Land Use Control; LaCroix; Fall 2013

PRELIMINARY STUFF

Class about.... Real estate development Property rights Regulatory power (scope & limitations) Environmental effects of development Agricultural land preservation

Patterns Nationwide similarities – concepts that are the same everywhere We do learn the basic zoning issues Most state laws are based on model statutes by the US in 1920s We will spend a fair amount of time on constitutional parameters Important supreme court cases on land use rights, property rights affecting land

use law The law tends to be local but there are insights that are useful nationwide Highly political – but there are legal limits on local discretion

Cleveland “Urban focus” – city focusing on places where it thinks development is likely to

occur “Urban agriculture” – other side – nothing there, how do we turn it into value for

Cleveland? Local food movement, veggie farm New ways to use city land Do we take out streets to farm on? What about the water lines?

For instance – shaker heights is trying to get more people to “live/work” in shaker – saying shaker welcomes home based business Except that shaker was zoned for pretty much all living because they

wanted you to live there and work somewhere else We used to be worried about “growth management” – we aren’t anymore We are concerned about controlling sprawl

Land Use Ethics (what is land use law used for?) Order Reform Responsibility Opportunity

Land Use Decision Making Geographic Temporal Biological

Decision making mechanism? Market or government? Popular vote or expert decision makers? Courts or regulation?

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* land use decisions include a lot of underlying values – people use law to achieve goals – choosing the mechanism to achieve the goal is an important part of what we dO

GENERAL CLASS NOTES Threads: takings and limits on local authority

Look at judicial posting on blackboard How to answer exam questions

Blackboard posting by Amar about what to write for exam answers Write down what you are thinking bc she wont know what we thought

about Helping client

Think through what to do What else do you need to know? Need to research?

SETTING THE STAGE

THE LAW OF NUISANCE

Private nuisance: Rest (2d): A significant “non-trespassory invasion of another’s interest in the private use and enjoyment of land.” Such invasion, to be actionable, must be “interntional and unreasonable; or

“unintentional and otherwise actionable” as “negligent, reckless, or ultrahazardous conduct”

A nuisance must be unreasonable. Bove v. Donner Hanna Bove bought a house – across the street was built a coke oven – she hates

this. Claims it’s a nuisance because it makes her ill and the house is a mess Ask, her concerns: healthy environment, value of her property, property

rights Ask, D’s concerns: economic value of industry, employment-municipal

economy Ask, City’s concerns: orderly development Ask, State’s concerns: transportation system

Court says this is not a nuisance Because: (1) it is up to date (no negligence, etc), (2) built under

contract with the federal government (reasonableness, utility, broader social purpose served), (3) “land was clearly destined for industrial use when she moved there” – railroad tracks, river nearby

Reasonableness factors: P – character of harm to P Social value of P’s use Suitability of P’s use of land for area D – social value of D’s use of land Ability to avoid harm to P

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Suitability of D’s use of land for the area Zoning Role in Nuisance

This was zoned for industry How could different facts have made this different? If they could have eliminated smoke, etc., with new technology, maybe this

would have been a nuisance Zoning is significant but now a days it is just part of the calculation

LAND USE REGULATORY TOOLS: PLANNING ( AS THE CRITICAL TOOL FOR FRAMING LAND USE CONTROLS)

Intro Slightly controversial – used to be no formal planning. Planning is “after

thought” of zoning.THE PLANNING PROCESS

1. Gather information2. Identify objectives (where do we want to go?) and more specific goals (general

or more concrete)3. Prepare detailed prescriptions, with a timetable4. At some point or various points, seek public input

THE STANDARD CITY PLANNING ENABLING ACT Plans with “maps, plats, charts...” Developed by an independent commission - gives the power to plan to this

commission This is a non-political “expert” process

Showing the location of streets, parks, public buildings, and other infrastructure Includes a zoning plan for building uses

Types of Plans Land use blueprint Vision Land use guide Land use guide with additional elements (housing, transportation) Plans for particular areas or to solve specific problems Why have a plan?

Public notice Community wide focus (special interests) Health/safety/welfare

Governmental coordination Public/private coordination

Nuisance Rational basis

THE CENTRALITY OF PLANNING Ordinances – such as rezoning ordinances – must comply with comprehensive

plan of the city. Udell v. Haas

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Held: rezoning was discriminatory and that it was not done “in accordance with the comprehensive plan” of village of lake success

Must employ the experts in order for zoning to be effective TYPES OF PLANS

THE COMPREHENSIVE, GENERAL OR MASTER PLAN Elements: capital improvements program, future land use, traffic

circulation, sewer and solid waste, conservation, recreation and open space, housing, and coastal management

THE SPECIFIC PLAN The granting of a development agreement between a private

landowner and local government during the planning stages of a development project, before buildings and other structures have been designed and approved, is not in violation of the Development Agreement Statute and is not a contracting away the local government’s police power. Santa Margarita Area Residents Together v. County of San Luis Obispo

City or county is allowed to freeze zoning and other land use regulations in order to guarantee that a developer will not be affected by changes during development

AREA PLANS Sub planning areas and a host of other types of plans needed to flesh

out uniquely detailed policies and programs that can be covered only sparingly in the general plan

Day to day actions REGULATING PLAN

Comparable to an area plan or specific plan Precedes development Public process

CONSISTENCY WITH COMPREHENSIVE PLANNING Historically, consistency has not been required Some states require a plan and do require consistency with the plan Florida says...consistency means “land uses, densities or intensities, capacity or

size, timing and other aspects of development permitted by such order or regulation..”

