LAND USE CONTROLS FINAL OUTLINE

I.

THE EVOLUTION OF THE ZONING POWER AND PRACTICE

A.

Nuisance
1.

Zoning derives from nuisance; a new way of doing an old thing environmental law is child of land use.

Boomer Case- Relative Impact Test- Show 1) nuisance; 2) substantial impact; 3) relative impact balance injunction

If an injunction will cause more harm than good, you can only get other remedies

Spur Case- a later case that had to do with whether or not P had to be indemnified for having to move their business b/c it created a nuisance.
2.

Why Nuisance No Longer Works?

a. b. c.

Reactive rather than preventative Can change broader land use patterns only by deterrence Nuisance is left in the hands of judges who dont have any particular training in land dev.

Zoning- you can bring in experts who know about land use and development.

d.

Piecemeal rather than comprehensive nuisance takes care of problems one at a time.

B.

Background
1.

Why Zoning Came about

a. b.

Rapid industrialization Rapid rate of urban growth- migration from overseas and from the southern states to northern states.

c.

Social engineering- smart, forward looking people can make plans based on perceived future needs (proven later not to be true).

d.

New ideal about residential life and family living

Every family needs its own home with a garden and a yard. Families need separation from:

City Other people

e.

Legal Hurdle- nuisance analogy was used as the brute strength behind the reg. of land use.

Argument for Lawfulness- If government has always been able to regulate land use by nuisance, it should be able to up date the concept in the from of zoning controls.

f.

Model Zoning Ordinance (SZEA)(1920)created during the progressive era.

2.

Zoning as extension of regulatory power

a.

Ongoing argument that zoning is per se unconstitutional (unlikely to be uprooted though)

b.

Zoning is practiced almost every where in the country

3.

Criticisms Against Zoning

a.

Market- economic argument, govt cant make the correct choice about the use of land

I.e., The people who value the resource the most should use it.

b.

Libertarian- zoning is unjust, private property owner should have the right to use the land as they see fit.

Private property has historically been highly protected.

c.

Leftist- zoning can be used to discriminate there is a relationship b/t affordable housing and zoning laws.

E.g. mobile and manufactured homes are aggressively excluded in most zoning plans.

C.

Typical Land Use Disputes Involve:

1. 2.

Developer: Owns land or holds an option to purchase the land Neighbors of land in dispute: in some way threatened by externalities of the proposed site
i. ii.

Doesnt have to immediately abut the property Could also be competitors

3.

Local Government: government determines what land will be zoned and makes decisions between competing interests.

Local government includes:

Local legislative entity (city council) (in charge of comprehensive plan) Board of Adjustments or Zoning Appeals (adjudicative body) Zoning Administrator (usually only in lg. cities, takes role of citizens adv. board)

ii.

Local Governments 4 Tools to Regulate Developers:

a.

Comprehensive Plan- consists principally of

statements of goals; and maps that establish use and density guidelines for various districts and project future public improvements.

b.

Zoning Ordinances- controls

Building bulk Size and shape of lots Placement of buildings on lots

Uses to which the land and buildings may be put

Ordinance defines the boundaries of various zones, and the substance of the controls vary from zone to zone.

c.

Subdivision Regulation- gives local officials the power to control the location and design of streets, sewers, parks, and other infrastructure, and the leverage to make developers pay for most of the improvements.

d.

Building and Related Codes- regulate the materials and designs permitted in new structures. Some have control over signs, architectural styles, and the alteration of historical buildings.

Euclidean Zoning Village of Euclid v. Amber Realty (1926) (89)

o

Issue: Is the ordinance invalid if it violates the constitutional protection to the right of property in the owner by attempted regulations under the guise of the police power, which are unreasonable and confiscatory?

Holding: No, the ct. finds a rational relationship between the excluded uses and the health and safety of the community. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.

TEST- Is the provision clearly arbitrary and unreasonable? If it is, it is invalid.

Ripe Case- Ct. says that P must show that city is UNREASONABLE. Not Ripe- Ct. says that if the statute is attacked generally (no Harry Hiker), then the city must simply show some plausible benefits (health/safety) and the statute will be upheld.

4.

Euclidean Zoning Encompasses:

a.

Intensity of Use- more intense uses should be separated from less intense uses Health and Safety Aesthetic and Social Issues

b. c.

E.g. families need open space, density is ugly.

d.

Planning can reasonably anticipate the future.

Zoning is comprehensive Zoning is final, so not subject to future change

e. 5.

Zoning is cumulative (uses build upon uses) Existing Uses- cant change present uses, so let them stay Zoning is increasingly non-cumulative

Changes from Euclidean Zoning:

a.

b.

Industry must be protected from residential users and vice versa Zoning is becoming exclusive and not cumulative

c.

Zoning has become a piecemeal process

Little faith that the land use will actually match the original map Case-by-case decision making process No attempt to direct the future in as grand of a way as Euclidean Zoning had intended.

d.

No longer a belief that a single plan can last

6.

Modern Zoning Ordinances

a.

Zoning Ordinance has Two Parts:

Map- classifies the citys land into zoning districts Text- spells out the uses permitted in each zone and details restrictions on lot size,

building placement, building height, and similar issues.

b.

Modern Zoning Maps Characteristics:

Maps confirm existing use patterns Map assigns most undeveloped tracts to holding zones (more restrictive zoning than is actually needed to be negotiated down later).

Maps are more narrowly defined and numerous.

7.

Caveats/Policy:
a. b.

Creating new zones improves a citys bargaining position b/c more ad hoc deal are possible Light industrial uses are more likely than single-family homes to contribute taxes sufficient to pay for the municipal services they consume.

c.

Local governments may favor non-cumulative zoning b/c it promotes efficiency where industrial and residential users need different types of infrastructure.

d.

Development of other users in industrial districts may limit existing industries ability to expand, may precipitate conflicts, and may expose the industrial uses to nuisance or toxic tort suits.

II.

THE TOOLS OF ZONING:

o

VARIANCES Permits a non-conforming use which occurs after the zoning standards have been set to be legalized

Non-conforming uses are permitted to remain under some special conditions (grandfathered)

o o

BZA has the final word on granting a variance Most zoning ordinances are taken out of the SCZA

Variances were supposed to operate like the equity powers of the courts

Safety Valve- Allows some flexibility (at least in the beginning) Most variance laws have now become laws instead of exceptions

o o

Variances allow zoners to overcome possible takings problems More variances are issued than there are actual takings problems, but it is better to be over giving than to have a bunch more takings cases.

Variances are more than likely to be granted if no one opposes it (or no one voices opposition) You are overwhelmingly likely to win if you challenge a variance in court.

Matthews v. Smith (MO 1986) (321)

Issue: two single family residences sit on 1 acre lots (have been for 30 years) Two Tests: USE VARIANCE & AREA VARIANCE

Definitions:

Use Variance- one that permits a use other than one of those prescribed by the zoning ordinance in the particular district.

Area Variance- deviations from restrictions that relate to permitted use.

E.g. bulk buildings, height, size, and extent of lot coverage or minimum habitable area therein.

USE VARIANCE TEST- UNECESSARY HARDSHIP- must prove all 3:

1.

No Reasonable Return

Does not maximize return Must show that he/she will be deprived of all beneficial use of the property under any of the permitted uses

2.

Unique Unnecessary Hardship-

Unique hardship to property in question (not a hardship shared w/ others or generally)

3.

Use Will Not Change the Essential Character of the Locality

Look to see if there is an increase in density in the neighborhood

AREA VARIANCE TEST- PRACTICAL DIFFICULTIES- no single factor controls, balancing test:
1. 2. 3. 4.

No reasonable return? Is the variance substantial? Essential character of neighborhood is changed? Granting variance will interfere with delivery of government services? Did property owner purchase property with knowledge of zoning restrictions? Can the problem be obviated by some other means? Is the spirit and intent of the zoning ordinance kept?
1.

5.

6. 7.

Notes:
a.

Classification- the type of variance becomes an important issue because the classification determines the test used.

b.

Use variances are much more controversial than area variances because the can quickly undermine Euclidean efforts to separate uses.

c.

Difficult for courts to enforce substantive standards for grant of variances if the record is incomplete or cursory.

d.

Inherently beneficial- commercial uses (such as for profit retirement homes, day care centers, and the like) enjoy a more favorable variance test (easier test).

e.

Self-Created Hardship- variance is not available if the hardship is self-created.

Arise in Three Ways:

Applicant subdivides a tract Applicant develops property in violation of zoning restrictions Applicant purchase property knowing that it is not economically feasible to develop the property unless a variance is granted

f.

Steady Leak- the safety valve has now become a steady leak, the exception has become the rule.

B.

SPECIAL EXCPETIONS/ CONDITIONAL USE

1.

General Principles:
i.

Definition: local legislative body identifies unusual uses that are apt to special sitting problems (service stations, houses of worship, schools, etc.) and declares in what zones and under what conditions they are to be permitted.
a.

Created to give flexibility but creates risks which may arise because a particular location Zoning Ordinance of the particular city sets special criteria which when met allows for a permit to be granted.

b.

c.

BZA has power to grant or deny permits (power from city council)(judicial in nature)

2 Questions:

Did the local government adhere to the criteria in the zoning ordinance? Did the local government delegate powers in ways that are consistent with the zoning enabling act?

Gladden v. District of Columbia Board of Zoning Adjustment (D.C. 1995)

Issue: Are BZAs hands tied because they have no discretion once the requirements for a special use permit have been met? (special use permit requested for a youth treatment program house).

Holding: special uses, unlike variances, are expressly provided for in Zoning Regulations. The [BZAs] discretion to grant special exceptions is limited to a determination whether the exception sought meets the requirements of the regulation.
o

TWO STANDARDS OF REVIEW ON APPEALS:

Rational Basis- is there a rational basis for the BZAs decision?

Cannot be arbitrary and capricious Simply must find that there is some plausible, rational ground for reaching the conclusion reached.

Substantial Evidence In the Record

Talks about the facts used by the BZA in coming to their final decision. There must be substantial evidence of the fact that the reviewing court used.

Notes:
o

Flexibility- A too well defined exception ordinance would decrease the flexibility that exception/conditional use is intended for.

Burden of Proof- the applicant has the initial burden of proof, but once that is met the burden is shifted to the objectors to prove that the proposed use would pose a substantial threat to the community or violate other similarly general criteria.

Record- many courts require the agency deciding the application to state on the record its reasons for granting the exception.

Exceptions Denied- An exception should only be denied upon proof that the proposed use would result in an adverse effect on neighboring properties unique and different from the inherently adverse effects that would result from the development of the building.

C.

ZONING AMENDMENTS/ REZONING

1.

Rezoning- local power (legislative body) to amend or rezone local ordinances Overviewa. b.

2.

This is one of the most disputed and controversial areas Legislative body is an inherently political body

Triggers concerns about legitimacy and capacity of local government decisions Actions of legislative bodies are given greater deference

Fears of unfairness, deceit, and abuse of power

c.

Courts are ratcheting up the standard of review because they feel that rezonings are granted too often and for the wrong reasons.

HEIGHTENED RATIONAL BASIS REVIEW

Moderately heightened standard is supposed to uncover corruption and shield the decision from judicial review.

d.

Deal Making: Tension between Planning and Dealing

Dealing- city council zones more restrictive than they would prefer in order to gain leverage.

Leverage may be in the form of benefits to local property owners, local government, or personal benefits for the legislative body.

Planning- zoning is final, foresight in changes of needs of community.

Courts may base their standard of review on whether or not they accept the planning or dealing approach.

4 Natural Objects of Governments affection in dealing:

Community at large Neighbors Local officials Land owners who succeed in getting rezonings

e.

Distinction between public interest and public choice politics:

Public Interest- political actors make decisions in order to advance the public good.

Public Choice- politicians seek to do things that will get them reelected. People, generally, also use rezoning in order to maximize their own wealth.

Growth Machine model- predicts that governments will support developers requests for rezoning if the proposed development will increase the citys net tax revenues.

f.

Standards of Review for Legislative Actions (usually paired together):

Rational Basis- was the decision plausible, does not have to be rational

Did the decision maker have the power and does the decision serve a legitimate governmental end?

Arbitrary and Capricious

Did the decision maker articulate a rational basis for the decision based on the evidence?

If the decision fails to offer an explanation or the explanation runs counter to the evidence.

Is it so implausible that it screams that something else is going on.

