Accommodating Change: Departures From (and Within) the Zoning Ordinance

AuthorCharles M. Haar/Michael Allan Wolf
Page 245
Chapter Four
Accommodating Change: Departures From
(and Within) the Zoning Ordinance
No zoning scheme, Euclidean, post-Euclidean, or even non-Euclidean can anticipate every change
in technology, demographics, and economics; nor can its draf ters be error-free in evaluating past
trends, present capabilities, and future needs. ese inevitable shortcomings have given rise to the
doctrine of nonconforming use to allow for past development, and have led to amendments, special
use permits, exceptions, variances, and the other “zoning forms of action,” to use Professor Donald
Hagman’s coinage in Urban Planning and Land Development Control Law 190 (1975):
As with common law forms of action, the choice of a form may or will dictate the allega-
tions to be made, decision makers involved, subject matter jurisdiction of the decision
makers, evidence to be presented, parties who have standing to be proponents or oppo-
nents, scope of relief and routes of appeal.
As you evaluate the complaints of frustrated developers and disgruntled neighbors in the fol-
lowing cases, compare the methods the courts employ to resolve these disputes to the common-law
forms you confronted in your rst year of law study, and to the quasi-judicial mode of resolution
found in the realm of “public law.” Do the private property protections aorded by American law
require that current uses, even if they fail to comply with new regulations, continue potentially
forever, or should there be a reasonable time period after which the landowner has to comply like
everyone else in the neighborhood? Does the fairly debatable standard give too much license to
local ocials who are easily inuenced by powerful development interests? If the court chooses
instead to require the nding of a signicant mistake or change in circumstances before allowing
a zoning change, does this unnecessarily restrict local innovation and creativity? Does the dier-
ence between implementing a general program for land use a nd deciding what is appropriate for
a particula r parcel justify varying levels of scrutiny? Is deference to lawma kers, particularly local
decisionmakers who are too easily tempted by the promise of political and nancial rewards, an
outmoded and stultifying concept, or a wise strategy for avoiding domination by the so-called
least dangerous (judicial) branch? If there is no meaningful way to distinguish a use variance from
a zoning amendment, should the former be permitted? Why are the variance and the special use
permit so easily confused?1
As you study each of the devices for departing from “normal” zoning classications, keep
these four questions in mind: (1) What procedures must be followed by the landowner? (2) Which
1. For a typical case distinguishing between a special exception and a variance, see Carson v. Board of Appeals of Lex-
ington, 321 Mass. 649,75 N.E.2d 116 (1947). See also Mitchell Land Co. v. Planning & Zoning Bd. of Appeals, 140
Conn. 527, 532, 102 A.2d 316, 319 n.1 (1953) (listing several “[c]ases in which a variance has been sought, although
in certain instances the owner was actually, though unwittingly, seeking an exception”), and Grasso v. Zoning Bd. of
Appeals, 69 Conn. App. 230, 794 A.2d 1016 (App. Ct. 2002).
Page 246 Land Use Planning and the Environment: A Casebook
government bodies (boards, local legislatures, courts) are involved in the decisionmaking process?
(3) What is the legal standard for allowing or disallowing the departure? (4) Who has standing to
object to the departure?
I. Nonconforming Uses: Preexisting Uses That Won’t Fade Away
e corner grocer y store in the midst of a neighborhood about to be zoned residential attracted
relatively little attention from the advocates of zoning in 1913. e spirit of the times is typied
by the following statement by one of the early greats of the zoning movement, Edward M. Bas-
sett, in Zoning: e Laws, Administration, and Court Decisions During the First Twenty Years
105 (1936): “Zoning has sought to safeguard the future, in the expectation that time will repair
the mistakes of the past.” But in 2013 the store building may still be there—and even joined by
other nonresidential uses whose existence it encourages. Nonconforming uses seldom die—nor do
they fade away. Consider the testimony of a well-known planner, Harland Bartholomew, in Non-
Conforming Uses Destroy the Neighborhood, 15 J. Land & Pub. Util. Econ. 96 (1939):
e thesis of this paper is that in the now familiar “non-conforming use” is found one of
the most potent factors — if not the principal factor — which cause prospective home
builders and buyers to seek newly developing suburban areas.