Courts and legislators increasingly demand that planning be done prior to, and apart from, the enactment of zoning regulations

Nassau County v. Willis Comprehensive Plan adopted - plan says wetlands needs to be protected Property all given land use designation Legislative standard for consistency says “exact compliance” TC order quashing county orindance is reverses – reinstate it and approve

the planned unit development Rezoning must be consistent with the elements of an incomplete plan that are

present. Haines v. Phoenix Planning commission denied request of development to build 500 ft

building ones for 250 ft. group appealed, city gave permission to build.

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Court doesn’t like the argument that they don’t have a full comprehensive plan so they don’t have to comply with what they do have.

Standard of review dictated by statute: consistency with general plan. Looks at whether a rational decision maker could have reached this decision based on the material

“Consistent” means... “basic harmony” in accordance with the comprehensive plan substantially consistent or designed to effectuate plan elements compatible with and furthers the objectives, policies, land uses, and

densities or instensie in the plan

ZONING

THE STANDARD ZONING ENABLING ACT State is the source of power – state creates municipalities > State confers

powers on those municipalities. Standard concept is that state can only do what they are authorized to do

Essential point - the concept of the zoning enabling law is very important for a particular municipality – you have to zone in accordance with the blueprint given to you by the state

SZEA Section 1 – Grant of Power – for the purpose of promoting health, safety, morals, or the general welfare of the community

SZEA Section 2 - DISTRICTS - local body may divide the municipality into districts...all such regulations shall be uniform for each class or kind of buildings throughout each district

SZEA Section 3 – PURPOSES - regulations shall be made in accordance with a comprehensive plan...conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality

Who does the zoning? Usually a commission is appointed to do the zoning Enacting it is a legislative act – it is adopted by the legislative body of the

municipality

EUCLID - Zoning is valid under rational basis review. Town can use police power to prevent nuisances. Village of Euclid v. Ambler Realty (U.S. 1926)

Facts: Town has a new zoning scheme. They imposed USE, AREA & HEIGHT restrictions on all areas within the muni. They were trying to minimize external effect of building on the rest of muni. Done cumulatively, so that there are 6 zones and while U-1 (1st zone) is the most restrictive, allowing for single family homes, the zones progressively allow for more uses.

P says that zoning itself is unconstitutional – that it deprives them of all DP rights. Says village does not have “traditional public purpose” to justify zoning. Due process only power the village has under the 5th Amendment police

power is to protect the health and welfare of its people. Note always want to find basis for challenge. Here we have SDP issue.

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D says that nuisance is a public purpose, and this supports cities police power dictating where industries can go. Factories not being built in U-1 is a form of nuisance control. They use the nuisance argument b/c this was accepted precedent.

A challenge to the legislative act of adopting a zoning map and ordinance STANDARD – court applies the “fairly debatable” standard. Look for a

rational relationship to a legitimate purpose. HOLDING : Ct. finds for D-village and says zoning is valid under rational

basis review. Town is allowed to use police power to prevent nuisances, and this ordinance does prevent nuisances, so it is valid. Cumulative zoning works because while there is a reason to prevent

factories in a U-1, there is likewise no argument for allowing single family homes in a U-6 district. Cannot say that homes pose as a nuisance to the factories. From perspective of muni officials, their objective was to make sure the ordinance was not voided, they wanted to be able to justify their law and say it fits within the nuisance rationale, in order to do so they had to allow single family homes anywhere because they aren’t nuisances – allowed their scheme to appear to follow a cohesive nuisance theory.

Rational Basis Review - Courts give legislatures the presumption of validity, and look to see if there is a rational basis for the regulation by considering the purpose and character of the regulation.

Regulation assumed valid until it is determined to be arbitrary and capricious.

Municipality only needs to support reasons with “substantial evidence.” After Euclid – Zoning is presumptively constitutional

Even if it diminished the value of your land

Zoning can also be arbitrary and unreasonable under certain circumstances. Nectow v. City of Cambridge

Here the same court as that in Euclid overturns an ordinance. In this particular situation, the ordinance would sever off a small piece of land from a large tract currently used for industrial purposes. The court’s reasoning is that the sliver of land is too small for any independent development; its proper zoning therefore does nothing for the public good. In other words, the use would be arbitrary and unreasonable. “No conceivable rational basis for this line”

he wins, the line moves over 100 feet, people are still next to industry but his property gets to be all industrial

* Substantive Due Process * - rationally related to a legitimate public purpose

INTERGOVERNMENTAL CONFLICTS Battle between local and regional authorities

Why local? People care – feel effects of land use, access to local officials, city has

to provide infrastructure, local knowledge, tradition What’s wrong with local decisions?

