Gale Encyclopedia Of American Law 3Rd Edition Volume 10 P51 pdf

Constitution. During times of national emer- gency, the government’s lawyers argued, the president may exercise these inherent powers without violating the Constitution. Because wartime is traditionally considered a time of national emergency, the president’s seizure of the steel mills represented a legitimate exercise of his inherent powers. The Supreme Court disagreed with these arguments. Conceding that a strike could threaten national security by curtailing the production of armaments, the Court said that the commander in chief’s authority to prosecute a foreign war does not empower him to seize private property in an effort to resolve a domestic labor dispute. “This is a job for the Nation’s lawmaker s,” Justice Black wrote, “not for its military authorities.” Black reminded the executive branch that only Congress can authorize the taking of private property for public use under the EMINENT DOMAIN CLAUSE of the FIFTH AMENDMENT to the U.S. Constitution. Justices FELIX FRANKFURTER, WILLIAM O. DOUGLAS, HAROLD BURTON, TOM CLARK, and ROBERT JACKSON each wrote a concurring opinion. Frankfurter suggested that the powers expressly enumerated in Article II may be supplemented by long- standing executive practice, though he said there was no historical precedent for Truman’s action in this case. With the exception of Jackson, the other concurring justices elaborated on points made by Justice Black in the Court’s opinion. Jackson’s concurring opinion has garnered much attention from constitutional scholars and is the most frequently cited opinion in Youngstown Sheet & Tube. Jackson articulated an overarching theory of federal executive power in the United States. Ac cording to Jackson, there are three tiers of presidential authority. When a president acts in conjunction with Congress, Jackson wrote, executive power is at its zenith because the president may rely on his own authority plus that of the legislative branch. When a president acts contrary to congressional will, executive power is at its nadir because the president must rely solely on his expressly delegated authority minus that of the legislative branch. And when a president acts in an area where Congress has been silent, executive power is uncertain and may fluctuate, depending on the circumstances. Justice FRED VINSON dissented, joined by Justices STANLEY REED and SHERMAN MINTON. The DISSENT underscored the importance of steel production to the military effort in Korea. During the two years of hostilities in Southeast Asia, the dissent noted, Congress directed the president to secure the nation’s defenses, sometimes doing so in a very general and open-ended manner. Thus, the dissent argued, Truman had received some authority from Congress to take action in the name of national defense and the PUBLIC INTEREST. The dissent also relied on history, pointing out that JAMES MADISON advocated instilling the executive branch with initiative and vigor. President ABRAHAM LINCOLN, the dissent contin- ued, showed initiative during the Civil War by ordering the seizure of all rail and telegraph lines leading to Washington, D.C., even though he lacked congressional approval. In this ligh t, the dissent concluded, Truman’s seizure of the steel mills was supported by historical precedent. Youngstown Sheet & Tube is considered a seminal case regarding the SEPARATION OF POWERS among the coordinate branches of the federal government. The U.S. Constitution separates the powers of the federal government among the executive, legislative, and judicial branches. The constitutional authority of each branch is limited by the express language of the Consti- tution and by the powers delegated to the coordinate branches. Article I gives Congress the power to make the law. Article II gives the president the power to execute or implement the law, while Article III gives the federal judiciary the power to interpret and apply the law. The popular notion of “checks and balances” rests upon this conception of the separation of powers. Despite the clear separation of constitutional powers, presidents, members of Congress, judges, and laypeople have debated whether the executive branch is vested with additional inher- ent or implied powers. On one side of the debate are those who believe the pre sidency enjoys a residue of autocratic power. According to these individuals, such power may be exercised by the president in times of national emergency and is limited only by the president’s good judgment. On the other side of the debate are those who believe the executive branch may not exercise any power that is not explicitly granted by the federal Constitution or federal statute. Youngstown Sheet & Tube went a long way toward settling this debate. Occasionally GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 488 YOUNGSTOWN SHEET & TUBE CO. V. SAWYER presidents still assert claims