Land Use Law

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Said appeal to the superior court shall be by a writ of certiorari as provided by State law. The aforementioned appeal must be filed within 30 days from the date of the decision of the board of appeals, and failure to file said appeal within the 30-day period shall make the decision of the board final and executor (Section 1809 Article XVIII Zoning Board of Appeals). In Able’s verified petition, he can raise the following contentions: 1. That the board (ZBA) committed a grave abuse of discretion by denying his application for variance. In the case of City of Dallas v. Vanesko, 189 SW 3d 769 (2006), it laid down the principle of the two-tier test for abuse of discretion. The decisions of the ZBA, which is acting as a quasi-judicial body can be the subject of an appeal before a state district court by filing an application for a writ of certiorari, as a mode of appeal. The reviewing court shall not be allowed to replace its own judgment for or in behalf of ZBA. However, the presence of any aggrieved party who will challenge the decision of ZBA must be able to establish that the board has only reached a single decision. It is the reviewing court which has the power to render a decision in finality. Hence, appeals based on the ground of abuse of discretion is akin in the nature of trial de novo, where the appeals court conducts a new trial, as if no trial has been held in the first place, as it overturns the determination made by a lower court. It shall be the appeals court’s duty to determine if the board acted in bad faith, malice or gross negligence (Dougherty 16). 2. In the case of Lucas v. South Carolina Coastal Council,505 U.S. 1003(1992), the court ruled that the total takings test shall be applied when the property, which is the subject of the actual taking is being made valueless and use would not constitute a common law nuisance, then such regulatory takingrequires compensation. Able can raise the issue that the challenged zoning forbids all economically viable use of his land. In an analogous case involving similar facts, Mr. Lucas was able to show that the South Carolina Coastal Commission had forbidden practically all development of his beachfront property, amounting to $975,000. Even if the regulations do not destroy entirely all uses of the owner’s land, a favorable decision may still be granted to him provided he will establish that there is a severe economic damage on him and that the temporary interference with an owner’s use of his property breaks a distinct investment expectation, may still constitute within the concept of taking for which the Constitution requires that compensation be paid. In the final resolution of this instant case, Able’s contention is untenable. It has been a time-honored principle that zoning is a valid exercise of the police power of the state. It is the comprehensive regulation of land use in a city which imbued with public interest and such power has been recognized by the State. In the case of Connor v. City of Univ. Park, 142 SW 2d 706, 712, the court held that zoning is intended to conserve property values and encourage the most effective use of property throughout the city. As cited in the case of Strong v. City of Grand Prairie, 679 S.W.2d 767, 768, the basic purpose of all restrictive zoning ordinances is to prevent one property owner from committing his property to a use which would be unduly imposed on the adjoining landowners in the use and enjoyment of their