Competition, inefficient infrastructure, sprawl/blight Conflicts between jurisdictions

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Superior sovereign always wins Governmental functions are immune; proprietary functions are not Eminent domain – if you can take it, you don’t have to follow local zoning Balancing test – balance the interests Legislative intent: did the legislature intend this activity to be exempt?

The power to regulate land, as part of the inherent police power, is vested in the state

In general, cities have only those powers delegated to them by the state Dillon’s Rule: localities may only exercise those powers which are expressly

granted by the state legislature

BASE ZONING: USES, FLEXIBILITY AND DESIGN Purposes of Zoning

Promoting health, safety, morals, or the general welfare of the community To lessen congestion, secure safety from fire, panic, other dangers,

promote health and general welfare, to provide adequate light and air, to prevent overcrowding....ETCCCC

AESTHETICS: Reid v. Architectural Board of Review of City of Cleveland Heights Reid wants to build a rather unusual house on North Park Blvd., D says

no Constitutional question: was the public welfare broad enough to include

this type of review? Court says – it does with conditions Court tries to use non aesthetic explanations: “character” Do these factors hint at other valid public welfare concerns?

They link the looks to property value and community character which goes beyond just the way it looks which often does not provide enough of a reason

* aesthetics are within the zoning power one issue when dealing with them – are you standards clear

enough? Use Districts and Area Requirements

There is a public purpose for distinguishing motels from boarding and rooming houses, it is reasonable to bar them from districts. Pierro v. Baxendale Property owner wants to build a motel, area is zoned for residences City defines residence – expressly doesn’t allow hotels and motels but

allows rooming houses and boarding houses. Town says no – then almost immediately passes a zoning ordinance prohibiting motels

P is saying there is no reasonable basis to distinguish between a motel and a rooming house. Court says ordinance is not unreasonable.

Restricting the sale of furniture within PC district to sales by large department stores is rationally related to objective of city ordinance that relates to economic viability of the PC district. Hernandez v. City of Hanford Ordinance: dept stores and sale of home furnishings permitted uses -

furniture stores o the sale of furniture not listed as approved use

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Generally prohibits the sale of furniture in the PC district - but creats a limited exception permitting a large dept store within the pc district.

Police power – overall, we’re protecting a bunch of other valid interests “protecting and preserving the economic viability of the city’s

downtown distrct...” “attracting to, and retaining within, the city’s PC district the type

of large department stores the city views as essential to eeconomic viability

Accessory Uses and Home Occupations Household pets are accessory use, and thus subject to regulation. Graff v.

Zoning Board of Appeals of the Town of Killingworth “Permissive” zoning = if it is not explicitly allowed, you can’t do it Accessory use definition is not unconstitutionally vague.

no list of such uses we just know that an accessory use is “any use which is

attendant, subordinate and customarily incidental to the principal use on the same lot”

“Accessory structures” are defined as “anything constructed or erected, the use of which requires a fixed location on the ground”

Height and Bulk Limitations Pretty standard, part of the zoning power Building cap in zoning change is valid because it does not alter any

mandatory definitions. No prohibition on classifications within a district as long as they are reasonable and similarly situated property within the district receives the same treatment. Rumson Estates Inc v. Mayor and Council of the Borough Density = number of people per unit of land Intensity = size of buildings Floor/area ratio – restricts how big the building can be based on the size

of the lot which it is located

Conditional Uses Conditional Use: a specific exception to zoning regulations from a list of

acceptable exceptions for a particular parcel of land in a district of a particular zoning character (also: special exception, special use, special permit) The use is beneficial to the public, & compatible with other uses in the

zone, but it might have significant effects that merit review – and possible imposition of conditions – before it can be allowed

SZEA Sec. 7 board of adjustment Board of adjustment...may in appropriate cases and subject to

appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained

Procedure You want a conditional use, you must submit a proper request

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You are guided by the ordinance or local law that tells you – whats a conditional use? What procedures to follow? Language about the standards

Applicant goes to hearing Decision maker decides based on the application, whatever came up at

the hearing, the standards Maybe imposes some conditions

Criteria Certain criteria determines whether to grant the special exception.

People’s Counsel for Baltimore County v. Loyola College in Maryland

The purpose of this criteria is to give notice to the applicant – this is what you have to show

Although the burden is on the applicant, the neighbors can come in and show specific problems using this criteria

Must show hearing officer it meets standards The court does not independently evaluate the facts Substantial evidence test – could a reasonable decision maker on

these facts reach this decision? Do the reasonable facts comply with the standards

They do not have to show that this is the best spot in the county - /better than any other spot

But must NOT: be detrimental to the health,, safety or general welfare of the locality involved

“Grant with conditions” a board may impose conditions on a use permit, in order to address any

adverse effects of the use of the land

ZONING AMENDMENTS Standard: whether the restriction is arbitrary or whether it bears a reasonable

relationship to the exercise of the state's police power. Change the map OR change the text of the zoning ordinance

EX: You want to build a 2 family house in a single family zone You can either ask to have just your property zoned for 2 family Or you can have the map amended to allow 2 family everywhere

OR – you want to build a Laundromat in a commercial zoned area but that is a light industry use In this case, amending the code to allow Laundromats in commercial

zones would be easier than having the whole zone changed to light industry

Most of the time, disputes are about amendments to the map Rezoning to heavy industrial allowed, with some conditions - Plains Grains

Ltd. P’ship v. Bd of County Com’rs of Cascade County SME seeks a zone change from Agricultural (A-2) to Heavy Indsutrial (I-2) to

allow for the proposed natural gas fired power plant. Surrounding farmers and Environmental info center oppose. They want the tax benefits.

