PLANNING AND CONTROL OFPLANNING AND CONTROL OFLAND DEVELOPMENT: LAND DEVELOPMENT:

CASES CASES AND MATERIALSAND MATERIALSEIGHTH EDITION

ANNUAL UPDATEANNUAL UPDATEAUGUST 15, 2013

Note: This update incorporates the updates for the two prior years, 2011 and 2012. I t fol lows the casebook outl ine. The updates are inside the text boxes.

11763442-v505/07/23 12:14 PM

TABLE O F CONTENTS

Chapter 1 AN INTRODUCTION TO LAND USE CONTROLS

A. WHY LAND USE CONTROLSTHE LAWS OF THE INDIESHart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine Nelson, Leadership in a New EraNOTES AND QUESTIONS

Insert at Notes and Questions at the end of 3. Restricting nuisances and promoting segregation on p. 13:

Using two datasets of land regulations for the largest U.S. metropolitan areas, Rothwell found that anti-density regulations are responsible for large portions of the levels and changes in segregation from 1990 to 2000. A hypothetical switch in zoning regimes from the most exclusionary to the most liberal would reduce the equilibrium gap between the most and least segregated Metropolitan Statistical Areas by at least 35%. Rothwell, Racial Enclaves and Density Zoning: The Institutionalized Segregation of Racial Minorities in the United States, 13 Am Law Econ Rev. 290 (2011). He concludes:

Whatever the motivations [for enacting zoning regulations], however, the disparate impacts of zoning are becoming clear. Anti-density zoning is strongly associated with the segregation of the three largest minority groups in the United States; moreover, evidence and straightforward logic suggest that its effect is causal. After so many years of enabling and protecting the elite local interests that create and enforce low-density regulatory regimes, liberalizing federal policy action will likely be necessary if this continuing barrier to racial equality is to be dismantled. [Id., 59.]

Insert at the end of 4, on page 14:Note: Professor Nelson has broadened this article into a book, A.C. Nelson, Reshaping Metropolitan America: Development Trends and Opportunities to 2030 (2013).

[1.] The Challenge of Land Use PolicyR. PLATT, LAND USE AND SOCIETY: GEOGRAPHY, LAW AND PUBLIC POLICY,W. FISCHEL, THE ECONOMICS OF ZONING LAWS: A PROPERTY RIGHTS APPROACH TO AMERICAN LAND USE CONTROLS,NOTES AND QUESTIONS

[2.] Conflict and Conflict Resolution in the Use of LandPROBLEMA NOTE ON VARIOUS APPROACHES TO THE RESOLUTION OF LAND USE DISPUTES

[a.] Efficiency and Equity: Government Intervention and Its AlternativesE. HEIKKILA, THE ECONOMICS OF PLANNING,NOTES AND QUESTIONSMichelman, Property, Utility and Fairness: Comments on the Ethical Foundations

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of “Just Compensation” Law, NOTES AND QUESTIONS[b.] Other Private Ordering Solutions to Land Use Conflict Problems: Covenants and

NuisanceNOTES AND QUESTIONS

C. LAND USE CONTROLS: AN INTRODUCTION TO PLANNING[1.] The Local Comprehensive Plan

[a.] The Idea of PlanningNOTES AND COMMENTSA NOTE ON THE RATIONAL MODEL AND ALTERNATIVES TOTRADITIONAL PLANNING APPROACHES

Insert at A Note on the Rational Model and Alternatives to Traditional Planning Approaches on p. 40 before the last sentence in the third full paragraph 3 under Participatory planning: Since the publication of this article, Fainstein has further developed her ideas into a book. S. Fainstein, The Just City (2010).

[b.] Statutory Authorization for Comprehensive PlanningNOTES AND QUESTIONS

[2.] State and Regional Planning[a.] State Planning Agencies and Plans

AMERICAN PLANNING ASSOCIATION, GROWING SMART LEGISLATIVE GUIDEBOOK: MODEL STATUTES FOR PLANNING AND THE MANAGEMENT OF CHANGE,NOTES AND QUESTIONSA NOTE ON ENVIRONMENTAL JUSTICE

[b.] Regional Planning Agencies and PlansAMERICAN PLANNING ASSOCIATION, GROWING SMART LEGISLATIVE GUIDEBOOK: MODEL STATUTES FOR PLANNING AND THE MANAGEMENT OF CHANGE

Insert at Notes and Questions at the end of 3. “Transportation planning”, on p. 61:

For a fascinating technical account of how the Atlanta Regional Commission (ARC), the designated metropolitan planning agency for the seven-county Atlanta, Georgia, area, formulated its 1975 regional development plan, see Basmajian, Projecting Sprawl? The Atlanta Regional Commission and the 1975 Regional Development Plan of Metropolitan Atlanta, 9 J. Plng. His. 95 (2010). Basmajian contends that the development policies ARC ultimately adopted encouraged the building of a vast, low-density landscape, exactly as the urban transportation model it employed predicted.

NOTES AND QUESTIONS

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Chapter 2 THE CONSTITUTION AND LAND USE CONTROLS: ORIGINS, LIMITATIONS AND FEDERAL REMEDIES

A. NUISANCE LAWBove v. Donner-Hanna Coke Co.NOTES AND QUESTIONS

B. THE TAKINGS ISSUE[1.] Eminent Domain

Kelo v. City Of New LondonNOTES AND QUESTIONS

Insert in the third full paragraph on p. 81, beginning with “Lavine, supra,” immediately before the sentence beginning with “For an argument that the Kelo decision really is an example…”:

Further discussion of New York’s struggle to prevent abuse of the blight standard can be found in Racketa, Takings for Economic Development in New York: a Constitutional Slam Dunk?, 20 Cornell J.L. & Pub. Pol’y 191 (2010).

Add at end of Notes and Questions 4. State legislative responses, page 83:

Although many states have adopted new laws, little change has taken place in what local and state governments are actually doing. Jacobs & Bassett, All Sound, No Fury? The Impacts of State-Based Kelo Laws, in American Planning Association: Planning & Environmental Law, 1, 7 (2011). This could be because Kelo-style takings seldom occur, and when they do, they appear to be voluntary. Id.

Add at end of Notes and Questions 5. State judicial responses, page 85:

The court in County of Los Angeles v. Glendora Redevelopment Project, 185 Cal. App. 4th 817 (Cal. Ct. App. 2010) used a California statute to determine blight in Glendora’s redevelopment plan. The statute, effective 2008, explains four requisites for a proper blight finding: the area must be “predominantly urbanized”; the area must be “characterized by” one or more conditions of physical blight; the area must be “characterized by” one or more conditions of economic blight; and these “blighting conditions must predominate in such a way as to affect the utilization of the area, causing a physical and economic burden on the community.” Id. at 832-33. The court found that Glendora had not met the “physical blight” test (unsafe and unhealthy buildings; code violations; dilapidation and deterioration; and/or defective design or construction) and therefore the area was not blighted. Id. at 837-41. For a discussion of the court’s willingness to scrutinize blight findings, rather than deferring to the agency’s determination, as in Kelo see Rick E. Rayl, New Published Decision Strikes Down Blight Findings, California Eminent Domain Report (June 6, 2010) available at www.californiaeminentdomainreport.com/2010/06/articles/court-decisions/new-published-decision-strikes-down-blight-findings.

For a review of state court interpretations of state constitutional public use clauses since Kelo and a consideration of judicial interpretations of Kelo’s “pretext” standard see Ilya Somin, The Judicial Reaction to Kelo, 4 Alb. Govt. L. Rev. 1 (2011).

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[2.] Regulatory Takings

Add at end of textual note on Judicial takings? on p. 87 immediately before [a]:

Though not technically a judicial takings issue, state courts have contended with “rolling” easements. For example, the Supreme Court of Texas in Severance v. Patterson, ruled that “rolling” easements were not recognized when the land and attached easement were “swallowed” by the adjacent body of water (the Gulf of Mexico in this case). 345 S.W. 3d 18, at *1 (Nov. 5, 2010), rehearing granted 2010 Tex. LEXIS 854. The court noted that a new easement on adjoining private properties may be established if proven pursuant to the Open Beaches Act or the common law. Id. at *15. Based on the history of the land, the court held that

Texas does not recognize a “rolling” easement on Galveston’s West Beach. Easements for public use of private dry beach property do not change along with gradual and imperceptible changes to the coastal landscape. But, avulsive events such as storms and hurricanes that drastically alter pre-existing littoral boundaries do not have the effect of allowing a public use easement to migrate onto previously unencumbered property.

Id. at *11.

A strong dissent emphasized that the public in Texas has used the beaches continuously for nearly 200 years. Id. at *15. The dissent noted that hurricanes and tropical storms are frequent occurrences on the Texas coasts, and by failing to recognize rolling easements, the court has placed a costly and unnecessary burden on the state if it is to preserve the heritage of open beaches. Id. at *18. The dissent is concerned with the court’s decision because it “defies not only existing law but logic as well.” Id.

For a discussion of Justice Scalia’s conclusion that “the Takings Clause bars the State from taking private property without paying for it, no matter which branch [of government] is the instrument of the taking” see Somin, Stop the Beach Renourishment and the Problem of Judicial Takings, 6 Duke J. Con. L.& Pol’y 91 (2011). See also Mulvaney, The New Judicial Takings Construct, 120 YALE L.J. ONLINE 247 (2010) http://yalelawjournal.org/2011/2/15/mulvaney.html (arguing that the plurality opinion may have articulated a new category of per se takings).

Add at end of textual note on Judicial takings?, p. 87:

For an analysis of common misconceptions in the Stop the Beach Renourishment case and for an argument against the use of judicial takings, see Underkuffler, Judicial Takings: A Medley of Misconceptions, 61 Syracuse L. Rev. 203 (2011). Additionally, for an in-depth look at the evolution of property rights in the wake of Stop the Beach, see Blumm & Dawson, The Florida Beach Case and the Road to Judicial Takings, 35 Wm. & Mary Envtl. L. & Pol’y Rev. 713 (2011).

[a.] The Early Supreme Court CasesPennsylvania Coal Co. v. MahonNOTES AND QUESTIONSVillage Of Euclid v. Ambler Realty Co.Ambler Realty Co. v. Village Of EuclidVillage Of Euclid v. Ambler Realty Co.NOTES AND QUESTIONS

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Tarlock, Euclid Revisited, Land Use Law & Zoning Digest,NOTES AND QUESTIONS

[b.] The Balancing TestPenn Central Transportation Co. v. City Of New YorkNOTES AND QUESTIONSA NOTE ON THE KEYSTONE CASEA NOTE ON PHYSICAL OCCUPATION AS A PER SE TAKING

Add at end of third full paragraph beginning “Yee seems to limit…” on p. 123:

In Harmon v. Markus, 412 Fed.Appx. 420, 421 (2nd Cir. 2011), the court affirmed that a New York “Rent Stabilization Law” (RSL) did not effect a permanent physical occupation of the property because “where a property owner offers…rental housing…governmental regulation of the rental relationship does not constitute a physical taking.”  Id. at 422 (citing Yee).  The court also affirmed the dismissal of the Harmons’ due process and equal protection claims based on Stop the Beach Renourishment, infra. (the Due Process Clause “cannot do the work of the Takings Clause”). The Supreme Court declined to hear an appeal.

Add at end of A Note on Physical Occupation as a Per Se Taking, p. 124:

Where government use of a railroad easement exceeds the easement scope and results in a taking, “the measure of just compensation is the difference between the value of [the] land unencumbered by a railroad easement, and the value of [the] land encumbered by a perpetual easement for recreational use.”  Ybanez v. United States, 102 Fed. Cl. 82, 84, 88 (Fed. Cl. Ct. 2011)).  In its opinion and order, the court granted partial summary judgment in favor of plaintiff’s claim that a Notice of Interim Trail Use resulted in a taking of a reversionary right and instructed both parties to retain experts to conduct joint appraisals of the property for a final determination of damages.  Id.

A NOTE ON “FACIAL” AND “AS-APPLIED” TAKINGS CHALLENGES

Add at end of A Note on “Facial” and “As-Applied” Takings Challenges, p. 126:

The Ninth Circuit Court of Appeals vacated its earlier opinion in Guggenheim v. City of Goleta: a claim based on a Penn Central analysis. 638 F.3d 1111, 1120-21 (9th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 2455 (2011). The court emphasized that plaintiffs lacked investment-backed expectations: “[s]peculative possibilities of windfalls do not amount to ‘distinct investment-backed expectations’ unless they are shown to be probable enough materially to affect the price.” Id.

The court stated

Ending rent control would be a windfall to the Guggenheims, and a disaster for tenants who bought their mobile homes after rent control was imposed in the 70’s and 80’s. Tenants come and go, and even though rent control transfers wealth to “the tenants,” after a while, it is likely to affect different tenants from those who benefitted from the transfer. The present tenants lost nothing on account of the City’s reinstitution of the County ordinance.

Id. at 1122.

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Then immediately add:

See Radford & Wake, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology L.Q. 731, 743-45 (2011) for a discussion of how Guggenheim serves as “a model of how Penn Central might be applied” to rent control takings scenarios. For further discussion of the applications of Penn Central, see Pomeroy, Adam R., Penn Central after 35 years: A three part balancing test or a one-strike rule? (August 31, 2012). Available at SSRN: http://ssrn.com/abstract=2139729. (Questioning the strong consensus that Penn Central is a three-part balancing test within academia while application data shows that the Courts are unlikely to reach all parts of the test).

Nollan v. California Coastal CommissionNOTES AND QUESTIONS

[2.] First English: The Inverse Condemnation RemedyFirst English Evangelical Lutheran Church Of Glendale v.County Of Los AngelesNOTES AND QUESTIONS

Add at end of Notes and Questions 2, The nexus test, p. 132:In St. Johns River Water Mgmt. v. Koontz, 77 So. 3d 1220, 1222 (Fla. 2011), the Florida Supreme Court refused to extend the Nollan/Dolan test to exactions or conditions that “do not involve the dedication of real property for a public use.”  Id. at 1230.  There, Koontz was denied a permit to develop an area of wetlands after he refused to comply with the district’s condition that Koontz reserve part of his property as a conservation area or pay for offsite mitigation.  Id.  The court noted that even if Nollan/Dolan did apply, Koontz “never expended any funds towards the performance of offsite mitigation, and nothing was ever taken from Mr. Koontz.”  Id. at 1231.  The district’s denial was based upon existing regulations, so an exactions analysis did not apply.  Id. The Supreme Court granted cert., oral argument was heard in January, 2013 and the Court decided the case on June 25, 2013 http://www.supremecourt.gov/opinions/12pdf/11-1447_4e46.pdf Add at end of Notes and Questions 2, The nexus test, p. 132:

In Koontz v. St. Johns River Water Mgmt. Dist., the Supreme Court held that a government’s demand for property from a permit applicant must satisfy the Nollan/Dolan requirements even when the demand is for money. Koontz v. St. Johns River Water Mgmt. Dist., No. 11-1447, 2013 LEXIS4918, at *14-5.  There, Koontz was denied a permit to develop an area of wetlands after he refused to comply with the district’s condition that Koontz reserve part of his property as a conservation area or pay for offsite mitigation.  Id at *12.  The Court noted that a government authority cannot evade the Nolan/Dolan test simply by making demands for property condition precedents to permit approval.  Id. at *19-20.  Furthermore, since the government must provide only one alternative that satisfies the nexus and rough proportionality standards, and it is common to suggest an alternative fee equal to the requested easement’s value, “in lieu of” fees should be treated as other forms of exactions under the Nollan/Dollan standard. Id. at *30.“[R]ecurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability.” The Court remanded the case for consideration of several factors including the extent to which the invasion was the foreseeable result of the government’s actions or was intended by the government, the land’s character, the severity of the government’s interference, and the duration of the interference. See also Livingston v. Virginia Dep’t of Transp., 726 S.E.2d 264 (Va. 2012) (stating that the Virginia Constitution does not “limit[] a property owner's right to just compensation for a damaging to only multiple occurrences of flooding” and that Virginia case law supports a holding “that a single occurrence of flooding can support an inverse condemnation claim.”

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Add at end of Notes and Questions 1. All use?, p. 141:

Can an action of inverse condemnation be found where the government did not “intend” to take the private property, and where the damage was “reparable”? The Oregon Court of Appeals found that evidence brought by plaintiff against the City of Milwaukie for raw sewage coming through her bathroom fixtures when the city “hydrocleaned” a nearby sewer line was sufficient to prove a claim of inverse condemnation. Dunn v. City of Milwaukie, 250 P.3d 7(Or. Ct. App. 2011).

The court determined that an action for inverse condemnation is satisfied if the harm is a “natural and ordinary consequence” of the government’s action. Id. at 12. The government did not have to “intend” to take the property or damage the property. Id. The court also held that a “substantial interference” with the plaintiff’s use and enjoyment of her property includes damage to the property: in this case because the damage “significantly diminished the value” of the plaintiff’s home. Id. at 16.

The City of Milwaukie appealed the judgment in favor of plaintiff and the Supreme Court of Oregon approved it’s petition for review. Dunn v. City of Milwaukie, 350 Or. 532 (2011). Two years later, the case still was pending before the Oregon Supreme Court.

Add at end of Notes and Questions 2. The Property Interest Taken, P. 141:Airplane overflights have caused disagreements in the courts. Some courts have applyied a regulatory takings analysis where deprivation “of all or practically all of the beneficial use of the property or of any part” is the standard; others have utilized an “actual occupation” standard, in which “the occupation is a taking,” whether or not the landowner has been deprived of all or substantially all the property value. In Brenner v. New Richmond Airport Comm’n, 816 N.W.2d 291 (Wi. 2012), the Wisconsin Supreme Court held that the physical occupation test is the proper standard in airplane overflight cases.

A taking occurs in airplane overflight cases when government action results in aircraft flying over a landowners property low enough and with sufficient frequency to have a direct and immediate effect on the use and enjoyment of the property, 816 N.W.2d at 310.

Add to Notes and Questions 3. The measure of compensation, pg. 142, Insert as a new paragraph immediately following the paragraph that starts “The measure of compensation for temporary regulatory takings is different from the measure of compensation for permanent takings.”In Otay Mesa Property, L.P. v. United States, 670 F.3d 1358 (Fed. Cir. 2012), the property owners granted the United States Border Patrol a twenty-foot wide easement for use in monitoring and responding to illegal alien activity. Later, the property owners sued the United States alleging that the Border Patrol’s activities outside of the easement constituted a permanent, physical taking requiring just compensation. The Court of Federal Claims held that the property owners were entitled to compensation for a temporary physical taking, not a permanent physical taking. According to the court, the taking was temporary because the easement “terminates ‘upon the occurrence of one of two events: (1) when the sensor is removed because it is no longer needed [by the Border Patrol]; or (2) when [Otay Mesa] obtain[s] a grading permit from the County of San Diego permitting development of all or a portion of the property.’” The Court of Federal Claims used the fair market rental value method to calculate the amount of the compensation award. On appeal, the Federal Circuit agreed that the normal measure of compensation for temporary takings is the fair rental value method; however, the Federal Circuit held that the Court of Federal Claims erred in finding that the taking was temporary. Citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the Federal Circuit stated that “the Supreme Court has defined a taking to be ‘permanent’ even when specified action initiated by the landowner could terminate the

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taking.” Finally, the Federal Circuit remanded the case for a redetermination of damages after rejecting the Court of Federal Claims’ use of the fair rental value of the land for parachute and skydiving training as the method for calculating damages. The Federal Circuit did not decide the method of valuation that should be used, though it provided some guidance. It stated that “a court must sometimes deviate from the traditional permanent taking- diminution in value and temporary taking-rental value approaches” and that the Court of Federal Claims had the discretion, on remand, to identify the most appropriate method for calculating the just compensation award in this permanent, physical takings case.

Insert in Notes and Questions between Notes 6 & 7 as new note 7, Pg. 144:

Inverse Condemnation is a difficult burden for landowners to overcome. See Town of Gurley v. M & N Materials, Inc., 1110439, 2012 WL 6634447 (Ala. Dec. 21, 2012) (landowners could not pursue an inverse condemnation claim if they wished to stay within the state courts). JKS Realty LLC v. City of Nashua, 55 A.3d 941 (N.H. 2012) (merely plotting land in anticipation of taking it does not amount to an aggravated delay required for a finding of inverse condemnation). Viewcrest Investments, LLC v. Oregon, 288 P.3d 574 (Or. Ct. App. 2012) (when landowners property became landlocked through delay of interchange revision, a taking had not occurred simply because the value of landowner’s property decreased upon publication of the interchange plan). Richards v. County of Missoula, 288 P.3d 175 (Mont. 2012) (economic loss resulting from rejection of subdivision application was not a taking as subdivision approval requirement includes the risk that approval may not be granted).

Add at end of Notes and Questions 5. Delay as a taking, page 143-144 before the paragraph that starts “A somewhat different problem arises….”

For a case discussing extraordinary delay as a taking, see Res. Investments, Inc. v. United States, 85 Fed. Cl. 447 (Fed. Cl. 2009). The court traces the concept of a regulatory taking emanating from extraordinary delay beginning with Agins v. City of Tiburon , 447 U.S. 255 (1980) and through Appolo Fuels, Inc. v. United States , 381 F.3d 1338 (2004), cert. denied, 543 U.S. 1188 (2005). After observing that First English Evangelical governed, the court stated that: "If permit denial were the only way for an agency to effect a regulatory taking, agencies could avoid implicating the Takings Clause by refusing to deny a permit, instead consigning it to regulatory limbo by not acting. The precept of 'extraordinary delay' is thus an exception to the general ripeness rule."

The City of Milwaukie appealed the judgment in favor of plaintiff and the Supreme Court of Oregon approved its petition for review. Dunn v. City of Milwaukie, 350 Or. 532 (2011). As of the time of publication of this update, the Supreme Court of Oregon had yet to hear the case.

Add at end of Notes and Questions 5. Delay as a taking, pg. 144, Insert at the end of the first paragraph as an addition to the “but see” string citation and following the DeSai case:

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Resources Investments, Inc. v. United States, 93 Fed. Cl. 373 (Fed. Cl. 2010) (Lucas claim proven on summary judgment motion except for issue of causation after extraordinary delay and ultimate denial of property owner’s permit application for construction and operation of solid waste landfill).

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[3.] The Lucas Case: A Per Se Takings RuleLucas v. South Carolina Coastal CouncilNOTES AND QUESTIONS

Add to Notes and Questions 3, What constitutes deprivation of “all economic use,” page 152 in second paragraph, immediately after Friedenburg v. New York State Dep’t of Envtl. Conservation:

In DeCook v. Rochester Int’l Airport Joint Zoning Bd., 796 N.W.2d 299 (Minn. 2011), the court applied Minnesota caselaw (McShane v. City of Faribault, 292 N.W.2d 253 (Minn. 1980) and held that a zoning ordinance that extended the size of the runway safety zone over the landowners’ property and reduced their property value by $170,000 caused a taking under the Minnesota constitution. According to McShane, “ʻthere must be compensation to landowners whose property has suffered a substantial and measurable decline in market value as a result of the regulations.’” DeCook, 796 N.W.2d at 307 (citing McShane).

Add to Notes and Questions 5, Sources, page 153:Patrick C. McGinley, Bundled Rights and Reasonable Expectations: Applying the Lucas Categorical Taking Rule to Severed Mineral Property Interests, 11 Vt. J. Envtl. L. 525, (2009-2010).

A NOTE ON HOW THE COURTS HAVE DRAWN THE TEETH OF THE LUCASDECISION

Insert Page 157, second paragraph, Guggenheim citation:

change “see” to “but see” and change citation to “638 F.3d 1111 (9th Cir. 2010)” and delete the parenthetical and replace it with the following (vacating the earlier court of appeals opinion on rehearing en banc and holding

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Insert page 154 at the end of the paragraph that starts “The parcel as a whole rule has significantly impacted the development of takings jurisprudence.”

For example, in Galleon Bay Corp. v. Board of County Commissioners of Monroe County, 105 So.3d 555 (Fla. Dist. Ct. App. Dec. 5, 2012), the court of appeals found that the trial court erred in considering subdivisions that had been separately platted and developed years earlier in determining whether the property owner’s investment-backed expectations were met. The court of appeals reversed the trial court and found a Lucas taking. In Lost Tree Village Corp v. United States, 707 F.3d 1286 (Fed. Cir. 2013), a wetlands fill case, the court concluded that the relevant parcel was the 4.99 acre plat on which the property owner sought an application to fill wetlands (Plat 57). In so holding, the Federal Circuit reversed the Court of Federal Claims and held that it “erred by aggregating Plat 57, Plat 55, and the scattered wetlands as the relevant parcel. . . . [T]he mere fact that the properties are commonly owned and located in the same vicinity is an insufficient basis on which to find they constitute a single parcel for purposes of the takings analysis.”

that no taking occurred in facial Penn Central challenge of rent control ordinance as applied to mobile home park as mobile home park owners made return on investment and property was subject to same rent control ordinance at the time of park owners’ acquisition). The en banc court reversed a rather unusual interpretation of the Penn Central factors by the panel.

Insert page 158 at the end of the paragraph that starts “Mandelker, Investment-Backed Expectations. . . .”:

Ruppert, Reasonable Investment-Backed Expectations: Should Notice of Rising Seas Lead to Falling Expectations for Coastal Property Purchasers?, 26 J. Land Use & Envtl. L. 239 (2011).

[5.] Penn Central VindicatedTahoe-Sierra Preservation Council, Inc. v. Tahoe Regional PlanningAgency, Inc. NOTES AND QUESTIONS

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Notes and Questions 1. Insert page 168 end of note 1, paragraph 1:

For a discussion on the interaction between Penn Central and the Tahoe-Sierra, Lucas, and First English decisions, see Radford, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology L.Q. 731 (2011) (analyzing whether preexisting notice of land use regulations trump the Penn Central balancing test).

Add at end of Notes and Questions 2, page 169 , Vindication for Penn Central?:

Cordes, The Fairness Dimension in Takings Jurisprudence, 20 Kan. J.L. & Pub. Pol'y 1, 2 (Fall 2010) (opining that the Tahoe-Sierra opinion, combined with the Lucas and Palazzolo opinions, “establish the ascendency of Penn Central as the primary vehicle for takings analysis”).

Insert page 169 end of paragraph 2

Vindication for Penn Central?: Cordes, The Fairness Dimension in Takings Jurisprudence, 20 Kan. J.L. & Pub. Pol'y 1 (Fall 2010) (discussing the application of the Penn Central factors in light of fairness and justice concerns).

Add at end of Notes and Questions 3, page 170, Applying the Penn Central test:

For a discussion of an inverse condemnation claim arising from a nuisance conducted by an entity that has the eminent domain power, see Rader Family Limited Partnership, L.L.L.P v. City of Columbia, 307 S.W.3d 243 (Mo. App. 2010) stating that in inverse condemnation cases, the appropriate measure of damages is lost fair market value immediately after the taking.

Insert page 170 at the end of the second paragraph in Note 3 (p. 169):

In Zimmerman v. Hudson, 264 P.3d 989, 992 (Kan. 2011),  the Board of County Commissioners of Wabaunsee County, Kansas enacted a moratorium on conditional use permits for commercial wind farms in order to conduct a comprehensive study for the sake of determining the overall impact of such commercial wind facilities.  The plaintiff property owners and intervening wind-power royalty owners claimed this moratorium constituted a taking of their vested right in pursuing a conditional use permit.  The Kansas Supreme Court found that the Board's moratorium was not a taking, because the plaintiff property owners and intervening wind-power royalty owners did not have a vested right in obtaining a conditional use permit.  Id. at 1005.