of EXECUTIVE PRIVILEGE and executive IMMUNITY. In some instances, federal courts recognize such claims, but often they do not. President RICHARD M. NIXON unsuccessfully attempted to insulate tape recordings made at the White House during the WATERGATE political scandal from a federal investigation, a notable example of a failed assertion of executive immunity ( UNITED STATES V . NIXON, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 [1974]). In many such cases, Youngs- town Sheet & Tube has provided the backdrop for judicial analysis of executive authority under CONSTITUTIONAL LAW. FURTHER READINGS Brownell, Roy E., II. 2000. “The Coexistence of United States v. Curtiss-Wright and Youngstown Sheet & Tube v. Sawyer in National Security Jurisprudence.” Journal of Law & Politics 16 (winter). Bryant, A. Christopher, and Carl Tobias. 2002. “Youngs- town Revisited.” Hastings Constitutional Law Quarterly 29 (spring). Fischer, Louis. 2004. Presidential War Power. 2d ed. Lawrence: Univ. Press of Kansas. Rozell, Mark J. 2002. Executive Privilege: Presidential Power, Secrecy, and Accountability. Lawrence: University Press of Kansas. CROSS REFERENCES Executive Order; Pr eliminary Injunction; Strike. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION YOUNGSTOWN SHEET & TUBE CO. V. SAWYER 489 ZENGER, JOHN PETER, TRIAL In August of 1735 John Peter Zenger, a printer for the New York Weekly Journal, was prose- cuted for seditious libel. Although Zenger may have been technically guilty of the crime as it was then defined by ENGLISH LAW, a jury made up of twelve Americans acquitted the defendant in one of the earliest acts of colonial resistance to British authority during the eighteenth century. Zenger printed the allegedly seditious arti- cles following a legal dispute between two public officials, William Cosby and Rip Van Dam. Cosby was appointed governor of New York in 1731, but did not officially take office until 1732. During the interim, Van Dam, the current governor, continued to discharge his official responsibilities, and col lect a salary. Cosby, believing that he was entitled to the salary collected by Van Dam during this period, sued the lame duck governor for restitution. When the New York Supreme Court decided in favor of Van Dam, Cosby removed Chief Justice Lewis Morris and replaced him with James DeLancey, a judge who was friendlier to the new governor. On November 1, 1733, the first issue of the New York Weekly Journal appeared. The Journal was financially supported by Morris, edited by Van Dam’s attorney, and printed by Zenger, a German immigrant with little educa tion. In a series of articles, the Journal accused Cosb y of conspiring to persecute the inhabitants of New York and tainting their judicial system. Because Cosby had altered the composition of the state supreme court by replacing a political adversary with a political ally, the articles printed in the Journal possessed a kernel of truth. In January of 1734 Cosby attempted to imprison Zenger for seditious LIBEL, but DeLancey failed to convince a GRAND JURY to indict him. Ten months later a second grand jury declined to indict Zenger, prompting the governor’s council to command the destruction of all offensive Journal ar ticles. When a third grand jury refused to issue an indictment against Zenger, Cosby ordered his attorney general to charge Zenger with seditious libel by “information,” an alternative legal procedure by which criminal proceedings may be instituted against a defendant. The information accused Zenger of having printed several false, scandalous, and defama- tory articles that tended to bring the governor into disrepute. The case was tried before the New York Supreme Court and Chief Justice DeLancey. Zenger’s lawyers, Alexander and WILLIAM SMITH, challenged the jurisdiction of the court to hear the dispute, and questioned DeLancey’s impartiality. In response, DeLancey disbarred both attorneys. Subsequently, Andrew Hamilton, one of the most noted advocates in the colonies, agreed to represent Zenger for the trial’s duration. The nub of Hamilton’s defense rested upon the veracity of the articles printed in the Journal. Acknowledging that truth was not a defense to Z 491 seditious libel under the COMMON LAW of England, Hamilton suggested that Americans enjoyed greater freedo m than citizens of Great Britain, including the right to print truthful criticisms of the government and its officials. A published allegation of official misconduct, Hamilton argued, does not amount to libel unless proven false by the government. DeLancey instructed the jurors to consider only the factual question of whether Zenger had printed or published the articles in issue. The court said it would decide the legal question of whether they were libelous. However, Hamilton had earlier intimated that the jurors enjoyed the prerogative to ignore the judge’s instructions, and render a verdict according to their