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* Could SME have obtained special use permit? Ordinance allowed “commercial wind farms/electrical generation

facilities” as a special use. Procedure – apply to the board for a conditional use permit

Zoning amendment VS use permit Amendment – you go to legislative body, permit – you go to quasi-judicial The concept is – in a legislative hearing you are discussing as a policy

matter, is this a good idea? Zoning amendment changes the map, use permit doesn’t change the map

SPOT ZONING Spot Zoning: the application of zoning to a specific parcel of land within a

larger zoned area when the rezoning is usually at odds with a city’s master plan and current zoning restrictions.

From a functional or policy perspective, issues? Randomness – bunch of little spots/messy It looks like maybe it’s a “special deal” Generally not consistent with the comprehensive plan Inconsistent with our notions of what zoning is all about Incompatible uses next to eachother LEGALLY – SZEA interest in a comprehensive plan

Equal protection The Courts Spot Zoning Test

(1) Whether the requested use would differ significantly from prevailing uses in area

(2) Whether the area of the rezoning request is “rather small” in terms of landowners benefited

(3) Whether the request is in the nature of special legislation to benefit one or a few at the expense of many

Big Issue: Is a zoning amendment really judicial or legislative? Legislative:

general application (open class) prospective public policy

Quasi-judicial: applies to particular people retrospective (case by case) standards

Why does it matter whether it’s judicial or legislative? It affects the standard of review

Legislative tests: arbitrary and capricious, we are deferential to legislative judgments – “fairly debatable”

Judicial tests: apply the particular facts and circumstances – is the action supported by the facts? Could a reasonable decision maker come to this judgment with these facts?

It affects the burden of proof Legislative: no burdens of proof Quasi-judicial: somebody has the burden of proof - The person

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Formality of the process, Impartiality of decision makers? Legislative: you can go talk to your city councilman about it

[Minority View] that Zoning Amendment is judicial Fasano v. Board of County Commissioners of Washington County – “should be case by case exercise of judicial authority Why ever zone for mobile homes?

We need affordable housing We aren’t sure where it should go We could zone areas for mobile homes to operate of right but then

we lose site specific control INITIATIVES AND REFERENDA

Initiative: legislation drafted by the citizens, voted on by the citizens as a whole

Referenda: occurs after a local elected body has legislated. The referendum asks the voters whether to repeal the action Trial Court approves referenda, saying it gives back to the people a

power they’ve given to the government. Eastlake v. Forest city Enterprises

The city charter required all zoning changes to be submitted to the voters for a referendum, with 55 percent approval needed. Voters disapproved rezoning a parcel to allow multifamily housing to be built. They say its unconstitutional delegation of powers to the people

SCOTUS was asked: whether the city violated equal protection, due process and fair housing act by allowing the referendum to happen. They said no. it was citizens opinions stated during the process. City of Cuyahoga Falls v. Buckeye Community Hope Foundation

Application for site-plan approval, an administrative chore, the neighbors didn’t want this particular multi family housing project, but the city approved it because it satisfied the administrative standard for a site plan review. After – referendum to reject the site plan. OH SC said Referendum invalid as a matter of law. As a matter of the state constitution, referenda are only available for legislative decisions, not administrative.

SUBDIVISION REGULATION, OFFICIAL MAP, INFRASTRUCTURE FINANCE AND CONSUMER

PROTECTION

PLANNED UNIT DEVELOPMENT Planned Unit Development: a type of building development & also a

regulatory process. As a building development, it is a designed grouping of both varied and compatible land uses (such as housing, recreation, commercial center, etc) within one contained development or subdivision.

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Board of Commissioners can approve a greater or lesser density, provided it does not negatively impact public health, safety and welfare of county. Evans v. Teton County Teton Springs wanted to built a residential resort. The neighbors don’t want

this Standard of review: The court must affirm the board of commissioners

unless the findings: Violated the constitution or statutory provisions Exceeded its statutory authority Were made upon unlawful procedure Were not supported by substantial evidence on the record Were arbitrary, capricious or an abuse of discretion

Court says it is inconsistent with the County Comprehensive Plan, but it doesn’t matter

PUD Idea – Use Permit Setting Use Permit standards require open space, limit density, environmental

standards, and say “approve if not inconsistent with the public health, safety and welfare.”

Plan endorses “walkable community” Planning Commission wants...

Bike paths? Low income housing? More access roads to avoid bottlenecks? Sidewalks?