But see DeCook v. Rochester Intern. Airport Joint Zoning Bd., 796 N.W.2d 299, 301 (Minn. 2011), in which the Minnesota Supreme Court held that a zoning ordinance extending an airport “safety zone” onto private property constituted a taking under the Minnesota Constitution’s broader “taken,  destroyed or damaged” provision (Minn. Const. art. I § 13 (emphasis added)) when the burdened property suffered a $170,000 diminution in value.  The court applied the rule from a previous airport takings case, declaring that “when an airport ordinance regulates land use within runway safety zones, there must be compensation to landowners whose property has suffered a substantial and measurable decline in market value as a result of the regulations.”  Id. at 307 (internal citations omitted).   The “substantial and measurable decline” test differs from the Penn Central test, which also takes into account the diminution of value relative to the overall property value.  Without the additional Penn Central factors, the court found that even when the entire property was worth several million dollars, the $170,000 diminution was substantial “by any definition,” and constituted a

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regulatory taking.  Id. at 308-309. For a discussion of whether states can provide greater protection from uncompensated takings than Penn Central offers, including the Minnesota McShane and DeCook cases, see Radford & Wake, Deciphering and Extrapolating:  Searching for Sense in Penn Central, supra.

Insert at end of the last paragraph of Note 3, beginning on p. 169 and ending on p. 170 as a new paragraph:

Does damage caused by temporary flooding constitute a taking, or a tort?  Property located in flooding zones below dams often are subject to flowage easements, which allow the dam to release water into the flood zone on a comprehensive schedule designed to enable maximum agricultural usage of the land and minimal damage to the environment.  However, deviations from these plans are sometimes necessary to prevent widespread flooding, or for other special purposes, and such deviations can disrupt the landscapes below.  In Arkansas Game & Fish Com’n v. U.S., 637 F.3d 1366, 1367 (Fed. Cir. 2011), the Army Corps of Engineers approved several deviations in a dam release schedule from 1993-2000 in southern Missouri, which increased the average duration of flooding during the “critical” tree growing period of June to August each year in an Arkansas “management area” downriver.  Id. at 1372-73.  As a result, timber trees in the flood zones weakened by excessive flooding over the six year period did not survive a subsequent drought.  Id. at 1373.  The Federal Claims court awarded $5.5 million in damages for the dead and damaged timber for the temporary taking.  Id. at 1374.  On appeal, the court reversed the decision and held that “a flooding must be a permanent or inevitably recurring condition, rather than an inherently temporary situation, to constitute the taking of a flowage easement.”  Id. at 1378.  The court reasoned that the Army Corps of Engineers' deviations from the plan were “by their very nature temporary” and “cannot be ‘inevitably recurring’ or constitute the taking of a flowage easement,”  Id. at 1367, and that “an injury that is only in its nature indirect and consequential” is a tort, not a taking.  Id. at 1374 (internal quotations omitted).  See also State ex rel. Doner v. Zody, 130 Ohio St. 3d 446, 446, 463-64 (Oh. 2011) (where the Ohio Supreme Court held that intermittent flooding caused by spillway construction satisfied the two part test for takings-by-flooding claim because the claimants had clear and convincing evidence that the flooding of their property was the “direct, natural, or probable result of respondents’ actions,” and that the flooding was “inevitably recurring.”  The court granted writ of mandamus to compel appropriation proceedings to determine the amount of taking that occurred.  Id. at 464-65.)

Insert at end of the last paragraph of Note 3, beginning on p. 169 and ending on p. 170 as a new paragraph:

Does damage caused by temporary flooding constitute a taking? Property located in flooding zones below dams often are subject to flowage easements, which allow the dam to release water into the flood zone on a comprehensive schedule designed to enable maximum agricultural usage of the land and minimal damage to the environment.  However, deviations from these plans are sometimes necessary to prevent widespread flooding, or for other special purposes, and such deviations can disrupt the landscapes below. (Source?) In Arkansas Game & Fish Com’n v. U.S., 133 S.Ct. 511, 515 (2012) the Supreme Court held that recurring floodings of a temporary nature “are not categorically exempt from Takings Clause liability.” From 1993 to 2000, the Army Corps of Engineers approved several deviations in a dam release schedule in southern Missouri. These changes increased the average duration of flooding in an Arkansas forest-management area downriver during the peak tree growing season of June to August each year.  As a result, more than 18 million board feet of timber were damaged or destroyed.  Id. at 515-6. The Court of Federal Claims held that a temporary taking had occurred and awarded $5.7 million for the dead and damaged timber.  Id. at 517.  On appeal, the Federal Circuit reversed on the grounds that compensation may only be awarded when “[g]overnment-induced flooding … is permanent or

14

inevitably recurring.”  Id. 

The Supreme Court reversed, holding that “government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” Id. at 522. The Court reasoned that the Army Corps of Engineers' temporary deviations from the plan gave rise to “a direct and immediate interference with the enjoyment and use of the land” (quoting United States v. Causby, 328 U. S. 256, 266 (1946)) and can constitute a taking under the law.  Id. at 519. The Court saw no reason to treat flooding differently from other government intrusions Id. at 521. The Court identified several factors “relevant to the takings inquiry,” including the length of time of the physical invasion, whether the invasion “is intended or is the foreseeable result of authorized government action,” the character of the land affected, any “’reasonable investment-backed expectations,’” and the “severity of the interference.” Id. at 522. See also Livingston v. Va. Dep’t of Transp., 726 S.E.2d 264, 145. (Va. 2012). (failure to maintain canals to mitigate flooding may constitute temporary taking). For further discussion of AK Game & Fish Com’n, see Brian T. Hodges, AK. Game & Fish Com’n v. U.S., 65 Plan. & Envtl. Law 3, 10-12 (2013) (case is a “major step forward in protecting property rights … [but is] only a temporary fix for the temporary takings issue because it left the question of how a court should review such a claim unresolved”).

In City of Venice v. Gwynn, 76 So. 3d 401, 402 (Fla. App. 2011), the Florida appellate court quashed a circuit court order voiding a zoning board decision - to disallow a property owner her “grandfathered” right to offer short-term leases on her property - because the lower court failed to apply the economic impact factor of the Penn Central test.  Id. at 405.  The court reinstated the order of the Venice Code Enforcement Board, id., which prohibited the owner from renting single-family dwellings for periods under thirty days.  Id. at 403.  Because the record showed Gwynn’s property had continued value as a monthly rental or as an investment property, the appellate court clarified that the standard for economic impact is ultimately concerned with intended use, but rather “whether the landowner has been denied all or substantially all economically viable use of his land.”  Id. at 405. 

[6.] Removal of the “Substantially Advances” Test From Takings JurisprudenceLingle v. Chevron U.S.A. Inc.NOTES AND QUESTIONS

Insert at the end of note 2, p. 178:

Under Lingle, a facial challenge to the validity of a regulation is properly brought under the Due Process Clause, not under the Takings Clause. In Alto Eldorado P’ship v. County of Santa Fe, 634 F.3d 1170, 1175-76 (10th Cir. 2011), developers sought to circumvent the Williamson County ripeness requirements for final decision and denial of compensation by presenting a facial challenge under the Takings Clause. The Tenth Circuit court applied the Lingle distinction and determined that the developers’ allegedly-facial takings claim was a regulatory claim. Because the developers had not sought compensation or alleged that compensation was unavailable, their challenge to the ordinance at issue (requiring a percentage of all new developments be made available as affordable housing) was not ripe. Though Lingle held that due process should not be a part of the takings analysis, some feel the opposite is true. Ostler, Restoring Due Process as the Essential First Step in Every Takings Case, 13 Loy. J. Pub. Int. L 1 (2011).

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Add at end of Notes and Questions No. 3, Page 179 at the end of the paragraph:

For a case in which the court found that the property owner's substantive due process claim was ripe but that the property owner still could not move forward on the claim because it failed to "plead a plausible arbitrary and capricious substantive due process claim" see Acorn Land, L.L.C. v. Balt. County, 2010 LEXIS 19582 (4th Cir. 2011). The court held that, in order to establish a substantive due process claim based upon arbitrary and capricious conduct, Acorn had to prove '" (1) that [it] had property or a property interest; (2) that the state deprived [it] of this property or property interest; and (3) that the state's action falls so far beyond the outer limits of legitimate governmental action that no process could cure the deficiency.'" Acorn's complaint failed the third prong because a state court remedy was available and Acorn failed to allege that its injury could not be rectified by seeking relief in state court.

Add at end of Notes and Questions No. 3, Page 179 at the end of the paragraph:

For a case in which the court found that the property owner's substantive due process claim was ripe but that the property owner still could not move forward on the claim because it failed to "plead a plausible arbitrary and capricious substantive due process claim" see Acorn Land, L.L.C. v. Baltimore County, 2010 LEXIS 19582 (4th Cir. 2010). The court held that, in order to establish a substantive due process claim based upon arbitrary and capricious conduct, Acorn had to prove '" (1) that [it] had property or a property interest; (2) that the state deprived [it] of this property or property interest; and (3) that the state's action falls so far beyond the outer limits of legitimate governmental action that no process could cure the deficiency.'" Acorn's complaint failed the third prong because a state court remedy was available and Acorn failed to allege that its injury could not be rectified by seeking relief in state court.

Add to the end of Notes and Questions 4, Application of the Penn Central factors after Lingle, pg. 179:

In Bonito Partners, LLC v. City of Flagstaff, 229 Arz. 75 (Arz. App. 2012), a property owner challenged a city ordinance that required property owners to keep the sidewalks adjoining their property in repair. The trial court granted summary judgment in favor of the City, finding that the ordinance was a valid exercise of the City’s police power for nuisance abatement. The court of appeals agreed that the ordinance was a lawful exercise of the City’s police power but, citing the Lingle decision, warned against conflating the issues of whether the ordinance is valid under the Fourteenth Amendment Due Process Clause and, if so, whether the ordinance violates the Fifth Amendment Takings Clause. The court remanded for consideration of whether the City’s lawful exercise of its police power authority nevertheless was an unconstitutional taking under Penn Central. Neither party had addressed the Penn Central issue; instead, the court observed that the litigants had relied on pre-Lingle case law that failed to make the distinction between takings and due process analysis.

Add to the end of Notes and Questions No. 5, at the end of the paragraph ending on p. 180:

See also Lewyn, Character Counts: The “Character of the Government Action” in Regulatory Takings Actions, 40 Seton Hall L. Rev. 597 (2010) (arguing that “courts should continue to follow pre-Lingle precedent holding that the ‘character’ factor includes the public interest supporting the government action at issue”).

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Insert page 180 at the end of note 5:

Ostler, Restoring Due Process as the Essential First Step in Every Takings Case, 13 Loy. J. Pub. Int. L. 1 (2011); Spohr, Cleaning Up the Rest of Agins: Bringing Coherence to Temporary Takings Jurisprudence and Jettisoning "Extraordinary Delay", 41 Envtl. L. Rep. News & Analysis 10435 (2011); Lewyn, Character Counts: The “Character of the Government Action” in Regulatory Takings Actions, 40 Seton Hall L. Rev. 597 (2010); Siegel & Meltz, Temporary Takings: Settled Principles and Unresolved Questions, 11 Vt. J. Envtl. L. 479 (2010);

[7.] Federal Takings Executive Orders and Federal and State Takings LegislationNote on Takings Legislation in the Oregon State Land Use Program.

See also Sullivan & Eber, Protecting our Farmlands: Lessons from Oregon 1961-2009, 62 Plan. & Env. Law 3 (2010) (explaining Oregon’s updated zoning laws).

Add to end of second full paragraph on p. 186 that starts “To achieve its purpose…”:

See also Friends of Yamhill County, Inc. v. Bd. of Comm’rs, 264 P.3d 1265 (Or. 2011), where the Oregon Supreme Court upheld the application of the six-factor test from Clackamas Co. v. Holmes, 508 P.2d 190 (Or. 1973) (nicknamed the “Holmes test”) in determining when a common law vested right to complete a development exists.

Insert page 187 at the end of the paragraph that starts “The Future of Measure 49…”: (In 2012 update.)

Landowners have not fared well in challenges to Measure 49. In Friends of Yamhill Cnty., Inc. v. Board of Comm’rs of Yamhill Cnty., 351 Or. 219 (2011), the Supreme Court of Oregon held that the landowners holding a Measure 37 waiver did not have a vested right to complete a partially constructed subdivision after the effective date of Measure 49. The Oregon Supreme Court noted that Measure 49 retroactively extinguished previously issued Measure 37 waivers. See also Campbell v. Clackamas Cnty., 270 P.3d 647 (Or. App. 2011) (remanding case to county for failure to calculate properly the expenditure ratio in relation to the use landowners sought in determining whether landowners had a vested right in the continued use and contemplation of the use described in the Measure 37 waiver); Curry v. Clackama Cnty., 248 P.3d 1 (Or. App. 2011) (retroactive application of Measue 49 did not amount to a taking and landowners did not have a vested right in the continued use of the property); Bruner v. Josephine Cnty., 246 P.3d 46 (Or. App. 2010) (retroactive application of Measure 49 to rezone landowners’ property for agricultural use did not amount to a taking without just compensation).

Insert page 187 after first sentence of paragraph that starts “The future of Measure 49…”:

It appears that many cases are being resolved against landowners. For example, in Friends of Yamhill Cnty., Inc. v. Board of Comm’rs of Yamhill Cnty., 351 Or. 219 (2011), the Supreme Court of Oregon held that the landowners holding a Measure 37 waiver did not have a vested right to complete a partially constructed subdivision that they did not complete before the effective date of Measure 49, when the area was rezoned such that a subdivision would be impermissible. The Oregon Supreme Court noted that Measure 49 reatroactively extinguished Measure 37 waivers that had been previously issued. For four other recent Measure 49 cases, see

17

Campbell v. Clackamas Cnty., 270 P.3d 299 (Or. App. 2011) (holding that 4.7% expenditure ratio failed to establish a vested right for landowner to complete a partially constructed 41 lot subdivision); Fischer v. Benton Cnty., 260 P.3d 647 (Or. App. 2011) (remanding case to county on the grounds that county failed to properly calculate the expenditure ratio in relation to the use that the landowners sought to vest in determining whether the landowners had a vested right in the continued use and completion of the use described in the Measure 37 waiver); Curry v. Clackamas Cnty., 248 P.3d 1 (Or. App. 2011) (holding that retroactive application of Measure 49 did not amount to a taking and that landowners did not have a vested right in the continued use of the property); Bruner v. Josephine Cnty., 246 P.3d 46 (Or. App. 2010) (holding that the retroactive application of Measure 49 in the rezoning of landowners’ property for agricultural use did not amount to a taking without just compensation).

In Bowers v. Whitman, 671 F.3d 905 (9th Cir. 2012), the court held that the plaintiffs’ did not have a vested property interest for compensation or a particular type of land use under Measure 37. The court rejected three possible theories of vested property rights: (1) an “accrued cause of action is not a vested property interest for Takings Clause purposes until it results in a ‘final unreviewable judgment’”; (2) “Measure 37 waivers clearly did not constitute an express and unequivocal promise by Oregon to provide compensation, because Oregon had the option of providing either compensation or removing certain land use regulations”; and (3) “an interest in a particular land use does not constitute a protected property interest, unless the interest has vested in equity based on principles of detrimental reliance” and the plaintiffs’ claim failed on this third point because they were not ripe and the plaintiffs had not exhausted their remedies.

Insert page 187 at the end of the paragraph that starts “For a discussion of these laws”:

Carter, Oregon’s Experience with Property Rights Compensation Statutes, 17 Southeastern Envtl. L.J. 137 (2008);

Add to end of Note, Federal takings legislation, p. 188:

In April 2011, the House of Representatives passed a bill prohibiting states or political subdivisions of a state from exercising eminent domain over property to be used for economic development. Private Property Rights Protection Act of 2011, H.R. 1433, 112th Cong. § 2(a) (2011).

In February 2012, the House of Representatives passed a bill prohibiting states or political subdivisions of a state from exercising eminent domain over property to be used for economic development “if that State or political subdivision receives Federal economic development funds during any fiscal year in which the property is so used or intended to be used.” The bill was referred to the Senate in February 2012 and has not been enrolled by the Senate. Private Property Rights Protection Act of 2012, H.R. 1433, 112th Cong. § 2(a) (2012).

Insert in the first paragraph on 189 beginning “The developer can appeal…” after the sentence beginning with “She also has an equal protection claim…demands on other developments.”:

City Nat’l Bank of Fla. v. City of Tampa, 67 So. 3d 293, 297 (Fla. App. 2011) (denial with prejudice of a substantive due process claim does not necessarily preclude § 1983 equal protection claims when new facts concerning the “rational basis” for an alleged discriminatory application of zoning ordinances are discovered post-cert).

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A NOTE ON THE TAKINGS CLAUSE LITERATUREC. SUBSTANTIVE DUE PROCESS LIMITATIONS UNDER THE FEDERAL CONSTITUTION

George Washington University v. District Of ColumbiaNOTES AND QUESTIONS

Insert page 197 at the end of the paragraph that starts on page 196 “This is a difficult standard to meet”:

See also 49 WB, LLC v. Vill. of Haverstraw, No. 08CV-5784(VB), 2012 U.S. Dist. LEXIS 16518 (state appellate court’s rejection of  an eminent domain action as not for a public purpose did not provide a basis for a Federal substantive due process damages claim). The court held that the Village of Haverstraw's actions were “neither arbitrary nor irrational as a matter of law; they were simply wrong" and granted judgment in favor of the Village.  Id. at *8.

Add to Notes and Questions 5, page 197, Standard of Judicial Review, directly after “the reason for the ordinance, not the conduct of the official was at issue…”

In EJS Properties, LLC v. City of Toledo, 698 F.3d 845 (6th Cir. 2012), the conduct of the official was before the court. In a decision that may speak as much to the standards we expect our local officials to meet as it does to constitutional due process and equal protection principles, the Court of Appeals for the Sixth Circuit held that the City of Toledo’s refusal to re-zone a site when the developer refused a city councilman’s demand for a $100,000 donation to a local retirement fund, did not violate the developers 14th Amendment Rights. The Court emphasized that a landowner does not have a property or liberty interest in a particular zoning classification, and noting that some opposition to the proposed site had materialized, the decision not to re-zone met the rational-basis review standard. Figuratively holding its nose, the court observed,

“Perhaps it is unfortunate that the solicitation of a bribe by a public official does not shock our collective conscience….[A]lthough we can condemn McCloskey for his misconduct, we simply cannot say that his behavior is so shocking as to shake the foundations of this country.”

See Also Dunes West Golf Club, LLC v. Town of Mount Pleasant, 737 S.E.2d 601 (S.C. 2013) (When landowner’s property remains valuable under current zoning restrictions and Town has legitimate concern about conversion of property uses, a taking has not occurred).

Add at end of Notes and Questions 5, p. 197:

For an example of an exaction that was determined to be extortion rather than a reasonable exercise of the police power, see Hillcrest Property, LLP v. Pasco County, ---F. Supp. ---, 2013 WL 1502627 (M.D. Florida 2013) (transportation corridor preservation ordinance requiring landowners to dedicate corridor land in fee simple to Pasco County in exchange for construction permits invalidated as deprivation of substantive due process; Ordinance “discriminates based on economic aspiration” and allows Pasco County to acquire transportation rights-of-way at a “steep discount below ‘just compensation’”).

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D. EQUAL PROTECTION LIMITATIONS UNDER THE FEDERAL CONSTITUTION

Insert at the end of the first paragraph in “D. Equal Protection Limitations…” on p. 198:

An essential element of an equal protection claim is showing that the parties making the claim have been treated differently from similarly situated parties. Harvey v. Town of Merriville, 649 F.3d 526, 532 (7th Cir. 2011) (residents of a predominantly African-American subdivision could not satisfy their § 1983 equal protection claim when they failed to provide evidence of a similarly situated unprotected class in an action concerning an under-maintained retention pond).

Add to Note 2, Applying Olech, on p. 202 after the first full paragraph:

In Swanson v. City of Chetek, the Seventh Circuit held that when a party proves a clear showing of animus, without a detailed comparison to a similarly situated person, a class-of-one equal protection claim could be sustained. Swanson v. City of Chetek, No. 10-1658, 2013 LEXIS 12441 at *10. In most class-of-one cases, the comparison to similarly situated people is used to determine animus. Id. at *8-9. The Court concluded that if animus is obvious, it is redundant to require a plaintiff to prove disparate treatment in a similarly situated individual. Id. at *10. If a plaintiff can identify his specific harasser, while providing a plausible motive with sufficient detail of actions that appear legitimately discriminatory, “it would be oddly formalistic to require a near identical, one to one comparison to prove the readily apparent hostility.”Id. at *12. For an earlier Seventh Circuit recognition of animus in a “class-of-one” setting without a showing of disparate treatment, see Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir. 2012) (petitioner who had been given 24 bogus tickets as part of continuing police harassment was not required to prove a similarly situated person was not abused in a manner that deliberately discriminates in order to maintain a class-of-one claim).

Village Of Willowbrook v. OlechNOTES AND QUESTIONS

Add as new paragraph after the first paragraph in Note 3, The “run-of-the-mill” zoning dispute, p. 203:

The Fifth Circuit affirmed the lower court’s denial of plaintiff’s application in Lindquist v. City of Pasadena, 669 F.3d 225, 227 (5th Cir. 2012). There, the plaintiff’s application for a used car dealership license was denied based on a zoning ordinance which limited the proximity of used car dealerships to each other and to residential zones. Id. The plaintiffs asserted their class-of-one equal protection claim when they discovered the zoning board had granted a used car dealership license for a property one block away despite the fact that the approved property was also in violation of the proximity restriction. Id. at 232. Though the Lindquists identified comparators who had also been denied licensure and who sought an appeal, they ultimately failed the “similarly situated” analysis because each of the proposed comparators sought appeal for different proximity violations, and because the Lindquists’ argument during the zoning appeal was based upon yet another ordinance altogether. Id. at 235. The court noted that in cases involving the application of an ordinance or statute, “the plaintiffs’ and comparators’ relationships with the ordinance at issue will generally be a relevant characteristic” in the similarly-situated analysis. Id. at 234 (emphasis added).

Add at end of Note 2 Applying Olech, P. 203:See also Loesel v. City of Frankenmuth, 692 F.3d 452 (6th Cir. 2012) (“class of one” action not available where

20

“animus of the defendant-city was directed at the plaintiff’s proposed development plan and not at the plaintiff itself” (citing cases)). Loesel was a landowner who sought to sell his property to Wal-Mart for a supercenter in the resort town of Frankenmuth, Michigan. Did the court correctly apply the “animus” distinction?

E. FEDERAL REMEDIES FOR CONSTITUTIONAL VIOLATIONSRelief Under Section 1983 of the Federal Civil Rights Act

[a.] The Scope of Section 1983[b.] Custom and Policy[c.] Procedural Due Process Actions[d.] State Tort Liability Analogy[e.] Immunity from Section 1983 Liability

Insert after sentence beginning “See Kaahumanu… on page 207:

The Kahuumanu test consists of four factors in determining whether an act is legislative in character and effect: (1) whether the act involves ad hoc decision-making, or the formulation of policy; (2) whether the act applies to a few individuals, or to the public at large; (3) whether the act is formally legislative in character; and (4) whether it bears all the hallmarks of traditional legislation. Id. at 1220.Add at end of Legislative immunity, p. 207:

Applying Kahuumanu in determining whether an action was legislative for the purposes of legislative immunity, the Ninth Circuit concluded that decisions to approve and promote the lease and sale of property were legislative in character and thus the mayor and city council members were entitled to absolute immunity. Community House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 952 (9th Cir. 2010). Two municipal employees also were entitled to qualified immunity because “a reasonable official would not have known that such actions would violate the Establishment Clause or the FHA,” the court concluded.

[f.] Damages and Attorney’s Fees

Add to the end of the first full paragraph on page 209, “2. For discussion of § 1983, see…”:

For a critical stance on the judiciary’s application of § 1983 and proposed corrective amendments, see Bodensteiner, Congress Needs to Repair the Court’s Damage to § 1983, 16 Tex. J. on C.L. & C.R. 29 (2010).

PROBLEM[2.] Barriers to Judicial Relief: Ripeness

Williamson County Regional Planning Commission v. Hamilton Bank Of Johnson City

NOTES AND QUESTIONSInsert at the end of the second paragraph of Notes and Questions 2, More on the final decision requirement, p. 216:

The Palazzolo ripeness case underscored that the land use agency - not a reviewing court - determines the extent of development allowed on a property. The Federal Claims Court relied upon this point in Mehaffy v. U.S., 98

21

Fed.Cl. 604, 621 (Fed. Cl. Ct. 2011), holding that where a regulatory scheme does not provide for variance or an administrative appeal mechanism, a decision becomes final once the governing body denies the merits of the application, leaving “no uncertainty as to the land’s permitted use.” Id. at 623. There, Mehaffy applied to fill wetland property based on its landfill easement, which was subject to approval by the Army Corps of Engineers. Though Mehaffy offered little supporting documentation with its application and further failed to satisfy the Corps’ requests for testing and surveys, the Corps had “sufficient information” to unconditionally deny Mehaffy’s sparse application because it construed the regulations (there, the Clean Water Act) as effectively foreclosing the possibility of any commercial development on the wetlands in question. Mehaffy appealed and offered no new documentation, and the Corps denied his appeal. Under Palazzollo, since no court can undermine the administrative agency’s decision regarding the types of permissive uses, Mehaffy had exhausted his administrative appeals process.

Add at end of Notes and Questions 2, More on the final decision requirement, p. 216:

Applying Williamson County and Palazzolo, the Fourth Circuit Court of Appeals in Acorn Land, LLC v. Baltimore County, Maryland, supra, held that the County Council’s refusal to act on a developer’s petition to amend its property’s water/sewer classification to permit development, and the Council’s subsequent rezoning of the developer’s property to a less dense classification “satisfied Williamson’s final decision prong.” The court concluded that “it is clear that the Council has ‘dug in its heels’ and will not allow Acorn to receive necessary access to public water/sewer systems to residentially develop its property.” 402 Fed. Appx., at 815.

Thus…it would be both futile and unfair to require Acorn to jump through any additional administrative hoops to obtain a ‘final decision.’…We are satisfied that the ‘permissible uses of [Acorn’s] property are known to a reasonable degree of certainty,’ and Williamson’s first prong is satisfied. Id.

The court then held that while Acorn “has sufficiently pled a regulatory takings claim that is plausible on its face,” its substantive due process claim failed because it “did not plausibly plead that no state-court process could cure Acorn’s injury.” Id, at 817.

Add at the end of Notes and Questions 3, after sentence “holding no”, P. 217: In City of Suwanee v. Settles Bridge Farm, LLC 738 S.E.2d 597 (Ga. 2013) the Georgia Supreme Court held that Settles Bridge’s claim was not ripe because it had not applied for a newly-required special use permit. Belief that a permit application would be denied did not excuse the requirement to exhaust all administrative remedies, the court concluded.

Insert after the second sentence of Note 5, p. 217:

In Alto Eldorado Partnership v. County of Santa Fe, supra, the developers’ claim was ultimately found to be unripe because they had not utilized the available state procedure to seek compensation as required by Williamson.