collective conscience and the interests of justice. Contem- porary observers reported that the jurors took only a “small time” before returning a verdict of “not guilty.” Zenger’s trial served as a fountainhead for two different principles of American law. First, the Zenger trial represents the first case in America in which truth was asserted as a defense to an action for libel. Although Amer- icans were denied this defense under the common law of many jurisdictions during the two centuries that followed the Zenger trial, truth is now a constitutionally protect ed defense under the FIRST AMENDMENT.InNEW YORK TIMES CO . V. SULLIVAN, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), the U.S. Supreme Court cited the Zenger trial as one of the building blocks in this area of libel law. Second, the Zenger trial represents one of the first cases in which JURY NULLIFICATION was exercised in America. During the 1990s state and federal courts continue to recognize the right of juries to disregard the law and acquit certain defendants in order to prevent oppression by the government or to otherwise promote the interests of justice. This prerogative, which stems from the jury’s role as the conscience of the community, is not formally acknowledged in a number of jurisdictions. However, in those jurisdictions that do recognize it, at least one court has pointed out that “[t]he roots of jury nullification in this country reach back to 1735 and the prosecution of Peter Zenger for seditious libel” U.S. v. Datcher, 830 F.Supp. 411 (M.D. Tenn. 1993). FURTHER READINGS Alexander, James. 2001. A Brief Narrative of the Case and Trial of John Peter Zenger: Printer of the New York Weekly Journal. Birmingham, Ala.: Palladium. Glendon., William R. 1996. “The Trial of John Peter Zenger.” New York State Bar Journal 68 (December). Putnam, William Lowell. 1997. John Peter Zenger and the Fundamental Freedom. Jefferson, N.C.: McFarland. CROSS REFERENCES Libel and Slander; Sedition. ZERO BRACKET AMOUNT A lump-sum allowance of income that a taxpayer could receive without imposition of any federal INCOME TAX because it was considered equivalent to the standard amount of deductions usually taken by an average taxpayer. It was replaced by the standard deduction in the TAX REFORM ACT of 1986. 100 Stat. 2085, 26 U.S.C.A. §§ 47, 1042. The zero-bracket amount was so named because a zero rate of taxation was applied to it. Its financial value was determined by the filing status of the taxpayer. If a taxpayer had more deductions that qualified as itemized deductions than the zero-bracket amount, she could itemize deductions, but the itemized deductions were reduced by the zero bracket amount. That figure was subtracted from the taxpayer’s adjusted gross income to find her taxable income, upon which the income tax liability was computed. Congress eliminated the zero-bracket amount in the Tax Reform Act of 1986, replacing it with the standard deduction. The standard deduction is a specific dollar amount that can be deducted from income by those taxpayers who do not itemize their deductions because their deductions do not exceed the standard deduction assigned to them. The base amount of the standard deduction depends on the taxpay er’s filing status (single, married filing jointly, married filing separately, head of household, or qualifying widow or widower). ZERO TOLERANCE The policy of applying laws or penalties to even minor infringements of a code to reinforce its overall importance and enhance deterrence. Since the 1980s the phrase zero tolerance has signified a philosophy toward illegal con- duct that favors strict imposition of penalties regardless of the individual circumstances of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 492 ZERO BRACKET AMOUNT each case. Zero tolerance policies deal primarily with drugs and weapons and have been implemented by most sch ool districts in the United States. Fede ral laws have driven zero tolerance, but state legislatures have been willing to mandate similar policies. Supporters of zero tolerance policies contend that they promote the safety and well-being of school children and send a powerful message of deterrence. In addition, supporters believe strict adherence to these polices ensures that school officials do not treat individual children differ- ently. Critics of zero tolerance believe that inflexible discipline policies produce harmful results. Moreover, school administrators have failed to use common sense in applying zero tolerance, leading to the expulsion of children for bringing to school such items as an aspirin or a plastic knife. The term zero tolerance was first employed by President RONALD REAGAN’s administration when it launched its War on Drugs initiative in the early 1980s. Some school districts embraced the initiative in an attempt to eradicate drug possession and drug use on school property. The policy became law when Congress passed the