Zoning amendment is different

NEW URBANISM Traditional Neighborhood Development (TND)

Three patterns of development:1. Traditional neighborhood development2. Transit oriented development3. Freestanding mixed use centers

New Urbanism includes... Vertical and horizontal mixed use A mix of housing types Compact design Pedestrian orientation Design specifications for open spaces Emphasis on design aspects generally

Smart growth - focuses on central city and close-in suburbs, intends to preserve agriculture and open space, limit auto use, be more energy efficient, reduce government costs by limiting service areas

Pinecrest Homeowners Association v. Glen A. Cloninger & Associates Developer rezones a few times – finally wants a new urban style

development – decides to change the plan. Neighbors say that the city has amended the plan but they have not amended their zoning code in conformity with the plan – say he is skipping a step

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Washington Consistency Requirement : (1) a proposed project’s consistency with a local government’s [lawfully adopted] development regulations...or in the absence of applicable development regulations, the appropriate elements of the [lawfully adopted] comprehensive plan...shall be decided by the local government during project review

SCOTUS found that code sections guiding decisions about land use certifications were vague and unconstitutional – denied substantive due process. (he wanted to build retail stores in commercial zone land) Anderson v. City of Issaquah

SUBDIVISION CONTROL AND VESTED RIGHTS Classic subdivision setting: developer bought a farm at the edge of town, wants

to build houses Subdivision: “the division of a tract of land into two or more lots,” but not a

subdivision “if, at the time when it is made, every lot within the tract so divided has frontage on public.”

The idea of the exception for frontage on the public – doesn’t need the subdivision review process

Standard steps in the subdivision process Pre-application meetings with planning staff. Perhaps a sketch plat Preliminary or Tentative Plat Public Hearing Approval, usually with conditions, Final plat submitted – showing conditions met Approval of final plat Record play and convey lots

“It is beyond question that a landowner has no vested right in existing or anticipated zoning.”Avco Community Developers, Inc. v. South Coast Regional Commission P had gotten approvals for other stuff, started construction, then new

requirements that coastal zone hast o get permit from commission. He had no vested right in existing or anticipated zoning. Neither the

existence of a particular zoning nor work undertaken pursuant to governmental approvals preparatory to construction of buildings can form the basis of a vested right to build a structure which does not comply with the laws applicable at the time a building permit is issued. 

Common Law: Vested Rights Rule Substantial expenditures Incurred in good faith reliance On a validly issued Building permit (or other final discretionary approval)

“late vesting rule” – developer’s rights have not vested until a valid building permit has issued

“rule of law” argument – you have to comply with the law if it changes while you are building

Estoppel: Requirements A specific governmental action that induces a Good faith belief that development is allowed Substantial expenditures

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And a balancing of public and private interests indicates that estoppel in appropriate

The applicable regulations for the subdivision are the general plan and zoning at the time of the tentative map approval. Youngblood v. Board of Supervisors of San Diego County County approves preliminary plat, one acre lots, then amends the plan to

require one house per two acres. Neighbors objecting to final plat approval on ground that it is inconsistent with the plan when it was approved. The Supreme Court upheld the Superior Court’s decision to approve the Board’s ministerial duty to approve the final map. The Board acted rationally in approving the final map. Vested right to final plat approval

Vested rights statutes might say: Vesting occurs upon submission of a complete subdivision preliminary plat Subdivision exempt from zoning changes for a period of time after

recorded Subdivision protected from zoning changes after final plat and

expenditures on infrastructure Development agreement can confer vested rights

Deemed approval here? “Preliminary plats of any proposed subdivision and dedication shall be

approved, disapproved, or returned to the applicant for modification or correction within ninety days from date of filing thereof unless the applicant consents to an extension of such time period”

DEVELOPMENT AGREEMENTS Development agreement: a contract between a municipality and a property

owner/developer, through which the municipality agrees to freeze the existing zoning regulations in exchange for public benefits.

Development Agreement Statutes Worried that developers wont invest without vested rights – give them

some statutory rights. Municipality has more control over certain conditions. Fees don’t freeze. Protections to public: public hearing and approval by referendum All conditions subject to zoning & consistent with plan Cancelable only by mutual consent

Granting of a development agreement between private landowner and gov’t during planning stages of development project (before buildings have been designed and approved) does not violate the statute and does not contract away the local government’s police power. Santa Margarita Area Residents Together v. County of San Luis Obispo

The statute permits local government to make commitments to developers at the time the developer makes a substantial investment in a project, as was the case here. Additionally, since the agreement focuses on the planning stage of the project, it meets the statute’s goal of increasing the public’s role in the final development and control over the inclusion of public facilities and benefits in the project. Developer

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likes this bc they get some sense of cooperation w/ government, as well as the regulatory freeze

EXACTIONS: REASONABLY RELATED, UNIQUELY ATTRIBUTABLE, RATIONAL NEXUS AND ROUGH PROPORTIONALITY THE STATE CONSTITUTIONAL QUADRUPLETS

“Exactions” include: on subdivision approval: dedication of land, on site development of

dedicated land, in lieu fee on building permit approval: impact fee more recent idea: linkage fee

Nexus (Nollan) Nollan requires a reasonable connection between the effects of a project

on the public interest and the police power-based condition the government imposes on the permit to counter those effects. Nollan v. California Coastal Commission Nollan wants to rebuild their house but city puts condition on their

rebuild saying that they need to make an easement for public access to the beach

The Coastal Commission cites: (1) protecting the public’s ability to see the beach (2) Assisting the public to overcome a psychological barrier to using the beach (3) Preventing congestion on the public beaches (4) Advancing a public goal of continuous public access along the beach

This requirement constitutes a taking – need just compensation Nexus between...requirement (here, easement) and...adverse

effect of the development. Requirement here to fix the problem? the private development imposed a burden on public facilities or

resources, and the dedication would mitigate such impact. Proportionality (Dolan)

Dolan v. City of Tigard Dolan wants bigger parking lot, town says OK if you dedicate flood plain

along the creek to city & dedicate bike/walking path. Court said this violates 5th amendment “takings” as absorbed by 14th amendment due process – no conclusive evidence that the path would reduce congestion. No explanation why public greenway was necessary as opposed to private.