Add at end of Notes and Questions 5, The state compensation remedy, p.218:

The First Circuit in Downing/Salt Pond Partners, L.P. v. Rhode Island and Providence Plantations, 643 F.3d 16, 22 (1st Cir. 2011) held that a takings claim was unripe where the plaintiff had failed to pursue the state’s inverse condemnation cause of action, and that a party cannot be excused from the “state litigation” requirement set

22

forth in Williamson County unless it satisfies its burden to prove the absolute unavailability or inadequacy of potential state remedies.

[3.] Barriers to Judicial Relief: Abstention PROBLEM

[4.] Review COPPLE v. CITY OF LINCOLN

NOTES AND QUESTIONS[5.] Remedies in Land Use Cases

[a.] Forms of Remedy[b.] Specific Relief

CITY OF RICHMOND v. RANDALLNOTES AND QUESTIONS

23

Add as a new paragraph at the end of Note 7 on p. 218:

When a state court damages award on a takings claim does not appear to the plaintiff to be "just compensation," an owner who reserved his federal takings claims in a state court action may bring that claim in federal court unless state preclusion statutes prohibit it. Edwards v. City of Jonesboro, 645 F.3d 1014, 1016, 1019 (8th Cir. 2011).  In Edwards, the plaintiff brought an inverse condemnation action in Arkansas state court alleging that invasive methane gas from a city landfill reduced the value of his property.  Id. at 1016.  Edwards obtained a judgment awarding him over $400,000 for his state claim, but plead a “reservation of rights” in hopes of preserving federal rights and remedies.  Id. at 1017.  Dissatisfied with the judgment, Edwards filed a state court appeal, which was rejected as untimely, and subsequently brought an inverse condemnation action under § 1983 in federal district court.  Id.  The Arkansas federal court found that Edwards’ state judgment precluded him from bringing the claim in federal court, and the Eighth Circuit federal court affirmed.  Id. at 1020.  Since the Full Faith and Credit Act requires federal courts to give state court judgments the same effect as they would have in another court in the same state,  28 U.S.C. § 1738, the court applied the Arkansas preclusion statute and the Supreme Court holding from San Remo Hotel to determine that Edwards’ claim was precluded because “there is no exception to the full faith and credit statute under which property owners may reserve their federal rights for a later federal suit.”  Id.

PROBLEM

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Chapter 3 CONTROL OF LAND USE BY ZONING

A. THE HISTORY AND STRUCTURE OF THE ZONING SYSTEM[1.] Some History[2.] Zoning Enabling Legislation

NOTES AND QUESTIONSA NOTE ON CONTEMPORARY APPROACHES TO ZONING ENABLING LEGISLATIONNOTES AND QUESTIONS

Even zoning to help reduce obesity involves issues of what is enabled: Paul A. Diller and Samantha GraffSYMPOSIUM ARTICLE: EMERGING TOPICS IN PUBLIC HEALTH LAW AND POLICY: Regulating Food Retail for Obesity Prevention: How Far Can Cities Go? Special Supplement Spring 2011, 39 J.L. Med. & Ethics 89:

“Even if, as the Town contends, Town Code § 198-21.2 requires that development of lot 73 include a swimming pool and community center not to exceed 5,000-square feet, such a provision would be ultra vires and void as a matter of law (see BLF Assoc., LLC v Town of Hempstead, 59 AD3d 51, 55-56 [2008])…. While the enabling statutes in Town Law article 16 confer authority upon a town to enact a zoning ordinance setting forth permitted uses, nothing in the enabling legislation authorizes the Town to enact a zoning ordinance which mandates the construction of a specific kind of building or amenity (see BLF Assoc., LLC v Town of Hempstead, 59 AD3d at 55; Blitz v Town of New Castle, 94 AD2d 92, 99 [1983]).” 82 A.D.3d 1203 (2011); 920 N.Y.S.2d 198.

Town of Huntington v. Beechwood Carmen Bldg. Corp., 920 N.Y.S.2d 198 (N.Y. App. Div. 2d Dep’t 2011).

In re Moore Accessory Structure Permit and Use (Gary Smith and Betsy Siebeck, Appellants), 2013 Vt 54, 2013 VT. LEXIS 52 (2013)(“certain buildings used to process timber into lumber qualify as ‘farm structures’ exempt from local zoning regulation under 24 V.S.A. § 4413(d)(1)” because state law recognizes the uses as sustainable agriculture).

Sustainability has become a leading theme in zoning ordinances. The Rocky Mountain Land Use Institute early on in the emergence of sustainability provided a useful overview entitled “Sustainable Zoning: A New Imperative – The Sustainable Community Development Code,” draft dated February 13, 2007, prepared by James van Hemert, available on-line at http://www.law.du.edu/images/uploads/rmlui/rmlui-sustainable-SustainableZoningFramework%206.pdf

The City of Madison, Wisconsin is often a leader in land use planning and regulation. The Zoning Code Rewrite Advisory Committee has promulgated some “Zoning Codes Sustainability Ideas” available at http://www.cityofmadison.com/neighborhoods/zoningrewrite/documents/sustainability.pdf. Importantly, they identify what types of sustainable ideas can be addressed through zoning, such as energy, water, green infrastructure/urban agriculture, public health, density, mixed-use/transit oriented development, and parking.

Equally important, they point out what sustainable ideas cannot be addressed through zoning, such as providing incentives for construction that meet green building standards, prohibiting heated sidewalks, and requiring solar

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in all commercial and institutional buildings.

See also Stark County, Ohio, "Sustainable Planning and Zoning Handbook” (June 2011, Revised November 2012) http://www.co.stark.oh.us/internet/docs/rpc/Sustainable%20Planning%20and%20Zoning%20Handbook.pdf

[3.] The Zoning OrdinanceNOTES AND QUESTIONS

What happens when a use straddles two districts? It may be a good case for a variance: “We conclude that BSA's finding that the proposed building satisfies each of the five criteria for a variance set forth in § 72-21 has a rational basis and is supported by substantial evidence (see Matter of SoHo Alliance, 95 NY2d at 440). BSA rationally found that there are "unique physical conditions" peculiar to and inherent in the zoning lot such that strict compliance with the zoning requirements would impose "practical difficulties or unnecessary hardship" (Zoning Resolution § 72-21[a]). Among the physical conditions BSA considered unique was that the zoning lot in question straddles two zoning districts:…”

Kettaneh v. Board of Stds. & Appeals of the City of New York, 2011 NY Slip Op. 5410 (N.Y. App. Div. 1st Dep’t 2011).

PROBLEMC. ZONING LITIGATION IN STATE COURTS

PROBLEM[1.] Standing

Center Bay Gardens, Llc v. City Of Tempe City CouncilNOTES AND QUESTIONS

An abutter is presumed aggrieved with standing, but once challenged must “present credible evidence to substantiate their particularized claims of harm to their legal rights.”

Kenner v. Zoning Bd. Of Appeals, 459 Mass. 115 (Mass. 2011).

Generally, a property owner will not be found to be aggrieved if they have “failed to demonstrate any legally cognizable interest aside from increased business competition….”

In the Matter of Hadland v. Zoning Board of Appeals of The Town of Southhampton, 2012 N.Y. App. Div. LEXIS 2867; 2012 NY Slip Op 2877.

The issue of presumptive standing often comes up in these cases. In March of 2012, the Supreme Judicial Court of Massachusetts handed down a decision affirming the standing of a neighbor. The neighbors, as abutters, are presumed to have standing to appeal a land use decision; and the burden is on the developer in the first instance to produce evidence to the contrary.

81 Spooner Road, LLC v. Zoning Board Of Appeals Of Brookline, 461 Mass. 692 (2012).

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[2.] Exhaustion of RemediesBen Lomond, Inc. v. Municipality Of AnchorageNOTES AND QUESTIONS

“Generally, ‘one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law` ‘[A]bsent extraordinary circumstances, courts are constrained not to interject themselves into ongoing administrative proceedings until final resolution of those proceedings before the agency’ The doctrine of exhaustion of administrative remedies applies to actions for declaratory judgments However, there are exceptions to the exhaustion doctrine applicable where the agency's action is challenged as either unconstitutional or wholly beyond its grant of power, or where resort to administrative remedies would be futile or would cause irreparable injury.”

Town of Oyster Bay v. Kirkland, 917 N.Y.S. 2d 236 (N.Y. App. Div. 2d Dep’t 2011).

The Rhode Island Supreme Court recently had an opportunity to address the exhaustion of remedies question and found that property owners failed to exhaust their remedies when they first requested a special permit along with a dimensional variance and were denied that permit because the zoning laws did not authorize the special permit in conjunction with a dimensional variance. The zoning ordinances were later amended to allow a special permit with a dimensional variance but the plaintiffs never re-applied. Under these circumstances, they failed to exhaust their remedies, held the court.

Tolias v. Cash, 2012 R.I. Super. Lexis 5

“[W]e conclude that the exhaustion-of-administrative-remedies requirement set forth in subdivision (a) of section 21177 applies to a public agency's decision that a proposed project is categorically exempt from CEQA compliance as long as the public agency gives notice of the ground for its exemption determination, and that determination is preceded by public hearings at which members of the public had the opportunity to raise any concerns or objections to the proposed project.”

Fred Tomlinson v. County Of Alameda, Y.T. Wong, 54 Cal.4th 281, 142 Cal. Rptr. 3d 539, 278 P.3d 803, 2012 Cal. LEXIS 5261 (2012).

[3.] Securing Judicial ReviewCopple v. City Of LincolnNOTES AND QUESTIONS

“[T]he crucial test for determining what is legislative and what is administrative [quasi-judicial] is whether the ordinance is making a new law, or one executing a law already in existence … Clearly, adoption of amendments under the Ordinance constitutes the creation of new law and is therefore a legislative act by the City Council.”

King’s Ranch of Jonesboro, Inc. v. City of Jonesboro, 2011 Ark. 123 (Ark. 2011).

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[4.] Remedies in Land Use Cases[a.] Forms of Remedy

Equitable remedies, including estoppel: “a landowner must establish the following elements of good faith action on the landowner's part: (1) that he relied to his detriment, such as making substantial expenditures, (2) based upon an innocent belief that the use is permitted, and (3) that enforcement of the ordinance would result in hardship, ordinarily that the value of the expenditures would be lost.”

DeSantis v. Zoning Bd. Of Adjustment, 12 A.3d 498 (Pa. Commw. Ct 2011).

Mandamus continues to be an occasional remedy available to claimants in zoning matters. The Supreme Court of Georgia upheld the trial court’s grant of a writ of mandamus as the only avenue for relief for this property owner: “When local zoning ordinances do not establish a means by which an aggrieved party may gain judicial review of an adverse decision by a zoning appeal board, a petition to the appropriate superior court for a writ of mandamus is the proper remedy.”

Haralson County V. Taylor Junkyard Of Bremen, Inc., 2012 Ga. Lexis 641

“Equitable relief is available in zoning cases to correct inequities created by a landowner's good faith reliance on governmental action that results in the expenditure of substantial unrecoverable funds and to preclude municipalities from enforcing their land use regulation or from denying relief from the terms of that regulation.”

In Re Appeal Of Baird, Nos. 536 C.D. 2012, 537 C.D. 2012, Commonwealth Court Of Pennsylvania, 2013 PA. Commw. Unpub. LEXIS 187 (2013).

[b.] Specific ReliefCity of Richmond v. RandallNOTES AND QUESTIONS

Appellate court ordered site-specific relief for a methadone clinic.

Habit OPCO v. Borough of Dunmore, 17 A.3d 1004 (Pa. Commw. Ct. 2011).

PROBLEM

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D. JUDICIAL REVIEW OF ZONING DISPUTESA PRELIMINARY NOTE ON JUDICIAL REVIEWKrause v. City Of Royal OakNOTES AND QUESTIONS

“Abuse of discretion” standard of review applied where trial court denied preliminary injunction in zoning enforcement case.

Town of Coventry v. Baird Props., 13 A.3d 614, 2011 R.I. LEXIS 156 (R.I. 2010).

A NOTE ON FACIAL AND AS-APPLIED CHALLENGES: NECTOW v. CITY OF CAMBRIDGE

D. Zhou, Rethinking the Facial Takings Claim, Yale Law Journal, Vol. 120, 2011, available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1748847

Facial challenge under RLUIPA was upheld in Elijah Group Inc. v. City of Leon Valley, 2011 U.S. App. LEXIS 11966 (5th Cir. Tex. June 10, 2011).

A facial challenge in many states cannot be brought as part of an administrative appeal of a local zoning decision.

See, Smith v. Richfield Township Board of Zoning Appeals, 2012 Ohio App. Lexis 1032.

“When considering a facial challenge to the constitutionality of an ordinance, we consider only ‘the text of the measure itself, not its application to the particular circumstances of an individual. [Citation.]’ ’To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute.... Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.’”

Browne v. Tehama, 213 Cal.App.4th 704, 153 Cal. Rptr. 3d 62, 2013 Cal. App. LEXIS 90 (2013).

E. RECURRING ISSUES IN ZONING LAW[1.] Density and Intensity of Use

California has a statutory provision euphemistically referred to as the “no-net-loss-in-density law” codified at Government Code section 65863, subdivision (b): “No city … shall… reduce… the residential density for any parcel to, or allow development of any parcel at, a lower residential density, …unless the City… makes written findings supported by substantial evidence of ….”

Quartz Hill Cares v. City of Lancaster, 2012 Cal. App. Unpub. LEXIS 2026.

A NOTE ON THE BUSINESS OF DEVELOPMENT

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[a.] Density Restrictions: Large Lot ZoningJohnson v. Town of EdgartownNOTES AND QUESTIONS

The principal case in the book, Johnson v. Town of Edgartown, at Page 271 is one of those cases that keeps on giving. The Commissioner of Internal Revenue claimed certain federal income tax deficiencies against the Herring Creek Acquisition Co., L.L.C. and the Nature Conservancy as related in a recent tax court memo The complexities of the tax situation demonstrate how difficult it is sometimes to structure charitable contributions of land.

Tax Court Memo 2012-8, Marshall and Judith Cohan v. Commissioner of Internal Revenue, 2012 Tax Ct. Memo LEXIS 8.

[b.] Site Development Requirements as a Form of ControlNOTES AND QUESTIONSUpheld waiver of floor area ratio waived to permit density bonus for affordable housing.

Wollmer v. City of Berkeley, 2011 Cal. App. Unpub. LEXIS 1785 (Cal. App. 1st Dist. Mar. 11, 2011).

A NOTE ON OTHER APPROACHES TO REGULATING DENSITY AND INTENSITY OF USE

[2.] Residential Districts

A “private motocross riding track” is not a “outdoor recreation” permitted in a single-family zone.

Cross-Up, Inc. v. Zoning Hearing Bd., 12 A.3d 497 (Pa. Commw. Ct. 2011).

Residential density bonuses are reviewed critically in a recent article “Cracking The Foundation: Highlighting and Criticizing The Shortcomings of Mandatory Inclusionary Zoning Practices,” an article by Michael Floryan in The Pepperdine Law Review (February 2, 2012) available at http://tinyurl.com/c9oxlzl

[a.] Separation of Single-Family and Multifamily Uses

Nadav Shoked, The Reinvention of Ownership: The Embrace of Residential Zoning and the Modern Populist

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Large-lot zoning to stop affordable housing challenged. Berry v. Volunteers of Am., Inc., 2011 La. App. LEXIS 482 (La. App. 5th Cir. Apr. 26, 2011).

Reading of Property 28 Yale J. on Reg. 91 (2011).

[b.] Single-Family Residential Use: The Non-Traditional “Family”

Village of Belle Terre v. BoraasNOTES

The South Carolina Supreme Court, acknowledging the Belle Terre decision, upheld an ordinance in the City of Columbia restricting all properties zoned as single family units to not more than three unrelated persons. The court was swayed in some measure by the fact that the community had colleges and universities in the area and that the zoning provision restricting the number of unrelated persons was reasonably related to “controlling the undesirable qualities associated with ‘mass student congestion’”. McMaster v. Columbia Board of Zoning Appeals, 2011 SC LEXIS 394.

Believe it or not, Belle Terre gets cited in a fracking case in which the court upheld the constitutionality of the state’s statute preempting regulation of fracking by local governments. In stating that “zoning is an extension of the concept of a public nuisance which protects property owners from activities that interfere with the use and enjoyment of their property,” the court cites City of Edmonds v. Oxford House, Inc., 514 US 725, 732-33 (1995) quoting from Euclid v. Ambler Realty and the Belle Terre decision and going on to describe the purposes of local zoning before concluding “the interests that justify the exercise [of] the police power in the development of oil and gas operations and zoning are not the same.”Robinson Township v. Commonwealth, 2012 Pa. Commw. LEXIS 222.

In Bozeman, Montana “The definition of ‘household’ explicitly excludes common housekeeping units comprised of more than four unrelated people or more than four handicapped people.” Held, not discriminatory on its face, though Authorized Uses Section was.

Montana Fair Housing v. Bozeman, 854 F.Supp.2d 832, 2012 U.S. Dist. LEXIS 25729 (USDC D. Mont. 2012)(“ Because subsection (A) of the statute does not treat groups of related disabled people any differently than any other related group of people, Fair Housing has failed to establish that the Household Definition Section is discriminatory on its face…)

City of Cleburne v. Cleburne Living CenterNOTES AND QUESTIONS

City violated the Fair Housing Act in refusing to waive the definition of family in the zoning ordinance to enable group home operator to house eight children and two house parents in a single family unit.

King’s Ranch of Jonesboro, Inc. v. City of Jonesboro, 2011 Ark. 123 (Ark. 2011).

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The City of Cleburne decision is discussed in a recent article by Susannah W. Pollvogt, “Unconstitutional Animus” Fordham L. Rev. 81 (2012) available at http://works.bepress.com/susannah_pollvogt/3

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A NOTE ON FAMILY ZONING IN THE STATE COURTS

Use of the term “functional equivalent of a traditional family” in zoning is not void for vagueness.

Matter of Morrissey v. Apostol, 2010 N.Y. Slip Op 6714 (N.Y. App. Div. 3d Dep’t (2010).

Summary judgment denied and question left for trial as to whether a group home for young women with drug addiction and emotional disorders is a “functional equivalent of a family” under local zoning.

Candlehouse, Inc. Town of Vestal, 2013 U.S. Dist. LEXIS 63353 (USDC NDNY 2013).

A NOTE ON ALTERNATIVES TO SINGLE-FAMILY ZONING: THE ACCESSORY APARTMENT

Upheld division of a house into two units housing a total of 11 Bowdoin students under accessory apartment regulations, rejecting boarding house argument.

Adams v. Town of Brunswick, 987 A.2d 502, (Me. 2010).

[c.] Manufactured Housing

“Trailer park” distinguished from manufactured housing.

Smith County Reg’l Planning Comm’n v. Hiwassee Vill. Mobile Home Park, LLC, 304 S.W. 3d 302 (Tenn. 2010).

PROBLEM

A NOTE ON ZONING AND THE ELDERLY“Four mobilehome park owners in Yucaipa, California appeal the dismissal of their suit under the Fair Housing Amendments Act of 1988 ("FHAA") challenging a city zoning ordinance prohibiting any mobilehome park currently operating as senior housing from converting to all-age housing. Because the FHAA is silent on whether such senior-housing zones are permissible and because federal regulations allow for them, we AFFIRM the judgment of the district court.”

Putnam Family Partnership v. City of Yucaipa, Cal., 673 F. 3d 920 (9th Cir 2012)

See Wollmer under D.1.b above

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PROBLEM

A NOTE ON HOME OCCUPATIONS

Pet sitting “kennel-like” business operated out of a single-family home is not a home occupation.

Lariviere v. Zoning Bd. of Review, 2011 R.I. Super. LEXIS 65 C.R.I. Super Ct. 2011).

A dog grooming business in a garage is not a home occupation.

Lowney v. Zoning Board of Appeals Of The Black Point Beach Club Association, 2013 Conn. App. Lexis 353 (Ct. App. Ct 2013)

Sometimes it is the local regulations which end up controlling whether an activity is a home occupation or not. In a case that will likely prove to be an outlier in most jurisdictions, the Appellate Division of the Superior Court in New Jersey recently held that a 2,150 square foot garage constructed accessory to a residence and in which the owner operated a welding business was a home occupation under the local regulations. The lot, at 6.4 acres, was non-conforming in the zone which required 7.5 acres for a single family home and the three-bay garage at 2,150 square feet was almost half again as large as the 1,670 square foot home on the site. As the court so aptly put it: “The meaning of ‘home occupation’ requires interpretation of the language of the municipal ordinance at issue in a given case.”

Colambro v. Lebanon Township ZBA, 424 N.J. Super 501 (2012).

[3.] Commercial and Industrial Uses

Roderick M. Hills, Jr. & David Schleicher, The Steep Costs of Using Noncumulative Zoning to Preserve Land for Urban Manufacturing, 77 U.Chi. L. Rev. 249 (2010).

A winery at a single-family home is an agricultural use exempt from any regulation under Ohio law.

Terry v. Sperry, 956 N.E.2d 276 (Ohio 2011).

Outside storage of plumbing pipes at a single-family home on a lot zoned industrial is an illegal home occupation and not a permitted industrial use.

City of Green v. Joel Helms, 2013 Ohio App. LEXIS 1974, 2013-Ohio-2075( Court of Appeals of Ohio, Ninth District, Summit County 2013).

[a.] In the Zoning OrdinanceBP America, Inc. v. Council of The City Of AvonNOTES AND QUESTIONS

“The Downtown Business district (B-3) is intended to apply to the Village's downtown business district and Village center. This area is typified by small lots, and buildings with minimal setbacks. The downtown business district is intended to offer greater flexibility in area requirements and setback requirements than other districts

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in order to promote the reuse of buildings and lots and the construction of new developments in the downtown business district consistent with the existing scale of development. The character, appearance and operation of any business in the downtown district should be compatible with any surrounding areas.”

Gage Inc., LLP, v. Vill. of Sister Bay, 2011 Wisc. App. Lexis 538 (Wis. Ct. App. July 6, 2011).

Loreto Development Co., Inc. v. Village Of ChardonNOTES AND QUESTIONS

Formula retail:

Dina Botwinick et al., Saving Mom and Pop: Zoning and Legislating for Small and Local Business Retention, 18 T. L. & Pol’y 607 (2010).

At Page 333 of the Casebook there is a long quote from the Wall Street Journal. That matter involving the activities of the Saint Consulting Group was played out further in the U. S. District Court for the District of Massachusetts in 2012 as reported in a decision in which the court concluded that the insurance company was not obligated to defend The Saint Consulting Group from claims against the company. Also, on March 27, 2012, Federal District Court Judge Harry D. Leinenweber of the United States District Court for the Eastern District of Illinois issued a decision in Rubloff Development Group v. SuperValu (doing business as The Saint Consulting Group), granting the defendants’ motions to dismiss. The claims alleged federal and state anti-trust violations, RICO violations, tortious interference with prospective economic advantage, common law fraud, abuse of process and conspiracy to commit overt, tortious and unlawful acts. The court said that Saint and SuperValu are protected in their First Amendment right to petition the government and under the Noerr-Pennington Doctrine. This is a remarkable decision worth reading in the context of The Wall Street Journal report and it probably describes the outer limits of the Noerr-Pennington Doctrine in the context of business activities affecting land use decision making.

For the next and hopefully final chapter in the story, see Rubloff Development Group, Inc. V. Supervalu, Inc., 2013 U.S. Dist. LEXIS 15239 (USDC ND Illinois 2013

The City of San Francisco Planning Department has an excellent discussion of formula retail use available on-line entitled “Chain Stores (Formula Retail Use)” available at http://www.sf-planning.org/index.aspx?page=2839

A trial court in New York late in 2011 upheld a “Formula Fast Food Restaurants” regulation in the Village of Victor, New York. Meade Square Commons, LLC v. Village of Victor (2011).

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A NOTE ON “BIG BOX” RETAIL ZONING

Self-storage facility not permitted in the Village Commercial District: “In the same vein, the Environmental Courts construction allowing any non-wholesale commercial establishment would provide little meaningful limitation on the size or type of business facility allowed in the VC District, except to exclude wholesalers. Carried to its logical end, the court's definition would allow so called big-box stores or other large-scale businesses to intrude into the village environment, thereby undermining the VC District's express purpose. Applicant's facility itself provides an example of how over-inclusive the standard is. The storage complex would consist of three stand-alone buildings, with multiple bays and traffic at potentially any hour of the day or night. There would be no retail activity or character, residentially compatible or otherwise, in such a facility. Permitting this facility is inconsistent with both the language and purpose of the Bylaws.”

In re Tyler Self-Storage Unit Permits, 2011 VT 66 (Vt. 2011).

One of the significant problems coming out of the real estate recession has been the abandonment of big box stores. What can be done with them through retail reuse, adaptive reuse, demolition and redevelopment, and demolition and re-greening is described in a recent article.

Sarah Schindler, “The Future of Abandoned Big Box Stores: Legal Solutions To The Legacies Of Poor Planning Decisions,” University of Colorado Law Review, Vol. 83, pp 471-548 (2012).

A NOTE ON INCENTIVE ZONING AND SPECIAL DISTRICTS IN DOWNTOWN ANDCOMMERCIAL AREAS

Special districts sometimes require covenants and restrictions in their implementation and later changes in zoning can run afoul of those restrictions.

See, CMR D.N. Corp. v. City of Phila., 2011 U.S. Dist. LEXIS 25396 (E.D. Pa. Mar. 10, 2011).

[b.] Control of Competition as a Zoning PurposeHernandez v. City Of HanfordNOTES AND QUESTIONS

The flip side of zoning to control competition is the federal intervention in matters of local land use to increase competition through the Telecommunications Act. “Congress enacted the TCA so as to foster competition and to accelerate the deployment of telecommunications services around the country. A component of the TCA places limitations on local zoning boards, such that local governments cannot unreasonably discriminate among service providers, cannot prohibit or have the effect of prohibiting the provision of personal wireless services, cannot fail to act in a timely manner, and cannot deny a request to provide services without substantial evidence.”

Arcadia Towers LLC v. Colerain Twp. Bd. of Zoning Appeals, 2011 U.S. Dist. LEXIS 27445 (S.D. Ohio Mar. 15, 2011).

PROBLEM[c.] Antitrust Problems

NOTES AND QUESTIONS

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Noerr-Pennigton immunity not extended to malicious prosecution action where argument was untimely and issues could be decided on other grounds.

Baldau v. Jonkers, 2011 W. Va. LEIS 13 (W. Va. Mar. 10, 2011).

Parker doctrine protects local government “The Parker doctrine or "state-action" doctrine shields state governments from antitrust liability for anti-competitive actions taken in their capacity as sovereigns.”

Comprelli v. Town of Harrison, 2011 U.S. Dist. LEXIS 5872 (D. N.J. Jan. 21, 2011).

[4.] Districting and Nonconforming UsesA NOTE ON THE HISTORY OF NON-CONFORMING USESConforti v. City Of ManchesterNOTES AND QUESTIONS

Marina and yacht club are not “tandem” uses for determining whether nonconforming use was expanded.

Campbell v. Tiverton Zoning Bd., 15 A.3d 1015 (R.I. 2011).

The are hundreds of nonconforming uses cases every year, many of them entertaining oddities. One is those is the case of whether a “tree house” (really an elevated storage building: “16 feet high, with doors on the first and second levels, and a pulley for hoisting objects to the top level”) was a legal nonconformity. It was determined to be illegal.

Buckley v. City of Solon, 2011 Ohio 3468 (Ohio Ct. App., Cuyahoga County July 14, 2011).