Drug-Free Schools and Campuses Act of 1989 (Pub. L. No. 101-226, 103 Stat. 1928). The act banned the unlawful use, possession, or distribution of drugs and alcohol by students and employees on school grounds and college campuses. It required educational agencies and institutions of higher learning to establish disciplinary sanctions for violations or risk losing federal aid. As a result, the majority of schools and colleges immediately began to adopt zero tolerance policies to safeguard their federal funding. Congress attempted to legislate a zero tolerance poli cy toward weapons on school grounds when it passed the Gun-Free Schools Act of 1994 (Pub. L. 103-382, Title I, § 101, October 20, 1994, 198 Stat. 3907). According to the act, every state had to pass a law requiring educational agencies to expel from school, for not less than one year, any student found in possession of a gun. Students with disabilities under either the Individuals with Disabilities Act (IDEA) (Pub. L. No. 91-230, 84 Stat. 175) or Section 504 of the Rehabilitation Act (Pub. L. No. 93-112, 87 Stat. 355) could be expelled for only 45 days. Despite these strict provisions, the act permitted school superintendents to modify the expulsion requirement on a case-by-case basis. The Gun-Free Schools Act was struck down as unconstitutional by the U.S. Supreme Court in 1995 because Congress had over- stepped its powers granted under the COMMERCE CLAUSE (United States v. Gomez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 [1995]). This federal law was the catalyst for school zero tolerance policies that soon went beyond drugs and weapons to include hate speech, harassment, fighting, and dress codes. School principals, who must administer zero tolerance policies, began to suspend and expel students for seemingly trivial offenses. Students have been suspended or expelled for a host of relatively minor incidents, including possession of nail files, paper clips, organic cough drops, a model rocket, a five-inch plastic ax as part of a Halloween costume, an inhaler for asthma, and a kitchen knife in a lunch box to cut chicken. Outraged parents of children disciplined by zero tolerance policies protested to school boards, publicized their cases with the news media, and sometimes filed lawsuits in court seeking the overturning of the discipline. Courts generally have rejected such lawsuits, concluding that school administrators must have the ability to exercise their judgment in maintaining school safety. One study, issued by the Advancement Project in 2000, suggested that zero tolerance, while supposedly a neutral policy, was applied disproportionately to students of color. Such concerns led the AMERICAN BAR ASSOCIATION (ABA) in 2001 to pass a resolution opposing, in principle, zero tolerance policies that (1) have a discriminatory effect, or (2) set forth manda- tory punishment without regard to the circum- stances or nature of the offense, or the student’s history. The ABA concluded that such “one-size-fits-all” policies violate students’ DUE PROCESS rights. Although the organization urged schools to maintain strong prevention policies, it wanted to ensure that students’ rights were protected when they were disciplined. Other organizations have also criticized the application of zero tolerance policies. During the mid-first decade of the 2000s, the American Psychological Association commissioned a task force to study the effects of zero tolerance policies on children in schools. After reviewing ten years worth of data, the task force in 2006 concluded that zero tolerance policies may actually have the effect of increasing bad behavior and leading to higher dropout rates among middle and secondary school children. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ZERO TOLERANCE 493 Despite the backlash, zero tolerance has remained a central part of school administra- tion. In particular, zero tolerance for weapons has been a top priority due, in part, to a string of school shootings, which culminated in the 1999 tragedy at Columbine High School in Colorado. Some school administrators have turned to zero tolerance policies because they need to respond swi ftly and decisively in order to maintain control and discipline. They contend that such polices can be communicated clearly and forcefully to students so they understand that discipline will be immediate and predictable. Finally, another reason for school administrators to embrace zero tolerance policies is legal liability. A school that does not enforce a zero tolerance policy risks a civil lawsuit by victims of school violence. FURTHER READINGS American Bar Association: Criminal Justice Section. 