At a public hearing called to consider the adoption of a zoning ordinance one citizen
stated that during his lifetime his family had built six homes, each successive home being
farther removed from the city’s center than the last, that each home had been well built
but had to be abandoned because the environment of the neighborhood became objec-
tionable as the result of the intrusion of non-residential uses. Each of the old homes was
sold at a small sum compared with its original cost, and all but one were still standing.
is story caused the city plan commission to make an exhaustive study of non-con-
forming uses throughout the city’s area. e study revealed a denite pattern. e older
the neighborhood the higher the percentage of non-conforming uses. e oldest cen-
trally located neighborhoods contained non-residential uses occupying approximately
15% of net block area. Midtown districts contained about 5% of net block area. As
outlying districts were approached, non-conforming uses occupied less than 1 % of net
block area, while the newest subdivisions usually contained no non-conforming uses.
e history of property development and of trends in property values in American
cities is thus illustrated. It is a record of gradual abandonment and loss caused by inad-
equate protection of home environment. . . .
Not long after Euclidean zoning spread from municipality to municipality across the country,
local governments began to experiment with ways of restricting and eliminating these pesky and
persistent nonconformities.
e following two cases, representing the majority and minority positions, respectively, dem-
onstrate the diculties courts face in evaluating the fairness and ecacy of one popular strategy—
amortization. Is there a middle ground between the two positions articulated in these decisions?
VALLEE, Justice. . . .
Chapter Four: Accomodating Change Page 247
In 1930 Gage acquired adjoining lots 220 and 221 located on Cochran Avenue in Los Ange-
les. He constructed a two-family residential building on lot 221 and rented the upper half solely
for residential purposes. He established a wholesale and retail plumbing supply business on the
property. He used a room in the lower half of the residential building on lot 221 as the oce for
the conduct of the business, and the rest of the lower half for residential purposes for himself and
his family; he used a garage on lot 221 for the storage of plumbing supplies and materials; and he
constructed and used rack s, bins, and stalls for the storage of such supplies and materials on lot
220. Later Gage incorporated defendant company. . . .
In 1930 the two lots and other property facing on Cochran Avenue in their vicinity were clas-
sied in “C” zone by the zoning ordinance then in eect. Under this classication the use to which
Gage put the property was permitted. Shortly after Gage acquired lots 220 and 221, they were
classied “C-3” zone and the use to which he put the property was expressly permitted. In 1936
the city council of the city passed Ordinance 77,000 which contained a comprehensive zoning
plan for the city. Ordinance 77,000 re-enacted the prior ordinances with respect to the use of lots
220 and 221. In 1941 the city council passed’ Ordinance 85,015 by the terms of which the use of
a residential building for the conduct of an oce in connection with the plumbing supply business
was permitted. Ordinance 85,015 prohibited the open storage of materials in zone “C-3” but per-
mitted such uses as had been established to continue as nonconforming uses. e use to which lots
220 and 221 was put by defendants was a nonconforming use that might be continued. In 1946
the city council passed Ordinance 90,500. is ordinance reclassied lots 220 and 221 and other
property fronting on Cochran Avenue in their vicinity from zone “C-3” to zone “R-4” (Multiple
dwelling zone). Use of lots 220 and 221 for the conduct of a plumbing business was not permitted
in zone “R-4.” At the time Ordinance 90,500 was passed, and at all times since, the Los A ngeles
Municipal Code (§ 12.23 B & C) provided:
(a) e nonconforming use of a conforming building or structure may be continued,
except that in the “R” Zones any nonconforming commercial or industrial use of a resi-
dential building or residential accessory building shall be discontinued within ve (5)’
years from June 1, 1946, or ve (5) years from the date the use becomes nonconforming,
whichever date is later. . . .
(b) e nonconforming use of land shall be discontinued within ve (5) years from
June 1, 1946, or within ve (5) years from the date the use became nonconforming, in
each of the following cases: (1) where no buildings are employed in connection with
such use; (2) where the only buildings employed are accessory or incidental to such use;
(3) where such use is maintained in connection with a conforming building.
Prior to the passage of Ordinance 90,500 about 50% of the city had been zoned. It was the
rst ordinance which “attempted to zone the entire corporate limits of the city.” Prior to its pas-
sage, several thousand exceptions and variances were granted from restrictive provisions of prior
ordinances, some of which permitted commercial use of property zoned for residential use, “and in
some cases permitted the use of land for particular purposes like or similar to use of subject prop-
erty which otherwise would have been prohibited.” Under Ordinance 90,500, the uses permitted
by these exceptions and variances that did not carry a time limit maybe continued indenitely.
e business conducted by Gage on the property has produced a gross revenue varying between
$125,000 and $350,000 a year. If he is required to abandon the use of the property for his business,
he will be put to the following expenses:
(1) e value of a suitable site for the conduct of its business would be about $10,000;
which would be oset by the value of $7,500 of the lot now used. (2) e cost incident to

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