Eighteen years after a couple moved in next door to a single family home with a non-conforming accessory use, they complained to the zoning enforcement officer. The non-conforming use was upheld by the trial court but reversed on appeal which noted that the property which had been used as a publishing house ceased to be used as such in 1986 and then began as a machine shop use and given that fact, the trial court judge said the appellate court “was required to conclude that the property lost its protection as a prior non-conforming use.” The court cited a three-part test where the use is changed: “(1) Whether the use reflects the nature and purpose of the use prevailing when the zoning by-law took effect. (2) Whether there is a difference in the quality or character, as well as the degree, of use. (3) Whether the current use is different in kind in its effect on the neighborhood.”

Hambley v. Dalzell, 2012 Mass. App. Unpub. LEXIS 189.

The Supreme Judicial Court of Massachusetts recently addressed the issue of the expansion of a non-conforming use in a case involving a non-conforming mobile home park that did not seek to expand its land area, but wanted to increase the number of units from 65 to 79 mobile homes. The court upheld the trial court’s decision that the small increase in density would not have any impact on the neighborhood through the addition of traffic and that the non-conformity was in the lot area, not the density or number of units and, therefore, the proposed increase from 65 to 79 units was not an expansion of a non-conforming use.

Shirley Wayside Limited Partnership v. Zoning Board of Appeals of Shirley, 461 Mass. 469 (2012).

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Regardless of who brings the claim, courts have consistently held that there is a heavy burden in proving abandonment of a non-conforming use. The Court of Appeals of the State of Washington recently addressed this issue in an instance where a neighbor claimed that a duplex had been abandoned and that could only be continued as a single family unit. The court stated: “A legal non-conforming use is a vested right. The right may be lost by abandonment or discontinuance, but a party so claiming has a heavy burden of proof. Abandonment or discontinuance is a question of fact, and ordinarily depends upon a concurrence of two factors: ‘(a) an intention to abandon; and (b) an overt act, or failure to act, which carries the implication that the owner does not claim or retain any interest in the right to the non-conforming use.’” The court held that the party claiming the abandonment had not met its burden of proof.

Rosema v. City of Seattle, 2012 Wash. App. LEXIS 161.

There are many, many cases every year about expansion and intensification of non-conforming uses. One of the more interesting decisions in the last year is one from Massachusetts where the Appeals Court held that the vertical expansion of a non-conforming footprint for a single-family home was not as of right and might not be reasonably required to make economic use of the property. The case is a classic one because it involves an older, smaller non-conforming home that the owner attempted to reconstruct, but found that it was uneconomic to do so. Instead, he tore it down and built new, unfortunately expanding the footprint and making the building higher than the former one. One of the interesting aspects of the decision is the remedy: should there be a tear down order or not?

Shepherd v. Zoning Board of Appeal of Boston, 81 Mass App. Ct. 394 (2012)

While courts are reluctant to overturn local land use decision making, they generally do look with disfavor on use variances and consistent with that, an appellate court in New York recently set aside the local zoning board’s granting of a use variance because the “record was devoid of any evidence, in dollars and cents form, of Veronicas Realty’s inability to realize a reasonable return under the existing permissible uses ….” Because of that, the court found that there was no rational basis for the ZBA’s finding that the property could not yield a reasonable return without the use variance. Edwards v. Davison, 94 Ad. 3rd 883 (NY App. Div. 2012).

CITY OF LOS ANGELES v. GAGENOTES AND QUESTIONS

NOTE ON ALTERNATIVE STRATEGIES FOR ELIMINATING NONCONFORMING USES

Truly bothersome uses, like nude dancing and medical marijuana dispensaries, are often amortized on rather short timeframes. A mandatory amortization requirement for nude dancing establishments was upheld after changes were made in certain provisions in Jacksonville Prop. Rights Ass’n v. City of Jacksonville, 635 F.3d 1266 (11th Cir. Fla. 2011.)

[5.] Uses Entitled to Special Protection

A Massachusetts federal district court found that an adult use ordinance was unconstitutional because it gave excessive discretion to the local board of appeals. The decision largely turned on the use of the word

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“may”. Showtime Entertainment LLC v. Amendolia, 2012 U.S. Dist. LEXIS 38869.

[a.] Free Speech-Protected Uses: Adult BusinessesCity Of Renton v. Playtime Theatres, Inc.NOTES AND QUESTIONS

Citing Renton, court upheld prohibition on adult establishment in downtown development authority area where 27 other sites were available.

Big Dipper Entm’t, LLC v. City of Warren, 641 F.3d 715 (6th Cir. Mich. 2011).

A typical question in the regulation of adult entertainment uses is whether there are sufficient other outlets for the activity when the activity is restricted or prohibited. The United States District Court for the District of Minnesota this last year decided a case from the City of Florence, Minnesota, a remarkably small town, just 0.2 square miles, all of it residential and consisting of 16 single family homes, a small park, and a small parcel owned by the City. There are only 36 residents of Florence; 5 of them are school-age children. The local zoning ordinance restricted adult-oriented businesses to a commercial district and the required separation of 250 feet between such businesses and from any residence, liquor license establishment, “daycare facility, school, library, park, playground, state or federal wildlife area or preserve, religious institution or other public recreational facility.” The operator of a sexually-oriented business which was the subject of an enforcement action to close it down, sued and moved for summary judgment principally on the ground that there were not adequate other locations. The federal district court denied the plaintiff’s motion for summary judgment finding that the City had demonstrated its zoning ordinances were content-neutral, that they furthered a substantial government interest, and that they did not deny the operator of the adult business reasonable alternative channels for that business because 73% of the commercial land in the immediate county was available for adult uses. The court found the City’s “small size, lack of resources, limited infrastructure and its ‘interest in attempting to preserve the quality of urban life… must be accorded high respect’” quoting from Renton 475 US at 49.

Peterson v. City of Florence, 2012 U.S. District Lexis 107018

[b.] Religious UsesCivil Liberties For Urban Believers, Christ Center, ChristianCovenant Outreach Church v. City Of ChicagoNOTES AND QUESTIONS

In a case of “RLUIPA meets billboard law” the Court of Appeals of Kentucky found a compelling governmental objective in restricting billboards and upheld limitations on billboards with religious speech along certain highways as reasonable time, place and manner restrictions, and held that such restrictions did not create a substantial burden under RLUIPA.

Harston v. Commonwealth Transp. Cabinet, 2011 Ky. App. LEXIS 40 (Ky. Ct. App. Mar. 4, 2011).

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Requiring a religious use to get a conditional use permit, whereas bars did not need a permit, violated the equal terms provision.

Centro Familiar Cristiano Buenas Nuevas v.City of Yuma, 2011 U.S. App. LEXIS 14247 (9th Cir. Ariz. July 12, 2011).

Ripeness continues to be an issue in RLUIPA cases. Late in 2011, the Ninth Circuit handed down a decision finding that a religious institution’s RLUIPA claim was not ripe for adjudication because it had not filed at least one use permit application.

Guatay Christian Fellowship v. County of San Diego, 2011 U.S. App. Lexis 25581

The latest on ripeness is Temple B'nai Zion, Inc., City Of Sunny Isles Beach, Florida, 2013 U.S. App. LEXIS 18091 (11th Cir. 2013) holding that Williamson County does not apply in an RLUIPA case where “the plaintiff alleges that the mere act of designating his or her property historic was motivated by discriminatory animus…”

For the latest developments in RLUIPA, see www.RLUIPA-Defense.com

F. MIXED-USE ZONING, FORM-BASED ZONING, AND TRANSIT-ORIENTED DEVELOPMENT

[1.] Mixed-Use Development

Mixed use development held inconsistent with certain zoning and plan requirements.

Haro v. City of Solana Beach, 195 Cal. App. 4th 542 (Cal. App. 4th Dist. 2011).

Controversial and complex mixed-use remanded.

Durant v. District of Columbia Zoning Commission, 2013 U.S. Dist. LEXIS 40905(DC: Court of Appeals 2013)

A useful overview of form-based codes is California Local Government Commission, “Form-Based Codes: Implementing Smart Growth( (undated) http://www.lgc.org/freepub/docs/community_design/fact_sheets/form_based_codes.pdf

[2.] Transit-Oriented Development

For issues arising out of Joint Development Agreements for TOD, see

Greenbelt Ventures, LLC v. Wah. Metro. Area Transit Auth., 2011 U.S. Dist. LEXIS 60824 (D. Md. June 17, 2011).

40

The Miami 21 Code, a form-based code, received the American Planning Association's 2011 National Planning Award for Best Practice (among other national awards). Nancy Stroud was the legal counsel. The code is the first city-wide form based code in a major American city. http://www.miami21.org .

[3.] New Urbanism, Neotraditional Development, Form-Based (and Smart) Codes

See: Garnett, Restoring Lost Connections: Land Use, Policing, and Urban Vitality, 36 Okla. City U. L. Rev. 253 (2011).

and

Selmi, The Contract Transformation in Land Use Regulation, 63 Stan. L. Rev. 591 (2011).

Denial of new urbanism zoning proposal upheld.

Snowden v. City of Wilmore, Kentucky, 2013 Ky. App. LEXIS 9 (KY Court of Appeals (2013).

Form-based codes have been criticized as possibly leading to “an ersatz Urbanism”

L.P. Inniss, “Back to The Future: Is Form Based Code An Efficacious Tool For Shaping Modern Civil Life?”, Cleveland-Marshall Legal Studies Paper No. 07-135 (2007) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=962354

The following information is provided by Mark White of White & Smith LLC:

General Resources

The Codes Project: http://codesproject.asu.edu/

Codifying the New Urbanism. American Planning Association, Planning Advisory Service Report No. 526, 2004.

Form-Based Codes Institute: http://www.formbasedcodes.org/

Freilich, Robert & White, Mark. A 21st Century Land Development Code. American Planning Association, 2008.

Garvin, Elizabeth. Understanding Form Based Regulations (International Municipal Lawyers Association, Portland, Oregon – September 18, 2006).

41

Moynihan, “Implementing Form-Based Zoning in Your Community,” Municipal Lawyer (July/Aug. 2006), at 14.

Slone, Daniel & Goldstein, Doris, eds. A Legal Guide to Urban and Sustainable Development for Planners, Developers and Architects Hoboken, NJ: John Wiley & Sons, 2008.

D. Parolek, K. Parolek, and P. Crawford. Form-Based Codes: A Guide for Planners, Urban Designers, Municipalities, and Developers (2008).

Sitkowski & Ohm, “Form-Based Land Development Regulations,” 38 Urb. Law. 163 (2006).

Smartcode Central: http://www.smartcodecentral.com/

White, “Form Based Codes: Legal Considerations” (Institute on Planning, Zoning & Eminent Domain, November 18, 2009), online at http://www.planningandlaw.com/Publications___Speaking.html.

White, Form Based Codes: Practical & Legal Considerations (Institute on Planning, Zoning & Eminent Domain, November 18, 2009), online at http://www.planningandlaw.com/Publications___Speaking.html.

White, “Unified Development Codes,” Municipal Lawyer (July/Aug. 2006), at 14.

White & Jourdan, “Neotraditional Development: A Legal Analysis,” Land Use Law & Zoning Digest, at 3 (Aug. 1997).

Contrary Views:

White, “Improving Community Design without Form Based Codes” (American Planning Association, National Conference, April 11, 2011), online at http://www.planningandlaw.com/Publications___Speaking.html.

Zyscovich, Bernard. Getting Real on Urbanism. Urban Land Institute, 2008.

Sample Codes

Green type (also *) indicates a hybrid code

Albuquerque, New Mexico Form-Based Code: http://www.cabq.gov/council/completed-reports-and-studies/form-based-code

Arlington County, Virginia (Columbia Pike): http://www.arlingtonva.us/departments/CPHD/forums/columbia/current/CPHDForumsColumbiaCurrentCurrentStatus.aspx

Azusa, California Development Code: http://library.municode.com/HTML/10418/level2/MUCO_CH88DECO.html

Benecia, CA Downtown Mixed Use Master Plan:

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Bradenton, Florida Form-Based Code Land Use Regulations: http://bradenton.govoffice.com/index.asp?Type=B_BASIC&SEC={22A39C69-2543-469F-9E3C-DBB5B813967F}

Denver, Colorado: Denver Commons Design Standards (http://www.formbasedcodes.org/files/Denver-CommonsDesignStandards.pdf) and Zoning Code (http://www.denvergov.org/tabid/432507/Default.aspx)*

Farmers Branch , TX Station Area Form-Based Code: http://www.ci.farmers-branch.tx.us/work/planning/ordinances/station-area-codes

Fort Myers Beach Land Development Code: http://www.formbasedcodes.org/files/FortMyersBeachCode.pdf

Gulfport, MS Smartcode: http://homepage.mac.com/bounds/SmartCode/SmartCode.html Hercules , CA Regulating Code for the Central Hercules Plan:

http://www.formbasedcodes.org/files/CentralHerculesFBC.pdf Leander, Texas Leander TOD Code: http://www.leandertx.org/page.php?page_id=39 Miami 21: http://www.miami21.org/final_code_AsAdoptedMay2010.asp * North St. Lucie County , FL Towns, Villages and Countryside:

http://www.formbasedcodes.org/downloads/StLucieFL_TVC_FBC.pdf Overland Park, Kansas Vision Metcalf Form-Based Code: http://www.opkansas.org/Doing-

Business/Vision-Metcalf Panama City Beach, Florida: http://www.pcb-formbasedcode.com/ Peoria, IL Heart of Peoria Form Districts: http://www.ci.peoria.il.us/development-codes Petaluma , CA Central Petaluma SmartCode: http://cityofpetaluma.net/cdd/cpsp.html Pleasant Hill , CA BART Station Property Code: http://www.formbasedcodes.org/samplecodes?

page=1 Prince George’s County Urban Centers and Corridor Nodes Development and Zoning Code, County

Code, Subtitle 27A: http://egov.co.pg.md.us/lis/default.asp?File=&Type=TOC San Antonio, Texas Unified Development Code (Chapter 2, Use Patterns)

(http://library.municode.com/index.aspx?clientID=14228&stateID=43&statename=Texas), including § 35-209 (Form Based Development)*

Sarasota County , FL Mixed-Use Infill Code: http://www.spikowski.com/Sarasota.htm St. Petersburg, Florida Land Development Regulations:

http://www.stpete.org/development/Land_Development_Regs.asp* Suffolk, Virginia Unified Development Ordinance, § 31-411 (Use Patterns)

(http://library.municode.com/index.aspx?clientID=14461&stateID=46&statename=Virginia)* Ventura , CA Downtown Specific Plan (http://www.cityofventura.net/downtown), Midtown Code

(http://www.rangwalaassoc.com/Portfolio/Formbasedcodes/midtown%20code%20assets/midtowncode.html), and Saticoy Wells Community Plan and Code (http://www.rangwalaassoc.com/Portfolio/Formbasedcodes/SaticoyWells/SaticoyWells.htm)

Woodford County , KY New Urban Code: http://planning.woodfordcountyky.org/designwebsite/welcome.htm

You can find a more detailed description of some of these codes Form-Based Codes Institute, Sample Codes at

43

http://www.formbasedcodes.org/samplecodes.

NOTES AND QUESTIONS

44

Chapter 4 ENVIRONMENTAL AND AGRICULTURAL LAND USE REGULATIONS

B. PRESERVING AGRICULTURAL LAND[1.] The Preservation Problem

NOTES AND QUESTIONS

Add at end of Notes and Questions 2, The structure of American farming., p. 390:

For more regarding the emerging trend towards larger industrial farms, see Goodbye Family Farms and Hello Agribusiness: The Story of How Agricultural Policy is Destroying the Family Farm and the Environment, 22 Vill. Envtl. L.J. 141 (2011).

Add as Note 4, to NOTES AND QUESTIONS, p. 390:

4. Competing Interests. As a recent dispute in California demonstrates, there can be conflicting interests between preserving agricultural land and promoting environmentally friendly policies. The California Farm Bureau Federation challenged Fresno County when the County cancelled a part of a Williamson Act contract in order to allow construction of a solar energy project on a 90 acre portion of a 156 acre parcel. The Williamson Act is a California law with the goal of protecting agricultural land. Cal. Gov't Code § 51200, et seq. (West). The Fresno County Superior Court denied the Farm Bureau’s challenge to the cancellation. The court found that the development of renewable energy is in the public interest, citing a California mandate to increase reliance on renewable energy. The court further considered the lack of adequate sustainable water supply to the land, the proximity to an existing electrical substation, and that only a portion of the contract was cancelled. California Farm Bureau Federation v. County of Fresno, No. 11-CECG-03780 (Cal. Super. Ct. Dec. 13, 2012).

[2.] Programs for the Preservation of Agricultural LandCordes, Takings, Fairness and Farmland Preservation,

NOTES AND QUESTIONS

Add to the end of Notes and Questions, p. 395:

5. Overlay zoning. Overlay district zoning has been used for some time to preserve natural resource areas and prime agricultural lands. In a recent decision, however, a Pennsylvania court held that while state law requires protection of prime agricultural land, it also requires reasonable provisions for development. Because the overlay zoning at issue in that case would require that 75% of land zoned for commercial, industrial, or residential use remain untouched, it unduly disturbed the expectations created by the existing zoning. Main St. Dev. Group, Inc. v. Tinicum Twp. Bd. Of Supervisors, 19 S. 3d 21, 2011 Pa. Commw. LEXIS 112.

A NOTE ON PURCHASE OF DEVELOPMENT RIGHTS AND EASEMENTPROGRAMS

[2.] Agricultural Zoning

45

Cordes, Takings, Fairness and Farmland Preservation,NOTES AND QUESTIONS

Add to the end of the Note, top of p. 398:

For a good discussion of transfer of development rights in the agricultural context, see Building Industry Assoc. v. Co. of Stanislaus, 2010 WL 5027136 (Cal.App. 5th District 11/29/2010). The California appellate court considered a challenge to the County Farmland Mitigation Program (FMP) guidelines that required developers to obtain an agricultural conservation easement over an equivalent area of comparable farmland but respondent developer challenged the validity of such a requirement.  The trial court found in favor of the developer primarily citing to the County’s excessive use of police power.  The appellate court disagreed with the trial court and determined that the prevention of loss of farmland through conservation easements was reasonable in relation to residential development. The FMP attempted to balance protecting vital farmland while also preserving the ability to develop land. In addition, the Court determined that because the FMP gave developers the option to have a third party convey an easement to a land trust, the County was not compelling involuntary creation of an easement.

Add to NOTES AND QUESTIONS, as new note 5, P. 400:

5. Defining Agriculture: Agricultural exemptions only extend to those activities falling under the applicable definition of agricultural purposes – an issue that has come up time and time again. For instance, in Kramer v. Bd. of Adjustment for Sioux County, 795 N.W.2d 86 (Iowa App. 2010), the court found that plaintiff’s lagoon used to hold byproduct of the manufacturing process of an off-site pharmaceutical company did not fall within the definition of “agricultural purposes” and was therefore not exempt from county zoning regulations. The applicable statute reads:

Except to the extent required to implement section 335.27, no ordinance adopted under this chapter applies to land, farm houses, farm barns, farm outbuildings or other buildings or structures which are primarily adapted, by reason of nature and area, for use for agricultural purposes, while so used.

Iowa Code § 335.2 (emphasis added). The court explained that the exemption is “intended as a protection for the farmer and his investment in his land.” Plaintiff argued that since the wastewater could be used as fertilizer, having being found to have some benefit to crops, the lagoon was an agricultural use. The court rejected this argument, relying on a definitional test to determine whether the lagoon was exempt. The test provides that “agriculture is the art or science of cultivating the ground, including harvesting of crops and rearing the management of livestock.” Additionally, the test provides, “the exemption extends to facilities to be used in connection with agricultural functions.” The court found that the lagoon fell outside of the scope of the exemption because its primary purpose was not agricultural; the wastewater had never been approved as a fertilizer and its use as a fertilizer was “merely incidental to the real purpose for the storage lagoon.”

In a later case, the Court of Appeals of Iowa used the same definitional approach as in Kramer, when property owners argued that their land qualified for an agricultural exemption under the same Iowa Code section. In Lang v. Linn County Bd. of Adjustment, 2012 Iowa App. LEXIS 297, the court rejected Plaintiff’s argument that growing trees and various fruits as well as farming fish were agricultural uses exempt from the zoning

46

regulations. In doing so, the court stated, “We recognize that small-scale agricultural production should not be discouraged. However, at some point a line has to be drawn to determine what qualifies under the statute as an “agricultural use” and what is more akin to a rural acreage.”

For a recent example of expansion of the agricultural definition, see Chapter 384 of the NY Laws of 2011 (statute expanding definition of farm operation to include commercial equine operations making them eligible, upon meeting certain criteria, for agricultural district protections). A.7744-A (Magee)/S.5168-A (Ritchie).

Add to NOTES AND QUESTIONS, as new note 6, P. 400:

6. Agritourism: In Shore v. Maple Lane Farms, LLC, 2012 Tenn. App. LEXIS 229, a homeowner appealed the trial court’s decision that the defendant’s farm activities were protected from local zoning laws under the Tennessee Right-To-Farm-Act. The Tennessee Right-To-Farm-Act provides that farms or farm operations are presumed to be neither public nor private nuisances. The court had to decide whether recreational activities, such as music concerts and corn mazes, fit within the statutory definition of agriculture. The court was willing to broaden the original scope of the Tennessee Right-To-Farm-Act, stating, “…we recognize that agriculture is changing and evolving.” The court found that Tennessee’s “Agritourism activity” code section encompasses such recreational activities, which provides: “Agritourism activity” means any activity carried out on a farm or ranch, eligible for greenbelt classification under Title 67, Chapter 5, Part 10, that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, ranching, historic, cultural, or harvest-your-own activities, or natural activities and attractions. An activity is an agritourism activity whether or not a participant provides compensation in money or other valuable compensation to participate in the activity.... Tenn. Code Ann. § 43–39–101(1). In reaching its decision, the court considered initiatives of the Tennessee Department of Agriculture and other state agencies to increase farm income and promote exposure to agriculture-based attractions. It ultimately concluded that the Tennessee Code provision as well as legislative history supported the assertion that the legislature considered agritourism to be the equivalent of agriculture, thus constituting a “farm operation…[that] conform[s] to generally accepted agricultural purposes” pursuant to the Act.

Gardner v. New Jersey Pinelands CommissionNOTES AND QUESTIONSTonter Investments v. Pasquotank CountyNOTES AND QUESTIONSA NOTE ON THE TRANSFER OF DEVELOPMENT RIGHTS AS A TECHNIQUEFOR PROTECTING AGRICULTURAL AND NATURAL RESOURCE AREAS

Add to the end of the Note, top of p. 398:

For a good discussion of transfer of development rights in the agricultural context, see Building Industry Assoc. v. Co. of Stanislaus, 2010 Cal. App. LEXIS 2007. The California appellate court considered a challenge to the County Farmland Mitigation Program (FMP) guidelines that required developers to obtain an agricultural conservation easement over an equivalent area of comparable farmland but respondent developer challenged the validity of such a requirement.  The trial court found in favor of the developer primarily citing to the County’s excessive use of police power.  The appellate court disagreed with the trial court and determined that the

47

prevention of loss of farmland through conservation easements was reasonable in relation to residential development. The FMP attempted to balance protecting vital farmland while also preserving the ability to develop land. In addition, the Court determined that because the FMP gave developers the option to have a third party convey an easement to a land trust, the County was not compelling involuntary creation of an easement. 

Add to Note 6, NOTES AND QUESTIONS, P. 400:

The National Agricultural Law Center at the University of Arkansas reports that 23 states have enacted statutes that address agritourism and that there are many other statutes that are relevant for agritourism operators. For a helpful compilation of state agritourism statutes see States’ Agritourism Statutes, THE NATIONAL AGRICULTURAL LAW CENTER, http://nationalaglawcenter.org/assets/agritourism/index.html.

NOTES AND QUESTIONS[3.] Right-To-Farm Laws

Buchanan v. Simplot Feeders Limited PartnershipNOTES AND QUESTIONS

Add to Note 7 “Sources,” P. 421:

See Toftoy v. Rosenwinkel, 983 N.E.2d 463 (Ill. 2013) (applying the “coming to a nuisance” rule).

Add to Note 8, NOTES AND QUESTIONS, before “Urban agriculture has taken on a new life…” P. 421:

Urban Agriculture has many definitions. One report defines urban agriculture as the “growing, processing, and distribution of food and other products through intensive plant cultivation and animal husbandry in and around cities.” This report also describes how zoning regulations are well suited to balance concerns related to urban farming with economic and environmental advantages because zoning regulations “are designed to regulate competing land uses and thus should be a starting point for any municipality interested in promoting urban agriculture.” M. Hendrickson & M. Porth, Urban Agriculture – Best Practices and Possibilities, UNIV. OF MISSOURI EXTENSION (2012), http://extension.missouri.edu/foodsystems/survey.aspx.

For an example of a city expressly considering urban agriculture through zoning see, e.g., Cleveland, Ohio Code of Ordinances § 336.01 (effective March 9, 2007). See also Jim Smith, Note, Encouraging the Growth of Urban Agriculture in Trenton and Newark through Amendments to the Zoning Codes: A Proven Approach to Addressing the Persistence of Food Deserts, 14 VT. J. ENVTL. L. 71 (2012).

For a searchable database of documents and websites describing urban agriculture zoning ordinances, go to Search City Policies and Resources, UNIV. OF MISSOURI EXTENSION, http://extension.missouri.edu/foodsystems/urbanagriculture.aspx. For additional resources visit the Alternative Farming Systems Information Center, U.S. DEP’T OF AGRIC., http://afsic.nal.usda.gov/farms-and-community/urban-agriculture.

Add to the end of the Notes and Questions, p. 421:

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8. Urban Agriculture. Urban agriculture has taken on a new life recently, and is being driven by an emphasis on local and organic food, as well as the economic downturn. However, small backyard gardens on suburban residential properties have expanded and city dwellers have begun raising chickens and goats on small urban lots. Many city ordinances prohibit these practices and cities are hearing from residents both in favor and opposed to expanding urban agricultural practices in residential zones. For more information about these controversial land uses, see P. Salkin, Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens, Zoning and Planning Law Report, Vol. 34, No. 3 (March 2011).

A NOTE ON THE INDUSTRIALIZATION AND ENVIRONMENTAL IMPACTSOF AGRICULTURE

Add to the end of “The other side of agriculture” p. 422:

See also T. Centner, Addressing Water Contamination From Concentrated Animal Feeding Operations, Land Use Policy, Vo.. 28, Issue 4, 706-11 (October 2010).Add to the end of “The other side of agriculture” p. 422:

For a discussion of the current regulations and policies addressing pollution by AFOs and CAFOs, see Shauna R. Collins, Note, Striking the proper balance between the carrot and the stick approaches to animal feeding operation regulation, 2012 U. ILL. L. REV. 923 (2012).

Add to the end of “Proliferation of CAFOs?”, p. 422:

For more regarding the emerging trend towards larger industrial farms, see Goodbye Family Farms and Hello Agribusiness: The Story of How Agricultural Policy is Destroying the Family Farm and the Environment, 22 Vill. Envtl. L.J. 141 (2011).

Add to the end of “Preemption of Local CAFO Restrictions”, p. 422:

In a recent decision by the Fifth Circuit Court of Appeals, the Court held that the U.S. EPA cannot require a CAFO to apply for a National Pollutant Discharge Elimination System permit based on “proposing” to discharge pollutants. Various farm groups had sought review of the EPA’s 2008 Clean Water Act rules that required CAFO’s to apply for and obtain a NPDES permit if the CAFO discharges or proposes to discharge pollutants. The Court held that the EPA lacks authority to require CAFOs to apply for permits based on proposing to discharge because until there is discharge, there is no point source of pollution. Actual discharges from a CAFO would require a permit, however. National Pork Producers Council v. U.S. EPA, 635 F.3d 738 (5th Cir. 2011).