There must be an "essential nexus" between a legitimate state interest and the permit requirements (Nollan v. California Coastal Commission), and the city failed to demonstrate that the benefits would justify the requirements.

Nollan NEXUS: there IS a nexus The parking lot could create more flooding – wider the surface

area, bigger store could also have water running off the roof (increase the amount and velocity of the runoff). More people coming to the store, more need for a path

Proportionality: Fit between the impact of the activity and what exactly you can ask for

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State variations: Some states allow generalized statements for the connections Some states require a very exacting correspondence This court “rough proportionality” test

Rough proportionality test: Burden on government to show a degree of connection Not a “precise mathematical calculation” - but some sort of

individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development

The task for cities after Dolan was to show the connection Conditional acceptance of permit is same as denial/ is a taking. Koontz v. St.

Johns Water Management- Koontz has property on wetlands, wants to build shopping center, city gives him 3 options – preserve more wetlands, pay money to preserve them elsewhere, come up with another plan. His permit is denied b/c he wont accept conditions. NOT OK – same taking with condition accepting of permit as denial.

Extorting demands for property in land use context...”impermissibly burden the right not to have property taken without just compensation.”

Cannot require person to give up right to compensation in exchange for gov’t benefit that is not related

Options? Deny the permit Change your condition Insist on your condition – but PAY

Impact Fee and Assessments Impact fee: a legislatively adopted fee Volusia County v. Aberdeen at Ormond Beach L.P - County trying to

make everyone pay fee for schools – but Aberdeen has only people aged 55 and older. Not ok “Dual Rational Nexus Test” –

impact fees must “offset needs sufficiently attributable to the subdivision” AND the fee must be “sufficiently earmarked for the substantial benefit of the subdivision resident

Impact Fee vs. Tax (general revenue) - If you ask for a fee that doesn’t solely raise money for a specific thing/person , then it looks more like a tax and would have to meet the tax requirement

Nolan & Dollan Nollan requires a reasonable connection between the effects of a project

on the public interest and the police power-based condition the government imposes on the permit to counter those effects

Dolan proportionality: But some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development

ZONING LITIGATION Ripeness, Finality and Exhaustion of Remedies

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First you must exhaust your administrative remedies (civil rights action you do not have to exhaust remedies)

Case must also be “ripe” – must affect you if there is no judicial review Standing

P must be sufficiently affected that it is worth the courts time to take the case

State court has different standing requirements than federal courts Abutter must establish that he/she will objectively suffer an injury caused

by project that is “substantial enough” so there is no question that P is injured. Kenner v. Zoning Board of Appeals of Chatham – Ps file suit bc Heib’s new house would limit their ocean view. This is not enough here – didn’t show actual affect on their view. Zoning laws are not about protecting economic value of property. P has to offer credible evidence to substantiate their particularized

claims of harm to their legal rights. Must be particularized because we want to preserve judicial resources, otherwise, nobody could build anything

CONSTITUTIONAL LIMITS ON LAND USE CONTROLSIntro

Fifth amendment: “nor shall private property be taken for public use, without just compensation.”

Eminent domain: gov’t takes your property for public use The gov’t CAN take your property, they just have to compensate you for it

Direct Condemnation: Eminent Domain and Public Use “Public use”: originally meant use by the government, expanded to cover land

taken for public purpose (eg railroads) City taking private property for economic development IS a valid public

use. Kelo v. City of New London City used eminent domain to seize private property to sell to private

developers – said it would create jobs and increase tax revenue. Kelo etc said violated takings clause. The public use was economic revitalization, they only used Ed for properties they couldn’t get otherwise. OK they were hoping to improve city’s bad economy.

The fact that this benefits the private developer does not make this invalid, not only benefitting private person.

Each separate person does not get to argue that the specif use of their land would be wrong – this is a general public use thing – cannot say “my property is different”

Physical Invasions “Permanent physical occupation of your land is a taking.” Loretto

v. Teleprompter Manhattan Catv Corp NY law saying cable companies could attach lines to houses. Court says

this is taking that requires compensation – physical occupation of property.

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Loretto/Nollan: If governmental conduct or regulation results in a permanent physical occupation by the govt or a third party, it is a per se taking...