Griswold v. City of Homer (AK 1996)

Facts & Outcome: Man seeks to return use of land to automobile lot. Man is granted rezoning.
3.

SPOT ZONING TEST

a.

Definition of Spot Zoning- the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of others.

b.

Look at:

Consistency with the Comprehensive Plan

Does the plan provide for the use in the future or is it in pursuit of future goals?

Effects of small-parcel zoning on owner and community

Benefit and detriments to the community? Benefits to land owner? Size of are has been called more significant than all other factors in determining the presence of spot zoning.

Size of rezoned area

Look at size and shape of rezoned area

4.

Attempt to separate the legislative from the quasiadjudicative function of the legislative body.
a.

Planned legislative zoning receives a deferential standard

b.

Quasi-judicial actions by legislative body may be held to a higher standard of review.

If there is a particularized interest, then a heightened standard of review.

Is the legislative body acting like a court?

5.

Notes:
a.

Spots v. Slops- Courts often find spot zoning in situations where the newly implanted zone is entirely surrounded by other zones, but less likely to find spot zoning when the rezoning has slopped over by extending the perimeter of an existing zone to include the rezoned area.

More likely not to be considered spot zoning if:

New use is compatible with current use; OR Area is characterized by mixed uses, or areas in transition.

6.

Absence of Change or Mistake

a.

MD courts adopted rule that a piecemeal zoning map amendment may only be adopted where there has been a substantial change in the character of the neighborhood or where there is a mistake in the prior zoning classification.

Rule does not apply to comprehensive rezonings. Rule has been specifically rejected in some states.

Ways to increase judicial review:

Accord less presumptive legitimacy to local government decisions per se Scrutinize spot zoning Separate legislative from adjudicative or quasi judicial functions Require change of conditions Require conformity with comprehensive plan CONTRACT ZONING/ INCENTIVE ZONING
1.

o o

o o D.

Contract Zoning/ Conditional Zoning

i.

Definition:
a.

K zoning is when the developer makes a K with the city for mutual consideration Conditional Zoning is structured so that government doesnt commit itself to anything in response to the landowners self-imposed conditions.

b.

Government is bargaining away its powers by entering into contract zoning deals. Seems to hide the zoning decision from the public, the hearing becomes a mere formality.

c.

Criticisms of Contract Zoning:

This is basically a type of spot zoning Uniformity Requirement- you cannot single out particular parcels in the zone to meet different requirements

Corruption or Appearance of Favoritism:

K zoning allows the zoning power to be prostituted for the special benefit of the developer.

d.

Response to Criticism:

Spot zoning has become more acceptable

K zoning must be calculated to achieve a specific goal and must be aimed at the welfare of the general public.

Efficiency:

K zoning will increase in efficiency if developer is forced to internalize all of the costs of the rezoning.

Invalidation

Where K zoning is found to be illegal, neighbors and other third parties can have the deal voided and the rezoning rolled back.

Allred v. City of Raleigh (NC 1971)

Facts: P seeks rezoning to R-10, on multiple occasions, to build luxury, high-rise apartments. P promises to give city plans to the city detailing how the apartments will be built. City rezones based on Ps promised type of building.

Holding: City failed to consider whether all uses allowed in R-10 would be appropriate. City should not have granted the permit based on a promise to only develop in a specific way.
o

No certainty that the development would be what P said it would be. P could decide to do something different or sell property and not tell new owner about promises to city.

Chrismon v. Guilford County (NC 1988)

Facts: P runs a grain business and chemical business (predates zoning). Man moves part of business to newly acquired property where neighbors complain.

Holding: Ct. adopts conditional use zoning as a viable method of zoning.

Contract v. Conditional Use Zoning-

Contract zoning- landowner strikes a deal with the city; reciprocal promises given in consideration

Bilateral contract where parties make reciprocal promises. City abandons its decision-making authority by binding itself contractually with the landowner.

Conditional Use- unilateral agreement from landholder to city to limit use of property.

Open a whole area to conditional use zoning. A unilateral promise from the landowner to the local zoning authority as to the landowners intended use of the land

Local zoning authority maintains its independent decision-making authority

Difference is in form only and not in substance, no difference in outcome or process. The court wants to preserve the idea that the city is not bound by anything and can change its mind if it wants.

Cluster Zoning

Local government allows deviations from the minimum lot-area, setback, and frontage requirements in order to encourage the developer to cluster housing together and dedicate the saved land for recreational areas or open space.

Increases the density of land actually developed. Increased density reduces costs for roads, sewage, etc. and makes open space & rec. areas

An opposite idea to Euclidean zoning

Planned Unit Development (PUD)

Allows a mix of housing types, from single-family detached homes to multifamily townhouses or

apartments, office buildings, and other uses into primarily residential developments, or can be used to allow a range of uses within primarily industrial or retail developments.

Floating Zones

Zones specified in the zoning text, but not anchored in the zoning map until a specific project is proposed, at which time the zoning map is amended to incorporate the zone.

2.

Incentive Zoning
i.

Definition:
a.

The government offers to deregulate a parcel of land if the buyer in return does something that will benefit the city (similar to an exaction).

Landowner buys their way out of regulation at preset prices.

b.

Must look at how fairly the publics interests are being represented.

Municipal Art Society v. City of New York (N.Y. Sup. Ct. 1987)
o

Holding: Court finds that the contract with the developer provides for an illegal payment.

Government may not place itself in the position of reaping a cash premium because one of its agencies bestows a zoning benefit upon a developer. Zoning benefits are not cash items...

Increasing the bulk of a project imposes a certain burden on the local community. The Zoning Resolution provides a means by which, in return for imposition of that burden, a benefit is granted to the community.

The real problem here seems to be that it was paid in CASH.

c.

Notes:

Enforcement- what is a city to do about amenities never provided or provided at low quality?

Cluster zoning in it early stages was a type of incentive zoning.

III.

PLAN ZONING
A.

Background1.

Zoning Plan v. Zoning Ordinance

a.

CONSISTENCY- Statutes require that zoning ordinances must be consistent with the zoning plan. Why?

Desire to have substantive consistency between the plan and ordinance. Desire to change the process of zoning.

Burden Shifting- If you have a consistency requirement, it can shift the burden.

Haines v. City of Phoenix (Ariz. Ct. App. 1986)

Facts: Phoenix has municipal plan (includes height restrictions), city grants permit that allows building to be built which exceeds terms of plan.

Opinion: BASIC HARMONY STANDARD- rezoning may be in contradiction with the Zoning Ordinance, but still upheld because it is in Basis Harmony with the General Plan (Zoning Plan).

General requirements of the Zoning Plan can trump specific requirements of the Zoning Ordinance.

Written findings are not mandatory

2.

Notes:
a.

Consistency Through Vagueness

Haines may be seen to encourage local governments to adopt vague plans in order to withstand challenges.

b.

Plans as ceilings, but not floors

In states that have adopted consistency statutes, a developer may be required to comply with the stricter of the plan and the zoning provision.

Lesher Communications v. City of Walnut Creek (Cal. 1990)

Facts: Walnut has a General Plan that states its future goals for the city. The plan anticipates increases in traffic. In 1985, voters by initiative, pass a law that place a moratorium on building until traffic issues are perfected. Soon after the initiative is passed, the General Plan is changed to be in harmony with the I.

Opinion: Original Plan and new Plan are inconsistent. The Plan in place at the time the initiative was passed is the one that should be looked at.

The initiative was a zoning amendment and not a plan amendment

This case doesnt deal with whether or not initiative can amend the comprehensive plan, but the CA SC later decided that the CP can be changed by I.

City says that the city has made a bad choice in choosing an anti-growth policy.

Standard of Review- Compelling State Interest (the court wanted to strike down the initiative and consistency was used because it was an available tool).

CONSISTENCY DOES NOT MEAN MUCH IF THE VOTERS CAN CHANGE THE PLAN BY INITIATIVE (pass a rule that is inconsistent with the plan that amends the plan).

3.

Notes:
a.

Planning over zoning

Legal doctrines that elevate planning over zoning enhance the political power of

interest groups that have more control over the planning process than the zoning process.
b.

Criticisms of General Plan:

Consistency statute (CS) interferes with local autonomy CS fails to reduce corruption in the zoning process CS embraces a view of comprehensive social engineering that is unrealistic.

c.

Proponents of General Plan:

Formal plans help to ensure that zoning decisions are not arbitrary.

d.

Barriers to Plan Amendments:

Lesher-like interpretation of consistency requirements:

Encourages a local government to favor plans that severely restrict development.

Because Lesher implies that a liberal plan provision would trump a stricter zoning provision, only draconian planning preserves a municipalitys bargaining power with developers.

Municipal officials interested in striking deals want the power to readily amend a comprehensive plan to free a particular parcel from strict plan requirements.

Lesher, which is apt to induce stricter planning, thus also is likely to spawn increasing

numbers of ad hoc amendments to comprehensive plans.

IV.

NEIGHBORS CONSENT/ ZONING BY INITIATIVE AND REFERENDUM

A.

Neighbors Consent
1. 2. 3.

Neighbors likely to be informed More likely to act in their own interest Gives greater legitimacy to decision because law makers dont have to guess

City of Chicago v. Stratton (Ill. 1896)

Chicago ordinance essentially gave neighboring landowners complete authority to grant permits for potentially controversial land uses proposed by developers.

Neighbors had to defeat the proposed land use with a 2/3 majority.

Cary v. City of Rapid City (S.D. 1997)

Facts: P wants to have property rezoned in order to sell property. 40% of neighboring landowners filed a written protest and overrule the application.

Opinion:

Ordinance is unconstitutional because police power may not be abdicated or delegated without minimum standards and guidelines for their application.

The property holders who desire to have the authority to establish a restriction may do so solely for their own interests or even capriciously.

A standardless protest statute allows for unequal treatment under the law and is in clear contradiction of the protections of the due process clause of the 14th Amendment.

The ordinance provides no legislative bypass to allow for review of a protest.

4.

Notes:

a.

Establish/Wave Distinction

If govt can prohibit an activity, then empower a neighborhood group to allow the activity, why shouldnt the government be able to allow an activity, then enable a neighborhood group to prohibit it?

b.

Noxiousness

State courts have invalidated consent requirements for uses that are not noxious, but upheld those for uses that are.

c.

Buying the approval of neighbors- may be able to buy off neighbors

B.

Zoning by Initiatives and Referenda

City of Eastlake v. Forest City Enterprises, Inc. (SC 1976)

Facts: Ohio city has a referendum for zoning. Ohio SC says that referendum circumvents legislature. Holding:

When someone who holds the police power legitimately exercises it, there is no need for standards to guide their discretion.

The people hold the power, which is given to the legislature. If they decide to act for themselves rather than allowing the action to come through their representatives, that is okay.

1.

Notes:
a.

Ballot Box Zoning- Substitutive direct democracy can completely bypass the legislative and executive branches of government.

b.

Cons of initiative/referenda zoning

Inconsistent with the goal of long range comprehensive planning

Violate the notice and public hearing requirements of the zoning enabling act. If zoning enabling act specifies that a municipalitys legislative body has the power to amend the zoning ordinance, the people themselves do not also have that authority.

Rezonings are beyond the scope of initiatives or referenda. I & R dont take intensity of voter preferences into account People are ignorant decision makers More like to be captured by special interests Less likely to protect minority interests Attempt broad or systemic reform Zone property more restrictively Undo zoning changes Secure relief from restrictions where a majority of voters perceived benefits from the development that the legislative body apparently did not perceive.

c.

4 Forms of I & R Zoning:

V.

SUBSTANTIVE DUE PROCESS CHALLENGE TO ZONING DECISIONS

A.

Substantive Due Process1.

Idea that in addition to the constitutionally given right of property, there is an independent right not to have the government behave arbitrarily.
a.

Zoning- Each zoning restriction must be reasonably related to a legitimate government objective.

b.

Due process clause is construed to bar confiscatory controls and to make applicable

to state and local governments the Fifth Amendments edict against taking of property without just compensation.
2.

Substantive Due Process Really Says:

a.

IS THIS AN UNPRODUCTIVE (UNREASONABLE/INEFFICIENT/ARBITRARY) MEANS TO AN END?

b. c. B.

DOES IT UNFAIRLY BURDEN THE OWNER? DOES IT DISRUPT SETTLED EXPECTATIONS?

Other possible claims are that the zoning restriction is:

1. 2.