Add to the end of “Preemption of Local CAFO Restrictions,” p. 422:

In contrast, the Michigan Court of Appeals affirmed a state rule requiring all CAFOs to have discharge permits irrespective of whether they actually discharge pollutants. The Michigan Department of Environmental Quality began requiring discharge permits in 2003 to prevent manure fertilizer from draining into waterways. Mich. Farm Bureau v. Mich. Dep’t of Envtl. Quality, 292 Mich. App. 106 (2011).

Add to the end of Preemption of Local CAFO Restrictions before “Sources” paragraph, P. 423:

For a helpful article about CAFO regulation at the local level, see A. Kapplan, CAFOs: Five Essential Tools for

49

Local Regulation, American Bar Association State and Local Law News, Vol. 35, No. 4 (Summer 2012). In it, the author explains why local regulations are necessary:

Concentrated Animal Feed Operations (CAFOs), as defined by the Environmental Protection Agency, are lots or facilities where animals are confined for 45 or more days of the year and vegetation is not sustained during the normal growing season. Both federal and state governments regulate CAFOs. Local governments, however, rarely pass regulations to protect their communities. Yet, a CAFO community endures the highest burden.

CAFOs place heavy burdens on their neighbors. Their communities are often the victims of disturbing odors, sights, and traffic patterns. CAFOs result in soil mismanagement and water contamination. Manure is frequently stored in large lagoons, which may contaminate surface and groundwater. An Iowa study noted that ammonia levels in the air around many CAFOs exceeds health standards. And the uses typically increase vehicle traffic as well. The cumulative result is increased nuisance complaints and decreased property values near CAFOs.

Immediately after, add before Sources P. 423:

For more information on CAFO community impact, visit the Center for Disease Control’s website at http://www.cdc.gov/nceh/ehs/Topics/CAFO.htm.

C. ENVIRONMENTAL LAND USE REGULATIONNOTES AND QUESTIONS

[1.] Wetlands

Add to end of [1] Wetlands, P. 427:

For a discussion on defining wetland designation as a land use control, see Town of Newington v. State, 34 A.3d 1206 (NH 2011). There, the court found that designation of prime wetlands is in fact a land use control and as such belonged exclusively to Pease Air Force Base which by statute has “exclusive jurisdiction in adopting and establishing land use control” for its property.

NOTES AND QUESTIONS

50

Add to end of Note 1, P. 428:

In April, 2011, the EPA and U.S. Army Corps of Engineers published new proposed guidance entitled, “Clean Water Protection Guidance,” on the government’s authority to regulate wetlands. Its adoption would significantly expand Clean Water Act federal jurisdiction over millions of acres of property and supersede both the 2003 Joint Memorandum and 2008 Joint Guidance memo. To access more information on the proposed guidance visit the National Clean Water Network’s website at http://www.cleanwaternetwork.org/resources/wotus-guidance-press-releases-articles-and-factsheets.

Immediately after, add as new paragraph at the end of Note 1, P. 428:

For a recent discussion on the scope of “navigable waters” under the Clean Water Act, see Sackett v. E.P.A., 132 S. Ct. 1367 (2012). In Sackett, the U.S. Supreme Court was not resolving the dispute on the merits, but nevertheless included a historical overview of cases involving jurisdiction of the Clean Water Act stating, “The reader will be curious, however, to know what all the fuss is about.” The actual issue before the court was whether the petitioners could challenge an EPA compliance order under the Administrative Procedure Act (“APA”); whether the compliance order constituted a “final agency action for which there is no other adequate remedy in court.” The court found that the compliance order was a “final agency action” and that the Clean Water Act did not “preclude judicial review” under the APA.

The opportunity to operate a mitigation bank may not be a valid interest under the Fifth Amendment takings clause. In Hearts Bluff Game Ranch, Inc. v. U.S., 669 F.3d 1326 (Fed. Cir. 2012), Hearts Bluff alleged a takings claim when it was denied a permit for the creation of a mitigation bank on its property. The court denied the claim stating, “…we have rejected claims of a cognizable property interest in government programs where the government has discretionary authority to deny access to that program, where the alleged property is subject to pervasive government control, or where the property is entirely a product of government regulations.” Prior to Hearts Bluff’s purchase of the land, the administrators of the mitigation banks, the Army Corps of Engineers, informed Hearts Bluff that there were no impediments to a mitigation bank. Nevertheless, the court refused to recognize a valid property interest under the Fifth Amendment takings analysis stating that such a hope or expectation is merely a “collateral interest.” See Zimmerman v. Hudson, 264 P.3d 989 (Kan. 2011) on pg. 454 for a similar finding.

Add to Notes and Questions, end of Note 4, P. 429:

The opportunity to operate a mitigation bank may not be a valid interest under the Fifth Amendment takings clause. In Hearts Bluff Game Ranch, Inc. v. U.S., 669 F.3d 1326 (Fed. Cir. 2012), Hearts Bluff alleged a takings claim when it was denied a permit for the creation of a mitigation bank on its property. The court denied the claim stating, “…we have rejected claims of a cognizable property interest in government programs where the government has discretionary authority to deny access to that program, where the alleged property is subject to pervasive government control, or where the property is entirely a product of government regulations.” Prior to Hearts Bluff’s purchase of the land, the administrators of the mitigation banks, the Army Corps of Engineers, informed Hearts Bluff that there were no impediments to a mitigation bank. Nevertheless, the court refused to recognize a valid property interest under the Fifth Amendment takings analysis stating that such a hope or expectation is merely a “collateral interest.” See Zimmerman v. Hudson, 264 P.3d 989 (Kan. 2011) on pg. 454 for a similar finding.

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Add to Note 4, NOTES AND QUESTIONS, P. 429:

The U.S. Supreme Court heard oral arguments on January 15, 2013, in a case involving development of wetlands and a takings claim. In Koontz v. St. Johns River Water Management District, No. 11-1447 (U.S. argued Jan. 15, 2013), Koontz applied for dredging permits that would result in the loss of 3.4 acres of wetlands with a Riparian Habitat Protection Zone in Florida. In order to mitigate the impact from the development, the District required Koontz to reduce the scale of his proposed development; restore and enhance at least 50 acres of wetlands on a parcel 4.5 miles away; or perform similar off-site mitigation. Koontz was also asked to perform on-site mitigation through a conservation easement or deed restriction on the rest of his property. Koontz rejected the District’s suggested mitigation measures and his permit application was denied.

Koontz filed suit in Florida state court alleging that the denial of the permit was a taking of his property. The case has made its way to the Supreme Court on Koontz’s appeal of the lower courts’ decisions. He is asking the Court to rule that the District is liable for a taking of real property requiring compensation. The District claims that Koontz could have collaborated with the District to find a mitigation alternative but refused to do so. The District also argues that the takings analysis of Nollan and Dolan do not apply to the denial of Koontz’s permit because no dedication of land was required and no damages were incurred.

Many local governments, property owners, and advocates are closely watching this case because it is one of the first takings cases the Supreme Court has taken since it decided Nollan and Dolan.

Add to end of Note 4, NOTES AND QUESTIONS, P. 429:

A takings claim may be based on the economic effect on a portion of land purchased as a part of a larger parcel. In Lost Tree Village Corp. v. U.S., 707 F.3d 1286 (Fed. Cir. 2013), Lost Tree developed a residential community on approximately 1,300 acres of Florida’s mid-Atlantic coast. The property included five acres designated as Plat 57. Plat 57 was not developed at the same time as the remaining land because Plat 57 consisted of some submerged land, wetlands, and upland mounds.

In 2002, when Lost Tree learned it would obtain “mitigation credits,” it sought to develop Plat 57. The United States Army Corps of Engineers denied Lost Tree’s application for a §404 wetland fill permit because “less environmentally damaging alternatives were available and Lost Tree had had very reasonable use of its land.” Lost Tree filed suit asserting that it was deprived of its property and therefore entitled to just compensation.

The court reasoned that determining the definition of the relevant parcel of land is a critical part of a takings analysis because that definition determines the extent of the economic impact. The court recognized that a significant consideration is the economic expectations of the claimant with regard to the property. Here, Lost Tree treated Plat 57 as an economic unit separate from the other land it had purchased. As a result the court concluded that “the mere fact that the properties are commonly owned and located in the same vicinity is an insufficient basis on which to find they constitute a single parcel for purposes of the takings analysis” and therefore, the relevant parcel for the takings analysis was Plat 57 alone.

[2.] Floodplain Regulation

Add to the end of Note 2, State legislation, on p. 434:

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Local ordinances may also govern development in the flood plain. In Town of Kirkwood v Ritter, 80 A.D. 3d 944, 915 N.Y.S. 2d 683 (3 Dept. 1/13/2011), the Town’s local law, enacted in accordance with FEMA’s National Flood Insurance Program to take advantage of incentives for adopting flood plain management measures, required property owners to obtain a flood plain development permit prior to making any “substantial improvement” to a structure in the designated area and further requires that owners receive a certificate of compliance before the structure is reoccupied. After a flood destroyed their property, defendants made improvements without obtaining the necessary permits, approvals and compliance certificate, and they claim that they did not have to obtain these because the work they did was not a “substantial improvement” that would trigger the application of the local law.  Under the National Flood Insurance Program regulations, “substantial improvement” includes repairs that equal or exceed 50% of the pre-flood market value of the home.

Missouri Coalition for the Environment, The State of Missouri’s Floodplain Management Ten Years After the 1993 FloodNOTES AND QUESTIONS

Add to end of Note 1, in NOTES AND QUESTIONS, P. 433: FEMA encourages communities to enforce additional and more localized regulations beyond the minimum federal and state requirements because floodplain hazards vary greatly throughout communities. The NFIP currently requires communities to at least consider additional regulatory measures, and many have succeeded in adopting location restrictions, building requirements, safety requirements, and encroachment standards more tailored to their particular community needs. For a comprehensive guide to floodplain management, see FEMA’s Floodplain Management Requirements, A Study Guide and Desk Reference for Local Officials at http://www.fema.gov/plan/prevent/floodplain/fm_sg.shtm.

Add to paragraph 2 of Note 1, NOTES AND QUESTIONS, P. 433 after “See also a report by the Association of state floodplain managers, national flood programs and policies in review – 2007, which argues for strong state programs”:

See also A. Dan Tarlock, United States Flood Control Policy: The Incomplete Transition From the Illusion of Total Protection to Risk Management, 23 DUKE ENVTL. L. & POL’Y F. 151 (2012) (arguing for flood-management policies which adopt risk-management strategies with structural protections, more aggressive land use and building regulations).

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Add to end of Note 1, in NOTES AND QUESTIONS, P. 433:

On July 6, 2012, the President signed the Biggert Waters Flood Insurance Reform Act of 2012 extending and overhauling the National Flood Insurance Program. Biggert-Waters Flood Insurance Reform Act of 2012, Pub. L. No. 112-141, §§ 100201-100249, 126 Stat. 405. The Act makes changes to flood insurance, flood hazard mapping, grants, and the management of floodplains. The Act is designed to make NFIP more financially stable. For more information visit: http://www.fema.gov/national-flood-insurance-program/flood-insurance-reform-act-2012.

Add as paragraph 4 to Note 5, NOTES AND QUESTIONS, P. 435:

A takings issue also arose in Arkansas Game and Fish Commission v. U.S., 133 S. Ct. 511 (2012), where the Arkansas Game and Fish Commission sued the U.S. for the uncompensated taking caused by flooding and timber damage when the Army Corps of Engineers released water from a dam that caused sustained flooding. The Supreme Court rejected any blanket temporary flooding exception to the Fifth Amendment takings clause and remanded the matter so that the Court’s previous takings analysis could be applied to the specific facts of the case.

Add as new note 6, making “Sources” note 7, P. 435:

6. Flood Control and the Common Enemy Doctrine: Some states recognize the common enemy doctrine, which defends against liability for damaging adjacent properties when a landowner disposes of unwanted surface waters. The Washington Supreme Court adopted the doctrine in Cass v. Dicks, 44 P. 113 (Wash. 1896), holding that, “surface water, caused by the falling of rain or the melting of snow, and that escaping from running streams and rivers, is regarded as an outlaw and a common enemy against which anyone may defend himself.” Recently in Lord v. Pierce County, 271 P.3d 944 (Wash. App. Div. 2 2012), a property owner argued that the doctrine should apply to his construction of a levee, exempting him from county flood control regulations and permitting requirements. The court refused to expand the doctrine holding that a landowner may only use it as a defense to liability.

A NOTE ON OVERLAY ZONES[3.] Groundwater and Surface Water Resource Protection

NOTES AND QUESTIONS[4.] Protecting Hillsides

[a.] The Problem[b.] Regulations for Hillside Protection

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Add as new section after “Comprehensive Steep Slope” section, before “Sources” section, P. 445:

Environmental Review Requirements: Some states require an environmental impact report (“EIR”) for proposed development. For an interesting case about the difficulties that can arise during hillside development, see Berkeley Hillside Preservation v. City of Berkeley, 137 Cal. Rptr. 3d 500 (Cal. App. 1st Dist. 2012); review granted and opinion superseded, 277 P.3d 742 (Cal. 2012). There, neighbors and appellants of respondent landowners challenged a denial of their petition to set aside the approval of use permits for respondents to build a large residence on their lot which was situated on a steep slope. The appellants argued that the proposed development was not categorically exempt under the California Environmental Quality Act (CEQA), and that there needed to be an EIR. A proposed development can be categorically exempt under CEQA, in that falls within a class of projects that have been determined not to have a significant impact on the environment thus eliminating the need for an EIR. However, an exception to a CEQA categorical exemption is when there are “unusual circumstances” which create a “reasonable possibility” that the activity will have a significant effect on the environment. The trial court understood the exception analysis as two separate inquiries: (1) whether there are unusual circumstances; and (2) whether there is reasonable possibility of a significant effect on the environment; the trial court concluded that there were no “unusual circumstances” and therefore the exception did not apply. However, the court disagreed with the lower court’s decision providing that when a proposed activity may have an effect on the environment, that characteristic is itself an unusual circumstance, thus requiring further environmental review.

[c.] Takings and Other Legal Issues[5.] Coastal Zone Management

NOTES AND QUESTIONS[6.] Sustainability

Add to the end of paragraph beginning “Sources” on p. 450

For additional information about integrating sustainable development, see Integrating Sustainable Development Planning and Climate Change Management: A Challenge to Planners and Land Use Attorneys, Salkin, Planning & Environmental Law, Vol. 63, p. 3 (March 2011) (http://ssrn.com/abstract=1774013).

Add to the end of “Sources,” P. 450:

For an overview of strategies that have been used to increase to use of renewable energy, including land use regulations, see Patricia Salkin, The Key to Unlocking the Power of Small Scale Renewable Energy: Local Land Use Regulation, 27 No. 2 J. OF LAND USE & ENVTL. L. 339 (2012).

In February 2013 the EPA published a report which provides a list of land use and community design strategies that bring together smart growth, environmental justice, and equitable development principles. U.S. ENVIRONMENTAL PROTECTION AGENCY, CREATING EQUITABLE, HEALTHY, AND SUSTAINABLE COMMUNITIES: STRATEGIES FOR ADVANCING SMART GROWTH, ENVIRONMENTAL JUSTICE, AND EQUITABLE DEVELOPMENT (2013), available at http://www.epa.gov/smartgrowth/equitable_development_report.htm.

Add to the end of “Sources” P. 451: Pg. 450:

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For more information about addressing sustainability in the comprehensive plan, see Integrating Sustainability into the Comprehensive Plan. http://www.planning.org/pas/quicknotes/pdf/QN33.pdf

A NOTE ON LAND USE PLANNING AND SUSTAINABILITY

[7.] Climate Change

Add a new note on p. 456, immediately above “Sources”:

Preemption Issues and Climate Change. See American Electric Power Co., Inc., et al. v. Connecticut et al. 564 U.S. ____ (2011). The United States Supreme Court reaffirmed the EPA’s authority under the Clean Air Act to enforce any regulation regarding greenhouse gas emissions. The Court also held that States cannot use Federal common law nuisance claims to impose limits on greenhouse gas emissions as the EPA’s authority under the Clean Air Act displaces the Federal common law claim. The issue of whether State common law claims are also barred has yet to be determined. (http://www.supremecourt.gov/opinions/10pdf/10-174.pdf).

A 2009 amendment to Washington’s Building Energy Code promoted energy efficiency in new buildings. In enacting the new law, the state legislature stated that, “…energy efficiency is the cheapest, quickest, and cleanest way to meet rising energy needs, confront climate change and boost our economy.” In 2011, the Building Association of Washington filed suit against the Washington State Building Code Council claiming a portion of the 2009 amendment violated 42 U.S.C. § 6297 by imposing energy efficiency standards higher than those set by the federal government and should be preempted by Energy Policy and Conservation Act (EPCA). Building Industry Ass’n of Washington v. Washington State Building Code Council, 2011 U.S. Dist. LEXIS 12316. The Energy Policy and Conservation Act (EPCA) preemption exemption test contain seven requirements which must be met in order for a code to be exempt from preemption. 42 U.S.C. § 6297(f)(3). The court found the code to be compliant with the requirements of the EPCA and denied the movant’s motion for summary judgment.

But c.f., The Air Conditioning, Heating & Refrigeration Institute v. City of Albuquerque unreported decision, Civ. No. 08-633 MV/RLP (9/30/2010) striking down Albuquerque’s new energy efficiency requirements, finding the prescriptive regulations were preempted by the EPCA. (http://lawoftheland.files.wordpress.com/2010/10/ahri.pdf).

Add to Climate Change Section, before last paragraph starting with “As noted,” and directly after …”to make the document public,” P. 451:

Ultimately, the EPA found that endangerment from GHG emissions was occurring and set motor vehicle emissions standards for GHG emissions. On June 26, 2012, the U.S. Court of Appeals for the D.C. Circuit upheld the EPA’s approach in Coalition for Responsible Reg., Inc. v. E.P.A., 684 F.3d 102, 2012 U.S. App. LEXIS 12980, finding that the EPA’s endangerment finding was fully supported by the record, and finding that the motor vehicle standards were within the EPA’s authority.

Ecker Bros. v. Calumet County

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NOTES AND QUESTIONS

Add to Note 2, in same paragraph as first sentence, but before the last sentence starting with “for a chart showing…” P. 454:

Later, in Zimmerman v. Hudson, 264 P.3d 989 (Kan. 2011), the property owners brought their takings claim to the Kansas Supreme Court, challenging the lower court’s decision to uphold the Board of County Commissioner’s adoption of an amendment to the zoning ordinance prohibiting Commercial Wind Energy Systems (“CWECS”) except with a conditional use permit. The primary issue was whether the property owners had a vested interest or right in the construction of CWECS – not just a mere expectation of future benefit. The court found that the property owners had no vested interest because even before the amendment, the property owners would have had to get a conditional use permit to construct CWECS on the property. Since the issuance of a conditional use permit is ultimately discretionary, the property owners never had a vested right, and therefore did not have a viable takings claim. See Hearts Bluff Game Ranch, Inc. v. U.S., 669 F.3d 1326 (Fed. Cir. 2012) on pg. 429 for a similar finding.

Add to Note 2, as a second paragraph, NOTES AND QUESTIONS, P. 454:

The Seventh Circuit Court of Appeals rejected a takings challenge to a wind farm ordinance in Muscarello v. Winnebago County Board, 702 F.3d 909 (7th Cir. 2012). The court held that that the plaintiff failed to prove a taking where a zoning ordinance made it easier for residents to build wind farms. There was no transfer of plaintiff’s property or limits on its use; therefore, the possibility that a wind farm might be built was not enough to establish sufficient harm.

Add as new section, after “Alternative Energy as Inherently Beneficial Use” section and before “Reduction of Emissions From Large Buildings,” P. 456:

Solar Access: In recognizing the importance of solar energy, communities throughout the United States have passed what are called “solar access” ordinances. An example of such an ordinance is a “solar setback requirement,” with the proposed purpose of providing “a reasonable amount of solar access to all parcels in the city so that investments in solar equipment may be secure, and further use of solar energy will be encouraged.” Matthews Municipal Ordinances § 33:63

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The Massachusetts Practice Series provides an overview of solar access:

Zoning ordinances or by-laws may encourage the use of solar energy systems and protect solar access by the regulation of the orientation of streets, lots and buildings, maximum building height limits, minimum building setback requirements, limitations on the type, height and placement of vegetation and other provisions. Zoning ordinances or by-laws may also establish buffer zones and additional districts that protect solar access which overlap existing zoning districts. Zoning may further regulate the planting and trimming of vegetation on public property to protect the solar access of private and public solar energy systems and buildings. Solar energy systems may be exempted from setback, building height, and roof and lot coverage restrictions.

Zoning ordinances or by-laws may also provide for special permits to protect access to direct sunlight for solar energy systems. They may provide that such solar access permits would create an easement to sunlight over neighboring property. Zoning ordinances may also specify what constitutes an impermissible interference with the right to direct sunlight granted by a solar access permit and how to regulate growing vegetation that may interfere with such right. Zoning ordinances may further provide standards for the issuance of solar access permits balancing the need of solar energy systems for direct sunlight with the right of neighboring property owners to the reasonable use of their property within other zoning restrictions.

Zoning ordinances may provide a process for issuance of solar access permits including, but not limited to, notification of affected neighboring property owners, opportunity for a hearing, appeal process and recordation of such permits on burdened and benefitted property deeds. A solar map may be established identifying all local properties burdened or benefitted by solar access permits. Zoning ordinances may require the examination of such solar maps by the appropriate official prior to the issuance of a building permit.solar map

18A Mass. Prac., Municipal Law and Practice § 17.90 (5th ed.)

Add a new note on p. 456, immediately above “Sources”:

Preemption Issues and Climate Change. See American Electric Power Co., Inc., et al. v. Connecticut et al. 564 U.S. ____ (2011). The United States Supreme Court reaffirmed the EPA’s authority under the Clean Air Act to enforce any regulation regarding greenhouse gas emissions. The Court also held that States cannot use Federal common law nuisance claims to impose limits on greenhouse gas emissions as the EPA’s authority under the Clean Air Act displaces the Federal common law claim. The issue of whether State common law claims are also barred has yet to be determined. (http://www.supremecourt.gov/opinions/10pdf/10-174.pdf).

A 2009 amendment to Washington’s Building Energy Code promoted energy efficiency in new buildings. In enacting the new law, the state legislature stated that, “…energy efficiency is the cheapest, quickest, and cleanest way to meet rising energy needs, confront climate change and boost our economy.” In 2011, the Building Association of Washington filed suit against the Washington State Building Code Council claiming a portion of the 2009 amendment violated 42 U.S.C. § 6297 by imposing energy efficiency standards higher than

58

those set by the federal government and should be preempted by Energy Policy and Conservation Act (EPCA). Building Industry Ass’n of Washington v. Washington State Building Code Council, 2011 U.S. Dist. LEXIS 12316. The Energy Policy and Conservation Act (EPCA) preemption exemption test contain seven requirements which must be met in order for a code to be exempt from preemption. 42 U.S.C. § 6297(f)(3). The court found the code to be compliant with the requirements of the EPCA and denied the movant’s motion for summary judgment.

But c.f., The Air Conditioning, Heating & Refrigeration Institute v. City of Albuquerque unreported decision, Civ. No. 08-633 MV/RLP (9/30/2010) striking down Albuquerque’s new energy efficiency requirements, finding the prescriptive regulations were preempted by the EPCA. (http://lawoftheland.files.wordpress.com/2010/10/ahri.pdf)

Chapter 5 EQUITY ISSUES IN LAND USE: “EXCLUSIONARY ZONING” AND FAIR HOUSING

A. EXCLUSIONARY ZONING AND AFFORDABLE HOUSING: STATE LAW[1.] The Problem

Southern Burlington County NAACP v. Township Of Mount Laurel (1)NOTES AND QUESTIONSA NOTE ON ZONING, REGULATION AND MARKETS

[2.] Redressing Exclusionary Zoning: Different ApproachesSouthern Burlington County NAACP v. Township Of Mount Laurel (II)NOTES AND QUESTIONS

Insert a new paragraph at the end of the last paragraph of Notes and Questions, 7, “Achieving Fair Share,” on p. 476:

The Ethel Lawrence Homes, the affordable housing project that was eventually constructed in Mount Laurel Township as part of a settlement agreement with the township in 1985, has been the subject of a comprehensive investigation by a team of sociologists on the impact on the community itself and the residents of the project, and the results have published in a series of articles and papers. Casciano and Massey, Neighborhood disorder and individual economic self-sufficiency: New evidence from a quasi-experimental study, Social Sci. Res. (2012), doi:10.1016/j.ssresearch.2012.02.005 (in press) (finding that that residents in the Ethel Lawrence Homes are significantly less likely to experience disorder and negative life events and that this improvement in circumstances indirectly improves the likelihood of being employed, their earnings, and the share of income from work; finding no relationship between residence in the housing project and the likelihood of using welfare); Albright, Derickson, and Massey, Do Affordable Housing Projects Harm Suburban Communities? Crime, Property Values, and Property Taxes in Mt. Laurel, New Jersey (June 15, 2011), Social Science Research Network, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1865231 (finding that affordable housing development was not associated with increased crime, decreased property values, and increased taxes); Casciano and Massey, Neighborhood Disorder and Anxiety Symptoms: New Evidence from a Quasi-Experimental Study (June 15, 2011), Social Science Research Network, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1865238 (finding that  living in an affordable housing project in a middle-class suburb reduces a poor person’s exposure to disorder and violence compared to what they would have experienced in the absence of access to such housing, and that this lesser exposure to disorder and violence yields improvements in anxiety that can be attributed to residents’ reduced stress burden).

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A NOTE ON POLICY AND PLANNING ISSUESA NOTE ON EXCLUSIONARY ZONING DECISIONS IN OTHER STATES

[3.] Affordable Housing Legislation[a.] Decision Making Structures

A NOTE ON STATE AND LOCAL APPROACHES TO PLANNING FOR AFFORDABLE HOUSING NEEDS

[ii.] “Top Down”: The New Jersey Fair Housing ActA NOTE ON RECENT MOUNT LAUREL DEVELOPMENTS

Insert a new paragraph at the end of p. 486:To follow up on actions that were pending at the time this text was written in 2010, the New Jersey Legislature in January 2011 passed a COAH reform bill, S-1 which Governor Chris Christie ubsequently conditionally vetoed later that month. Hester, Displeased with Democratic amendments, Christie conditionally vetoes bill to change affordable housing standards, New Jersey Newsroom, January 24, 2011 available at: http://www.newjerseynewsroom.com/state/displeased-with-democratic-amendments-christie-conditionally-vetoes-bill-to-change-affordable-housing-standards. In August 2011, Governor Christie abolished COAH through a reorganization plan and transferred its functions to the New Jersey Department of Community Affairs. However, a fair housing advocacy group, the Fair Share Housing Center, challenged Christie’s action. An intermediate appeals court found that the Excecutive Reorganization Act, N.J. Stat. Ann. 52:14C–1 to –11, did not authorize the governor to take such an action because COAH is a legislatively created, representative, independent authority that is “in but not of” the Executive Branch, and the governor exceeded his authority under the Act. In re Plan for the Abolition of the Council on Affordable Housing, 38 A.3d 620 (N.J. App. Div. 2011). The New Jersey Supreme Court has denied a stay of this ruling, so it remains in effect. Order, Supreme Court of New Jersey, M-1383 September Term 2011, 070426 (filed June 8, 2012), Further, at the time of this writing (June 2012), the New Jersey Supreme Court has not held oral arguments on the appeal of the decision striking down the Third Rule growth share rules, even though all briefs were filed in June 2011.

