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    Richard DeJana, Esq., Kalispell, Montana

A. The   Power to Zone
    The power to zone or enforce land use controls is vested in the State’ s Police Power.  The State then delegates that power to agencies or local government units. That  power to zone  necessarily interacts with  real property interests.
    The Fifth Amendment to the U.s. Constitution provides in part that 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.”  The Fourteenth Amendment applied similar terms with respect to the States.  “[N]or shall any State deprive any person of life, liberty or property, without due process of law, or deny any person within its jurisdiction equal protection of the laws.” 
    Until we hit the 1900's, the Fifth Amendment was used to protect a person’s “property” in the manner in which they wished to use it.  Using the Police Power and a “nuisance” theory, in  1909 the  Supreme Court in Welch vs. Swasey, 214 U.S. 91, 29 SCT 567, 53 L. ED 923(1909), allowed the city of Boston to regulate the height of buildings and the mode of construction, provided the restraints on those were not unreasonable or inappropriate.  Other zoning type regulations were upheld over the years in such cases as an ordinance prohibiting brick making in certain areas.  (Hadcheck vs. Sebastian, 239 U.S. 394, 36 SCT 143, 60 L. ED 348(1915).)
    The states were giving comprehensive zoning regulations  mixed results.   The Supreme Court recognized the constitutionality of comprehensive zoning regulations in Euclid vs. Ambler Realty Company, 272 U.S. 365. 47 SCT 114, 71 L. ED 303(1926).  There, comprehensive zoning regulations were determined to be a proper exercise of the Police Power and  they were not proved to be a constitutional deprivation of property.  (272 U.S. at 388)  The Supreme Court  again recognized the constitutionality of comprehensive zoning  Zahn vs. Board of Public Works, 274 U.S. 372, 47 SCT 594, 71 L. ED 1074(1927) and  (Gorieb vs. Fox, 274 U.S. 603, 47 SCT 675, 71 L. ED 228(1927)
    Then, in  Nectow vs. Cambridge, 277 U.S. 183, 48 SCT 447, 72 L. ED 842 (1928), the Court found that the dividing of a property with a portion of it being placed in a residential zone was an unconstitutional application of the zoning statute, because  no practical use could be made of the strip of land that had been zoned as residential.  This would be a violation of due process if public safety, health and convenience and the general welfare would not be promoted by such division. 
    Thus, the foundations were laid for the present questions in zoning and general land use controls.  The foregoing cases emphasize a case by case approach in determining the validity of an ordinance and  point out that an ordinance valid in one location may in fact not be valid in another (Euclid, Supra).  The fundamental basis rests in the theory of the Police Power derived somewhat from nuisance and for which, “nuisance” theories are used to help explain.  (Euclid, Supra). 
    More importantly we have to ask  what is that thing called Police Power?
    Land use regulations that have a substantial bearing upon the public health, safety, morals or general welfare of the community and which are within the authority granted by the legislature will be found to be a constitutional exercise of Police Power.  The Police Power of the state is that power  which enables states to pass regulations for the health, safety and general welfare of the people. Such regulations must be reasonably adapted to their purposes and must injure or impair property rights of the citizens only to the extent reasonably necessary to preserve the public welfare. Police Power cannot be used to take unreasonable, arbitrary or capricious action against a citizen. A statute enacted under a state's Police Power must be reasonably related to a permissible legislative objective.
        Basically, the power to zone or engage in land use controls arises from the power of the state to protect the health, safety and general welfare of its people – The Police Power.


    Property rights are those rights one holds in his own property or by way of conveyance over the property of his neighbor.  Too often neighbors and planners use the term property rights in an inappropriate way. They like to discuss the communities limitions on ones use of ones own land in terms of  property rights.  That approach is not only wrong, but is an attempt to circumvent the real issue.
    In the treatise, “Neighboring Property Owners” by Hand and Smith, © 2007 Thomson/West, the authors point out that rights with respect to property arise from at least three sources. Some arise out of the inherent rights as a person, some from the ownership of real property. This set of rights runs from the right to use the property to the right to transfer it and the protections from Government takings. The third is the collection of rights and duties that arise because property does not exist in a vacuum, but has adjacent properties.
     The authors point out that in common law countries such as ours no clear set of legal rights has been laid out for these neighboring owners, while in civil law this has occurred. The authors continue: “It is therefore not surprising that nuisance, the common-law tort developed to deal explicitly with the relationships between neighboring property holders, has been called a "residential homeowner preference law"because of the tendency of courts to protect homeowners from offensive activities on the part of their (often non-residential) neighbors....This inherent continuity in the relationships between neighbors, then, is an important factor that any attorney representing such parties should constantly bear in mind when attempting to resolve such disputes, whichever aspect of the law of neighbors is at issue.” ( ibid Section 1.1). 
     suggest that the core of property rights is found in the fee interests in property.  The highest interest then is fee simple, which the Restatement (first) of Property in section 14 says:
An estate in fee simple is an estate which
(a) has a duration
(i) potentially infinite; or
(ii) terminable upon an event which is certain to occur but is not certain to occur within a fixed
or computable period of time or within the duration of any specified life or lives; or
(iii) terminable upon an event which is certain to occur, provided such estate is one left in the
conveyor, subject to defeat upon the occurrence of the stated event in favor of a person other than
the conveyor; and
(b) if limited in favor of a natural person, would be inheritable by his collateral as well as by his lineal

    In § 15 the Restatement addresses an Estate In Fee Simple Absolute.

“An estate in fee simple absolute is an estate in fee simple which is not subject to a special limitation (defined in § 23 [- The term "special limitation" denotes that part of the language of a conveyance which causes the created interest automatically to expire upon the occurrence of a stated event, and thus provides for a terminability in addition to that normally characteristic of such interest. ] )
or a condition subsequent (defined in § 24 [The term "condition subsequent" denotes that part of the language of a conveyance, by virtue of which upon the occurrence of a stated event the conveyor, or his successor in interest, has the power to terminate the interest which has been created subject to the condition subsequent, but which will continue until this power is exercised.])
 or an executory limitation (defined in § 25 [(1) Except as stated in Subsection (2), the term "executory limitation" denotes that part of the language of a conveyance, by virtue of which
(a) the interest subject thereto, upon the occurrence of a stated event is to be divested, before the normal expiration thereof, in favor of another interest in a person other than the conveyor or his successor in interest; or
(b) an estate in fee simple determinable, or an analogous interest in a thing other than land, or an estate in fee simple conditional, concurrently with its expiration, is to be succeeded forthwith by another interest in a person other than the conveyor or his successor in interest.
(2) The term "executory limitation" does not denote that part of the language of a conveyance which creates a remainder on condition precedent, the fulfillment of which can divest a reversionary interest left in the conveyor or his successor in interest.]).”