Real Estate & Property Law

2008 Land Use In Review: Zoning

By Robert Thomas (inversecondemnation.com)

A round up of interesting and notable zoning decisions:

• Zoning inspectors need a warrant - The US Court of Appeals for the Sixth Circuit, in  Jacob v. Township of West Bloomfield, 531 F.3d 385 (6th Cir. July 3, 2008), held that  zoning inspectors are required by the Fourth Amendment's search and seizure clause must obtain a warrant if the zoning ordinance they are purporting to enforce can lead to criminal prosecution. Full post here.

• Zoning can regulate use of property, not ownership - In City of Wilmington v. Hill, 657 S.E.2d 670 (N.C. Ct. App. 2008), the court struck down a local ordinance that required the owner of a garage apartment to reside either in the main residence or the apartment.  When his permit to build a garage apartment was denied and he was cited for violation of the ordinance, the property owner asserted the owner-occupancy requirement was an unconstitutional regulation of his ownership of the property. The court held that while the zoning power extends to regulating the use of property, it does not allow the government to control "the manner in which property is owned."  More here.

• No private right of action to enforce zoning - The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd., 119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had no standing to enforce the state's land use laws. The Hawaii Supreme Court rejected certiorari review of the case.  Disclosure: we represent the landowner. More here.

• No "property" interest in enforcement of zoning regulation - The Ninth Circuit held that there is no property right in the government's enforcement of historic preservation laws, and that a municipality's alleged failure to enforce its zoning laws was not a violation of the Fourteenth Amendment..  Shanks v. Dressel, No. 06-35665 (Aug. 27, 2008).  More here.

• Agency can tell landowner how to remain a nonconforming use - The planning department has the ability to inform a landowner whose use of property is a legal nonconforming use what it needs to do in order to remain so.  Save Diamond Head Waters LLC v. Hans Hedemann Surf, Inc., No. 27804 (Haw. ICA Dec. 19, 2008).  Details here.

Full post as published by inversecondemnation on January 02, 2009 (boomark / email).