RELATED
LITERATURES ON ZONING (FOREIGN SOURCES)
1. “Regulations as applied in zoning are
sustained. Under the complex conditions
of our day, for reasons analogous to those which justify traffic regulations,
which, before the advent of automobiles and rapid transit street railways,
would have been condemned as fatally arbitrary and unreasonable. While the
meaning of constitutional guaranties never varies, the scope of their
application must expand or contract to meet the new and different conditions
which are constantly coming within the field of their operation. In a changing
world it is impossible that it should be otherwise.” (Village
of Euclid, Ohio vs. Ambler Realty, 272
U.S. 365, Nov. 22, 1926);
2. “The constantly increasing density of our urban
populations, the multiplying forms of industry and the growing complexity of
our civilization make it necessary for the state, either directly or through
some public agency by its sanction, to limit individual activities to a greater
extent than formerly. With the growth and development of the state the police
power necessarily develops, within reasonable bounds, to meet the changing
conditions”.
[Supreme Court of Illinois, in City
of Aurora v. Burns, supra, pages 93-95 (149 N. E. 788 )];
3. “The segregation of industries, commercial
pursuits, and dwellings to particular districts in a city, when exercised
reasonably, may bear a rational relation to the health, morals, safety, and
general welfare of the community. The establishment of such districts or zones
may, among other things, prevent congestion of population, secure quiet
residence districts, expedite local transportation, and facilitate the
suppression of disorder, the extinguishment of fires, and the enforcement of
traffic and sanitary regulations. The danger of fire and the of contagion are
often lessened by the exclusion of stores and factories from areas devoted to
residences, and, in consequence, the safety and health of the community may be
promoted.
[Supreme Court of Illinois, in City
of Aurora v. Burns, supra, pages 93-95 (149 N. E. 788 )];
4. “Zoning ordinances and regulations are laws that define and restrict how you can use
your property. Cities, counties,
townships and other local governments adopt zoning plans in order to set
development standards to assure that land is used for the common good.”(City of Alabama, California, USA, 2001)
5. “Zoning laws come into play on every single real estate development,
regardless of how big or small. So if
you are thinking about buying property or making improvements to property you
already own, you should better be sure to understand the zoning restrictions
before you commit to anything.” (City of Vancouver, Canada. 2004).
JURISPRUDENCE
1. VILLAGE OF EUCLID, OHIO v. AMBLER REALTY
CO., 272 U.S. 365 (1926)
“This is landmark case of the Supreme Court of US regarding the
constitutionality of the Zoning Ordinance.
Ambler Realty is the owner of a tract of land containing 68 acres,
situated in the westerly end of the village, abutting on Euclid Avenue to the
south and the Nickel Plate Railroad to the north. Adjoining this tract, both on
the east and on the west, there have been laid out restricted residential plats
upon which residences have been erected.
On November
13, 1922, an ordinance was adopted by the village council, establishing a
comprehensive zoning plan for regulating and restricting the location of
trades, industries, apartment houses, two-family houses, single family
houses, etc ., the lot area to be built upon, the size and height of buildings,
etc. [1]
The
ordinance is assailed on the grounds that it is in derogation of Section 1 of
the Fourteenth Amendment to the Federal Constitution that it deprives appellee
of liberty and property without due process of law and denies it the equal
protection of the law, and that it offends against certain provisions of the
Constitution of the state of Ohio. The prayer of the bill is for an injunction
restraining the enforcement of the ordinance and all attempts to impose or
maintain as to appellee's property any of the restrictions, limitations or
conditions.
Building
zone laws are of modern origin. In
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[2].
Regulations, the wisdom, necessity, and validity of which, as applied to
existing conditions, are so apparent that they are now uniformly sustained, a
century ago, or even half a century ago, probably would have been rejected as
arbitrary and oppressive. Such regulations are sustained, under the complex
conditions of our day, for reasons analogous to those which justify traffic
regulations, which, before the advent of automobiles and rapid transit street
railways, would have been condemned as fatally arbitrary and unreasonable. And
in this there is no inconsistency, for, while the meaning of constitutional
guaranties never varies, the scope of their application must expand or contract
to meet the new and different conditions which are constantly coming within the
field of their operation. In a changing world it is impossible that it should
be otherwise. The ordinance now under review, and all similar laws and
regulations, must find their justification in some aspect of the police power,
asserted for the public welfare.