Inefficient from a social perspective; Unfairly burdensome or disruptive of settled expectations; and Violative of the landowners civil liberties.

3. C.

Substantive Due Process Challenge: Judicial Review of the Reasonableness of Legislative Line-Drawing Through COST/BENEFIT Analysis:
1.

Inefficient Zoning Restrictiona.

A zoning restriction is inefficient when the burdens on the restricted landowner are greater than the benefits of the restriction to the landowners neighbors and other interested parties.

2.

Kador-Hicks Testa.

considers a policy efficient if those who gain from the policy value their gains in an amount greater than the amount the losers from the policy value their losses.

Nectow v. City of Cambridge (1928)

Facts: Nectows land falls on the border of a residential zone and an unrestricted zone. Nectow argues that there is no economically useable purpose for his 65 feet of land as residential property.

Holding- the health , safety, convenience and general welfare of the inhabitants of the part of the city affected will not be promoted by the disposition made by the ordinance of the locus in question.

no practical use can be made of the land in question for residential purposes, because amount other reasons herein related, there would not be

adequate return on the amount of any investment for the developer of the property.
b.

Nectow makes DUE PROCESS a COST/BENEFIT ANALYSIS Benefit v. Burden

c.

If there is a lot of public benefit, you have to have a lot of burden in order to fail the cost-benefit analysis and likewise with low benefit means lower burden to fail the analysis.

d.

Sliding Scale

If cost/benefit for due process is a soft category that can change depending on the

piece of land, then it stands to reason that the cost/benefit analysis may change depending on the person.
D.

Goldilocks Measure- Coniston (Too Cold) => Twigg (Too Hot) => Cormier (Just Right)

Coniston Corp. v. Village of Hoffman Estates (7th Cir. 1988) (POSNER)

Facts: Owners are granted permits on several occasions, but this particular permit is rejected. The reasoning of at least one member of the board is that there is too much unused office space already and another office building does not need to be built. P claims that the city has violated his due process rights because they acted arbitrarily.

Opinion:

the Boards decision to approve or disapprove a site plan is a legislative rather than an adjudicative function.

legislatures can base their actions on considerations that would be thought improper in judicial decision making.

there was a hearing here maybe not enough of one to satisfy the requirements of due process in an adjudicative setting but enough to give the plaintiffs all the process that due process in zoning could possibly be thought to require after Eastlake.

EASTLAKESETTLED EXPECTATIONS- Consiston seems to say that there is no violation of due process simply because a persons settled expectations are not met.

POSNER WANTS TO KEEP ZONING DISPUTES OUT OF STATE COURT

This case presents a garden-variety zoning dispute dressed up in the trappings of constitutional law.
a.

Notes:

A & C v. Takings

A P may wish to style their complaint as a substantive due process claim that the governments action was A & C because a takings claim has a stringent ripeness requirement.

Property Interest

Circuit courts have been reluctant to accept due process arguments without another claim of violation of property interests (due process violation of property interest cannot stand alone).

Twigg v. County of Will (Ill. App. Ct. 1994)

Facts: Zoning board wants to separate agricultural and residential uses (smells, chemicals, etc.). Twigg has the idea to move himself and his family onto a 32-acre parcel (with several homes on the plot). Twigg sells off a piece of the property, leaving a 25-acre parcel. Twigg wants to put 4 residences. Twigg asks for rezoning of the 25 acres into two 10-acre parcels and two 2 acre parcels.

Opinion: Court looks at 8 factors in determining the validity of a zoning ordinance:

1.

Existing uses and zoning of nearby property;

If there are non-conforming uses nearby that were grand fathered in and there if farming in the area.

2.

Extent to which property values are dimished by the particular zoning restrictions; Extent to which the destruction of property values of plaintiff promote the health, safety, morals or welfare of the public; Relative gain to the public as compared to the hardship imposed upon the individual property owner (NECTOW TEST); Suitability of the subject property for the zoned purposes; Length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property;

3.

4.

5. 6.

7.

Care that the community has taken to plan its land use development; and Community need for the proposed use.

8.

THIS IS A VERY HIGH STANDARD OF RATIONAL BASIS

The problem with judicial review is that the local decision maker has a great deal of discretion.

Cormier v. County of San Luis Obispo (Ct. App. 1984)

Facts: Cormier owns a piece of land that is on a county road. He wants to build a motel and restaurant. The county board, at the same time, is rethinking their comprehensive plan and want to down zone

the property where Cormier wants to build. Cormier starts lobbying the council, but ultimately loses.

Opinion: Court defines reasonable as the board actually looking at the pros and cons to the proposed use, some thought about the use, input from outside sources, etc. in determining the ruling. The court found the validity of the Boards enactment was fairly debatable, and thus constitutional.

Court looks at the reasons presented by the board as to why a business district should not be built. Board took comments from planners, public in general about the use Board took into account the reasons stated by the public and planners in making their decision.

2.

Discrimination is a part of arbitrary in the arbitrary and capricious standard.

2.

Notes:
a.

Presumptions

Both state and federal judicial opinions frequently assert that comprehensive zoning ordinances carry a presumption of constitutionality

VI.

STANDARD OF REVIEW OF REASONABLENESS

Snyder v. Board of County Commissioners (Fla. Dist. Ct. App. 1991) (overturned below)

Facts: Consistency requirement (proposed use must be in line with general plan). Court of Appeals says that the landowner has the default right because he met the standards set out in the comprehensive plan and if city wants to stop him it is on them to show a reason. Planning and zoning board denied the rezoning request without giving any reason.

Holding: Snyder court fears that zoning power is left up to politicization. In Euclid, zoning is not grounded on the police power (public safety, morals, etc.) but on nuisance.
o

Snyder shifts the burden to the zoning board to show that:

1) Zoning was consistent with the general plan; 2) Protects health, safety, and public morals; and 3) That the requesting land owner is entitled to the zoning classification and its denial without given reasons supported by the facts was, as a matter of law, arbitrary and unreasonable and judicially reviewable and reversible.

Close Judicial Scrutiny- Review of governmental action denying or abridging a property owners right to own and use property is subject to close judicial scrutiny.
o

Effective judicial review requires the reviewing legislative body to make findings of fact and a record of its proceedings, sufficient for judicial review.

Property Rightso

Unless an opposing governmental agency can show/prove otherwise (by clear and convincing evidence), a landowner is presumptively entitled to use his property in the manner he seeks.

Board of County Commissioners v. Snyder (Fla. 1993)

Holding:

AGREED- Upholds Snyder I in that the nature of the Boards proceeding was quasi-judicial and the Boards denial was subject to heightened review.

OVERRULED/DISAGREED

Court says that it cannot uphold the notion that once the landowner demonstrates that the proposed use is consistent with the comprehensive plan, that he is presumptively entitled to his use and the burden shifts to the government.

Landowner seeking rezoning has the burden to show that his proposal is consistent with the comprehensive plan and complies with all procedural requirements of the zoning ordinance only thereafter does the burden shift to the government.

COMPETANT SUBSTANTIAL EVIDENCE- in order to sustain the Boards action, it must be shown that there was competent substantial evidence presented to the board to support its ruling.

SMALL REZONINGS ARE ESSENTIALLY QUASIJUDICIAL DECISIONS

1.

Notes:
a.

WAIT AND SEE ZONING

Allows city to relate their regulatory process more closely to the process of development.

Gives discretion to municipality in overcoming imperfections in the process that is used to achieve development that is compatible with its immediate surroundings.

Permits localities to obtain concessions that may be beyond local legal powers to demand directly.

b.

Troublesome Suspicion

Snyder Court is concerned that local governments will grant rezonings on the basis of political considerations with disregard to legislative decisions. That is why legislative decisions should be given great deference.

c.

Comprehensive Zoning v. Limited Impact Zoning

FL SC says that comprehensive rezonings are subject to traditional deference and limited impact zoning is subject to greater scrutiny.

Reasoning is that limited impact zoning is presumed to impact a small group of people and may be done with bias.

VII.

PROCEDURAL DUE PROCESS CHALLENGE TO ZONING DECISION

A.

Interests Protected by Due Process:

1. 2.

Efficiency Interest- ensures that governmental decisions affecting individuals are made fairly and efficiently. Representational Interest- allows for people affected by the decision to voice their opinions/ make arguments about how the rules should be applied to them.

3.

Dignity Interest- protects peoples dignity by requiring that the government explain its actions to those directly affected.

B.

Balancing Test to Determine Requirements of Due Process:

1.

the private interest affected by the government interest, and the value of additional procedures in guarding against erroneous deprivations of that interest, are weighed against the fiscal and administrative burdens that the additional procedures would impose upon the government. (p. 407)

Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan (Haw. 1998)

Facts: Temple requests a permit to build on to the hall. The hall is built too high (more than 66 feet) and is required to stop building. The temple asks for a variance and is denied. 5 years later the temple makes a second request. Temple says that they built the temple higher for religious reasons. Temple wants a contested case hearing (a hearing with cross examination), the department says no. A public hearing is

held and people testify without cross, but the temple is allowed to give counter evidence. G
o

Three factors: (Matthews Case)

Reasonable use of land without variance? Unique circumstances demonstrated? Alter essential character of the neighborhood?

Opinion:
o

Cross-examination is a good way to test the kind of evidence that will be brought into a zoning case (e.g. expert testimony). The court says that although there should have been crossexamination, it was harmless error because they were able to bring in any evidence they wanted to and had the chance to rebut the evidence. Because there is substantial evidence in the record, the court will uphold the decision.

The initial public hearing needs to have the apparatus of judicial process; specifically here, crossexamination.

Does the public have the right to cross any of the temple people and vice versa?

Court says that the question of religious hardship was immaterial to the issues. THIS CASE SETS OUT WHAT A FAIR PROCEEDING IS.

Notes:
o

Cross Examination- it is debatable whether cross examination will decrease errors but it certainly does give the perception of fairness.

Attorneys Role- This holding may lead neighbors and petitioners to hire lawyers to make arguments before the zoning board and cross examine witnesses (pay to play).

Notice and Opportunity to be Heard

Many zoning enabling acts require that neighbors within a specified number of feet of the subject property receive notice by personal service or certified mail.

Technical mistakes in the notice, or insufficiently specific notices may violate due process guarantees.

Sunshine Laws

Laws that require certain public agencies to carry out all phases of their deliberations on certain types of decisions in meetings that are open to the public.

1000 Friends of Oregon v. Wasco County Court (Or. 1987)

Facts: One of the people who had voted yes to the proposal to get a charter for a new city has sold cattle to proponents of the city. Opinion: Has the impartiality been impacted? Does violation of impartiality void the decision? What kind of impartiality do the board members have to have?
o

The board is more quasi than judicial. They are elected. They are members of the community and mix functions. They are more likely to have conflicts of interest more often.

Absent actual bias or personal interest related directly to the decision in question, the findings will not be invalidated.

The incorporation of the city must be to the benefit or detriment to parties involved. Appearance of impropriety is not sufficient. The more the officer or agency purports to act as a court The closer the issues and interests at stake resemble those in traditional adjudications The disqualifying element moves from appearances through possible temptation and generic self-interest to actual personal interest in the outcome of the decision.
a.

Disqualification relies on three standards:

Notes:

Quasi-judicial Decisions by Legislative Bodies

Where there are no conflict-ofinterest statutes or ordinances, courts

traditionally have declined to invalidate decisions of legislative bodies because some participating legislators were tainted by bias or self-interest.

Actual Bias

Some states have statutes that call for the disqualification of persons who have a personal or financial interest in the proceeding.

When a biased decision-maker casts the dispositive vote, courts generally invalidate the decision.

VIII.

SOURCES OF TAKINGS CHALLENGE

1.

Taking Where government destroys property but does not dispossess the owner in anyway, but so significantly affect the interest that it is as if the government had taken the property.
2.

Public Purposea.

Government must take property for a public purpose. Even if the government is willing to pay compensation, if the taking is not done for a public purpose, it is unconstitutional.

3.

Just Compensationa.

has been interpreted to mean FMV.

When do you measure the FMV? At time of taking, at time of decision, etc. FMV does not mean replacement value. Does not compensate people for subjective value they may place on property.

4.

Historical Takinga.

in constitutional times there was not notion of takings.

5th Amendment- people are protected against a physical taking by either federal or state government.

