At Least Give Us Our Existing Use

Class: Land Use and Regulation

Professor: Serkin

Topic: Existing Use Exception to Regulatory Takings

Word to the wise: if you think that government regulation of your land is inherently evil or unconstitutional ... don't take a course on "land use and regulation." You will be surprised to find out that the preceding belief is not taken seriously or even debated within the first week. It's a given that private property is created and maintained by the government and you (the wretch that you are) are blessed that "they" let you do anything with it.

The first week of this class was given to review of the regulatory takings doctrine which basically allows a city council to tell you what you can't do with your land without having to pay for the benefit of the restriction. Penn Central is the hallmark of the case law at the moment with some insurgency via Scalia in Lucas. I'm going to save my bitching about zoning for a later date ... but, if your interested, read those two cases and you'll have the gist of the situation.

What I do want to discuss is the Existing Use Doctrine. Every lay lawyer has heard of the idea called "grandfathering." Basically, if a law is passed by way of the police power of the state which restricts your current use or activity, you generally get the benefit of not having to conform like all the other suckers who were putting off the same action for whatever reason. So if Loganville, GA decides to rezone the area surrounding a Walmart from commercial to residential, Walmart gets to continue its activities until they decide to cease and desist - at which time the land will be restricted to dwellings. The guy owning five acres next to Walmart with a single residence who was waiting for the property value to go up in his commercial zone before developing is screwed. The down-zoning destroys the value of his land, and he cries himself to sleep knowing he made a bad bet of waiting too long. Again ... the obvious complaint in this situation is with zoning itself; but one thing at a time.

Non-conforming existing use is generally protected much more than what I will call "future use." So, for the most part, if your property gets down-zoned from industrial to residential, the present use of your land, a factory for instance, would be given much more protection than say a future plan that you had to build a similar factory - grandfathering in action. If the government wanted to stop your current use, it would have to compensate you. If it wanted to prevent your future use, all it would have to do is down-zone before you built the factory itself.

But this protection is under attack with my professor leading the charge. His general premise, interestingly, is one that I agree with. Having read his journal submission beta (he was nice enough to be self depreciating in assigning it - so the vanity complaint is struck) I gather that he believes that there is no difference between existing use and future use. Fine enough, except for what he proposes this entails: namely that existing use protection should be limited to the Penn Central type analysis - meaning that the government should be able to tell you to demolish your factory at the event of down-zoning.

God bless the kid in the blue shirt one row ahead. He led the charge with the obvious counterattack stating that the opposite assumption could be given equal weight. If future use and existing use are one in the same, why not apply the protection for existing use to future use. That way the government must compensate you for any diminution in value your property receives whether it be future (within reason), or existing. My classmate's main argument was that there was a strong intuitive impulse that would work against allowing a government to, say, force you to demolish your dwelling because it wanted a twenty foot set back instead of ten. What is the real difference between a land owner who has a house that is non conforming and a landowner who wants to build a house that is also non conforming? My answer: not much.

An illustration: In Smith, a woman inherited her father's mobile home which had only been allowed to stay outside of a "mobile home park" because of a grandfathering provision in the recent restriction on mobile homes in the county. When title transferred to the daughter by way of will, the city maintained that the existing use ceased with said transfer. At this point the daughter had to go to court or simply remove the trailer from the land. She went to court and lost the existing use (boon for the trailer park lessors). What is the difference between her father and someone who has some land and wants to put a trailer on it but cant because he didn't get the memo from the county telling him he better act now? The harm is similar. The difference between where this evaluation takes you is important however. Should the protection given to existing use extend to future use or the other way around? Should someone who owns a piece of commercially zoned property who is waiting to build a strip mall, for whatever reason, be as protected as someone who already has? Or is there a distinction?

The real point (don't take me too seriously) is that the minute you allow a city council who just finished their spaghetti dinner at the local VFW to bang a gavel and tell you what you can and can't build on your property (excluding real harm prevention like nuisance) is the minute this country goes to hell. In some states this is the case ... but in many, the existing use exception still maintains a bulwark ... build fast.