Thus the
question whether the power exists to forbid the erection of a building of a particular
kind or for a particular use, like the question whether a particular thing is a
nuisance, is to be determined, not by an abstract consideration of the building
or of the thing considered apart, but by considering it in connection with the
circumstances and the locality.
The serious
question in the case arises over the provisions of the ordinance excluding from
residential districts apartment houses, business houses, retail stores and
shops, and other like establishments. This question involves the validity of
what is really the crux of the more recent zoning legislation, namely, the
creation and maintenance of residential districts, from which business and
trade of every sort, including hotels and apartment houses, are excluded. The
decisions of the state courts are numerous and conflicting; but those which
broadly sustain the power greatly outnumber those which deny it altogether or
narrowly limit it, and it is very apparent that there is a constantly
increasing tendency in the direction of the broader view.
The
decisions enumerated in the first group cited above agree that the exclusion of
buildings devoted to business, trade, etc., from residential districts, bears a
rational relation to the health and safety of the community. Some of the grounds for this conclusion are
promotion of the health and security from injury of children and others by
separating dwelling houses from territory devoted to trade and industry;
suppression and prevention of disorder; facilitating the extinguishment of fires,
and the enforcement of street traffic regulations and other general welfare
ordinances; aiding the health and safety of the community, by excluding from
residential areas the confusion and danger of fire, contagion, and disorder,
which in greater or less degree attach to the location of stores, shops, and
factories. Another ground is that the construction and repair of streets may be
rendered easier and less expensive, by confining the greater part of the heavy
traffic to the streets where business is carried on. “
2. AURORA
v. BURNS, (149 N. E. 788)
The Supreme
Court of Illinois, in City of Aurora v. Burns, in sustaining a comprehensive
building zone ordinance dividing the city into eight districts, including
exclusive residential districts for one and two family dwellings, churches,
educational institutions, and schools, said:
“The
constantly increasing density of our urban populations, the multiplying forms
of industry and the growing complexity of our civilization make it necessary
for the state, either directly or through some public agency by its sanction,
to limit individual activities to a greater extent than formerly. With the
growth and development of the state the police power necessarily develops,
within reasonable bounds, to meet the changing conditions. The harmless may sometimes be brought within
the regulation or prohibition in order to abate or destroy the harmful. The
segregation of industries, commercial pursuits, and dwellings to particular
districts in a city, when exercised reasonably, may bear a rational relation to
the health, morals, safety, and general welfare of the community. The
establishment of such districts or zones may, among other things, prevent
congestion of population, secure quiet residence districts, expedite local
transportation, and facilitate the suppression of disorder, the extinguishment
of fires, and the enforcement of traffic and sanitary regulations. The danger
of fire and the of contagion are often lessened by the exclusion of stores and
factories from areas devoted to residences, and, in consequence, the safety and
health of the community may be promoted”.
The
exclusion of places of business from residential districts is not a declaration
that such places are nuisances or that they are to be suppressed as such, but
it is a part of the general plan by which the city's territory is allotted to
different uses, in order to prevent, or at least to reduce, the congestion,
disorder, and dangers which often inhere in unregulated municipal development.