Mugler v. Kansas (SC 1887)

Facts- Kansas declares that they will be alcohol free and makes the manufacture and sale of alcohol a per se nuisance. Mugler challenges the law as a taking without just compensation. Kansas argues that if it is a nuisance, you dont have to pay just compensation, even if you physically take the thing (Nuisance Exception).

Opinion: The meaning of nuisance changes over time so that legislators can come to new conclusions about what is harmful.
o

Right to prohibit a nuisance is not a taking and therefore requires no compensation. The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not... and cannot be burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.

Harm/Benefit Distinction

If government action is for the purpose of preventing harm no compensation is necessary. If however, the government seeks an advantage or to give an advantage then they have to pay compensation.

When government acts to control negative externalities, or spillover effects, it should not be required to compensate.

Not a taking because there is not a physical taking (no hading over of title) (this is overturned in Penn Coal). NUISANCE EXCPETION TO TAKING GUARANTEE

Applies to noxious uses and other nuisances. Allows government not to pay compensation.

Penn Coal v. Mahon (SC 1922)

Facts: involves the Kohler Act, which requires mining companies to leave enough coal so that the surface is supported and will not sink. Property is treated in Penn. as having several rights. Surface rights and ground rights. The issue in Penn Coal is that the mining companies are having their ground rights taken away by the Kohler Act.

Opinion: Diminution in economic value is the definition of too far, and requires economic compensation. The court says that the way they test diminution is commercial impracticability (not impossibility). The court then in effect says, while taking about public and private benefits, that some economic activities both take away and give benefit (over turns Mugler).
o

Reciprocity of advantage mitigates diminution in value.

Reciprocity of advantages

Requires that an action both takes away and gives benefit. This ay come from a private interest being taken away to benefit the public.

In this case there is no reciprocity of advantage because only a single landowner is burdened and there is no public benefit there from.

DICTA- the court says that even if what they were talking about was the subsidence of public roads then it would still not be a public benefit. The single landowners are still the ones affected.

Big diminution is value with no reciprocity of advantage means that the government must pay the coal companies.

Purpose of property is an expression of wealth and not necessarily that of personality.

BRANDEIS DISSENT- becomes the majority in later cases. A restriction that is imposed to protect the public health, safety, or

morals is not a taking. Police power is meant to protect the people, no matter what they warning of danger or contract may have existed.

Keystone- seen to over rule Penn Coal, but does not over rule the basic scheme of taking as presented in Penn Coal. Makes the most full explanation of the takings exception.
o

When you are preventing public harms, you are solidly within the nuisance realm and do not have to pay compensation (no taking).

This was a per se rule.

Lucas- a land use regulation that deprives an owner of all economically valuable use of property by principle so property and nuisance law results in a taking, and thus requires compensation.

Armstrong- too great a burden on the individual despite a public benefit.

1.

Notes:

Test

This rule basically says that when a regulation of a use of property that is not a nuisance imposes too great a burden on property owners, it cannot be enforced without compensation.

Less Rigid Test

Holmes test of whether a regulation has gone too far seems less rigid than other tests for permanent physical occupation and measures prohibiting nuisance.

Question of Degree

What is interesting about this test is that it allows questions of degree rather than questions of the type of taking involved.

IX.

BALANCING TEST IN THE TAKINGS CHALLENGE

Penn Central Transportation Co. v. City of New York (SC 1978)

Facts: Penn Central made plans to construct an office building over Grand Central Terminal, but was blocked by a Landmarks Preservation Law.

Opinion: Court takes up and rejects conceptual severance, specifically, they say that there is no taking of air rights. A law

which does not interfere with an owners primary expectation concerning the use of the property, and allows the owners to receive a reasonable return on their investment, does not effect a taking which demands just compensation.
o

Is the right of loss of economic viability different that reasonable return

We dont know? TDRs- give a reciprocity of advantage Historical protection- the P is benefited as a member of the general public, just as everyone else is.

Reciprocity of Advantage

Balancing Test:
1. 2.

Economic impact (Penn Coal) Extent to which development affects the owners ability to get a return on their investment (Penn Central). Character of governmental action (Penn Central)(this prong has undergone some change and might not still be part of the Penn Central Test (See Loretto)).
a.

3.

Core v. marginal forms of ownership- has to do with the meaning of property and associated rights.

1.

Notes:
a.

Problematic Concepti.

The concept of reasonable return on investment is problematic. The reasonableness of the return on the owners investment must be based on the value of the property. However, the value of the property is inescapably dependant on the amount of return that is permitted or available. This circulatory reasoning is what makes the concept a somewhat shaky one.

b.

Economic Impact-

i.

Should the court look at the absolute dollar value lost or the percentage of value lost (Keystone would seem to lean toward the percentage of loss).

c.

Character of Governmental Actioni.

Weighting the scales to account for the historically special character of physical occupations or intrusions onto land. In light of Loretto, the character of the governmental action prong is often ignored.

ii.

d.

TDR (Transferable Development Rights)i.

Allows unused building potential to be transferred to some tract for which a developer wanted to build beyond the allowed density.

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (SC 2002)

Property can be conceived as having 3 boundaries:

o o o

Temporal- how long you property rights exist? Physical- where the borders of your property are? Functional- what are your rights to use the property?

Facts: Some 400 lands owners buy land and are later held subject to a compact. Opinion: Court goes through and applies Lucas, First English, and

Penn Central. Court holds that the only type of case that can be
brought is a Penn Central type of case. Refused to set out a specific length of time after which a moratoria would become a taking.
o

Penn Central- Anything less than a total loss of value requires a Penn Central Analysis. Moratoria- moratoria are recognized as essential tools to regulate development

Conceptual Severanceo o

Penn Central rejects physical severance. Tahoe rejects temporal severance.

X.

PER SE RULES IN THE TAKINGS CHALLENGE

Comments-

1.

Per se rules are the extreme cases

2. Heightened scrutiny is deserved when the rights have to do with property (takings) Loretto v. Teleprompter Manhattan CATV Corp. (SC 1982)

Facts: A new building owner sued a cable company over the cable it was allowed to install on the building by a state statute (NYC). The wires run across the face of the building.

Opinion:
o

The right to exclude is the most fundamental property right. If you take away the right to exclude, you have a taking. A permanent physical occupation of an owners property authorized by the government constitutes a taking of property which requires just compensation, regardless of the public interests it may serve.

A permanent occupation is arguably the most serious invasion of an owners property rights. The size of occupation has no relevance as to whether a taking has occurred.

Bright line rule is better because we dont waste judicial resources implementing balancing tests all the time.

Notes:
o

Nuisance Exception

Loretto may not apply where the permanent physical occupation is necessary to contain or address a nuisance.

Shoehorning

Plaintiffs should try to manipulate their factual allegations to shoehorn insubstantial claims into the per se rules set formula.

Lucas v. South Carolina Coastal Council (1992)

Lucas claimed that a South Carolina statute which barred him from building on his barrier island property resulted in a taking without just compensation. Erosion is a major concern in S.C., the islands help to stop erosion from the contiguous U.S. from hurricanes. The

barrier islands are constantly being destroyed and rebuilt. The regulation is meant to prevent serious public harm.

Opinion: A land-use regulation that deprives an owner of all economically valuable use of property by prohibiting uses that are permitted under background principles of property and nuisance law results in a taking, and thus requires compensation.
o

More succinctly, if a regulation destroys all economically beneficial, it is a taking.

Lucas says that you cannot use your property to harm others and thus abatement of a nuisance is not a taking. 2 Exceptions to Lucas:
o

1) When the destruction occurs in pursuit of nuisance abatement as defined in state law; and 2) When the rights destroyed never existed as part of the definition of property in background principles of state law.

Notes:
o

Categorical Taking

First English, the court had exempted from categorical takings those restrictions mandated for safety reasons, as well as normal delays in issuing permits.

Tahoe, mere fluctuations of value are incidents of ownership and do not necessarily result in a categorical taking.

Doctrinal initiatives of court (projects):

Nuisance exception- Repudiate the notion that there is any per se exception for abating a nuisance. Conceptual Severance- What is the package under which the landowners expectations are based on. If part of their property is taken or severed from the whole this impacts the property owners interest (see footnote 7, p. 200 text book). (DICTA)

Narrow Meaning of Nuisance- majority says that you can use nuisance to justify a regulation and argue that it creates enough public benefit to withstand the takings

definition unless the land owner (takee) could have sued and won under the state law.

Implications:

Seems to cut back on the Mugler principal, namely that the meaning of what nuisance means over time changes.

Legislatures are illegitimate sources of the definition of harm. Cannot codify what harm is because they cant account for every possible future harm.

Limitation Inherent in Title

When a property owner acquires property after a particular regulation has gone into effect, the regulation may be seen as an inherent limitation on the title and therefore would not require compensation (paid FMV).

Early Bird Gets To Build

Lucas implies that if you are one of the first to build, you will be allowed to do so unimpeded, but later builders face stricter requirements.

Palm Beach Isles Associates v. United States (Ct. Claims 1998)

Facts: Landowner buys 311 acres, sells all but 50 acres of it. The remaining parcel is wetland and a lake. Landowner says that by not allowing them to develop the land there has been a taking.

Opinion: should look at the entire parcel, 311 acres in its entirety and not just at the part remaining in determining the amount taken.

2.

Notes:
a.

Denominator Problemi. ii.

Do you look at the property as an entire original unit or do you look only at what is remaining? Severance- are single sticks in the bundle the denominator or is the whole bundle the denominator?

b.

Scrutiny for Takings-

i.

Under Nollan, the taking must substantially advance the legitimate state interest or the state cannot take.

c.

Agins Casei.

Application of general zoning law to particular property effects a taking if the ordinance does not substantially advance a legitimate state interest (Nectow) or denies an owner economically viable use of his land (Penn Central).

XI.

NONCONFORMING USES/ VESTED RIGHTS

A.

Nonconforming Uses:

Village of Valatie v. Smith (N.Y. 1994)

Facts: Challenge to local law that terminates the nonconforming use of a mobile home upon transfer of ownership of land or mobile home. P claims that the length of the amortization period must be related either to land use objectives or to the financial recoupment needs of the owner and that the local law violates the principle that zoning is to regulate land use rather than ownership

Opinion: The court held that amortization has never been based on land use objective and financial recoupment is implied by the fact that the ordinance allows the nonconforming use to exist until the time of sale. Also, the court held that the ordinance does not regulate ownership because it treats all owners and perspective buyers equally.
o

Amortization Period

A length of time is given to landowners to get back part of the value of their investment. Amortization periods are used to phase out nonconforming uses while allowing landowners to get a return on their investment.

Notes:
o

Minority View

Fear that amortization of nonconforming uses will deter investment by putting any landowners reasonable expectations at risk and will result in deterioration as owners refuse to maintain their properties.

Reasonableness of Amortization Period

Many courts hold that the reasonableness of an amortization period depends upon whether the public benefits from termination of a use outweigh the landowners cost of losing that use.

Advantage of Nonconforming Uses

E.g. a nonconforming grocery store in a residential neighborhood, instead of withering away as desired, will thrive because the zoning prevents competitors from opening up nearby.

Abandonment

Ordinances often require that if a nonconforming use is abandoned, subsequent users must conform to the zoning regulations.

B.

Vested Right:

Valley View Industrial Park v. City of Redmond (Wash. 1987)

Facts: Plaintiff wants to build an industrial park and gets permits, submits necessary documentation, etc. Then the city decides to change the zoning from light industrial to farming.

Opinion: VV has a vested right to build 5 buildings and the zone is to remain light industrial with the option of building other buildings subject to compliance with the city ordinance.
o

[C]itizens must be protected from the fluctuations of legislative policy so that they can plan their conduct with reasonable certainty as to the legal consequences.

Due process considerations require that developers be able to take recognized action under fixed rules governing the development of their land.

Rights Vest if developer files a building permit application that:

a. b.

Is sufficiently complete, Complies with existing zoning ordinances and building codes, and

c.

Is filed during the effective period of the zoning ordinances under which the developer seeks to develop.

Notes:
o

Vested Rights

Most courts will recognize vested rights only if the owner has made substantial expenditures in good faith reliance upon the issuance of a building permit or other approval.

Development Agreements

Essentially a contract between the developer and the government that allows the developer a freeze period during which subsequently enacted laws or regulations will not be applied to the project, except in specified situations.

FIRST AMENDMENT CHALLENGES TO ZONING

C.

Freedom of Religion
1.

First Amendment- free exercise and establishment

a.