2001. Report on Zero Tolerance. Available online at http:// www.abanet.org/crimjust/juvjus/zerotolreport.html (accessed June 7, 2009). Ayers, William, Bernardine Dohrn, and Rick Ayers, eds. 2001. Zero Tolerance: Resisting the Drive for Punishment. New York: New Press. Skiba, Russell J., and Gil G. Noam, eds. 2002. Zero Tolerance: Can Suspension and Expulsion Keep Schools Safe? New York: Jossey-Bass. CROSS REFERENCES Schools and School Districts; Three Strikes Laws. ZONING The separation or division of a municipality into districts, the regulation of buildings and structures in such districts in accordance with their construc- tion and the nature and extent of their use, and the dedication of such districts to particular uses designed to serve the GENERAL WELFARE. Zoning is the regulation of the use of real property by local government and restricts a particular territory to residential, commercial, industrial, or other uses. The local governing body considers the character of the property as well as its fitness for particular uses. It must enact the regulations in accordance with a well- considered and comprehensive plan intended to avoid ARBITRARY exercise of government power. A comprehensive plan is a general design to control the use of properties in the entire municipality, or at least in a large portio n of it. Individual pieces of property should no t be singled out for special treatment. For example, one or two lots may not be placed in a separate zone and subjected to restrictions that do not apply to similar adjoining lands. Zoning ordinances divide a town, city, village, or county into separate residential, commercial, and industrial districts, thereby preserving the desirable characteristic s of each type of setting. These laws generally limit dimensions in each zone. Many regulations require certain building features and limit the number and location of parking and loading areas and the use of signs. Other regulations provide space for schools, parks, or other public facilities. Zoning helps city planners bring about orderly growth and change. It controls popula- tion density and helps create attractive, health- ful residential areas. In addition, zoning helps assure property owners and residents that the characteristics of nearby areas will remain stable. In some states, a municipality has the right to be heard on proposed zoning in an adjoining community. Courts have upheld this so-called extraterritorial zoning as an exercise of the POLICE POWER of the state, with the goal of serving the GENERAL WELFARE of both communities and creating harmony among the uses of a given area, without regard to political boundaries. Following the lead of New York City, which passed the first major zoning ordinance in 1916, most urban communities throughout the country have enacted zoning regulations. Zoning is not merely the divi sion of a city into districts and the regulation of the structural and architectural designs of buildings within each district: It also requires consideration of future growth and development, adequacy of drainage and storm sewers, public streets, pedestrian walkways, density of population, and many other factors that are within legisla- tive competence. BUILDING CODES, which govern the safety and structure of buildings, do not contradict zoning ordinances but exist side by side with them. Both rest on the police power: zoning stabilizes the use of property, and building codes ensure the safety and structure of buildings. Zoning is intended to have a relative permanency, whereas building codes are much more flexible because they must keep abreast of new materials and other technological advances. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 494 ZONING Municipalities have power to zone property only if a state grants it by statute or it is derived from constitutional provisions. Zoning ordi- nances must be reasonable because, by their nature, they restrain the use of property that the owners could otherwise use as they chose. The landowner cannot complain as long as the power to zone is used in the PUBLIC INTEREST and for the general welfare of the community impartially and without compensation. The regulations must meet the demands of the constitut ional prohibition against taking private property for public use without JUST COMPENSATION as mandated by the Fifth and Fourteenth Amendments to the U.S. Constitu- tion as well as by the constitutions of the states. The U.S. Supreme Court decided three cases that have hadconsiderable impact in this area: Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); and Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309,129 L. Ed. 2d 304 (1994). The decisions made it more difficult for municipalities to require that land developers give up part of their property for public purposes, such as access to lake shores, sidewalks, access roads, and parks. If the govern- ment needs the land, it must compensate the owner by exercising its power of EMINENT DOMAIN and condemning the property. The Court issued a controversial eminent domain decision when it decided KELO V. CITY OF NEW LONDON , 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005). The decision