[ii.] “Bottom Up”: The California Housing Element Requirement[iii.] Housing Appeals Boards

Insert at the end of the fourth paragraph (“A referendum questions was certified . . . “ on p. 492:For a discussion of possible reforms to Chapter 40B, see Note, Affordable Housing in Massachusetts:

How to Preserve the Promise of “40B” with Lessons from Rhode Island, 46 New Eng. L. Rev. 125 (2011).

Insert at [iii] “Housing Appeals Boards” at the end of the first part paragraph on p. 493.

[i.] Interpreting the Low and Moderate Income Housing Act as well as the Comprehensive Planning and Land Use Regulation Act, R.I. Gen. L. § 45–53–3(4)(ii), which requires that towns adopt a housing element as part of their comprehensive plans, the Rhode Island Supreme Court has held that these statutes did not authorize a home rule town to charge a fee-in-lieu of undertaking the construction of affordable housing, and could not require developers to pay the fee in the absence of legislative authority. North End Realty, LLC v. Mattos, 25 A.3d 527 (R.I. 2011).

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[iv.] Approaches in New Hampshire, New York, Rhode Island, and North Carolina[b.] Techniques for Producing Affordable Housing[i.] Inclusionary Zoning

Insert at the end of “California” on p. 499:

See also Wollmer v. City of Berkeley, 122 Cal. Rptr. 718 (Cal. App. 2011) (upholding city's two approvals for a mixed-use affordable housing or senior affordable housing project as not violating the state's density bonus law or the California Environmental Quality Act).

Insert at the end of the last paragraph of the section, “Inclusionary Zoning,” on p. 502:

Callies, King, Nicholas, & Barclay, Workforce and Affordable Housing: Local Government Inclusionary Housing Programs and the Courts, Planning & Envtl. L., Oct. 2011, at 3 (discussion of programs in Florida and California).

A NOTE ON INCLUSIONARY ZONING AND REGULATORY TAKINGS[ii.] Funding Mechanisms[iii.] Other Tools

Insert at the end of [iii] Other Tools, p. 505:

[ii.] To increase the supply of needed housing, there is a lot to be said for reforming development review procedures, not just for affordable housing. California’s Housing Accountability Act, Gov’t Code 65589.5 limits the ability of local governments to reject or make “ housing development projects” infeasible if they comply with objective standards. Rejection of such a project requires written findings, based on substantial evidence on the record, that the project would have an adverse effect on public health or safely that cannot be feasibly and reasonably mitigated. An appeals court has interpreted that “housing development projects” are not limited to projects involving affordable housing, but include market-rate projects as well. Honchariw v. County of Stanislaus, 132 Cal.Rptr.3d 874 (Cal. App. 2011).

C. DISCRIMINATORY ZONING UNDER FEDERAL LAW[1.] The Problem[1.] Federal “Standing” Rules[2.] The Federal Court Focus on Racial Discrimination

[a.] The ConstitutionVillage Of Arlington Heights v. Metropolitan HousingDevelopment Corp.NOTES AND QUESTIONS

Insert at Notes and Questions at 4. Standing on p. 515:

But standing for other groups is more difficult to come by. See National Association for the Advancement of

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Colored People v. City of Kyle, Texas, 626 F.3d 233 (5th Cir. 2010) (holding that a civil rights organization did not have associational standing and a home builders association did not have organizational standing under the Fair Housing Act to challenge amendments to a city’s zoning and subdivision ordinances governing new single-family residences that increased the minimum lot and home sizes for such residences and required full exterior masonry).

[b.] Fair Housing LegislationHuntington Branch, NAACP v. Town Of HuntingtonNOTES AND QUESTIONS

Insert at Notes and Questions, after first paragraph of 3, “Later Cases,” on p. 527:

Evidence that redevelopment of an area where a significant portion of the population consisted of African-American and Hispanic residents who would not be able to afford new market-rate housing that would replace the units that were demolished established a prima facie case of disportionate impact in a plausible way through statistics and the action survived a claim for summary judgment under the FHA . Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of Mt. Holly, 658 F.3d. 375 (3d Cir. 2011)

Even the design of a housing project can play a role in determining potential effects on racial segregation. An interesting New York trial court decision interpreting the Fair Housing Act concluded that expert testimony by a plaintiff’s witness was sufficient to establish that the proposed residential development of former industrial area in the Williamsburg community in Brooklyn, where there is a high concentration of Hasidic Jews (who traditionally have large families), would have a discriminatory effect on black residents, as required to establish a prima facie case under the Act. The expert, an associate professor of planning at Columbia University, testified that plans to construct affordable housing of only six to seven stories, and with very large apartments (three and four bedrooms) for very large families, despite the far greater local demand for smaller apartments, would favor whites and Yiddish speakers over black residents, who had a greater need for small apartments. Consequently, the court granted a preliminary injunction to stop the development. Broadway Triangle Comty. Coal. v. Bloomberg, 941 N.Y.S.2d 831 (Sup. Ct. 2011).

Insert at Notes and Questions, 9, “Westchester County, N.Y.”, on p. 527:

For an excellent analysis of the settlement in the Westchester County case that argues that Westchester and other counties and municipalities throughout the country should enact legislation incentivizing mixed-income housing developments, see Note. Integrating the Suburbs: Harnessing the Benefits of Mixed Income Housing in Westchester County and Other Low-Poverty Areas. 44 Colum. J.L. & Soc. Probs. 1 (2010).

D. DISCRIMINATION AGAINST GROUP HOMES FOR THE HANDICAPPEDLarkin v. State Of Michigan Department Of Social ServicesNOTES AND QUESTIONS

Insert at Notes and Questions, at the end of 9, “Sources,” on p. 536:

Mandelker, Housing Quotas for People with Disabilities: Legislating Exclusion, 43 Urb. Law. 915 (2011). In

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this article, Professor Mandelker observes that “[t]he validity of quotas for group homes has seldom been litigated as a violation of equal protection, probably because the Fair Housing Act (FHA) provides a better opportunity to challenge these restrictions” Id., at 934. He then examines the various cases on quotas, including Larkin, discussed in the text. The central part of the article is his evaluation of alternatives for distributing housing opportunities for persons with disabilities. He identifies several, including a fair share approach implemented locally, tying the siting of housing for persons with disabilities to the local comprehensive plan through its housing element, and relying on regional planning agencies or state licensing agencies to make the allocation of housing to local governments, establishing minimum rather than maximum limits on housing availability. He concludes that litigation has clearly established that distance and other quotas are invalid under the FHA. “[Courts] do not accept justifications for quotas based on the need to prevent clustering. Quotas on housing for persons with disabilities are unacceptable. States and local governments should consider an alternate method for distributing housing opportunities.” Id., at 947.

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Chapter 6 THE ZONING PROCESS: EUCLIDEAN ZONING GIVES WAY TO FLEXIBLE ZONING

A. THE ROLE OF ZONING CHANGEMandelker, Delegation of Power and Function in Zoning Administration,NOTES AND QUESTIONSNOTES AND QUESTIONS PROBLEM

B. MORATORIA AND INTERIM CONTROLS ON DEVELOPMENTNOTES AND QUESTIONSEcogen, LLC v. Town Of ItalyNOTES AND QUESTIONS

Add to Note 1: "The Constitutionality of moratoria post-Tahoe", at p. 555:

Zimmerman v. Bd. of Cnty. Comm’rs., 264 P.3d 989 (Kan. 2011) (Moratorium on accepting or processing CUP applications in which no vested property right ever existed is not a taking).

Easton, LLC v Village of Muttontown, 2012 U.S. App Lexis 25456 (facial challenge to moratorium dismissed, and claims for takings, substantive due process and equal protection violations were not ripe where there was no final determination regarding hardship exemption application).

Samson v. City of Bainbridge, 683 F. 3d 1051 (9th Cir. 2012) (upholding “rolling” moratorium while city revised its Shoreline Master Program against substantive due process and procedural due process claims).

A NOTE ON STATUTES AUTHORIZING MORATORIA AND INTERIM ZONINGC. THE ZONING VARIANCE

Puritan-Greenfield Improvement Association v. Leo

Add to Note 1: “The role of variances” at p. 563:

Burns Holdings, LLC v. Teton Cnty. Bd. of Comm’rs., 272 P.3d 412 (Wyo. 2012) (Under the state statute, waiver of height limitation must be by variance, not by conditional use permit; conditional use permit regulates uses).

Add to Note 2: “Variance standards” at p. 563:Harrison v. Mayor, 73 So.3d 1145 (Miss. 2011) (gravel mining company failed to show unnecessary hardship).

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Add to Note 2: "Variance standards" at p. 563:

Martin v. City of Alexandria, 2013 Va. Lexis 79 (Owners of vacant lot in historic district sought side yard and rear yard variances to construct residence. Virginia Supreme Court overturned variances, stating that the property was not unique and the grant effectively nullifies the zoning ordinance).

MNC Holdings, LLC v. Town of Matthews, 735 S.E. 2d 364 (N.C. App. 2012) (variance to modify nonconforming medical waste incinerator improperly denied where necessary to comply with state and federal air regulations and local law allows structural alterations to nonconforming use where required by law).

Merriam Farm, Inc. v. Town of Surry, 2012 N.H. Lexis 98 (After state legislature eliminated the distinction between use and area variances, court held that the “unnecessary hardship” and “practical difficulty” terms in the statute refer to the unnecessary hardship test and are interchangeable; upholding denial of variance under this test).

Add to Note 6: “Self-created hardship” at p. 565:

Morikawa v. Zoning Bd. of Appeals of Weston, 11 A.3d 735 (Conn. App. Ct. 2011) (Error of homeowner architect or contractor is a self created hardship that disallows grant of a variance).

NOTES AND QUESTIONS

A NOTE ON AREA OR DIMENSIONAL VARIANCES

ZIERVOGEL v. WASHINGTON COUNTY BOARD OF ADJUSTMENT

NOTES AND QUESTIONS

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Add to Note 1: “Tests for area variances” at p. 571:

Harborside Assocs. v. Parade Residence Hotel, 34 A.3d 584 (N.H. 2011) (Relating to sign variances, explaining the statutory definitions of unnecessary hardship, one of which allows a showing that the variance will allow reasonable use of the property, given its special conditions).

D. THE SPECIAL EXCEPTION, SPECIAL USE PERMIT, OR CONDITIONAL USE

County v. Southland Corp.

Add to Note 1: “What they are” at p. 576:

Coleman v. City of Mesa, 265 P.3d 422 (Ariz. App. 2011), rev. granted 2012 Ariz. Lexis 521 (Feb. 15, 2012) (Denial of “council permit” for tattoo parlor within shopping center based on incompatibility states a claim for a violation of the First Amendment, as tattooing is protected speech and the regulation therefor must be narrowly tailored to achieve a legitimate state purpose).

In the Matter of Kabro Assoc., LLC v. Town of Islip Zoning Board of Appeals, 944 N.Y.S.2d 277 (N.Y. App. 2012) (Reversing denial of special exception because neighbors’ claims of increased traffic and decreased property values unsupported by empirical evidence). 

Add to Note 4: “Delegation of power” at p. 577:

Kroger Co. v. Plan Comm’n of Plainfield, 953 N.E.2d 536 (Ind. App. 2011) (Ordinance standards for development plan met the requirements of the state statute, but denial of fuel center was not supported by sufficient findings).

NOTES AND QUESTIONSCrooked Creek Conservation and Gun Club, Inc. v. HamiltonCounty North Board of Zoning AppealsNOTES AND QUESTIONS

Add to Note 2: “What if” at p. 583:

Richard A. Demonbreun v. Metropolitan Board of Zoning Appeals, 2011 Tenn. App. Lexis 314 (June 10, 2011) (Board of Zoning appeals acted arbitrarily in denying a special exception for bed and breakfast business in a residential neighborhood by focusing on the applicant’s prior history of noncompliance rather than the use, where prior noncompliance is not a statutory factor in the decision).

Add to Note 3: “The standards issue” at p. 584:

Montgomery County v. Butler, 9 A.3d 824 (Md. 2010) (Providing an update of Maryland law on special exceptions and the role of the “compatibility” requirement).

Add to Note 1: "Judicial review of conditional use decisions" at p. 583:

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New Cingular Wireless PCS v. Sussex County Board of Adjustment, 2013 Del. Lexis 238 (AT&T improperly denied special use exception for 100 foot cell tower where the burden of proving that the use would not be harmful improperly was placed on company and did not allow for "some" adverse effect).

Waste Connections of Tenn., v. Metro. Gov’t of Nashville & Davidson County, 2013 Tenn. App. Lexis 212 (Tenn. App. 2013) (County board acted administratively when reviewing special exception application and must provide a record to substantiate a denial; the only evidence in the record was citizen opposition and decision was thus arbitrary and capricious).

Add to Note 3: "The standards issue" at p. 584:

Wyndham Enterprises, Inc. v. City of North Augusta, 2012 S.C. App. Lexis 261 (resident testimony not competent substantial evidence to deny special exception for fireworks store).

Add to Note 6: "Conditions" at p. 585:

Schlotfeldt v. Benton County, 292 P.3d 807 (Wash. Ct. App. 2013) (length of stay condition to RV Park conditional use is within county's inherent authority).

E. THE ZONING AMENDMENT[1.] Estoppel and Vested Rights

Western Land Equities, Inc. v. City Of LoganNOTES AND QUESTIONS

Add to Note 2: "A majority rule?" at p. 592:

Cigarrilha v. City of Providence, 64 A. 3d 1208 (R.I. 2013) (City collection of taxes on property used as three family home since the 1940s, when zoned for single and two family residence since 1923, was not an act on which property owner could rely for equitable estoppel).

Add to Note 4: "Good faith" at p. 593:

Town of Leesburg v. Long Lane Associates Limited Partnership, 726 S.E.2d 27 (Va. 2012)(landowner does not have vested rights in the zoning classification or land use of his or her neighbor, even where the property was subdivided from a parcel which was rezoned subject to proffered conditions).

Add to Note 5: "Illegal building permit" at p. 593:

Town of Woodway v. Snohomish County, 291 P. 3d 278 (Wash. Ct. App. 2013) (rights did not vest to develop under local comprehensive plan provisions and land use controls in place at the time a complete development permit application is filed where the regulations were invalid under the Growth Management Act).

Add to Note 9: "Sources" at p. 596:

Kenneth Stahl, The Significance of Reliance in Land Use Law. (February 2013) Electronic copy available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2237644.

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A Note on Development AgreementsAdd at p. 596:

Suarez v. Grand County, 2012 Utah Lexis 150 (Adoption of amendment to development agreement is a legislative act even though it governed only one parcel of property (albeit very large) owned by a single owner because the agreement was intended to “run with the land” and was based on general policy concerns rather than individual circumstances).

Add to Note 3: “Substantial reliance” at p. 593:

Levine v. Town of Sterling, 2011 Conn. Super. Lexis 2526 (Oct. 3, 2011) (Upon remand from the Connecticut Supreme Court, town was found to be estopped from denying building permits to landowner who reasonably relied on board’s exemption from effect of new zoning ordinance and who made significant expenditures of his own time and for professionals).

Add to Note 4: “Good faith” at p. 593:

Christian Assembly Rios De Agua Viva v City of Burbank, 948 N.E.2d 251 (Ill. App. 2011) (Church sought to build on commercially zoned property that did not allow religious uses, and while seeking a declaration that the zoning was unconstitutional bought the property; church’s decision to assume the city's ordinance was invalid and proceed at its own risk was not reasonable reliance).

Add to Note 5: “Illegal building permit” at p. 593:

Lauer v. Pierce County, 267 P.3d 988 (Wash. 2011) (“A permit application that is not allowed under the regulations . . . and is issued under a knowing misrepresentation or omission of material facts confers no rights upon the applicant”).  

Add to Note 6: “Phased development” at p. 594:

CK Dev., LLC v. Town of Nolensville, 2012 Tenn. App. Lexis 10 (Jan. 6, 2012) (Developer did not acquire vested rights in the application of the prior road standards to the roads that were to be built in phases of the development not yet approved).

Add to Note 9: “Sources” at p. 596:

Note: Statutory Development Rights: Why Implementing Vested Rights Through Statute Serves the Interests of the Developer and Government Alike. 32 Cardozo L. Rev. 265 (2010).

A NOTE ON DEVELOPMENT AGREEMENTS

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Add at p. 596:

Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes, 191 Cal. App. 4th 435 (Cal. App. 3d Dist. 2010), 2010 Cal. App. Lexis 2172 (Describing California legislative history and upholding finding of breach of contract, award of $30 million in damages, and attorneys fees).

NOTES AND QUESTIONS

Add to Note 3 “Sources” at p. 598:

Article: Selmi, The Contract Transformation in Land Use Regulation. 63 Stan. L. Rev. 591 (2011). The author argues that the trend toward the negotiation of terms governing individual projects threatens fundamental public law norms.

“Spot” ZoningKuehne v. Town of East HartfordNOTES AND QUESTIONS

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Add to Note 1: "The problem" at p. 602:

Helena Sand and Gravel, Inc. v. Lewis and Clark County Planning and Zoning Commission, 290 P.3d 691 (Mont. 2012) (citizen’s petition requesting creation of Special Zoning District to prohibit mining was not reverse spot zoning although only one landowner affected, where consistent with the county Growth Plan).

Historic Charleston Foundation v. Charleston,  2012 S.C. Lexis 213 (rezoning of a parcel of land in the heart of the historic section of the City of Charleston was not illegal spot zoning where the city action made the parcel similar to the other parcels on King Street and was an attempt to achieve conformity with the surrounding area).

Farrington v. City of Cambridge, 2012 Mass. App. Unpub. Lexis 620 (Mass. App. 2012) (Overlay district to facilitate the expansion of Lesley University was not spot zoning where City's substantial zoning analysis found that rezoning would confer a public benefit to the city; extensive planning, meetings and negotiations were held for three years prior to approving the plans; and as a legislative act there is a reasonable basis to support it).

Add to Note 6: "The change-mistake rule" at p. 605:

Hirokawa, Keith H. Making Sense of a “Misunderstanding of the Planning Process”: Examining the Relationship Between Zoning and Rezoning Under the Change-or-Mistake Rule. 44 Urb. Law. 295-343 (2012).

Add to Note 1 “The Problem” at p. 602:

Ely v. City Council of City of Ames, 2010 Iowa App. Lexis 673 (June 30, 2010) (designation of single site with nonconforming use, which was a boarding house for Africa American students, to historic landmark classification is not spot zoning).

Fielding v. Metro. Gov't of Lynchburg, 2012 Tenn. App. Lexis 63 (Jan. 31, 2012) (Rezoning of 0.81 acre of a 7-acre plot zoned for agriculture and forestry to allow towing service is not spot zoning, considering the public safety justifications for allowing the towing use).

Rotterdam Ventures, Inc. v. Town Bd. of Rotterdam, 90 A.D.3d 1360 (N.Y. App. 2011) (Rezoning of former military housing from industrial to residential zoning is not spot zoning rezoning).

[2.] Quasi-Judicial Versus Legislative RezoningBoard of County Commissioners of Brevard County v. SnyderNOTES AND QUESTIONS

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Add to Note 2 “Why should zoning be quasi-judicial?” at p. 610:

King’s Ranch of Jonesboro, Inc. v. City of Jonesboro, 2011 Ark. Lexis 114 (March 31, 2011). City’s decision to grant or deny a conditional use permit is a quasi-judicial, not a legislative act, entitled to de novo review. The decision was made by a fact-intensive act of applying the facts to an existing standard, and no new law was created. 

A NOTE ON PROCEDURAL DUE PROCESS IN LAND USE DECISIONS

Add to A Note on Procedural Due Process in Land Use Decisions at p. 614:

In re Application of Buckeye Wind, 966 N.E. 2d 869 (Ohio 2012) (siting of wind farm by state created board; no due process violations where opponents were active participants throughout the administrative process, were allowed to intervene shortly after the initial application was filed, and were heard at a public hearing. Additionally, the siting board did not improperly delegate its responsibility to staff to grant or deny a certificate).

Oakwood Property Management, LLC v. Town of Brunswick, 103 A.D.3d 1067 (N.Y. App. 2013) (Town’s interpretation of the “Schools and Cemeteries” uses is not unconstitutionally vague, as it "provides persons of ordinary intellect reasonable notice of the proscribed conduct” and would not lead to arbitrary enforcement).

Add to "Open Meetings" at p. 615:

Anolik v. Zoning Board of Review of the City of Newport, 2013 R.I. Lexis 43 agenda item simply indicates that a communication had been received from Turner Scott regarding a petition does not adequately notice the community that the petition was for an extension of time for construction of religious facility).

WSG Holdings, LLC v Bowie, 2012 Md. Lexis 838 (Zoning board site visit at property subject to a special exception application is a meeting that must be open to the public)

Add to "Federal law" at p. 615:

Edelzhertz v. City of Middletown, 714 F.3d 749 (2d Cir. 2013) (City's amortization requirement for nonconforming uses of non-owner-occupied multiple dwellings is legislative in character, so no notice or hearing is required by federal Constitutional due process protections).

EJS Properties, LLC v City of Toledo, 698 F.3d 845 (6th Cir. 2012) (City councilman's request for contribution to assisted living facility in exchange for rezoning is not a substantive due process violation because it does not "shock the conscience" for federal constitutional purposes).

Add to end of Note 2. "Bias and conflict of interest" at p. 616:

Kane Properties, LLC v. City of Hoboken, 2013 N. J. Lexis 595 (Property owner obtained use variance from Board of Zoning Appeals which was reversed by City Council which was represented by attorney who represented objectors before the BZA. City attorney's failure to completely recuse himself from the decision tainted the proceedings which should be set aside) .

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Newberry Station Homeowners Ass’n, Inc. v. Bd. of Supervisors of Fairfax County, 2013 Va. Lexis 52 (Va. 2013) (No conflict where Supervisors disclosed in special exception hearing that they were directors of Washington Metropolitan Transit Authority, applicant for the special exception, and then voted. They did not have a conflicting business or financial interest and the Authority is not a “corporation” within meaning of the statute.)

Add to "A Note on Bribery and Corruption in Zoning" at p. 618:

U.S. v. Keen, 676 F. 3d 981 (11th Cir. 2012) (Tennessee zoning enforcement officer convicted of criminal misconduct in bribing commissioners for favorable votes on development project).

U.S. v. Plowman, 700 F.3d 1052 (7th Cir. 2012) (Indianapolis city councilman convicted of demanding bribes to influence zoning board to approve a strip club).

Walmart was found to have bribed Mexican officials in order to win land use approvals in nineteen of its store sites in Mexico, resulting in its being investigated by the U.S. government for violations of the Foreign Corrupt Practices Act. See "The Bribery Aisle: How Wal-Mart Got Its Way in Mexico." available at http://www.nytimes.com/2012/12/18/business/walmart-bribes-teotihuacan.html?pagewanted=all&_r=0 New York Times.

Add to “Due process requirements under state law” at p. 614:

Jasso v. Camas County, 264 P.3d 897 (Idaho 2011) (Approval of subdivision did not meet statutory requirements for findings of fact as they consisted of conclusory statements unsupported by any reasoned explanation of the grounds upon which they relied. Failure to state facts was a violation of adjacent neighbor’s procedural due process).

Riverside Traffic Sys., Inc. v. Bostwick, 78 So. 3d 881 (Miss. 2011) (Failure to give notice of rezoning ten years prior to new owner’s attempt to develop under existing zoning violated neighbor’s due process rights).

Carillon Cmty. Residential v. Seminole County, 45 So. 3d 7 (Fla. App. 2011) (Neighboring homeowners association not permitted to cross examine in a quasi-judicial hearing, as they are participants, not parties).

Add to “Open meetings” at p. 615:

Tuzeer v. Yim, LLC, 29 A.3d 1019 (Md. App. 2011) (Attendance by speakerphone does not violate open meetings law; resolution need not be signed by all members or physically at the meeting).

Gold Country Estates Pres. Grp., Inc. v. Fairbanks N. Star Borough, 270 P.3d 7878 (Alaska 2012) (A site visit is a governmental meeting and must meet the open meeting requirements; internet and newspaper postings are sufficient notice of the site meeting; any defect in due process was cured at subsequent meeting).

Article: R. Lisle Baker, Exploring how Municipal Boards Can Settle Appeals of Their Land Use Decisions Within the Framework of the Massachusetts Open Meeting Law. 44 Suff.U.L. Rev. 455 (2011).

NOTES AND QUESTIONS

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Add to end of Note 2. “Bias and conflict of interest” at p. 616:

Citizens State Bank v. Dixie County, 2011 U.S. Dist. Lexis 38067 (N.D. Fla., April 7, 2011). A county attorney represented an applicant for development approval while also opining as county attorney that the applicant’s development plans complied with the county’s comprehensive land use plan. A subsequent county attorney determined that the development did not comply and the county issued a stop work order. The developer defaulted on its loan, and the bank sued the county for violation of procedural due process, based on allegations that the county was deliberately indifferent to the risk created by allowing the attorney to assume the dual roles. The court denied the county’s motion to dismiss, allowing the case to continue.

Nevada Commission on Ethics v. Carrigan, 131 S. Ct. 2343 (2011). The Court overturned the Nevada Supreme Court’s decision that the state ethics statute violated the First Amendment by prohibiting a city councilman from voting on a zoning matter where the councilman had a possible conflict of interest because his campaign manager represented the zoning applicant. The Court found that the vote was not protected speech, and that to view otherwise was inconsistent with long-standing federal and state traditions. A legislator’s vote is not a personal prerogative, but an apportionment of the legislative power used in trust for the service of constituents.

Davenport Pastures, LP v. Morris County Board of County Commissioners, 238 P. 3d 731 (Kan. 2010). Landowner made an application for damages based on the county’s vacation of a roadway. He claimed a violation of due process based on the county attorney’s dual role as advocate for the county in the damages hearings against the application, while also providing the county board advice on legal and procedural matters. Given the totality of the facts, the Court found more than an appearance of impropriety of bias, but instead a “‘probable risk of actual bias too high to be constitutionally tolerable” and thus sufficient to find a due process violation.

Limited Edition Properties, Inc. v. Town of Hebron, 34 A.3d 688 (N.H. 2011) (Planning board’s denial of subdivision plat was procedurally adequate; while board members might have expressed personal opinions and feelings, the record showed that they based their decision on the evidence presented. The board did not enumerate the reasons for denying the application in its written notice of decision, but identified the basis for its decision on the record at its meeting).

Los Chavez Community Association v. Valencia County, 2012 N.M. App. Lexis 16 (May 15, 2012) (Federal and state due process considerations and judicial recusal required respondent county commissioner to recuse herself from voting on an application for a zoning map amendment in a quasi judicial proceeding, where she was a first cousin to appellant applicant).

A NOTE ON BRIBERY AND CORRUPTION IN ZONING

[3.] Downzoning

Stone v. City of WiltonNOTES AND QUESTIONS

Add to Note 2: “Good or bad?” at p. 623:

Avenida San Juan Partnership v. City of San Clemente, 135 Cal. Rptr. 3d 570 (Cal. App. 2011) (upholding trial court decision that downzoning to permit one dwelling on 20 acres in middle of four to an acre zoning is spot

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zoning and regulatory taking).