Cases are a series of pendulum swings back and forth from granting greater land use rights to religious groups to a decrease in the land use rights of religious groups.

b.

Religious entities have traditionally been given wide land use rights Traditionally, religious uses of land are held to be inherently beneficial, and further the goals of public health, safety, and welfare.

c.

2.

Sexual explicit speech, particularly in the form of adult entertainment, is at the opposite extreme from religious entities.
a.

What is obscene is determined differently in each location

3.

Smith Case- The right of free exercise does not relieve an individual of the obligation to comply with valid and neutral law of general applicability on the ground that the law prescribes conduct that his religion prescribes.

a.

Valid, neutral, general applicability, as to the rules and then you just have to pass rational basis review.

b.

Majority distinguished between laws that coerce belief and those that govern physical conduct.

4.

Religious Freedom Restoration Act (RFRA)

a.

Government burden must result from a rule of general applicability, unless the government demonstrates that 1) it is in furtherance of a compelling governmental interests; and 2) is the lease restrictive means of furthering that compelling governmental interest.

b.

In 1997, the SC overturned RFRA and returned the law to that of SMITH

The court said that what is wrong with RFRA was that Congress has exceeded their section 5 powers of the 14th Amendment. (City of Boerne v. Flores (1997)).

RULE: Neutral, generally applicable => rational basis review Daytona Rescue Mission, Inc. v. City of Daytona Beach (M.D. Fla. 1995)

Facts: DRM wants to open up a rescue church in Daytona Beach. DRM asks for a special exception and is turned down. DRM brings claims under establishment clause, free exercise clause, and RFRA.

Opinion:
o

Free Exercise- Grosz three-part test:

5. 6.

Regulation of conduct not belief Law must have secular purpose and secular effect
a.

Secular purpose is about homeless shelters and food banks and not about churches.

DRM retorts that the basis of their church is the homeless shelter and food bank. Court avoids this argument all together.

7.

If first two met, then court balances the competing governmental and religious interests.

RFRA

Substantial burden- no substantial burden because DRM can go somewhere else in the city and have their church. Compelling state interest- city had safety and security concerns.

Under RFRA difficult to justify the fact that all religious activity overcomes a compelling state interest.

Under RFRA city may give specific compelling state interests on a case-by-case basis.

Establishment Clause

No governmental indoctrination; no excessive entanglement; no distribution of benefits by religious identify.

Courts says that DRM is simply relabeling their free exercise argument. Court wants to stay away from defining what a church is.

Notes:
o

Protection v. Privilege

Most challenges to zoning ordinances by religious institutions are at the bottom about money and convenience not about religious belief, and that the bald favoritism to religion shown by the traditional decisions undermines rather than fulfills the constitutional ideal of religious liberty.

Definition of Religion

If religious groups should receive some level of protection against burdensome zoning ordinances, problems then arise in defining what constitutes a religious use or practice.

B. Freedom of Speech

City of Renton v. Playtime Theatres, Inc. (SC 1986)

Facts: Adult movie business wants to use theaters to show adult films. This is a free speech claim. City ordinance prohibits location of adult theaters within 1,000 feet of any residential zone.

Opinion: Renton has not used the power to zone as a pretext for suppressing expression, but rather has sought to make some areas available for adult theaters and their patrons, while at the same time preserving the quality of life in the community at large by preventing those theaters from locating in other areas.

Content neutral time, place, and manner regulations are acceptable so long as they are designed to serve a substantial government interest and don not unreasonably limit alternative avenues of communication.
o

Content Neutral

The ordinance cannot be selective based on content, favoring content of one type of free speech over another.

Renton court gets around this by saying that the ordinance is not aimed at the content of adult films, but at the secondary effects.

Substantial governmental interest

Is it done for the public, health, safety, etc.? Distinction between economically unsuitable and practicably unsuitable. Nearly all forms of physical and legal unsuitability may be couched in terms of economic unsuitability. Conversely, problems of economic suitability may be couched in terms of physical unsuitability.

Reasonable alternatives

Dissent- (Blackmun)
o

Ordinance selectively imposes limitations on the location of a movie theater based exclusively on the content of the films shown there.

Ordinance imposes special restrictions on certain kinds of speech, therefore not content neutral. Ordinance discriminates against certain types of free speech.

Ordinance is invalid because it does not provide for reasonable alternative avenues of communication.

Notes:
o

Pornographic Speech

Renton hints that sexually explicit materials may be entitled to less First Amendment protection than other speakers.

Alternative Approach

Alternative to the Renton approach of not allowing porno shops to be by residential neighborhoods, you could disperse them by not allowing them to be within a certain distance of each other as well as barring them from family neighborhoods.

Other Fundamental Rights

Right to Privacy (abortion)

Some cities zone out abortion clinics. Regulation having a substantial burden on the abortion decision must be justified by a compelling state interest, and will be deemed invalid if the proffered justifications are not substantial enough to justify the burden imposed. West Side Womens Servs., Inc. v. City of Cleveland (Ohio 1983).

XII.

PROCEDURAL ASPECTS: JURISDICTION, RIPENESS, ETC.

A.

Jurisdiction1.

Tucker Acta.

A landowner/developer who wishes to bring a takings challenge to any federal regulation limiting the use of land generally must proceed under the Tucker Act.

Tucker Law- Court of claims sits in DC and hears all cases brought against the US (for takings only)

For cases other than takings, you bring the case to normal federal court or state court.

2.

Civil Rights Statutea.

If a developer/landowner believes that state or local land use regulations violate the federal constitution or federal laws, the developer may sue in federal court under the federal civil right statute.

b.

Civil rights claims may also be brought in state court are court of gen. juris.

B.

Ripeness1.

Federal court cannot make a decision until there is an actual concrete injury and the dimensions of the claim will not change in the future.
a. b.

Has grown over time into a jurisdictional requirement. The court cannot waive the jurisdictional requirment.

2.

Requires a final decision or determination. Has to do with the ability to make the decision.
a.

Ripeness looks at the same kind of requirements as exhaustion.

Variances, etc.

You must pursue an action all the way through the state system.

AVAILABLE STATE REMEDIES (comes out of Williamson case).

State court decisions- case may not be completely ready for judgment.

3.

Specific character of the takings claim determines when the available state remedies prong has been met.

Both state and federal takings are beginning to be excluded from federal court on the basis of ripeness.

Williamson County Regional Planning Commission v. Hamilton Beach (1985)

Facts: Board turns down right to build for 8 reasons, Hamilton Beach does not ask for a variance, but takes the case to federal court.
o

Vested rights claim- Hamilton argues that they have a right to build because they determined on their original plat that a certain percentage of density.

Vested rights is based on reliance and actions of other party that allows you to dig yourself into a hole.

Opinion:
o

Meaningful application- the person requesting the rezoning or variance must submit a meaningful application in order to be heard.

Final Determination Requirement- No final determination and therefore case is dismissed. Ripeness- means you have to go all the way through the administrative stuff and the state stuff. Look to available state remedies first, only after that doesnt work is the case ripe (specifically for takings questions only).

Final Determination Requirement4.

In order to meet the final determination requirement, the landowner must show that it submitted at least one

meaningful application for development, and that the

local government denied that application
5.

You have to pursue and complete any administrative remedies before you bring a complaint of constitutional issues.
a.

Must try to get:

Variance from BZA Dont have to necessarily try to get a legislative remedy unless re zoning is adjudicative (e.g. Oregon).

Requirement of an as applied challenge not a facial challenges

Facial challenge- says that there is no way to look at the law that it doesnt violate the constitution.

Mere enactment of the challenged regulation deprives the landowner of all economically viable use of the property.

As applied- the application of the rule in this specific case violates the constitution.

6.

Futility Exceptiona.

If you cannot do something to ameliorate the constitutional violation

No Escape Valve- No mechanism for a variance, waiver, hardship exclusion, etc. Zoning process shows so much hostility that it would never take care of the constitutional violation (rarely win on this one).

State Remedies RequirementDodd v. Hood River County (9th Cir 1995)

Facts: Dodds did everything that they possibly could, met the exhaustion requirements. The county says that the Dodds must bring the federal 1983 actions through the state court system first under Williamson.

Opinion: Rejects the notion that Williamson County means that in takings cases the federal forum can be used only to compensate for inadequacies of state taking procedures. Dodds claim is not claim precluded because the state court did not protest the simultaneously running of state and federal cases.

Notes:
o

Attraction of Federal Forum

Local Bias Issue may be unpopular locally Federal judges have greater understanding of the law

XIII.

REMEDIES
A.

Compensation Question
1.

Void/Invalidatea.

Until 1987 (pre First English), if a court determined that a zoning restriction deprived a landowner of federal constitutional rights, the court would remedy the violation by proclaiming to restriction to be void or invalid.

2.

Injunctive Reliefa.

Pre 1987, if there was a taking of private property, the court would provide injunctive relief in place of just compensation.

First English Evangelical Lutheran Church of Glendale v. County of Los Angles (SC 1987)
o

Facts: First English has a camp up in the Angles canyon, which is destroyed by a flood. Los Angles County creates an ordinance by which no building is allowed in the canyon. This is a temporary regulatory taking.

Opinion: An owner whose property has been subjected to a regulatory taking is entitled to compensation for the period during which the regulation denied the owner all use of the land, and not just mere declatory or injunctive relief invalidation the regulation.

Case confines itself to retrospective temporary taking.

Dissent: court cannot treat physical and regulatory takings the same in all situations.

Because this regulation was a valid safety measure, no compensation should be required.

Duration of restriction should be considered when determining whether a regulatory taking has occurred. Public Policy- decision may lead local officials and landuse planners to refrain from enacting many forms of important health and safety regulations, out of fear of litigation.

You have to look at the property as a whole and cannot conceptually severe the different interests.

TAHOE- Limits the holding of First English to that of showing the REMEDY for a TEMPORARY REGULATORY TAKING.

Notes:
3.

Tahoe majority said that the First English did not address the question of the substance of the taking claim. First English is now confined to the question of remedy. Temporary takings in the sense that the Tahoe court talks about. Tahoe has to do with prospectively temporary takings.
a.

4. 5.

First English then becomes only the necessary remedy for a temporary taking.

6.

Justice Stevens writes the dissent in First English and the majority in Tahoe. Normal Delaysa.

7.

The time a landowner spends applying for permits and litigating the facial validity of the ordinance is not a normal delay, because the time is necessitated by the unconstitutionality of the ordinance.

8.

Chilling Effecta.

First English may have some deterrent impact on government officials, thus inhibiting desirable regulations for which compensation would not be due, because of fear of liability might make decisionmakers err too much on the side of caution.

Wheeler v. City of Pleasant Grove (Wheeler III) (11th Cir. 1987)

Facts: P wants to build an apartment complex, but strong opposition prods the city to pass an ordinance that outlawed construction of apartments. On remands I and II the lower court gave no and $1 in damages respectively.

Opinion: To determine the amount of taking, the court must answer the question, what has the land owner lost?
o

The value of what is lost is determined by isolating it as a component of the overall fair market value of the affected property.

Landowner should be awarded the market rate return computed over the period of the temporary taking on the difference between the propertys fair market value without the regulatory restriction and its fair market value with the restriction.

Loss of income producing potential suffered over the period of the taking.

Wheeler IV- The court actually figures out what the damages should be because the lower court refused to do so.

Wheeler IV Formula:

Owners Equity in Market Value Without Restriction -- Owners Equity in Market Value with Restriction = Owners Lost Value from Restriction x Market Rate of Return x Length of Restriction = Lost Return

Notes:
o

Better to be overcompensated than under compensated, spirit of takings clause is to shift the burden to prove a non-taking on the government.

Movement toward economic measures for just compensation has created greater compensation for economic actors than for people who own land for non-economic purposes.

Imbalance in the character of ownership and how it is impacted by just compensation rules. Non-economic uses do not mean that the value is value less.

Rental Value

Some court have required the government to pay the owner the FM rental value of the property for a physical, temporary taking.

Option Rule

NJ court has treated temporary takings as equivalent to holding an option on the land, and award compensation for the value of an option to buy the land for the period of the taking.

Actual Losses

Some courts have held that only actual losses, such as increased construction costs, should be compensated in a temporary regulatory taking.

Period of Taking

Most courts have held compensation due from the date of the challenged regulatory action. E.g. date of denial of rezoning.

Mitigation

Some courts have held that a landowner must mitigate their damages by using the land within the limits of the ordinance

XIV.