Unless it is “reasonably necessary” to prevent or counteract anticipated adverse effects of proposed development

REGULATORY IMPACTS AS TAKINGS 5th amendment: no person shall...be deprived of life, liberty or property

without due process of law also, nor shall private property be taken for public use without just

compensation When diminution of value of a property reaches a certain point as a result of

governmental action, they must compensate for it. Pennsylvania Coal Co. v. Mahon K act prohibited mining that would affect homes, property owners sought

to enjoin P from mining beneath their homes, but P had contract and property rights to this area that the K act rendered useless.

Court found that the act is a taking. Private owners only had surface rights to their land. P could not use only valuable right it had – to mine. Subsurface rights to a property could not be taken for the public without just compensation.

“Per se taking if the gov’t takes away everything – all beneficial use and value – of property. 100%.” Lucas v. South Carolina Coastal Council Lucas owns two lots on the beach, later imposed requirement said he

cannot build a house on these lots as he planned. He claims he lost “economic value” or beneficial use of land. Court said “total taking”/ denial of all economic use of land – he suffered a per se taking and is entitled to just compensation regardless of public interest unless the government can identify "background principles of nuisance and property law" that prohibit the uses the owner intends under the circumstances in which the property is presently found

Types of takings  A government may "take" property in two basic ways:

(1) (eminent domain) by physically appropriating the property, such as for a right-of-way; or

(2) (regulatory taking) by regulating or limiting the use of property under the government's police power authority in such a way as to destroy one or more of the fundamental attributes of ownership (the right to possess, exclude others, and to dispose of property), deny all reasonable economic use of the property, or require the property owner to provide a public benefit rather than addressing some public impact caused by a proposed use. The government can be sued for a taking. A suit alleging a taking is also called an "inverse condemnation" action.

Acquisition of title after the effective date of a regulation does not automatically bar a regulatory taking claim. Palazzolo v. Rhode Island - acquiring property after adoption of challenged regulation. Just because owners changed, the

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takings claim did not disappear – purchase with notice does not necessarily prevent a takings claim.

TEST for a regulatory taking (Penn Central) Economic effect of the regulation –

Diminution in value Value as zoned before VS the value as zoned now

Effect on investment backed expectations What investments were made? Were they reasonable in light of existing or probable future

regulations? Distinct? Did govt make any representations? Unfairly lead property owner

to expect to be able to proceed? Reliance reasonable? Character of the regulation

If it’s a physical invasion, that looks more like a taking. Regulation looks more like a taking.

Penn Central Law says when property is designated as a landmark there are limitations

on what the owner can do with it. The Court held that the restrictions imposed did not prevent Penn Central from ever constructing above the terminal in the future. New York's objection was to the nature of the proposed construction and not to construction in general implemented to "enhance" the Terminal. Preventing the construction of a 50-plus story addition above the station was a reasonable restriction substantially related to the general welfare of the city.

Williamson County case1. A takings claim under the Just Compensation cannot be evaluated if the

commission has not made a final and definitive position regarding the zoning regulations which are at issue. They also stated that Hamilton’s claim was immature.

2. A property owner can not claim violation of the Just Compensation clause if the state gives a procedure for seeking reasonable compensation and it also denies compensation.

3. Finally, the court held that takings claims are not ripe until, a State fails, “to provide adequate compensation for the taking” . They haven’t denied your right to just compensation if you haven’t

asked for it

Analyzing Regulatory Takings What type of taking was it?

Per se – Loretto – automatically a taking (physical occupation) Total or partial taking (Lucas or PC?)

What was taken? A property right? Check – background principles

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If so – Lucas Per Se Penn Central – 3 factors (above)

Analysis Seek Compensation

REVITALIZING THE URBAN CORE Tax Techniques of Redevelopment

Point of these techniques is to get something good for the public at large

Tax abatement: you don’t have to pay as much taxes you need statutory authority to do that

Tax Increment Financing You have a piece of property/area of the city that needs redevelopment. Tax benefit to lure people – issue a bond which will be repaid through tax

increment – in the end there will be a nice development After certain amount of time they will start paying their taxes “payments in leiu” of taxes go on in are kept in TIF district for benefit of the

district to pay back the bond that they paid in the beginning

TIF requires showing of “blight” – consider factors. Board of Education, Pleasantdale School District no 107 v. Village of Burr Ridge Village wants to develop TIF district within its borders. School district

bringing suit – they depend on property taxes, they will lose money if TIF is enacted. The Court found that the Village’s findings of fact were insufficient to meet the “blighting” factors necessary to qualify the property for a TIF – explanations were “weak” and “marginal”

 The four factors that the Village relied upon in creating the TIF were diversity of ownership, flooding, obsolete platting, tax delinquencies.

HISTORIC PRESERVATION: DISTRICTS AND LANDMARKS ASP Associates v City of Raleigh – city created historic district – said they

wanted to preserve history, but they really wanted to keep this cute town from the new people. Ps own vacant lot, want to build office. Court says this is ok – standards are not too vague, consistent standard –

“incongruity” Transferable Development Rights

Apply for a variance Ask to change the ordinance Challenge the zoning

Euclid – this zoning is irrational, not rationally related to a legitimate purpose

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CHANGING FROM SPRAWL TO SMART GROWTHSPRAWL

Sprawl involves... Low density development; Constructed in a leap frog manner in areas without existing infrastructure Often on prime farmland Automobile dependent Consisting of isolated single use (usually single family) neighborhoods

SMART GROWTH Smart Growth involves...