3. State of Louisiana v. City of New Orleans,
(97 So. 444)
The Supreme
Court of Louisiana, in State v. City of New Orleans, (97 So. 444), said:
“The
exclusion of business establishments from residence districts might enable the
municipal government to give better police protection. Patrolmen's beats are larger, and therefore
fewer, in residence neighborhoods than in business neighborhoods. A place of
business in a residence neighborhood furnishes an excuse for any criminal to go
into the neighborhood, where, otherwise, a stranger would be under the ban of
suspicion. Besides, open shops invite loiterers and idlers to congregate; and
the places of such congregations need police protection. The zoning of a city into residence districts
and commercial districts is a matter of economy is street paving. Heavy trucks,
hauling freight to and from places of business in residence districts, require
the city to maintain the same costly pavement in such districts that is
required for business districts; whereas, in the residence districts, where
business establishments are excluded, a cheaper pavement serves the purpose. “
The matter
of zoning has received much attention at the hands of commissions and experts,
and the results of their investigations have been set forth in comprehensive
reports. These reports which bear every evidence of painstaking consideration,
concur in the view that the segregation of residential, business and industrial
buildings will make it easier to provide fire apparatus suitable for the character
and intensity of the development in each section; that it will increase the
safety and security of home life, greatly tend to prevent street accidents,
especially to children, by reducing the traffic and resulting confusion in
residential sections, decrease noise and other conditions which produce or
intensify nervous disorders, preserve a more favorable environment in which to
rear children, etc. With particular reference to apartment houses, it is
pointed out that the development of detached house sections is greatly retarded
by the coming of apartment houses, which has sometimes resulted in destroying
the entire section for private house purposes; that in such sections very often
the apartment house is a mere parasite, constructed in order to take advantage
of the open spaces and attractive surroundings created by the residential
character of the district. Moreover, the
coming of one apartment house is followed by others, interfering by their
height and bulk with the free circulation of air and monopolizing the rays of
the sun which otherwise would fall upon the smaller homes, and bringing, as
their necessary accompaniments, the disturbing noises incident to increased
traffic and business, and the occupation, by means of moving and parked
automobiles, of larger portions of the streets, thus detracting from their
safety and depriving children of the privilege of quiet and open spaces for
play, enjoyed by those in more favored localities-until, finally, the
residential character of the neighborhood and its desirability as a place of
detached residences are utterly destroyed. Under these circumstances, apartment
houses, which in a different environment would be not only entirely
unobjectionable but highly desirable, come very near to being nuisances.
If these
reasons, thus summarized, do not demonstrate the wisdom or sound policy in all
respects of those restrictions which we have indicated as pertinent to the
inquiry, at least, the reasons are sufficiently cogent to preclude us from
saying, as it must be said before the ordinance can be declared
unconstitutional, that such provisions are clearly arbitrary and unreasonable,
having no substantial relation to the public health, safety, morals, or general
welfare. [Cusack Co. v. City of Chicago, supra, pages 530-531 (37 S. Ct. 190);
Jacobson v. Massachusetts, 197
U.S. 11 , 30-31, 25 S. Ct. 358, 3 Ann. Cas. 765.].
It is true
that when, if ever, the provisions set forth in the ordinance in tedious and
minute detail, come to be concretely applied to particular premises, including
those of the appellee, or to particular conditions, or to be considered in
connection with specific complaints, some of them, or even many of them, may be
found to be clearly arbitrary and unreasonable. But where the equitable remedy
of injunction is sought, as it is here, not upon the ground of a present
infringement or denial of a specific right, or of a particular injury in
process of actual execution, but upon the broad ground that the mere existence
and threatened enforcement of the ordinance, by materially and adversely
affecting values and curtailing the opportunities of the market, constitute a
present and irreparable injury, the court will not scrutinize its provisions,
sentence by sentence, to ascertain by a process of piecemeal dissection whether
there may be, here and there, provisions of a minor character, or relating to
matters of administration, or not shown to contribute to the injury complained
of, which, if attacked separately, might not withstand the test of
constitutionality. In respect of such provisions, of which specific complaint
is not [272 U.S. 365, 396] made, it cannot be said that
the landowner has suffered or is threatened with an injury which entitles him
to challenge their constitutionality. Turpin v. Lemon, 187
U.S. 51, 60 , 23 S. Ct. 20. In Railroad Commission Cases, 116
U.S. 307 , 335-337, 6 S. Ct. 334, 388, 1191, this court dealt with an
analogous situation. There an act of the Mississippi Legislature, regulating
freight and passenger rates on intrastate railroads and creating a supervisory
commission, was attacked as unconstitutional.
The suit was brought to enjoin the commission from enforcing against the
plaintiff railroad company any of its provisions. In an opinion delivered by
Chief Justice Waite, this court held that the chief purpose of the statute was
to fix a maximum of charges and to regulate in some matters of a police nature
the use of railroads in the state. After sustaining the constitutionality of
the statute 'in its general scope' this court said:
“Whether in
some of its details the statute may be defective or invalid we do not deem it
necessary to inquire, for this suit is brought to prevent the commissioners
from giving it any effect whatever as against this company.”
Quoting with
approval from the opinion of the Supreme Court of Mississppi, it was further
said:
“Many
questions may arise under it not necessary to be disposed of now, and we leave
them for consideration when presented”.
And finally:
“When the commission
has acted and proceedings are had to enforce what it has done, questions may
arise as to the validity of some of the various provisions which will be worthy
of consideration, but we are unable to say that, as a whole, the statute is
invalid”.