SUBDIVISION REGULATION I
A.

Generally1. 2. 3.

Limits the sale of land unless certain conditions set by government are met. Predates zoning. People who are usually against zoning are in favor of subdivision regulation because subdivision regulation is thought to be directly impacted by health and safety because of the layout of the land.

4.

Characteristically concerns itself with the hard facts of the land. In smallest form addresses:
a. b. c. d. e. f. g.

5.

Streets Roads Water Waste water Location of utility easements Access to a public way Concern itself with issues of drainage and flooding (storm sewers, grading requirements, etc.)

6.

In larger jurisdiction:
a. b. c.

The same as with small subdivisions. Much more specification of zone amenities (width, grade, lighting, etc.) Dedication of public space (e.g. parks, marinating tree or vegetation cover) Environmental concerns (drainage, etc.)

d.

Comes much more close to zoning.

B.

Streets
1.

A major concern for development

a.

Provide access to garbage collection, postal deliver, fire and ambulance service, etc. A way by which government gains new streets through dedication.

b.

Dedication means that the developer donates the street to the city and the city takes over all rights over the road.

C.

Plat Requirements
1.

Ultimate end of subdivisions planning is a Plat Map

a.

Plat Maps are:

Show lot boundaries Serves as the gift over of streets and public easements and public spaces

Determines ownership lines Shows permission to developer to sell the land and get building permits

b.

Land Survey- every authoritative Plat begins with a Land Survey

It provides the geographic anchors that allow the Plat map to, for example, accurately show lot identification.

c.

Steps in Plat process:

First draft- a general sketch of the plat, shows boundaries,

Preliminary plat- document that goes through the deliberation process.

Contains a lot of background work

Identifies easements, public places, shows lot dimensions and boundaries

Document goes to planning commission, which sends the plan out to other interested actors. This causes a whole new round of negotiations.

Approval of preliminary plat is free to be revoked by the planning commission. Once approved there is a 90% chance that it will be upheld.

Final Plat

Registered in land records Must be approved if meets zoning requirements and comprehensive plan and if the developer has met all of the requirements as originally

set forth after the submission of the preliminary plat.

Anything on the plat gives notice to buyers as to the shape of title, encumbrances, etc. You are bound by all of the rights and duties set forth on the Plat Map.

d.

Creator of rights in land

Doctrine of Dedication:

Done explicitly in the Plat

Some other jurisdictions require a separate deed showing the transfer of the property to the city.

Implied Dedication- the reference to public places on the map shows implied dedication even if the land is never specifically given to the city.

Issues:

Who will maintain the road? (A money issue) If you intend to create private roads or common areas that will be help privately for the benefit of a planned community, you must specifically give those lands to the private community so that they do not become public by implied dedication.

Private community would be responsible for the upkeep of the roads, or other private place.

Covenants:

CCRS that will govern the land and apply to all land owners Set up working rules of private community Run by a home owners association Covenants are often contained on the final plat.

So even if the title searcher does not find something on the present title, if it is on the plat map, the homeowner is bound by the covenants and servitudes.

In re Furman Street (1836)

Facts: Claim of takings. Early in its development, Brooklyn decided what the community would look like in the future. The map is public. Time goes by and now Brooklyn determines that it is time to open a street that is designated on the map. Brooklyn will compensate people whose houses were there before the map was created and not compensate those who built after the map was created.

Opinion: A landowner who erects a building within the path of a previously mapped street may have no constitutional right to receive compensation for the structure once the street opens. Not a takings because the public map imposes a condition that there should be a street.
o

The public had notice that if they built on the site they They are monetarily compensated for the land because they receive a benefit from the streets (reciprocity of advantage (not usually used in a physical takings case)).

should not receive compensation for the building.

Takings Claim- Do they have to compensate for the building built after the map? Adverse possession- because the buildings were there for so long, a new title is created and this is therefore a taking of both the land and the building.

Did city authorize their presence? If so, they cannot gain adverse possession.

What kind of notice did the map really give?

Substantive Due Process Claim- Is burden on landowner properly counter balanced by a legitimate public purpose?

Balancing test- more a part of regulatory takings law and not so much physical takings law. Benefits gained from use of the street, public benefit v. private burden.

Notes:
o

If compensation were to be routinely paid in Furman-type situations, a landowner would have no incentive to mitigate damages and would tend to over invest capital on sites designated for future public acquisition.

Courts regard an official map, like a comprehensive plan, to be tentative and subject to amendment prior to actual development.

Miles v. Planning Board of Millbury (Mass. 1989)

Facts: Municipality requires much better streets than is necessary (broader, better materials). Better to bring this stuff in at the beginning then to bring it in after the fact (much more cost effective, prudent, forecasting future, etc.). Developers are concerned because the city is requiring them to pay for future use and not sole on current use. Developers says that village wants better streets than they need and the cities past actions show that they do not really need what they are asking for.

Opinion:
o

Town need look only to its standards in similarly zoned districts. Board may be guided by different policy considerations than those that apply to already existing streets.

Localities tend to under price the amount that it will cost to build.

May not be in the best interest of the localities.

The only people that a community wants to attract to the community are the people who will raise property values.

Notes:
o

Important Power- The review of proposed subdivision maps is one of a municipalitys most important powers.

The process allows the municipality to:

Enforce lot-dimension requirements appearing in its zoning ordinance,

Obtain lands designated for public uses on its official map or comprehensive plan,

Apply standards for subdivision improvements, and Exact contributions and design modifications from the subdivider.

Beneficiaries of Subdivisions:

Prospective Lot Owners- benefit from a final subdivision map that accurately each lot. Immediate Neighbors- local officials can help ensure that local streets connect together at subdivision boundaries, that street names are not confusing, and that surface water escaping from the new development will be properly channeled.

Community-at-large- benefits from coordination of major transportation arteries and other public infrastructure.

XV.

SUBDIVISION REGULATION II
A.

The Vesting of Rights to Subdivide

City of West Hollywood v. Beverly Towers, Inc. (Cal. 1991)

Facts: developers have sought a permit to make apartments into condos. The developers have gone through the permit approval process but had not made any sales of the apartments. Thereafter, the city incorporates and declares a moratorium on converting to condos and makes new rules that say that there have to be other requirements (beyond which developer had already complied). State court holds that the developers have a vested right to convert the apartments.

Opinion: Developer obtained every permit necessary to make the conversions. That developers have yet to sell a unit is a trivial factor that has no effect on the Citys zoning and planning power.
o

In this instance, the developers did not need a vesting tentative map or development agreement with the city because no further

discretionary permits were required in order to proceed

Notes:
o

Permit & Spending Requirement

Some states do not protect a builder from a zoning change until the builder has both obtained a building permit and spend substantial funds on actual construction.

Right to Subdivide = Right to Build

A right to subdivide is empty unless it encompasses the right to build on the subdivisions lots.

B.

Grounds for Rejection of a Preliminary Map

Richardson v. City of Little Rock Planning Commission (Ark. 1988)

Facts: city ordinance regulates the size and shape of lots. The plat does not conform to these standards initially. Opinion: The commission doesnt have discretion to go beyond the positive standard that is stated in the regulation.
o

When a subdivision ordinance specifies minimum standards to which a preliminary plat must conform, it is arbitrary as a matter of law to deny approval of a plat that meets those standards.

if a plat is within the use permitted by the zoning classification and meets the development regulations set forth in the subdivision ordinance, then the plat by definition is in harmony with the existing subdivision

a planning commission may not disregard the regulation set forth in the subdivision ordinance and substitute its own discretion in lieu of fixed standards applying to all cases similarly situated.

o o

Discretion is adverse to developers interests. Even if the ordinance creates discretionary power, discretion may be inappropriate.

Dissent: argues that the commission has to have some discretion to be able to do what it needs to do. The ordinance creates discretion because it uses appropriateness language.

Notes:
o

If Richardson is correct, every conceivable thing must be written in the regulation because the commission has no adjudicative power to change with the times, etc.

Vesting Principle

Once a developer has started the development process, the municipality cannot then change its standards and require further approval of permits.

Dealmaking/Leverage

Discretion to approve or disapprove specific development proposals provides local officials with the leverage to exact maximum concessions and payments from developers.

C.

Neighbors Rights

Lyman v. Planning Board of Winchester (Mass. 1967)

Facts: Planning Board regulation says that a definitive plan shall take into account conditions and facilities on property adjoining the

land being subdivided (neighbors interests). Neighbor will not have access to sewer and roads if it is done according to the definitive plan.

Opinion: The Boards regulations did not preclude it from approving developers plan without requiring it to project its roads, water lines, and sewers to the boundary.
o

Questions to ask:

What role do neighbors have on the decision to allow for the building of sub divisions? How are neighbors going to be effected by development?

Very difficult to include in the ordinance the desires of the neighborhood.

Notes:
o

Opposition from Existing Residents

Homeowners living on adjoining subdivided acreage may oppose a new subdivision on the ground that it would increase traffic and otherwise disturb the status quo.

Four Measure of Subdividers Liability to Neighbors

No liability Strict liability Strict liability only for the spillover effects of uncommonly injurious activities. Negligence liability

XVI.

BUILDING CODES
A.

Reasons for Building Codes:

1.

Buyers need codes because they cannot inspect the buildings themselves.
a.

Place the burden on the person most able to protect against the defect or harm.

2.

Externalities- recognition that what happens to your house impacts what happens to your neighbors.
a.

Fire, Sanitation, Overcrowding- these are all reasons why building codes were introduced.

3. B.

Humanitarian- increases habitability of buildings; make sure they are safe for human inhabitation.

New Functions of Building Codes:

1. 2. 3.

Maintain conformity and homogeneous of appearance. Aesthetics Represent a middle class perspective of how much risk we are willing to take.
a.

Have affordability impacts on those who can obtain housing.

Defacto non-enforcement of building codes in many poor places.

Especially done in the case of overcrowding violations (set by standards from the 1950s)

Illegal apartments- apartments in warehouses, single family houses, etc.

Choice is enforcement or homelessness. Building code regulation is so irregular and uncertain that it is difficult to say that it conforms to the standards of law.

C.

Building codes are just not enforced enough in order to make it a public issue.
1.

Building codes are reactive

a.

No one wanders around looking for code violations. No programmatic approach to enforcing the codes.

b.

2.

Would we agree with the current building codes if they were strictly enforced?
a.

Would they be practical, economic, fair, etc.?

D.

2 Challenges Against Building Codes:

1. 2.

Due process- due process claim is more likely to prevail. Takings- forces builder to spend money on something that he would not otherwise spend money on (almost never successful).

E.

Model Codes
1.

Most building codes derive from a system of model codes done by trade unions primarily, become formal law when model codes are adopted by cities, states, etc.
a.

Locality can amend the code but they dont often do it because they do not have the expertise to do it.

b.

Codes are justified as protections of public health and safety. A bunch of other economic interests are being protected (manufacturers, labor interests, etc.)

c.

Codes are written in order to keep other out of the market (barriers to entry).

F.

Alternatives to Building Code Standards:

1.

Enforce safety codes after the fact:

a. b.

Establish liability for negligent construction (if a building fails, then you can sue). Enforce code standards through private insurers (refusual to extend insurance or a mortgage if the building fails to meet certain requirements mandated by the bank or insurance company).

Likely to get more local variation than with Building Code Requirements Less under enforcement because insurance and banks have more of an interest. Less corruption (less likely to be able to bribe an insurance agent than an building code enforcer)

c.

Problems:

Rely upon liability- access to justice is the gatekeeper; poor dont have enough money to sue.

After the fact liability- people and property is damaged and could have been corrected before if there was regulation.

G.

Why doesnt takings work in the case of buildings codes?

1.

Difficult to show economic impact issues:

a. b.

No complete loss of economic value (usually) Private expectations- land owners lose the right of income from property when they are forced to meet building codes

c.

Give of property right to use your property the way that you want (dont have full use and control of your property).

Although not used often, can still be used in an extraordinary case.

Commonwealth v. Collins (Ky. Ct. App. 1983)

Facts: have a property owner who has 3 pieces of land and wants to make a retirement home. Applies for a building permit and plumbing permit. Owner uses plastic pipe and city inspector issue a stop work order. Collins sues for improper enforcement of building codes.
o

Enforcement measures include permits, civil fines, and criminal violations.