Repurposing existing infrastructure Focused, organized approach to growth overall By its nature, relies heavily on metropolitan, area-wide coordinated

planning What is Smart Growth?

Mix land uses Take advantage of compact building design Create a range of housing opportunities and choices Create walkable neighborhoods Foster distinctive, attractive communities with a strong sense of place Preserve open space, farmland, natural beauty, and critical environmental

areas Strengthen and direct development towards existing communities Provide a variety of transportation choices Make development decisions predictable, fair and cost effective Encourage community and stakeholder collaboration in development

decisions We avoid sprawl by planning, we plan in a way that will product what we

consider smart growth Why do we plan?

Set long term goals Coordinate government action (zoning, infrastructure) Foster regional cooperation Coordinate public and private action Resist pressures from interest groups Provide a rational basis for land use decisions

But we cant plan everything... planners cant be omniscient land is privately owned and the market makes decisions it is hard to expect planning to be done “properly” because it can be full of

uncertainty and politically charged Storm Water Management is Important Because...

Volume – urban development increases the volume of urban runoff, exacerbates flooding

Contamination – urban runoff contains oil, grit, fertilizers, pesticides. Construction sites contribute silt.

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A problem that includes both: combined sewer overflows

Moratorium Gives city time to breathe – makes sure problem doesn’t get worse Developer complains that this is a taking In Bradfordville Phipps Limited Partnership v. Leon County, court

says moratorium is not a taking because its temporary Legal issues you might think of for a client?

When has a moratorium become too long? Planning

VESTED RIGHTS AND INTERIM DEVELOPMENT CONTROLS Deer Creek Developers, LLC v. Spokane County

City passed ordinance saying no building houses in certain area - developer already had plans and claims he has a vested right

No vested right because he had not applied for a building permit Other things he could have said?

Estoppel Validity of zoning (Euclid)

TIMING CONTROLS AND ADEQUATE PUBLIC FACILITIES Golden v. Planning Board of Town of Ramapo

The court upheld a growth management system that awarded points to development proposals based on the availability of public utilities.

Town required permits for subdivision – unusual to require permits for residential buildings in residential areas. Special permit only available when public facilities and services are deemed adequate.

The objectives of the zoning enabling legislation are as follows: secure safety, avoid undue concentrations of people and ensure adequate provision of transportation, water, sewerage, schools and parks

CITY-COUNTY-REGIONAL TIER SYSTEMS Three-Tier Pattern:

Tier I, existing urban tier Tier II (urbanizing tier) covering development over the next 20 years,

based on the Ramapo the timed and sequenced three CIP areas Tier III – a rural and agricultural, non-development tier

Tier II Patterns of Growth: Pattern I: Concentric growth through use of compact and limited urban

service areas adjacent to Tier I urban areas Pattern II: Linear transportation corridors

Instead of starting at the middle and working out – cluster around the transportation corridors

Pattern III: Freestanding “new towns” and “major mixed use centers” Pick out urban area, pick where places are going to be that are going to

be denser City of Del Mar v. City of San Diego

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Point: city of SD got to decide what to do, as long as it didn’t abuse its discretion. Not courts job to second guess policy judgment

Reminder about regionalism: in Cali, one of the few states where individual city land use decisions have to be made with a regional focus in mind

ENVIRONMENTAL CONSCIOUSNESS SEQA: State Environmental Quality Acts And Global Warming

California Environmental Quality Act: Communities for a Better Environment v. The City of Richmond and Chevron Products, Co. The city’s construction permit process is being used to change the

emission footprint of a refinery – shouldn’t that be the job for the EPA/state? No – bc of the act (not normal in other states). Court here was upset about the mitigation proposals – not specific or adequate enough mitigation measures to comply with CEQA

EIR (Environmental Impact Report): must explain how you are going to achieve the purpose of your project, identify the effects, and how the effects will be mitigate, and any alternatives Mitigation requirements: not included in NEPA, not included in most

SEPAs NEPA: National Environmental Policy Act

all federal agencies must assess whether a major federal action is one significantly affecting the quality of the human environment

if it is, the agency must prepare an environmental impact statement the eis considers all environmental effects of the project, including the

effects of alternatives to the project the eis must accompany the proposal through the review process. It does

not dictate the outcome. SEPA – state laws based on NEPA

SEPAS require consideration of all environmental effects CEQA specifically includes greenhouse gas emissions and thus has

particular significance for local land use planning and land use decisions

Floodplains NFIP: regulates the availability of federally-supported flood insurance in

flood prone areas Flood insurance : available to people only in mapped flood areas whose

localities have adopted flood plain management programs that have been approved by FEMA

Regulated development : restrictions in flood zones. Building standards such as: anchor structures to secure in flood, construction materials that resist flood damage, design structure to protect utilities, elevate structure above flood line

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Court grants a permanent injunction to enjoin FEMA from issuing flood insurance for any new development in suitable habitats of listed species. Florida Key Deer v. Brown ESA – can’t have actions that threaten endangered species. There is a

very obvious affect on key deer. Flood insurance program has effect – they need reasonable prudent alternatives

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