restrictions.
Variances are granted in cases of exceptional
and/or undue hardship.
• There must be no economically viable use of land
or no reasonable return on owner’s investment if
zoning law enforced for variance to be granted.
– Some states allow a variance on a lesser showing of
“practical difficulties”—significant economic injury
– Some states entirely disallow use variances
Prof. Lolita Buckner Inniss--Property 41
 Special Exceptions
• Special exceptions--these are permits
to develop land in ways which are
conditionally authorized by the zoning
ordinance itself. One must meet
requirements as detailed in the zoning
ordinance.

Prof. Lolita Buckner Inniss--Property 42

 Negatives of Cumulative Zoning
• In much of the post WWII aftermath of zoning, towns
separated uses into homogeneous, single-use enclaves.
• Increasing automobile dependency meant that rather than
designing towns to facilitate walking to work or to stores,
housing has spread out on ever-increasing acres of land.
• Housing of similar types for similar income levels was
grouped together, often meaning economic, racial, and
social segregation.
• Retail stores were clustered into huge structures in outlying
areas.
• Public squares, the corner store, main street, and all the
places where people could meet and a sense of community
could happen were eliminated.
• The New Urbanism movement calls for a return to mixed
use urban-style living.
Prof. Lolita Buckner Inniss--Property 43
 Zoning and the Federal Fair Housing Act
--The Fair Housing Act prohibits a broad range of practices that
discriminate against individuals on the basis of race, color, religion, sex,
national origin, familial status, and disability

--The Fair Housing Act is not a land use or zoning statute; it does not pre-
empt local land use and zoning laws. This is an area where state law
typically gives local governments primary power. However, if that power
is exercised in a specific instance in a way that is inconsistent with a
federal law such as the Fair Housing Act, the federal law will control.

Prof. Lolita Buckner Inniss--Property 44

Is there a need for land use
controls at all?
Imagine a world without
zoning…

Prof. Lolita Buckner Inniss--Property 45

Houston, Texas

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Deed Restrictions

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More non-restriction

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No Deed Restrictions

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