Opinion: Exemption for farm steads. City committed actionable negligence because they acted outside of scope of the law. There is no public purpose in applying building codes where no codes apply.
o

This is a due process claim

In most locals, the municipalities have immunity from such suits or there are caps on damages.

Test for due process: reasonable with respect to the interests of the public as a whole.

Notes:
o

Judicial Review for Neighbors

Neighbors must seek judicial review promptly if they deem that a building permit has been granted improperly.

Dinsky v. Town of Framingham (Mass. 1982)

Facts: Can you sue for under enforcement of building codes? P says that city should have done a better job of inspecting the building and is therefore liable for the damage to Ps property.

Holding: In the absence of a special duty owed to the plaintiffs, different from that owed to the public at large, not cause of action for negligent inspection can be maintained.

Cant make the city the insurer of every building project. Only have to pay damages if a special relationship exists, a special relationship is rarely found to exist. It is for the city to decide what standards to require to be met.

What about overly strict provisions of a code?

Infer from Dinsky that if the code is too strict, Majority Rule

Notes:

According to conventional tort doctrine, a defendant owes a duty of care to a plaintiff with whom the defendant has a special relationship. In building code cases, plaintiffs rarely succeed in proving the existence of this sort of relationship.

XVII.

DEBATE OVER BUILDING CODES

A.

Market Distortions Caused by Building Codes

1.

Building Codes do create inefficiencies in the free market

a.

Codes establish minimum levels of housing quality and require that all consumers, regardless of their individual consumption preferences, purchase at least a minimum package of quality and safety features.

b. B.

Building codes require homebuyers to invest present dollars to ensure future soundness.

Code War1.

Noerr doctrine does not exempt from antitrust liability persons who urge a private code-writing organization to engage in anticompetitive action.

C.

Constitutional Challenges to Excessive Building Regulations

Boise Cascade Corp. v. Gwinnett County (ND Ga. 1967)

o

Facts: Code called for a certain type of product and Ds argue that the product used was not the appropriate product. Boise argues that the product was equivalent to the required product.

Opinion: compliance with the specific building material is not required if an equivalent product is used.

Reasonableness- code can be unreasonable because it is too strict. Corruption- the construction industry has an incestuous relationship with the building codes people. A strong bias to use the products from a certain industry.

Alternative Construction Methods

Can you use innovation?

o o

It must be backed by industry/lobbying Proven difficult to overcome the barriers to entry to force open doors for various types of innovation.

State v. Cook (Wash. 1967)

Facts: Who can do particular kinds of building work? P wanted to do own plumbing in a house that he is going to rent out to others. The law says that to do the work you have to be a certified contractor unless you are going to be an owner occupant.

Opinion: Licensed professionals should do the work if others are going to live in them because it promotes public safety. There are some types of defects that are extremely difficult to detect, which not licensed people cannot detect. The owner in this case is entering the stream of commerce and the public should be protected. City would have to spend more time inspecting the work of amateur plumbers that the work of licensed plumbers.
o D.

You could make the same argument for owner occupied houses. Applying Standards Retrospectively: Housing Codes

City of St. Louis v. Brune (Mo. 1974)

Facts: whether or not every dwelling unit has to have a shower or a tub that is connected to the public water system with hot and cold water.

Holding: Substantive due process claim decided by the specific economic impact as the regulation applied to the two current buildings. The buildings are not saleable. The regulations as applied to the P are confiscable because it would take away his ability to rent the property. Argument that you dont need a bath or a shower to bathe in your apartment.
o

Look at the individual impact on the individual building instead of the impact on the public as a whole. No tenants have complained of the conditions even though they have no flushing toilets or lavatories with hot or cold water. Regulation is an inconvenience to those tenants who choose to pay a minimum rent in return for incomplete facilities.

Housing codes impair the welfare of poor households by forcing them to purchase housing of a higher quality than they would voluntarily choose.

Notes:
o

Enforcement Upon Change of Occupancy

A few cities have enacted ordinances that require that a residential property be inspected for code consistency each time a new occupant is about to move in.

XVIII.

AESTHETIC REGULATION
A.

Background
1.

Early aesthetics cases are strongly founded in the nuisance rationale.

a. b.

Suggest that aesthetics do not impact the public health, safety, welfare, etc. Historical Preservations ask the following questions:

1.

Is there a reasonably subjective view on what is aesthetic beauty so that it can be communicated to

land owners and so that legislative bodies can sufficiently communicate those standards to the judiciary?
2.

Do aesthetics fall under the police powers or is it the classic case of giving benefits to the public?
a.

Whether something is within the police power is a separate question from whether or not they have to pay for it.

3. 2.

Whether or not the values that are embodied in these kinds of values embody first amendment rights?

Historical preservation cases sharpen the takings issueare too few people bearing too much of the burden a la Penn Central?

City of Passaic v. Peterson Bill Posting (NJ 1905)

The only reason you can regulate signs and billboards is if they present a specific danger. No public interest rational because the law only looks at signs and billboards and does not look at other comparable things like fences.
o

Visual reality of signs have impact outside the property (externalities)

Opinion: Use of property for commercial reasons can be regulated. That fact that this ordinance is directed against signs and billboards only, and not against fences, indicates that some consideration other than the public safety led to its passage.

Williams Excerpt:

It is a set of majoritan preferences that are used to sort between preferred and unpreferred action.
o

Repress innovation, dissent, extremism, and other extensions of the human personality.

ARCHITECTUAL STANDARDS

When enacted by public entities, you have constitutional protection.

Anderson v. City of Issaquah (Wash. Ct. App. 1993)

Facts: We have a guy who wants to build a commercial building (modern style) in an area, which includes old-fashioned buildings. Standards ask for harmony between valley and mountains and a series of judgment between appropriateness between the old down town and new construction.

Opinion: Standards are void for vagueness. The commissioners enforced not a building design code but their own arbitrary concept of the provisions of an unwritten statement to be made on Main Street.
o

Fairness to individuals- you must have notice about what you are supposed to do. Cabin in arbitrariness of government.

Free Speech- Is it content neutral? If so all you have to show is that is promotes the public interest and then all you have to do is provide another forum for expression. (Renton Case)
o

This is not content neutral because it dictates content or the way that a house should look.

Notes:
o

Stance of Architects

Architects have a special interest in allowing for architectural expression, because they make their money designing buildings.

Upgrading

Architectural review typically is exclusively prospective; only a landowner who wished to build or renovate must submit plans for municipal scrutiny.

HISTORIC PRESERVATION State by Powderly v. Erickson (Minn. 1979)

Facts: how does a court determine what is of historical significance? Opinion: Court uses environmental protection laws and looks to federal laws that govern houses of historical significance (Federal National Register Law). You can prevent someone from demolishing something but cannot make them fix it without it being a taking.

The National Register Law is very vague

We think we know more about what is historically significant but do not know what is aesthetic.

Notes:
o

Definitions of Historically Significant:

Noteworthy for events that occurred on the premises Singled out for its architectural excellence Buildings that typify construction practices during a prior era may be worth preserving to memorialize customary living patterns.

Tax Incentives

The IRC has included a variety of incentives for rehabilitation of historic buildings.

Preservation through Acquisition

A city can acquire, by consensual sale or eminent domain, easements of control over the historically important facades of a building,

Backdoor Subsidies

A local government may employ transferable development rights to cushion the burdens of an owner it has compelled to maintain an historic building.

Rector of St. Bartholomews Church v. City of New York (2d Cir. 1990)

St. Barts wants to build a skyscraper to generate money for the poor. Opinion: Court says that because the church is a historical site, it cannot change it into a skyscraper. The court uses Penn Central with out every referring to Penn Central. St. Barts loses a free exercise argument because the court says that they can continue to do what they are already doing. St. Barts can continue its existing charitable and religious activities in its current facilities.
o

Although the regulation may freeze the Churchs property in its existing use and prevent the Church from expanding or altering its activities, Penn Central explicitly permits this because it can still operate for its original intended use.

Hard to say that there is no alternative to the current building.

Notes:
o

Religious Buildings Exempt from Historical Designation

CA legislature has immunized the buildings of religious organizations from the statutory powers of counties and cities to designate historic landmarks.

Building Deterioration/Destruction

An owner who finds landmarking burdensome may respond in a socially destructive manner. Landowner may choose to all the property deteriorate or be destroyed.

ASP Associates v. City of Raleigh (N.C. 1979)

Facts: City of Raleigh designates a certain district a historical district. Developer buys an empty lot but does not want to have to comply with the restrictions. Bring substantive due process claim (police power), standard of incongruity is vague and therefore unconstitutionally delegates power, equal protection.
o

Equal protection- if it is not suspect then all you have to do is show rational basis.

Opinion:
o

Due process claim- Court say that historic preservation (dont go so far as to say that aesthetic regulation in general is) is a legitimate part of the police power.

o o

Vague- can tell what is incongruous with Victorian buildings Equal protection- historical district does not include additional property on the same block, so why does that apply to ASP? The court says that they are similarly located by not similarly situated because the developer bought property knowing it was in a historic zone.

Notes:
o

Landowner Taking Claims

Taking argument is less plausible when a city is trying to preserve, not just an isolated landmark, but also all older structures in a historic district.

Displacement of Poor

Argument that the designation of an area as an historic district may lead to the displacement of poor households (costs become too great).

XIX.

ENVIRONMENTAL IMPACT STATEMENTS

A.

Background1. 2.

NEPA/WEPA were some of the first environmental laws. Initial Modelsa.

Decision maker simply has to consider and explain Non action forcing statutes, they are in effort to shape Hard look standard- if it is apparent that the agency gave a hard look and made a reasoned decision then the decision is considered to be a valid one.

b. c.

B.

EIS
1. 2. 3.

Increase public participation Allow for presentation of scientific data Obligation to gather information for the EIS is upon the agency.
a.

Threshold under NEPA for requiring an EIS:

When an action significantly affects the quality of the human environment EIS is required.

C.

WHEN IS AN EIS REQUIRED?

Chinese Staff & Workers Assn v. City of New York (N.Y. 1986)

What does environment mean? Do you have to take into account the human environment? Opinion: NY law talks about displacement of populations. The proposed condos would displace low-income residents and businesses if land is taken over to build condos.

NYs decision in this case goes against NEPA because it only includes the natural world and not the human world. The impact must be physical and not social.

[an] agency [must] consider the potential long-term secondary displacement of residents and businesses in determining whether a proposed project may have a significant effect on the environment.

Noteso o

Private projects that require a permit, require an EIS. Government projects- conflict of interest problems

Propose the project and decide if the project will be allowed. This scares people because it gives the decision makers too much power.

People think that the decisions of local actors will be biased.

D.

WHEN IS AN EIS ADEQUATE?

Laurel Heights Improvement Assn v. Regents of the University of California (Cal. 1988)

Facts: Regents bought a big building and want to move a research enterprise into the building. The initial assessment reveals that the contents of the lab could have an impact on the surrounding environment.

Opinion: The court found that the EIS was inadequate because: (1) it fails to discuss the anticipated future uses of the new facility and the environmental effects of those uses, and (2) the discussion of alternatives is inadequate. However, there was substantial evidence in the record that the environmental impact will be mitigated.
o

Substantial Evidence in the Record Standard- court does not exist to assess the decision itself, but rather to make sure that the EIS is properly done and serves its purpose. The conclusion reached does not have to be correct in the eyes of the court, but is there simply enough evidence to support the conclusion of the agency.

Complete record- court basically says that you have to write a full record with the major options and the reasons for choosing a specific option.

Noteso

Some states require that where there are reasonable alternatives, the agency must use the feasible alternatives. No Build Alternative

If land is zoned to allow some development as of right, arguably, the alternatives considered in and EIS must be the no build alternative.

E.

WHAT IF AN EIS IDENTIFIES ADVERSE IMPACTS?

Town of Henrietta v. Department of Environmental Conservation (NY App. Div. 1980)

Facts: City and developer sought permits to build a shopping center. The DEC issued the permit subject to 18 restrictions. Opinion: SEQRA requires an approving agency to consider fully the environmental consequences revealed in an EIS and to take these consequences into account when reaching a decision whether or not to approve an action. The statute authorizes the approving agency to implement measures designed to mitigate the adverse environmental impacts identified, so long as these measures are reasonable in scope and are reasonably related to the adverse impacts identified in the EIS.
o

SEQRA requires a decision maker to balance the benefits of a proposed project against its unavoidable environmental risks in determining whether to approve a project.