The relief
sought here is of the same character, namely, an injunction against the
enforcement of any of the restrictions, limitations, or conditions of the
ordinance. And the gravamen of the complaint is that a portion of the land of
the appellee cannot be sold for certain enumerated uses because of the general
and broad restraints of the ordinance. What would be the effect of a restraint
imposed by one or more or the innumerable provisions of the ordinance,
considered apart, upon the value or marketability of the lands, is neither
disclosed by the bill nor by the evidence, and we are afforded no basis, apart
from mere speculation, upon which to rest a conclusion that it or they would
have any appreciable effect upon those matters. Under
these circumstances, therefore, it is enough for us to determine, as we do,
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.
This is in
accordance with the traditional policy of this court. In the realm of
constitutional law, especially, this court has perceived the embarrassment
which is likely to result from an attempt to formulate rules or decide questions
beyond the necessities of the immediate issue. It has preferred to follow the
method of a gradual approach to the general by a systematically guarded
application and extension of constitutional principles to particular cases as
they arise, rather than by out of hand attempts to establish general rules to
which future cases must be fitted. This process applies with peculiar force to
the solution of questions arising under the due process clause of the
Constitution as applied to the exercise of the flexible powers of police, with
which we are here concerned.
Illegal Taking
Since Pennsylvania Coal Co., courts have relied on due process restrictions on police power to
determine whether the government has in fact “taken” property. For example, in the seminal zoning cases, the
Court looked at zoning in the light of the Due Process Clause. Village of Euclid v. Amber Realty Co., 272 U.S. 365,384-386, 395 (1926).
The governmental power to interfere by zoning
regulations
with the general rights of a landowner by restricting the character of his use is limited
by the due process requirement that such a restriction must bear a substantial
relation to the public health, safety, morals, conveniences or the general
welfare of the community. In Agins
v. City of Tiburon, 447 U.S. 255 (1980), the Court trying to summarize
its takings cases, describes a two part test. The Court cites Nectow as authority for the
first test. “The application of a general zoning law to particular property affects
a taking if the ordinance does not substantially advance legitimate
state interests.” This is the traditional substantive due process
limitation on the police power. (Emphasis supplied). Agins, supra. at 260.
Another test
is the Substantive due process doctrine which has been found to be a separate and independent
source of law for takings cases. Coal in place is land, and the right of the
owner to use his land is not absolute. He may not so use it as to create a
public nuisance, and uses, once harmless, may, owing to changed conditions,
seriously threaten the public welfare. Whenever they do, the Legislature has
power to prohibit such uses without paying compensation; and the power to
prohibit extends alike to the manner, the character and the purpose of the use.
Are we justified in declaring that the
Legislature of Pennsylvania has, in restricting the right to mine anthracite,
exercised this power so arbitrarily as to violate the Fourteenth Amendment?” Later, he
said: “Nor is a restriction imposed through exercise
of the police power inappropriate as a means, merely because the same end might
be effected through exercise of the power of eminent domain, or otherwise at
public expense. Every restriction upon the height of buildings might be secured
through acquiring by eminent domain the right of each owner to build above the
limiting height; but it is settled that the state need not resort to that power”.[3]
This limitation on the police power raises the issue of regulatory
takings. While the police power is an inherent sovereign power of the state, if
the exercise of the power "goes too far," it will be recognized as a
taking. [Pennsylvania Coal Company v. Mahon, 260 U.S. 393 (1922)].
“The essential distinction between an exercise of the State’s eminent
domain power which is compensable, and an exercise of the police power which is
not, is that in the exercise of eminent domain a property interest is taken
from the owner and applied to the public use because such use is beneficial to
the public, while in the exercise of the police power an owner’s property
interest is restricted or infringed upon to prevent its use in a manner
detrimental to the public interest. To
determine whether particular governmental actions have effected a taking, we
must focus ‘on the character of the action and on the nature and extent of the
interference with’ the plaintiff’s property rights ... (citations omitted).”[4] The nature and extent of the interference
with property rights may convert even a meritorious exercise of the police
power into a taking requiring compensation. (Commissioner
of Natural Resources v. S. Volpe & Co.,
349 Mass. 104, 107-112).
Source: Zoning Ordinance: Legal Issues and Its Implications, Arellano University School of Law, Philippines 2007.