Add to Note 5: “Purposes” at p. 625:

Mombaccus Excavating, Inc. v. Town of Rochester, 89 A.D.3d 1209 (NY App. 2011) (Upholding Town’s new zoning districts for mining areas and division of mining company’s property into two zoning districts, with only one permitting unlimited gravel mining).

F. OTHER FORMS OF FLEXIBLE ZONING[1.] With Pre-Set Standards: The Floating Zone

NOTES AND QUESTIONS[1.] Without Pre-Set Standards: Contract and Conditional Zoning

Collard v. Incorporated Village of Flower HillNOTES AND QUESTIONS

Add to end of Note 3: "Good or bad?" at p. 634:

Morgan v. Nash County, 731 S.E. 2d 228 (N.C. App. 2012), approved 738 S.E.2d 379 (N.C. 2013) (County commission approval of rezoning application with the knowledge of potential developer’s interest in the subject property is not sufficient to establish that the Board engaged in illegal contract zoning, where no evidence that the Board obligated itself to, or entered into a reciprocal agreement with, the landowners or potential developer in exchange for approval of the rezoning application; potential developer was being recruited by county to establish poultry farm facility).

Add to end of Note 7: "Statutory authority" at p. 636:

Golder v. City of Saco, 45 A. 3d 697 (Me. 2012) (City approval of contract zoning agreement authorized under state statute complied with statute even where condition of the agreement required off-site improvements related to access to beach).

Update Citation at Note 9 at p. 637:

Been, Vicki. Community Benefits Agreements: A New Local Government Tool or Another Variation on the Exactions Theme? 77 U. Chi. L. Rev. 5-35 (2010).

Add to Note 10 “Sources” at p. 637:

Article. Fazio & Wallace. Legal and Policy Issues Related to Community Benefits Agreements. 21 Fordham Envtl. L. Rev. 543-558 (2010).

Note. Why Marginalized Communities Should Use Community Benefit Agreements as a Tool for Environmental Justice: Urban Renewal and Brownfield Redevelopment in Philadelphia, Pennsylvania. 29 Temp. J. Sci. Tech. & Envtl. L. 31-51 (2010).

Camacho, Community Benefits Agreements: A Symptom, Not the Antidote, of Bilateral Land Use Regulation,78

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Brooklyn L. Rev. 355 (2013).

Add to end of Note 10: "Sources" at p. 638:

Nadler, Michael L. 27th Smith-Babcock-Williams Student Writing Competition winner. The Constitutionality of Community Benefits Agreements: Addressing the Exactions Problem. 43 Urb. Law. 587-625 (2011).

G. SITE PLAN REVIEWCharisma Holding Corp. v. Zoning Board of Appeals of the Town of LewisboroNOTES AND QUESTIONS

Add to Note 2 “Permitted uses as a site plan issue” at p. 642:

Bagga v. Stanco, 90 A.D.3d 919 (N.Y. App. 2011) (Denial of site plan for use of second floor as residential uses allowed by zoning; the record contradicted the community's concerns over traffic congestion, access to the property, and parking).

H. THE ROLE OF THE COMPREHENSIVE PLAN IN THE ZONING PROCESS

Add to p. 643:

White Oak Prop. Dev., LLC v. Washington Twp., 2012 Ohio App. LEXIS 354 (Feb 6, 2012) (Zoning resolution and map were, in fact, a comprehensive plan for purposes of statutory requirement that zoning be in accordance with a comprehensive plan; denial of development plan upheld).

NOTES AND QUESTIONS Haines v. City of Phoenix NOTES AND QUESTIONS

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Add to end of Note 3: “Consistency not found” at p. 651:

Town of Ponce Inlet v. Pacetta, LLC, 2013 Fla. App. Lexis 10752 (Proposed mixed use marina project not vested where inconsistent with the existing comprehensive plan).

Add to end of Note 4: “Effect on Zoning” at p. 651:

In re Jerome County Board of Commissioners, 2012 Ida. Lexis 176 (Comprehensive plan is simply a policy guide and animal feeding operation on 1000 acres is not required to be consistent with the plan even though county zoning ordinance so requires).

Add to end of Note 7: “Spot Planning” at p. 653:

As part of its reform of the state growth management statute to reduce the state role in planning, the Florida legislature in 2011 among other things eliminated the restriction on amending the comprehensive plan more than twice a year. Stroud, A History and New Turns in Florida’s Growth Management Reform, 45 The John Marshall L. Rev. 397 (Winter 2012).

Add to A Note on Alternative Dispute Resolution: “Sources” at p. 658:

Nolon, Ferguson, and Field, Land in Conflict: Preventing and Managing Land Use Disputes, Lincoln Institute of Land Policy, Cambridge, Massachusetts (2013), ISBN 978-1-55844-246-7.

Add to Note 3 “Consistency not found” at p. 651:Heffernan v. Missoula City Council, 255 P.3d 80 (Mont. 2011) (City's approval of a 37-unit subdivision in a rural area at five times the density set out in the adopted growth policy was unlawful. Although the growth policy is not regulatory, the state statute requires that the city be guided by the growth policy).

HNS Dev., LLC v. People’s Counsel for Baltimore County, 42 A.3d 12 (Md. App. 2012) (When county development regulations require compliance with the development policies of the master plan, even though master plan itself is phrased as an advisory document, subdivision plan must be in compliance with the master plan; upholding rejection of subdivision as inconsistent with the plan’s policy regarding scenic views of historic places).

A NOTE ON SIMPLIFYING AND COORDINATING THE DECISION MAKINGPROCESSA NOTE ON ALTERNATIVE DISPUTE RESOLUTION

Add to “Case Studies” at p. 657:

See Abrams, The Zoning Dispute Whisperer, Planning, Vol. 77, No. 9, at 20 (2011) (discussing several mediation programs).

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I. INITIATIVE AND REFERENDUM Township of Sparta v. SpillaneNOTES AND QUESTIONS

Add to Note 1 “Referendum” at p. 663:

Grant County Concerned Citizens v. Grant County Bd. of Comm'rs, 794 N.W. 2d 462 (S.D. 2011) (County board’s rejection of a zoning amendment is not subject to referendum).

Add to end of Note 3: “Initiative” at p. 664:

Carter v. Lehi City, 269 P.3d 141 (Utah 2012) (upholding initiative regulating salaries and residency requirements for certain city employees as legislative decision; reconsidering Utah judicial precedent with concern about protecting citizen initiative power, containing an excellent analysis of the initiative and referendum power and adopting the traditional legislative v. administrative distinction).

The Florida legislature recently expanded its prohibition on referenda for development orders and comprehensive plan amendments from that limited to five or fewer parcels, to any amendments. Fla. Stat. Ann. Sec. 163.3167(8) (2011).

Add to Note 7 “Sources” at p. 667:

Article. Stahl, The Artifice of Local Growth Politics: At-large Elections, Ballot-box Zoning, and Judicial Review. 94 Marq. L. Rev. 1-75 (2010) (Using a case study from Yorba Linda, California).

City of Eastlake v. Forest City Enterprises, Inc.NOTES AND QUESTIONS

J. STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION (SLAPP SUITS)TRI-COUNTY CONCRETE COMPANY V.HUFFMAN-KIRSCH 2000 Ohio App. LEXIS 4749 (2000)

NOTES AND QUESTIONS

Add to Note 2 “The First Amendment” at p. 679:

Oasis West Realty, LLC v. Goldman, 250 P.3d 1115 (Ca. 2011) (Applying the California Anti-SLAPP statute, the court found that Goldman’s activity in publicly working in support of a referendum seeking to overturn a redevelopment project was not protected by the statute. Goldman represented Oasis earlier in the redevelopment project. Goldman’s Motion to Strike the complaint was denied because Oasis stated and substantiated the sufficiency of its legal claims against Goldman for breach of fiduciary duty. A lawyer’s misuse of confidential information is not protected speech).

Add to Note 5 “Sources” at p. 680:

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Comment. A Cure for a "Public Concern”: Washington's New Anti-SLAPP Law. 86 Wash. L. Rev. 663-693 (2011).

Chapter 7 SUBDIVISION CONTROLS AND PLANNED UNIT DEVELOPMENTS

A. SUBDIVISION CONTROLS[1.] In General

NOTES AND QUESTIONS

Add to the end of Note 2, P. 688: In addition, some statutes allow for “constructive endorsement” of “approval not required” (ANR) plans, which propose changes to land falling outside the scope of the applicable subdivision control laws. An example of this is a Massachusetts statute that grants constructive approval to ANR plans, as a matter of law, when a planning board fails to act within twenty-one days after submission of an ANR plan. M.G.L.A. 41 § 81P. The applicable statute requires the applicant to file the plan and pay a fee to the town clerk, notify the planning board, and then have a chance to appear at a planning board meeting. In Peters v. Labonte, 2012 Mass. LOR LEXIS 21, the planning board failed to act within twenty-one days, but nevertheless the court rejected Plaintiff’s argument for constructive approval. The court strictly construed the statute, which specifically requires that the applicant give written notice to the town clerk after submitting the plan to the planning board, which Plaintiff failed to do. Plaintiff argued the law was redundant because local law requires filing with the town clerk prior to notifying the planning board. The court rejected this argument because the statute requires that the notification to the town clerk include the exact date she submitted the plan to the planning board (which Plaintiff did not know until she actually submitted it) and found that Plaintiff failed to comply with a “critical statutory prerequisite.”

A NOTE ON SUBDIVISION COVENANTS AND OTHER PRIVATE CONTROL DEVICES

Add to the end of “A Note on Subdivision Covenants…” just above [2], P. 692: Are Restrictive Covenants Private Contracts or Zoning Orders? For an interesting case on the overlap between restrictive covenants and zoning ordinances, see Benjamin Crossing Homeowners' Ass'n, Inc. v. Heide, 961 N.E.2d 35 (Ind. App. 2012). There, a restrictive covenant on a PUD prohibiting the operation of a child care home in a residence subsequently became law when the plan commission passed it through a resolution. The question was whether the covenant’s subsequent adoption into the PUD ordinance rendered it a zoning ordinance. The distinction is important given that Indiana state law prohibits zoning ordinances that would ban the operation of a child care home in a residence. The court found that a county’s approval of a PUD ordinance did not impair the legality or the contract right of a homeowners association to enforce a restrictive covenant; restrictive covenants exist independent of a zoning ordinance and do not cease to exist independently when they are adopted into a PUD ordinance.

[2.] The Structure of Subdivision Controls

Add to the end of Note 1 “Vested Rights” at p. 696

Subdivision approval, while ministerial in some instances, can be denied for failure to comply with local requirements, including conditions on the provision of utility services. In Rose Woods, LLC v. Weisman, 2011

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N.Y. App. Div. LEXIS 4967, the Planning Board approved petitioners’ application for a four-lot residential development, but held final approval subject to certain specific conditions, including that one sewer pump must serve all four lots.  Petitioners modified their subdivision design to a four-pump system and filed a mandamus action to compel the Planning Board to sign the subdivision plat.  The court determined that mandamus was inappropriate because in this case, approval involved the performance of a discretionary act by a municipal agency. (http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D31599.pdf); see also Nexum Development Corp. v. Planning Board of Framingham, 943 N.E.2d 965 (Mass. App. 2011) (upholding planning board’s denial of a subdivision where the applicant failed to conduct required soil tests and plan did not comply with board of health conditions for water supply).

Add to Note 5, NOTES AND QUESTIONS, P. 697:

An interesting factor that may impact the attitudes and practices of subdivision regulators and developers is the influence open space has on home prices. The Wall Street Journal reported that a Colorado State University study of home prices in conservation developments sell for 29 percent more than homes built in traditional rural developments. Open Spaces = Higher Prices, WALL ST. J., May 3, 2013, at M4.

Add to Notes and Questions 10 “Sources” at p. 698:Article. Fazio, Christine A. and Judith Wallace, Legal and Policy Issues Related to Community Benefits Agreements. 21 Fordham Envtl. L. Rev. 543-558 (2010).

Student article. Why Marginalized Communities Should Use Community Benefit Agreements as a Tool for Environmental Justice: Urban Renewal and Brownfield Redevelopment in Philadelphia, Pennsylvania. 29 Temp. J. Sci. Tech. & Envtl. L. 31-51 (2010).

Meck, Wack & Zimet, Zoning And Subdivision Regulation, In The Practiceof Local Government Planning 343, 362–369NOTES AND QUESTIONSGaripay v. Town Of HanoverBaker v. Planning BoardNOTES AND QUESTIONS

Add to the end of Note 4, P. 704:

For an interesting discussion on the constitutionality of subdivision ordinances with regards to planning board discretion, see Guse v. City of New Berlin, 810 N.W.2d 838 (Wisc. App. 2012). There, a Wisconsin Court of Appeals found that an ordinance “may vest boards with some (and even significant) discretion” without being unconstitutionally vague, but may not grant a board “unfettered discretion.”

Add to the end of Note 5, P. 705:

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Incorporation of a master plan into subdivision regulations may render the master plan regulatory rather than advisory. In HNS Dev., LLC v. People's Counsel for Baltimore County, 42 A.3d 12 (Md. App. 2012), the question was whether non-compliance with the master plan of Baltimore County was a proper basis for denying a development plan when the potential developer had met all other applicable County development regulations. The Court of Appeals of Maryland found that while the master plan was indeed framed as advisory, a “clear and unambiguous” requirement of compliance with the master plan in the Baltimore County Code rendered the master plan regulatory. Specifically, the Code states that “all development of land must conform to the master plan and these regulations.” Baltimore County Code § 22-37. Additionally, the Code provides that the purpose of the development regulations is “to implement the future growth and development of Baltimore County in accordance with the master plan.” Baltimore County Code § 22–38(b). Therefore, under this design, a development plan could not be in compliance with the development regulations if not in compliance with the master plan.

B. DEDICATIONS, EXACTIONS, AND IMPACT FEES[1.] The Takings Clause and the Nexus Test

Add to the end of [1] The Takings Clause and the Nexus Test, P. 708:

In Home Builders Ass'n of Dayton & the Miami Valley v. Beavercreek, 729 N.E.2d 349 (Ohio 2000), the Supreme Court of Ohio adopted the dual rational nexus test to determine the constitutionality of an impact fee that sought to partially fund new roadways, finding it to be the test that best “balances the interests of the city and developers of real estate without unduly restricting local government.” In applying the nexus test, the court had to first determine whether there was a reasonable relationship between Beavercreek’s interest in constructing new roadways and the increase in traffic as a result of the new developments; whether the ordinance is an appropriate method to address Beavercreek’s stated interest in meeting increased traffic needs. Next, the court had to determine whether there was a reasonable relationship between the impact fee and the developer’s benefits from the construction of the new roadways; making sure Beavercreek and the developers would be paying their proportionate share of the cost. The court noted that the nexus test places the burden on the proponent of the impact fee. To satisfy the first prong, Beavercreek had to demonstrate that the methodology that determined the need for roadway improvements funded by the impact fee was based on generally accepted traffic engineering practices. The court found the trial court’s acceptance of the methodology sufficient asserting that the appellate court’s determination that the trial court erred in accepting the methodology was an impermissible disturbance of factual conclusions. Regarding the second part of the test, the court found that Beavercreek was indeed paying its proportionate share of the construction costs through a system of mandatory and permissive credits built into the ordinance.

Immediately after Homebuilders addition, add on P. 708:

In Cook Rd. Invests., L.L.C. v. Cuyahoga Cty. Bd. of Commrs., 957 N.E.2d 330 (Ohio App. 2011), a developer of a senior housing project sought to recover sewer connection fees he had paid under protest to Cuyahoga County because he had already paid connection fees to the city of North Olmstead. The court found that the dual rational nexus test did not apply because Ohio statutes authorize the allocation of cost of a sewer system to all residents in a district regardless of direct benefit. Nevertheless, the court held that the impact fee was an unconstitutional taking of property without due process of law. A governmental taking of property must “bear a real and substantial relation to the public health, safety, morals or general welfare of the public” and must not be

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“unreasonable or arbitrary.” Because the County had entered into a valid agreement with the City making the City the “agent” of the County in providing sewer services and collecting connection fees, the court found the impact fee “arbitrary and unreasonable.”

Add to Note 2, Unconstitutional conditions, on p. 719 following the discussion of Lingle and the Fenster citation:

In Koontz v. St. Johns River Water Management Dist., supra, the Supreme Court applied the unconstitutional conditions doctrine in extending the Nollan/Dolan rule to impact fees and to denials of land use permits when applicants refuse to accept conditions attached to those permits. Koontz v. St. Johns River Water Mgmt. Dist., No. 11-1447, 2013 LEXIS 4918, at *14. Koontz sought a permit to develop some wetlands he owned. Id. at *12. The water management district denied the permit after Koontz refused to comply with the district’s condition that Koontz reserve a portion of his property as a conservation area or pay for offsite mitigation. Id. at 12-3. Stressing that Nollan & Dolan “involve a special application” of the unconstitutional conditions doctrine, the Court stated:

Our decisions in those cases reflect two realities of the permitting process. The first is that land-use permit applicants are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits because the government often has broad discretion to deny a permit that is worth far more than property it would like to take. By conditioning a building permit on the owner’s deeding over a public right-of- way, for example, the government can pressure an owner into voluntarily giving up property for which the Fifth Amendment would otherwise require just compensation…. So long as the building permit is more valuable than any just compensation the owner could hope to receive for the right-of-way, the owner is likely to accede to the government’s demand, no matter how unreasonable. Extortionate demands of this sort frustrate the Fifth Amendment right to just compensation, and the unconstitutional conditions doctrine prohibits them.

A second reality of the permitting process is that many proposed land uses threaten to impose costs on the public that dedications of property can offset. Where a building proposal would substantially increase traffic congestion,for example, officials might condition permit approval on the owner’s agreement to deed over the land needed to widen a public road. Respondent argues that a similar rationale justifies the exaction at issue here: petitioner’s proposed construction project, it submits, would destroy wetlands on his property, and in order to compensate for this loss, respondent demands that he enhance wet- lands elsewhere. Insisting that landowners internalize the negative externalities of their conduct is a hallmark of responsible land-use policy, and we have long sustained such regulations against constitutional attack. See Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926).

Nollan and Dolan accommodate both realities by allowing the government to condition approval of a permit on the dedication of property to the public so long as there is a “nexus” and “rough proportionality” between the property that the government demands and the social costs of the applicant’s proposal….

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Our precedents thus enable permitting authorities to insist that applicants bear the full costs of their proposals while still forbidding the government from engaging in “out-and-out . . . extortion” that would thwart the Fifth Amendment right to just compensation…. Under Nollan and Dolan the government may choose whether and how a permit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts.

B

The principles that undergird our decisions in Nollan and Dolan do not change depending on whether the government approves a permit on the condition that the applicant turn over property or denies a permit becausethe applicant refuses to do so…. [W]e have recognized that regardless of whether the government ultimately succeeds in pressuring someone into forfeiting a constitutional right, the unconstitutional conditions doctrine forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them.

A contrary rule would be especially untenable in this case because it would enable the government to evade the limitations of Nollan and Dolan simply by phrasing its demands for property as conditions precedent to permit approval…. Our unconstitutional conditions cases have long refused to attach significance to the distinction between conditions precedent and conditionssubsequent….

Extortionate demands for property in the land use permitting context run afoul of the Takings Clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation. As in other unconstitutional conditions cases in which someone refuses to cede a constitutional right in the face of coercive pressure, the impermissible denial of a governmental benefit is a constitutionally cog- nizable injury….

Nor does it make a difference, as respondent suggests, that the government might have been able to deny petitioner’s application outright without giving him the option of securing a permit by agreeing to spend money to improve public lands…. Virtually all of our unconstitutional conditions cases involve a gratuitous governmental benefit of some kind…. Yet we have repeatedly rejected the argument that if the government need not confer a benefit at all, it can withhold the benefit because someone refuses to give up constitutional rights…. Koontz v. St. Johns River Water Mgmt. Dist., No. 11-1447, 2013 U.S. LEXIS 4918, *17-22.

Despite the Court’s focus on the Takings Clause, is this really a takings case? Or does a land use regulatory condition that is so onerous as to violate constitutional norms deprive the landowner of property without due process? Justice Kagan, in dissent, expressed concern that the application of the unconstitutional conditions doctrine in this context “places courts smack in the middle of the most everyday local government activity.” Id. at *70.

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A NOTE ON THE PRICE EFFECTS OF EXACTIONS: WHO PAYS?[2.] The “Rough Proportionality” Test

Dolan v. City Of TigardNOTES AND QUESTIONS

[2.] Dolan Applied

Add to the end of Note 7 Part b, NOTES AND QUESTIONS, P. 722:

In Hillcrest Property LLP v. Pasco County, 2013 WL1502627 (M.D. Fla.), the court discussed the difference between a takings claim and a due process issue. The court explained that the substantive due process inquiry “asks whether a regulation of private property is effective in achieving some legitimate government purpose.” In contrast, the Takings Clause “asks whether the government forces some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

The court applied this reasoning to Pasco County’s “Right of Way Ordinance.” The ordinance directs the County to forbid development of land adjoining a new transportation corridor unless the landowner dedicates, without compensation, the land within the corridor. The court found that the Ordinance “leverages the police power to compel a landowner to relinquish rights guaranteed by the Takings Clause,” and that the Ordinance “fails to advance a legitimate governmental purpose.” As a result the Ordinance was struck down for violating due process principles.

Add to the end of “Legislative vs. adjudicative,” P. 724-25

See also St. Clair County Home Builders Association v. City of Pell City, 61 So. 3d 992, 2010 ALA. LEXIS 161. The Alabama Supreme Court upheld service fees imposed by the City to improve its municipal water and sewer systems, and to defray the costs of providing services to new development, holding that the fees were not unauthorized taxes. The court also rejected the argument that the U.S. Supreme Court’s rulings in the Dolan and Nollan cases applied to these fees.  The 1994 decision in Dolan v. City of Tigard required the city of Tigard to show the reasonableness of the dedication requirement.  However, the current case involves a legislative action, not an individual judicative determination.  Thus the burden falls on the home builders to demonstrate that the fees are unreasonable.

[a.] Dedications of LandSparks v. Douglas CountyNOTES AND QUESTIONS

Add After Note 3, as Note 4, P. 734:

St. John’s River Update: The Florida Supreme Court subsequently reviewed the decision of the Fifth District Court of Appeals in St. Johns River Water Mgmt. Dist. v. Koontz, 77 So. 3d 1220 (Fla. 2011), specifically deciding the much-debated question whether the United States Constitution and the Florida Constitution recognize an exactions taking where “there is no compelled dedication of any interest in real property to the public use and the alleged exaction is a non land-use monetary condition for permit approval which never occurs and no permit is ever issued.” The Florida Supreme Court declined to interpret the U.S. Supreme Court’s silence on the issue as a decision on the merits stating that the U.S. Supreme Court has specifically stated that denial of

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certiorari review “imports no expression of opinion upon the merits of the case.”

The Florida Supreme Court recognized the differing interpretations of both state and federal courts in that some apply Nollan and Dolan solely to exactions cases involving land-use dedications while others extend the test beyond those involving real property. In deciding the case, the court looked to the decisions of the U.S. Supreme Court cases involving the scope of exactions takings, Nollan and Dolan, finding that both involved exactions which require the property owner to dedicate real property in exchange for approval of a permit. Additionally, in both Nollan and Dolan the regulatory agencies actually issued the permits with the objected to exactions attached. The Florida Supreme Court stated, “Absent a more limiting or expanding statement from the United States Supreme Court with regard to the scope of Nollan and Dolan, we decline to expand this doctrine beyond the express parameters for which it has been applied by the High Court.” As such, the Florida Supreme Court found that the Nollan and Dolan rules are only applicable when the condition or exaction involves a dedication of or over the owner’s interest in real property in exchange for permit approval, and only when the regulatory agency actually issues the permit sought.

The Florida Supreme Court called the narrow interpretation both “necessary and logical,” explaining that the opposite finding would result in two very “undesirable” outcomes. First, the ability to regulate land-use would become prohibitively expensive, and as a result, agencies would simply deny permits rather than negotiate with applicants to avoid the potentially high costs of litigation.

In 2012, the U.S. Supreme Court granted certiorari based on the St. Johns property owners appeal asking: (1) whether governmental refusal of a land-use permit solely because the applicant did not accede to a permit condition that, if applied, would violate Nollan and Dolan essential nexus and rough proportionality tests, amounts to an exactions taking; and (2) whether Nolan and Dolan tests apply to land-use exactions that demand that a permit applicant dedicate money, services, labor, or any other type of personal property to public use. A decision is expected in June, 2013 (Follow.) See also W. Linn Corporate Park, LLC v. City of w. Linn, 428 F.App’x 700 (9th Cir. 2011) (Providing that the U.S. Supreme Court has not extended Nollan and Dolan beyond situations involving dedication of real property and refusing to apply the tests to off-site road improvements).

The property owner in St. Johns has since sought U.S. Supreme Court review asking: (1) whether governmental refusal of a land-use permit solely because the applicant did not accede to a permit condition that, if applied, would violate the Nollan and Dolan essential nexus and rough proportionality tests, amounts to an exactions taking; and (2) whether the Nollan and Dolan tests apply to land-use exactions that demand that a permit applicant dedicate money, services, labor, or any other type of personal property to public use. U.S. Supreme Court acceptance is not yet known. See also W. Linn Corporate Park, LLC v. City of W. Linn, 428 F. App'x 700 (9th Cir. 2011) (providing that the U.S. Supreme Court has not extended Nollan and Dolan beyond situations involving dedication of real property and refusing to apply the tests to off-site road improvements).

Add to Note 4, NOTES AND QUESTIONS, P. 734:

St. John’s River Update 2013:

The U.S. Supreme Court granted certiorari on October 5, 2012, and heard oral argument on January 15, 2013. Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 420 (2012). For continued updates and a list of the proceedings and orders visit the Supreme Court’s website at: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-1447.htm.

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For a helpful discussion of the possible outcomes in the case considering the Court’s reasoning in Nollan and Dolan, the facts of the case, and the questions at oral argument, see John M. Baker & Katherine M. Swenson, Koontz v. St. Johns River Water Management District: Trudging Through a Florida Wetland with Nine U.S. Supreme Court Justices, 36 No. 5 ZONING AND PLANNING L. REPORT 1 (May 2013).

Add to p.734 after the second paragraph discussion of Joy Builders:

In Koontz v. St. Johns River Water Mgmt. Dist., the U.S. Supreme Court held that a government’s demand for property from a permit applicant must satisfy the Nollan/Dolan requirements even when the demand is for money. Koontz v. St. Johns River Water Mgmt. Dist., No. 11-1447, 2013 LEXIS 4918, at *14.  Koontz was denied a permit to develop an area of wetlands after he refused to comply with the district’s condition that Koontz reserve part of his property as a conservation area or pay for offsite mitigation.  Id at *12.  The Court noted that under the Nollan/Dollan standards, the government must only provide one alternative that satisfies the nexus and rough proportionality standards. Id. at *30. The Court noted that municipalities commonly suggest an alternative fee equal to the requested easement’s value when a property owner objects to accepting a negative easement on their land. Id. Such “in lieu of” fees should be treated as other forms of exactions under the Nollan/Dollan standard, the Court concluded. Id.

Furthermore, the Court declined to apply Penn Central’s “already difficult and uncertain rule” to situations where an individual believes a regulation is too costly. Id. at *31-2. Specifically, when the government commands the payment of funds linked to a specific, identifiable property interest like a bank account or real property, a “per se takings approach” is the form of analysis that should be done. Id. at *33-4.