in Kelo upheld that a city’s eminent domain seizure of private property to make way for more profit- able private development. The case was heavily criticized and led several states to consider enacting statutes that would restrict the exercise of eminent domain for purposes of economic development. As of 2009 a total of 43 states have approved measures that would limit use of eminent domain, though some experts have argued that these statutes have failed to provide protection for private property owners. Courts have held that a zoning regulatio n is legal or valid if it is reasonable and not arbitrary and bears a reasonable and substantial relation to the public health, safety, comfort, morals, and general welfare and if the means employed are reasonably necessary for the accomplish- ment of its purpose. An ordinance is invalid if its enforcement will preclude use of the property for any purpose to which it is reasonably adapted. In determining whether a regulation is reasonable, no single factor is controlling. Those factors normally considered are need for the adoption, the purpose, location, size, and physical characterist ics of the land, and the character of the neighborhood. Also consid- ered are the effect on the value of property, the amount by which property values are decreased, the notion of the general welfare (that is, what is best for the community at large), and the density, population, and aesthetics of the area. Traffic, use of nearby land, and length of time the property has been vacant are also relevant. An ordinance that is reasonable when enacted may prove to be unreasonable, and hence a court may set it aside if circumstances have changed. Zoning regulations must promote the good of all the people in the community rather than further the desires of a particular group, and the power cannot be invoked to further private interests that conflict with the rights of the public. Restrictions based solely on race or occupancy of property within certain districts are invalid. A classification that discriminates against a racial or religious group can only be upheld if the state demon- strates an overwhelming interest that can be served no other way. The regulation must be clear and specific. It must describe districts with certainty, and if maps are necessary, it should include references to them. The standards governing conduct of the administrator must be clear. The fact that regulations have not been enforced does not prevent their enforcement. Only persons whose rights are injured by regulations may attack them. An invalid enact- ment is without effect and confers no rights and imposes no duties. Regulations must be in accordance with a comprehensive plan, which may be separate or part of the zoning regulation. SPOT ZONING of individual parcels of property in a manner different from that of surrounding property, primarily for the private interests of the owner of the property so zoned, may be improper but not illegal in all cases. Spot zoning disregards the requirement that zoning be in accordance with a comprehensive plan. It may be valid if there is a reasonable basis for distinguishing the parcel from surrounding parcels. Zoning regulations may validly prescribe a type of building, location of utility lines, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ZONING 495 restrictions on accessory buildings or structures, and preservation of historical areas and build- ings. General rules of construction apply to restrictions affecting architectural and structural design of buildings and open spaces. Such rules apply to building setbacks from the streets and other boundaries, size and height of buildings, number of rooms, floor space or area and cubic feet, and minimum cost of buildings. They also apply to frontage of lots, minimum lot area, front, rear, and side yards, off-street parking, the number of buildings on a lot, and the number of dwelling units in a certain area. Regulations may restrict areas to single-family homes or to multi-family dwellings or town- houses. An ordinance may permit the construc- tion of a building intended for nonresidential use, such as a school, church, hospital, or charitable institution, in a residential district. Municipalities have gained some flexibility in their regulations by authorizing special-use permits in certain districts. This gives them the power to impose restrictions and requirements that might not otherwise be possible under the strict classification of the district. It is also possible to create a unit develop- ment in an entire district or a large part of one, with plans and restrictions governing the entire project. This arrangement may mix some commercial and residential uses and “cluster- ing” of certain properties, leaving room for green spaces and parkways. A municipality may use broad discretion to fix the location and boundaries of business, commercial, and industrial districts and has