Justice Kagan, in dissent, expressed concern that the Court’s conclusion “threatens to subject a vast array of land-use regulations, applied daily in States and localities throughout the country, to heightened constitutional scrutiny.” Id. at *43.

[b.] Impact FeesNOTES AND QUESTIONS

Add to the end of Note 2 “Park and school fees” at p. 737

In Matter of Legacy at Fairways, LLC v. Zoning Board of Appeals of Town of Victor, 2010 N.Y. App. Div. LEXIS 6558, the owners of a parcel of property on which an assisted living center is located, sought to terminate the “per unit recreation fee” that had been imposed on their property. The Town Code authorized such a fee to be established by the Town board “in lieu of parkland.” The appellate court struck down the fee because the Planning Board had not made the necessary findings in order to impose the per unit recreation fee and an assisted living facility did not qualify as a “‘proper case’ for such a fee.” 

The Drees Company v. Hamilton Township, OhioNOTES AND QUESTIONS

Add after Note 2, as Note 3, P. 743: The Reversal of Drees: In Drees Co. v. Hamilton Twp., 2012 Ohio LEXIS 1379, upon acceptance of a discretionary appeal, the Ohio Supreme Court reversed the judgment of the court of appeals. The primary issue before the court was whether the assessments sought were a tax or regulatory fee.

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Importantly, Ohio Code specifically prohibits limited home-rule townships, such as Hamilton Township, from enacting taxes other than those authorized by general law. There was no dispute that the impact fees Hamilton County sought did not meet the requirements of any of the taxing methods as authorized by Ohio general law, and therefore their classification as a tax would render them in violation of Ohio law. Among relevant factors central to the court’s decision was the determination that the impact fees were earmarked for police protection, fire protection, road improvement, and parks that benefit the entire community. Communitywide benefit absent a special benefit for those paying the fee is highly indicative of a tax.

After analyzing the impact fees in light of State ex rel. Petroleum Underground Storage Tank Release Comp. Bd. v. Withrow, 579 N.E.2d 705 (Ohio 1991) (deciding whether assessments imposed upon owners and operators of underground storage tanks were considered fees or taxes and providing factors to consider in such an analysis), Am. Landfill, Inc. v. Stark/Tuscarawas/Wayne Joint Solid Waste Mgt. Dist., 166 F.3d 835 (6th Cir.1999) (employing a similar analysis as Withrow to determine whether assessments on solid-waste-management districts on persons disposing of material constituted fees or taxes), and other state supreme court cases, the court ultimately concluded that the impact fees were taxes without authorization under general law. Among other relevant factors, central to the court’s decision was the determination that the impact fees were earmarked for police protection, fire protection, road improvement, and parks that benefit the entire community – communitywide benefit absent a special benefit for those paying the fee being highly indicative of a tax.

The lower court found persuasive a stipulation stating that the purpose of the fee was to benefit the targeted properties and the fact that the assessment funds were kept separately from the general fund as being determinative of a fee. However, the court rejected those arguments stating that what dominates is the “substance” of the assessment, rather than the “form.” The court concluded that the impact fees were actually intended to prevent any diminishment of service to anyone in the township, not just those subject to the assessment. The court also found the segregation of the assessment funds from the general fund irrelevant when analyzing the “substance” of the assessment; although the funds are segregated, the use of the funds was general in nature.

Add to Note 2, NOTES AND QUESTIONS, P. 743:

One author has proposed a hybrid of a tax and a fee (called a “xat”) based on a combination of location and size of housing arguing that current impact fees act as taxes on a population rather than as a disincentive to suburban sprawl. The author contends that a “xat” would better encourage infill and discourage sprawl. Paul Boudreaux, The Impact Xat: A New Approach to Charging for Growth, 43 UNIV. OF MEM. L. REV. 35 (2012).

Add after Note 2, as Note 3, P. 743: The Reversal of Drees: In Drees Co. v. Hamilton Twp., 2012 Ohio LEXIS 1379, upon acceptance of a discretionary appeal, the Ohio Supreme Court reversed the judgment of the court of appeals. The primary issue before the court was whether the assessments sought were a tax or regulatory fee. Importantly, Ohio Code specifically prohibits limited home-rule townships, such as Hamilton Township, from enacting taxes other than those authorized by general law. There was no dispute that the impact fees Hamilton County sought did not meet the requirements of any of the taxing methods as authorized by Ohio general law, and therefore their classification as a tax would render them in violation of Ohio law.

Add at the end of Note 3, NOTES AND QUESTIONS, P. 743:

For a critique of the Ohio Supreme Court’s decision in Drees, see, Alan C. Weinstein, The Ohio Supreme

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Court’s Perverse Stance on Development Impact Fees and What to Do About It, 60 CLEV. ST. L. REV. 655 (2012) (comparing the Drees decision to Homebuilders Association of Dayton and Miami Valley, discussed supra).

A NOTE ON STATUTORY AUTHORITY FOR DEDICATIONS, IN-LIEU FEESAND IMPACT FEES

Add after discussion of the Texas statute on p. 744

A new law in Utah sets standards for development review fees. The new law requires local governments to provide justification for the fees that are charged as a general practice and to conform with existing provisions in state code. It also requires that upon request, local governments must provide the basis for any fee charged and an accounting of where fees go and what they are expended for. A local process for appeal of fees must also be established. See 2011 Utah New Laws, H.B. 78. (http://le.utah.gov/~2011/bills/hbillenr/hb0078.pdf)

A new Colorado law requires local governments who collect impact fees for capital expenditures as a condition of approval of land development to annually post on their official websites information about these fees. 2011 New Laws, H.B. 1113. The posted information must include the amount of each collected land development charge allocated to an account or accounts, the average annual interest rate on each account, and the total amount disbursed from each account during the most recent fiscal year.  The bill also requires that the information be presented in a clear, concise and user-friendly format.  Language in the new law specifically exempts municipal and county governments that do not have a web site. (http://e-lobbyist.com/gaits/text/203853/203853.pdf )

Add to Note 1 “Review and Approval Process,” NOTES AND QUESTIONS, P.749:

For an example of the stages of review for a master planned development, see Moab Local Green Party v. Moab City, 276 P.3d 1230 (Utah App. 2012) (upholding the City Board of Adjustment’s preliminary approval of a MPD).

Add to end of Note 1, NOTES AND QUESTIONS, P. 754:

In Seminole Tribe of Florida v. Hendry County, 106 So. 3d 19 (Fla. Dist. Ct. App. 2013), the Seminole Tribe of Florida petitioned for a writ of certiorari seeking to challenge the rezoning of land for a PUD. The Seminole Tribe argued that the PUD violated the Local Development Code, was incompatible with the Big Cypress Seminole Indian Reservation, and was inconsistent with the County’s Comprehensive Plan. The court discusses the lower court’s application of Florida law to the Seminole Tribe’s arguments and denies the petition.

A NOTE ON OFFICE-HOUSING LINKAGE PROGRAMSC. PLANNED UNIT DEVELOPMENTS (PUDs) AND PLANNED COMMUNITIES

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PLANNED UNIT DEVELOPMENT AS A ZONING CONCEPT,NOTES AND QUESTIONSCity Of Gig Harbor v. North Pacific Design, Inc.NOTES AND QUESTIONSCheney v. Village 2 At New Hope, Inc.NOTES AND QUESTIONSA NOTE ON PUD PROJECT APPROVAL STANDARDS

Add to the end of subsection Project approval standards, immediately before subsection Design, P. 763: For an interesting discussion on standing to challenge the creation of a PUD, see Ray v. Mayor & City Council of Baltimore, 36 A.3d 521 (Md. App. 2012). There, the court analyzed whether the appellants met the condition under a Maryland statute that a party must be “aggrieved” by the decision of the board for zoning challenges. The court provided that presumptive prima facie aggrievement requires that the property owner must be “adjoining, confronting, or nearby” the affected property. Otherwise, a party whose property is far removed bears the burden of proving by “competent evidence” that his personal and property rights are “specially and adversely” affected.

Add to the end of “Project approval standards” on p. 764, before “Density”

For an interesting discussion on the approval standards for planned developments, see Tagliarini v New Haven Board of Alderman, 2011 Conn. Super. LEXIS 1022. A neighboring property owner appealed creation of a Planned Development District (PPD) for Yale University as “arbitrary and illegal substantively.”  The Court upheld the approval, determining that it would not interfere with local legislative decisions unless an abuse of discretion or action contrary to law occurred, meaning that the zone change must be in accord with a comprehensive plan and it must be reasonably related to the normal police power purposes enumerated in the city’s enabling legislation.  The court concluded that the Board acted in the best interests of the entire community and therefore met the first prong of the test since there was a comprehensive plan.  The second prong was also met since the PPD zone change was related to the normal police power purposes found in the city’s enabling legislation.  The court found that by granting the application, the Board was improving economic development, there was a positive environmental impact, and surrounding property values were not negatively impacted.  Since both prongs of the test were met the court concluded that the Board did not act arbitrarily or illegally.

PROBLEM

Chapter 8 GROWTH MANAGEMENT

B. AN INTRODUCTION TO GROWTH MANAGEMENTE. KELLY, PLANNING, GROWTH, AND PUBLIC FACILITIES: A PRIMER FOR LOCALOFFICIALS 16NOTES AND QUESTIONS

Add to Note 2, p. 770:

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A recent report by Smart Growth America finds that smart growth brings the following savings:

• In general, smart growth development costs one-third less for upfront infrastructure.• Smart growth development saves an average of 10 percent on ongoing delivery of services.• Smart growth development generates 10 times more tax revenue per acre thanconventional suburban development.

Smart Growth America, Building Better Budgets: A National Examination of the Fiscal Benefits of Smart Growth Development (May 2013), available at http://www.smartgrowthamerica.org/documents/building-better-budgets.pdf. The report points out:

In 2010, local governments in the United States raised and spent $1.6 trillion, representing more than 10 percent of the U.S. gross national product. Of that, approximately one-third—$525 billion—was expended on projects and activities that are heavily affected by local development patterns That means future decisions about where to build will have implications for one-third of a typical municipality’s budget. [Id. at 1.]

Add to Note 5 “Growth management and market monopoly” at p. 772

Article

Russell-Evans & Hacker, Expanding Waistlines and Expanding Cities: Urban Srawl and its Impact on Obesity, How the Adoption of Smart Growth Statutes Can Build Healthier and More Active Communities. 29 Va. Envtl. L.J. 63 (2011).

The Urban Lawyer published by the American Bar Association devoted a double issue to infrastructure: The Urban Lawyer, Vol. 42, No. 4/Vol 43, No. 1, Fall/Winter 2010/2011; http://www.americanbar.org/publications/urban_lawyer_home.html

Add to Note 7, p. 772:

Articles

Anderson, Sprawl's Shepherd: The Rural County. 100 Cal. L. Rev. 365 (2012), Recent Development, Growing Pains: Maryland's Struggle to Introduce Smart Growth to a Growing Population, 18 U. Balt. J. Envtl. L. 79 (2010). For a symposium on growth management see 78 J. Am. Plan. Ass'n 5-103 (2012), especially an introductory article by Professor Chapin on an emerging fourth wave.

Russell-Evans & Hacker, Expanding Waistlines and Expanding Cities: Urban Srawl and its Impact on Obesity, How the Adoption of Smart Growth Statutes Can Build Healthier and More Active Communities. 29 Va. Envtl. L.J. 63 (2011).

The Urban Lawyer published by the American Bar Association devoted a double issue to infrastructure: The Urban Lawyer, Vol. 42, No. 4/Vol 43, No. 1, Fall/Winter 2010/2011, available at http://www.americanbar.org/publications/urban_lawyer_home.html

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PROBLEMC. GROWTH MANAGEMENT STRATEGIES

[1.] Quota Programs[a.] How These Programs Work[b.] Takings and Other Constitutional Issues: The Petaluma Case

NOTES AND QUESTIONSZuckerman v. Town Of HadleyNOTES AND QUESTIONS

[2.] Facility-Related Programs[a.] Phased Growth Programs

Golden v. Ramapo Planning BoardNOTES AND QUESTIONS

[b.] Adequate Public Facility Ordinances and Concurrency Requirements[i.] Adequate Public Facilities Ordinances

NOTES AND QUESTIONSMaryland-National Capital Park And PlanningCommission v. RosenbergNOTES AND QUESTIONS

Adequate Public Facilities Ordinances

Add to Note 1 “Making APF ordinances work,” p. 803

For a case in which the court held the city failed to follow the requirements in its own ordinance and failed to make adequate findings of fact see Anselmo v. Mayor of Rockville, 7 A.3d 710 (Md. App. 2010).

Add new Note 4, p. 804

4. New York State Smart Growth Public Infrastructure Policy Act N.Y. Envtl. Conserv. L. § 6-0101 et seq.

Recently adopted legislation in New York provides that “no state infrastructure agency shall approve, undertake, support or finance a public infrastructure project” unless it is consistent with criteria provided by the Act. N.Y . Envtl. Conserv. L. § 6-0107. These are some of the statutory criteria:

●To advance projects in developed areas or areas designated for concentrated infill development in a municipally approved comprehensive land use plan, local waterfront revitalization plan and/or brownfield opportunity area plan

●To foster mixed land uses and compact development, downtown revitalization, brownfield redevelopment, the enhancement of beauty in public spaces, the diversity and affordability of housing in proximity to places of

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employment, recreation and commercial development and the integration of all income and age groups

●To promote sustainability by strengthening existing and creating new communities which reduce greenhouse gas emissions and do not compromise the needs of future generations, by among other means encouraging broad based public involvement in developing and implementing a community plan and ensuring the governance structure is adequate to sustain its implementation.

[ii.] ConcurrencyPROBLEM

[c.] Tier Systems and Urban Service Areas[3.] Growth Management in Oregon: The Urban Growth Boundary Strategy

Mandelker, Managing Space to Manage GrowthNOTES AND QUESTIONS

Add to Note 7, p. 814:Adler, Oregon Plans: The Making of an Unquiet Land-Use Revolution (2012); Walker & Hurley, Planning Paradise: Politics and Visioning of Land Use in Oregon (2011) (discusses problems with urban growth boundary expansions and other state planning goals implementation problems, and identifies issues to be considered that are challenging the program); Sullivan, The Quiet Revolution Goes West: The Oregon Planning Program 1961-2011, 45 J. Marshall L. Rev. 357 (2012).

Hildebrand v. City Of Adair VillageNOTES AND QUESTIONS

Add to Note 1, p. 819:1000 Friends v. Land Conservation & Dev. Comm'n, 259 P.3d 1021 (Or. App. 2011), reaffirmed the rules for boundary expansions.

[4.] Growth Management Programs in Other States[a.] Washington

Add to Urban growth areas paragraph, p. 822:

Add to Rural areas paragraph p. 822:Kittitas County v. Eastern Wash. Growth Mgmt. Hearings Bd., 256 P.3d 1193 (Wash. 2011) held the rural areas element of the county's comprehensive plan was inadequate. Some of the problems were that it did not contain policies that adequately protected rural areas, included non-rural densities and uses, did not provide for a variety of uses, and allowed impermissible uses.

Density Limits: The court reversed the Growth Management Hearings Board’s approval of a county’s comprehensive plan under the Growth Management Act in Suquamish Tribe v. Central Puget Sound Growth Mgmt. Hearings Bd., 235 P.3d 812 (Wash. App. 2010). It rejected the county’s use of “bright line” density rules and held, in part, that the county improperly used a bright line density of four units to the acre in deciding whether an Urban Growth Areas should be expanded. On remand, the Board was “to consider the current, specific local circumstances before resolving the issue of appropriate densities to be used in the County's revisions to its comprehensive plan,” and to decide whether four units to the acre was an appropriate urban density for the county. The court also rejected aspirational design standards the county adopted to preserve rural character.

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The Department of Commerce has published a new Urban Growth Area Guidebook (Nov. 2012), available at http://www.commerce.wa.gov/Documents/GMS-UGA-Guidebook-Final-2012.pdf. The Department of Community, Trade & Economic Development was renamed the Department of Commerce, which oversees the growth management program. Futurewise is supporting legislation to provide "new tools to facilitate affordable and sustainable infill development – like Value Capture Financing." 

[b.] Vermont

The growth centers legislation was amended in 2013. It is available at http://leg.state.vt.us/docs/2014/Acts/ACT059.pdf . The law revises designation criteria for downtowns and village centers. It designates areas appropriate for development based on their connection to a village or downtown, with a special emphasis on walkability. Communities that are "development ready" recieve certaian exemptions, such as exemption from Act 250 for bcenefits of a certain size. Revitalization is linked to local planning. The Department of Housing and Community Development is to review the growth center and new town designation programs to decide whether they should be amended and continued. The amendments state: “A large percentage of future growth should occur within duly designated growth centers that have been planned by municipalities in accordance with smart growth principles and Vermont’s planning and development goals....”

Smart Growth Vermont has now become part of the Vermont Natural Resources Council, vnrc.org

[c.] Hawaii

Add at end of section:For a review of the program see Callies, It All Began in Hawai'i, 45 J. Marshall L. Rev. 317 (2012).

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Add new “[d.] Florida” on p. 826:

[d.] Florida

Drastic Changes in Florida’s Growth Management Program

Legislation adopted in 2011 made drastic changes in the state’s growth management program. Here are some of the highlights:

● The Department of Community Affairs (DCA), which was responsible for the growth management program, has been eliminated and its state land planning agency functions included as a division in the new Department of Economic Opportunity. The number of planners assigned to the planning function has been substantially reduced.

●The critical DCA rule specifying requirements for complying with the growth management program has been repealed, though many of its provisions are now incorporated into legislation. This includes its definition of urban sprawl, and the requirement for an urban sprawl analysis in comprehensive plans.

● The periodic Evaluation and Appraisal Report is no longer mandatory; but local governments must notify the state whether they will choose to conduct it.

● Provisions for energy efficiency and greenhouse gas reduction have been eliminated.

●The requirement, that a comprehensive plan may only be amended twice a year, has been eliminated.

●The state concurrency requirement for transportation, schools, parks and recreation facilities is made optional with local governments.

●The burden of proof in cases challenging the compliance of a comprehensive plan or plan amendment with statutory requirements has been weakened. For example, in challenges in private litigation, a plan or plan amendment it will be enough if a local government’s determination of compliance is fairly debatable.

The legislation also prohibits local referenda for development orders and comprehensive plan amendments. For a powerpoint presentation on the amendments see http://www.dca.state.fl.us/fdcp/dcp/compplanning/Files/DCAGrowthManagementWorkshopPresentation.pdf. For the text of the bill see http://laws.flrules.org/2011/139. See http://www.dca.state.fl.us/fdcp/dcp/compplanning/Files/7207FAQs.pdf, for FAQS on the legislation. The governor vetoed funding for the regional planning agencies.

For discussion see Stroud, A History and New Turns in Florida's Growth Management Reform, 45 J. Marshall L. Rev. 397 (2012).

[5.] An Evaluation of Growth Management Programs

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Add to Sources, p. 827:

[6.] Mandelker, Implementing State Growth Management Programs: Alternatives and Recommendations, 45 J. Marshall L. Rev. 307 (2012).

D. CONTROLLING GROWTH THROUGH PUBLIC SERVICES AND FACILITIES[1.] Limiting the Availability of Public Services

Dateline Builders, Inc. v. City Of Santa RosaNOTES AND QUESTIONS

[2.] Corridor PreservationNOTES AND QUESTIONS

Add to Note 2, p. 834:

Chevere v. City of New York, 920 N.Y.S.2d 572, reviews the New York cases. See Comment, Official Maps and the Regulatory Takings Problem: A Legislative Solution. 2011 BYU L. Rev. 2251 (2011).

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Chapter 9 AESTHETICS: DESIGN REVIEW, SIGN REGULATION AND HISTORIC PRESERVATION

A. AESTHETICS AS A REGULATORY PURPOSENOTES AND QUESTIONS

B. OUTDOOR ADVERTISING REGULATIONPROBLEM

[1.] In the State CourtsMetromedia, Inc. v. City Of San DiegoNOTES AND QUESTIONSA NOTE ON THE FEDERAL HIGHWAY BEAUTIFICATION ACT

[2.] Free Speech IssuesMetromedia, Inc. v. City Of San DiegoNOTES AND QUESTIONS

Add to Note on p. 863 immediately before “Sources”:

Sign Regulation and Free Speech.

Exemptions, Content Neutrality: Brown v. Town of Cary, 706 F.3d 294 (4th Cir. 2013) took a lenient view of the content neutrality requirement in a case in which it upheld exemptions of holiday displays and public art in a sign ordinance. The court held that "the Sign Ordinance's exemptions reasonably advance the legislative interests of traffic safety and aesthetics." It adopted the pragmatic view it took of content neutrality it took in Wag More Dogs, noted below, disagreed with "sister circuits" that had taken a formalistic view, and held an ordinance is not content-based simply because it is necessary to read a sign's content to decide whether an ordinance applies. It also upheld size, color and positioning restrictions. For a case taking a similar view of content neutrality see Reed v. Town of Gilbert, 707 F.3d 1057 (9th Cir. 2013). The court also rejected the "need to read" rule and upheld an exemption for temporary signs.

Special Use Permit; Vagueness: CBS Outdoor, Inc. v. City of Kentwood, 2010 U.S. Dist. LEXIS 107172 (W.D. Mich. Oct. 6, 2010), upheld a special use permit provision in a sign ordinance as a time, place and manner regulation. It regulated “the location and physical characteristics of signs and their compatibility with existing structures and facilities,” and so established standards that related to the significant interests of the city in regulating billboards. However, the court held that several standards for special uses were unconstitutional because they were not objective and definite. These included standards requiring that the special use must “"[b]e designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance, with the existing or intended character of the general vicinity," and that "The construction or maintenance of a billboard may not act as a detriment to adjoining property, act as an undue distraction to traffic on nearby streets, or detract from the aesthetics of the surrounding area."

Political Signs: Kolbe v. Baltimore County, 730 F. Supp. 2d 478 (D. Md. 2010), upheld an eight-foot square size limit that was applied to prohibit a campaign sign that was regulated as part of a provision regulating “temporary” signs. The requirement was content-neutral because it applied regardless of the content of the sign and advanced legitimate aesthetic and traffic safety interests of the county. Ample alternative means of communication existed, because the county does not limit the number of signs and is not enforcing durational limits.

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Murals; Vagueness: Wag More Dogs, LLC v. Artman, 680 F.3d 359 (4th Cir. 2012), held that a 960-square-foot cartoon mural of dogs, bones, and paw prints on the rear wall of a canine day care business facing a park used by dog owners violated a 60-square-foot size limit. The ordinance was content-neutral because it regulated land use, and did not regulate speech because of a disagreement of message. Neither did the varying treatment of signs convert the ordinance into a content-based regulation. The county properly adopted the ordinance to advance its traffic safety and aesthetic interests. The cartoon dogs were properly classified as commercial speech. Dogs were included from the business logo, and the cartoon was economically motivated. The definition of a sign as "any word, numeral, [or] figure . . . [that] is used to direct, identify, or inform the public” was not unconstitutionally vague. Standards in the ordinance for granting exemptions were adequate and not an unconstitutional prior restraint on speech.

A NOTE ON FREE SPEECH PROBLEMS WITH OTHER TYPES OF SIGNREGULATIONS

Add to “Sources” on p. 863

Book:

Mandelker, Free Speech Law for On Premise Signs (2012), provides a comprehensive review of free speech law as applied to on premise sign regulation. It is available for download on the course web site and at www.ussc.org.

Articles:

Miller, Historic Signs, Commercial Speech, and the Limits of Preservation, 25 J. Land Use & Envtl. L. 227 (2010).

Sharpe, "Between Beauty and Beer Signs": Why Digital Billboards Violate the Letter and Spirit of the Highway Beautification Act of 1965, 64 Rutgers L. Rev. 515 (2012); Note, Something's Brewing Within the Commercial Speech Doctrine, 46 Val. U.L. Rev. 607 (2012); Note, Environmental Aesthetics and Free Speech: Toward a Consistent Content Neutrality Standard for Outdoor Sign Regulation, 2 Mich. J. Envtl. & Admin. L. 185 (2012).

Comment, "Hey! Look at Me!": A Glance at Texas's Billboard Regulation and Why All Roads Lead to Compromise, 44 Tex. Tech. L. Rev. 429 (2012).

URBAN DESIGN[3.] Appearance Codes

State Ex Rel. Stoyanoff v. BerkeleyNOTES AND QUESTIONS

[4.] Design ReviewIn re Pierce Subdivision Application

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NOTES AND QUESTIONS

Add to Note 5, p. 877:

E. Talen, City Rules: How Regulations Affect Urban Form (2012).

97

A NOTE ON DESIGN GUIDELINES AND MANUALS[5.] Urban Design Plans

A NOTE ON VIEW PROTECTIONC. HISTORIC PRESERVATION

NOTES AND QUESTIONS[1.] Historic Districts

Figarsky v. Historic District CommissionNOTES AND QUESTIONS

Add immediately before Notes and Questions, p. 895

Historic Preservation

[3]. Due Process, Equal Protection, Spot Zoning: In Ely v. City Council, 2010 Iowa App. LEXIS 673 (Iowa App. June 30, 2010), the court upheld the designation of a home as an historic landmark that had been used to house African-American students at the university when they were denied housing elsewhere. It is also an example of the Craftsman architectural style. The court held that neighbors do not have a protected property interest in the historic landmark status of adjoining properties sufficient for a procedural due process claim. There was no equal protection violation because “Promoting preservation of historical and cultural lands has been found to be a legitimate government interest to support the differing treatment of properties.” Neither was there a spot zoning because the historic and cultural significance of the property was a reason for distinguishing it from the surrounding area. See also Baltimore St. Parking Co., LLC v. Mayor & Balt., 5 A.3d 695 (Md. 2010) (rejecting claim of procedural due process violations).

[2.] Historic LandmarksNOTES AND QUESTIONS

Add to Sources, p. 898

Articles

Note: Post-Kelo Eminent Domain Reform: A Double-Edged Sword for Historic Preservation, 63 Fla. L. Rev. 985 (2011).Note, Smash or Save: The New York City Landmarks Preservation Act and New Challenges to Historic Preservation, 19 J.L. & Pol'y 271 (2010).

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Brindell, "Improving the Standards and Process of Historic Designation," 44 Urb. Law. 265 (2012); Byrne, Historic Preservation and its Cultered Despisers: Reflections on the Contemporary Role of Preservation Law in Urban Development, 19 Geo. Mason L. Rev. 665 (2012); Note, Improving Tax Incentives for Historic Preservation, 90 Tex. L. Rev. 1041 (2012); Note: Post-Kelo Eminent Domain Reform: A Double-Edged Sword for Historic Preservation, 63 Fla. L. Rev. 985 (2011);Note, Smash or Save: The New York City Landmarks Preservation Act and New Challenges to Historic Preservation, 19 J.L. & Pol'y 271 (2010); New York City's Landmarks Law at Forty-Five: Perpetually Young or Showing Its Age?, 18 Widener L. Rev. 267 (2012); Baccash, The New York City Landmarks Law: Embracing Litigation and Moving Toward a Proactive Enforcement Philosophy, 18 Widener L. Rev. 159 (2012).

A NOTE ON FEDERAL HISTORIC PRESERVATION PROGRAMS[3.] Transfer of Development Rights as a Historic Preservation Technique

NOTES AND QUESTIONSFred F. French Investing Co. v. City Of New YorkNOTES AND QUESTIONSA NOTE ON MAKING TDR WORK

Table of Cases

Index

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