the power to review and periodically update zoning regulations. This should be done whenever growth and progress require. Failure or refusal to make a change in regulations when they are clearly appropriate in view of development may be regarded as unreasonable, arbitrary conduct. Only the legislative body empowered to enact zoning regulations has the power to amend them. This must be done with the same formality, including required notices and hear- ings, as the original enactment. Neither the courts nor boards of zoning appeals should undertake such amendment, regardless of how archaic the regulations may be. Zoning ordinances may permit or prohibit certain uses and may create whole districts devoted only to residence, commerce, or industry. When a structure’s use does not conform to a zoning ordinance, but the structure existed before the adoption or amend- ment of the ordinance, the structure has NONCONFORMING USE status, sometimes called “legal nonconforming use.” A vested legal nonconforming use is safeguarded by the Constitution unless it is abandoned or termi- nated. It is a PROPERTY RIGHT that cannot be taken away without just compensation. However, the nonconforming-use structure may not be expanded, its use may not be changed, and, under many laws, if it is destroye d by fire or other cause, it may not be rebuilt. Zoning regulations are subject to interpre- tation by the courts where their meaning is unclear. Because such laws are in derogation of the COMMON LAW, they are to be construed strictly, but they should receive a reasonable and fair construction in the light of the public good they propose to serve. Boards of zoning appeals are created by statutes. They are QUASI-JUDICIAL bodies because they conduct hearings with sworn testimony by witnesses, and a transcript is made, which courts may review. Municipalities generally require permits for building or remodeling, and certific ates of occupancy after inspection discloses conformity with applicable codes. An owner without legal training who contests a zoning requirement would be ill-advised to try to argue his case alone because the members of the board, the municipal attorney, and the planning official have long experience, knowl- edge of the law, and a built-in tendency to favor their interpretations of the ordinances. Where full compliance with the strict letter of the ordinance works a hardship on the owner, the board of appeals or governing body may grant a variance, which is toleration of a slight violation of the ordinance. The owner, however, may not create her own hardship by willfully violating the law. Zoning regulations may be enforced by MANDAMUS, an action that results in a judgment of a court compelling the appropriate public officers to carry out their duty; by INJUNCTION, which results in a court order forbidding the use or structure that is in violation; and by civil FORFEITURE actions or criminal prosecutions. Adjoining owners or citizens at large may have standing to enforce the ordinances where the municipal officers fail to do so. Some ordi- nances provide for a certain sum to be paid to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 496 ZONING the municipality for each day of violation. Some courts enforce these penalties strictly, whereas others are more lenient, as long as compliance with the ordinances is achieved in a reasonable time. FURTHER READINGS Brown, James J. 2002. “Land-Use Planning and Zoning” Stetson Law Review 31 (winter). Burke, Barlow. 2002. Understanding the Law of Zoning and Land Use Controls. Newark, N.J.: LexisNexis. Crocker, Karen L. 2002. “Vested Rights and Zoning: Avoiding All-or-Nothing Benefits.” Boston College Law Review 43 (July). Lewyn, Michael. 2003. “Twenty-First Century Planning and the Constitution.” Univ. of Colorado Law Review 74 (spring). Rathkopf, Arden H. and Daren A. 2001. Rathkopf’s the Law of Zoning and Planning. St. Paul, Minn.: West Group. Sullivan, E. J. 2001. “The Evolving Role of the Comprehen- sive Plan” Urban Lawyer 32 (fall). Seidenberg, Steven. 2009. “Where’s the Revolution?” ABA Journal (April). CROSS REFERENCES Adjoining Landowners; Condemnation; Fifth Amendment; Kelo v. City of New London; Landmark; Land-Use Control; Municipal Corporation; Theaters and Shows. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ZONING 497 . illegal con- duct that favors strict imposition of penalties regardless of the individual circumstances of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 492 ZERO BRACKET AMOUNT each case. Zero. prescribe a type of building, location of utility lines, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION ZONING 495 restrictions on accessory buildings or structures, and preservation of historical. the municipal officers fail to do so. Some ordi- nances provide for a certain sum to be paid to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 496 ZONING the municipality for each day of violation.