Factors in Balance

In MN the grant of permit likely to cause pollution, impairment, or destruction of natural resources located within the state, so long as there is a feasible and prudent alternative. Economic considerations alone shall not justify such conduct.

Standard of Review-

The standard of review should be the same whether the court is presented with a positive EIS and looks to deny the project or is presented with a negative EIS and seeks to uphold the project.

XX.

RESIDENTIAL ASSOCIATIONS
A.

Background1.

What is it about the structure of the private government that separates them from public governments, and if their functions are converging, then shouldnt the private governments be treated under public lands.

2.

Equitable Servitudes- when the developer messes up and does not uniformly restricts all of the properties. The test is a common scheme.

B.

Flaws in Informal Government:

1. 2.

Small-unorganized governance process with almost no external checks. Plutocracy- if you allot voting according to amount of property owned or money paid for property, then the majority rules.

3.

Limited judicial review:

a.

Two Standards: Both very deferential

Reasonableness Per Se Rule- is the restriction reasonable as a general matter.

E.g. no pets policy- generally valid, although in some specific cases it would not be.

Business Judgment Rule- if the association made it rules in good faith and did so to advance the associations purposes, even if it acted stupidly, then the restriction are deemed valid.

Doesnt even clear a minimum rational basis standard.

Burden of proof is on plaintiff to show that the association did

not act in good faith and to advance association purposes.

C.

DEVELOPER DOMINATION OF THE ASSOCIATION

Tobin v. Paparone Construction Co. (N.J. 1975)

Facts: Two property owners buy plots at roughly the same time. One wants to build a tennis court and the other is not told about the tennis court.

Opinion: Court holds that developer made a fraudulent sale. But, not against tennis court holder. Find for plaintiff, but equity demands that the very expensive tennis court be allowed to stay. Violation for association rules can be either a fine or an injunction (for specific performance).
o

This case could have gone the other way, there is a 50/50 split.

On the one hand, a court could hold that the Tobins had constructive notice and therefore failed to protect their own interest and thus have no fraud claim.

D.

STANDARDS OF REVIEW

Levandusky v. One Fifth Avenue Apartment Corp. (N.Y. 1990)

Property owner wants to reconstruct their kitchen in their condo. Seeks to get permission and is denied, but does it any way. Holding: Courts holds that the association can have the
o

NY court adopts the business judgment rule and finds that the association acts within its powers, in good faith, and were trying to pursue the general goals of the development.

Court explicitly disclaims the reasonableness standard as applied by the lower court. Unreasonable to withhold consent because the renovations would not, in fact, impact the integrity of the building.

E.

ARCHITECTURAL REVIEW

Town & Country Estates Association v. Slater (Mont. 1987)

Proposed new home meets size standards and other building standards, but does not meet the common price of all of the lots.

Holding: Rule is void for vagueness. Court uses a reasonableness standard. Association does not act in good faith because the subdivision rules do not say that houses have to be worth a certain amount.

Association may regulate:

Viewing of sexually explicit material. Have to wear orthodox Jewish attire. Takings like economic claims. Unreasonable association rules.

Association may not regulate:

Purpose of associations are economic and the nature of the associations are bound up in

Harrison v. Air Park Estates (Tex. App. Ct. 1976)

Facts: Private development contemplated that persons buying lots would build both a hanger and a residence on each lot. Harrison wanted to build a hanger before he built a house (was permissible under the old rules, but was changed to not permit a hanger to be built before a house).

Holding: Even though a modification was made to the original plan of development, it was consistent with the overall plan of development and was neither unreasonable nor prohibited by law. Because the modification enhanced, rather than abrogated, the original plan specified in the contracts between the developer and the various lot owners, we hold it to be reasonable.

Notes:
o o

Court will uphold an associations right to enforce CCRs. A modification will be upheld if it is not unreasonable in light of the general scheme of development.

Can make a more restrictive rule than was originally given without being found

Theiss v. Island House Association (Fla. Dist. Ct. App. 1975)

o

Facts: In the original condominium plan both apartments and condos paid equal fees. Apartment repairs need to be done and Villas owners did not want to pay for the apartments to be fixed (didnt benefit the villas).

Holding: The appellants had a right to rely on the fact that their proportionate obligation to share in the common expenses could not be altered unless they agreed to it. The sharing of common expenses based upon a proportion of each units value may be advisable, but the original declaration specified otherwise. In this instance most of the money went to the upkeep of the apartments, but the next time it may be the villas, which will need the repairs.

Notes:

Special Fees & Assessments

The association could have levied special charges against the owners of the units in the few buildings whose roofs required repairs.

Implied Duty to Pay Assessments

An association that lacks express authority to levy assessments may be held to have implied authority to do so to the extent necessary to maintain common areas.

Merits of Residential Community Associations

Protection (gates and fences around perimeter) Sense of community Commendable venture in private ordering Take away burden on local government for some services.

XXI.

FISCAL TOOLS FOR LAND USE POLICY:

A.

SPECIAL ASSESSMENTS
1.

Background-

a.

With greater resistance to property taxation, local governments have been forced to get money in different ways.

b.

Benefit of fees for land use

Creates reciprocity in the exchange, more attractive to local governments than property taxation or user/impact fees.

c.

Local governments provide very expensive services:

Schools, garbage collection, fire, police, drinking water, waste systems.

d.

Property tax makes up the largest chunk of local governments budgets.

Other fees and assessments are growing in importance. Bargaining over land useexactions.

2.

Special Assessment
a.

Have to be distinguished from taxes:

Taxes are for general societal purposes.

Doesnt mean that everyone will feel the impact of the spending of the tax dollars.

Special Assessments- provides disproportionate benefits to a specific group of property or people. The benefits are not general like with taxes.

The theory is that that part of the community that will receive the bulk of the benefit should pay more for that benefit.

Must be a special or direct benefit to a narrow group of people

Water pipes, asphalt,

a person gains special direct benefit from the thing.

Why does the difference matter?

Rules apply to taxation that do not apply to special assessment:

E.g. non-profit entities are exempt from property tax, but not from special assessments.

Taxation is subject to horizontal and vertical equity. Special exceptions are not.

E.g. farm land may be exempted from special assessments.

Creates flexibility

Fee must bear a reasonable connection to the service

McNally v. Township of Teaneck (N.J. 1977)

Facts: Street paving and curbing are done in a town, the town makes special assessments to some 300 residents. P says that the assessment was improper because there was not attempt made to assess for the peculiar benefits to each property as a result of the improvements.
o

Front Foot standard- most common way of measuring, look at whether or not the project benefits that person. Assumption: the true value of the improvement is reflected in the amount of cost. Taking- when cost is greater than actual value.

Collective action problem- hard to get all of the neighbors together to make improvements that will benefit the neighborhood, so government does it for you and then charges you for it.

Louisville & Nashville Railroad v. Barber Asphalt Paving Co. (SC 1905)

Facts: railroad doesnt feel that they should pay a special assessment because they dont really use the railroad. Holding: Justice Holmes is saying that this is rational and this is the best they could do in terms of assessment.
o o o

Using costs as reasonable basis of determining value is okay. We are in a world of rough approximation. Reasonableness is the appropriate standard here.

Legal impossibility- may be an instance of unreasonableness, peculiarity.

E.g. Inability to development land and assessment for water pipes.

Heavens v. King County Rural Library District (Wash. 1965)

Facts: library district is created to finance a library. Holding: The construction of public libraries is a legitimate and laudable exercise of governmental power for the general education of the community at large, but libraries are not constructed primarily to enhance the value of the real estate surrounding them.
o

Things like parks are a great benefit to the surrounding properties so an assessment fee may be exacted, even though the park benefits more than those just within the neighborhood.

Schools- general practice is treated as an element of general taxation. School busses- could do it but may not want to for policy reasons. Street lights- sometimes included as special assessment and sometimes not.

Dissentingo

Park like atmosphere surrounding library.

There is substantial inconsistency from state to state as to what is in and what is out.

Special Assessments

Very regressive, may want to use taxation to keep progressivity. Unusual case- government rarely asks for reimbursement
o

Givings law- when government creates benefits, they should be able to capture the benefits.

Fire- doesnt service everyone because only protects that with property. Police- serve all Emergency services- general taxation because service everyone

Relationship between special exceptions and property taxes

CA is the hotbed of observation.

B.

EXACTIONS I
1.

Backgrounda.

Henry George

Makes the point that there is nothing inefficient about exactions. The exaction can be made against part of all of the land without impacting the developers desire to develop.

Municipalities moved toward up front exactions for financial reasons (collect up front) and also for simplicity and ease.

New growth is the prime candidate for development of exactions.

2.

JUSTIFICATION
a.

Costs that are exacted are reasonably associated with benefits to the payer of the exaction.

Nollan v. California Coastal Commission (1987)

o

Facts: Nolans own a lot and want to tear down the shack and build a new house. The CC says that they will give a permit if the Nolans create a right of way to get from one public beach area to another.

Opinion: S.C. seems to acknowledge that the power that the CC is giving is within its power and discretion.

Nolan says that the purposes of the CCs condition is that the concern will create a psychological barrier between the public and the beach (dont think they can get access to the beach because they see a private residence)

Creating a lateral right of way is not going to mitigate the psychological barrier problem.

If a regulatory condition is imposes on a development permit, that condition must substantially advance the same governmental purpose that refusing the permit would serve or else the action will constitute a taking and require just compensation.
a.

This is not decided under the theory of a physical takings, but is a regulatory takings case because it is based on a regulation.

TEST: ESSENTIAL NEXUS- must be a nexus between the goal and the nature or kind of condition that is desired.

You have to keep the two things connected in terms of kind.

a.

The purpose of the permit condition, does not fulfill any of the stated access purposes.

Dolan v. City of Tigard (1994)

o

Facts: Storeowner wants to expand store and wants to build a parking lot. As a condition of issuing the permit, the city says that they have to set aside a green area and deed over a public right of way for a bicycle path (in order to ameliorate traffic problems created by the business expansion).

The city could have denied the business owners permit out right, but chooses to try and deal.

Holding:

The benefits of an exaction must be roughly proportional both in nature and extent to the impact of the proposed development.

Exactions are constitutional provided the benefits achieved are reasonably related and roughly proportional, both in nature and extent, to the impact of the proposed development.

Seems to suggest that all that government can ask is to take care of all of its externalities. Court looks at Dolans loss of right to exclude as something very fundamental to the nature of her interest.
a.

Difference between preventing harm and providing a benefit, court seems to indicate that the local governments are within their police powers, but court also recognizes the expanding of land use power and a need to check it.

Bike path is considered a benefit. Flood plain is seen as preventing harm.

TEST: ROUGH PROPORTIONALITY

Denominator question- is the denominator just her increased business traffic or is it the increased traffic in the whole district.

Exactions- allow a city to relax zoning ordinances in exchange for goods, services, money, or the dedication of easements.

o o o

Nolan and Dolan are in direct conflict with what George says. Underlying current in the SC that there is a right to develop. Nolan and Dolan may give the developer a little more bargaining power because they can threaten to take them to court.

As cities have been required to make proportionality assessments, the exaction costs have increased significantly, e.g. CA exactions have increased by 85%.

Only about 35% of the possible exactions are being captured.

C.

EXACTIONS II

St. Johns County v. Northeast Florida Builders Assoc. Inc. (Fla. 1991)

Facts: Kind the locality assess new residential developments for the cost of providing something that the locality is already required to provide? Educational Assessment Impact Fee. Find a per unit cost for additional developments. An ordinance is passed which allows assessments to be made.

Opinion: Such an assessment can be done.

o

Nolan Question- Rational Nexus?

Yes, some families are going to have children, at some point in time, it is possible that each of the houses will have children in them.

Dual Rational Nexus Test:

Dolan- Rough Proportionality?

No, the benefits are to everyone and not just to these particular people Will the fees actually be used for school construction?

there is nothing to keep the impact fees from being spent to build schools to accommodate new development within a municipality that has not entered into the interlocal agreement.

there is no restriction on the use of funds to ensure that they will be spent to benefit those who have paid the fees.

we hold that no impact fee may be collected under the ordinance until such time as substantially all of the population of St. Johns County is subject to the ordinance.

If the school district was to keep the funds in a separate account until all of the districts had been collected from, then there would be rough proportionality.

Free rider problem.

Is this what Dolan requires?

Earmark funds? Probably not. Denominator test- what is the appropriate denominator?

People who move into this area will be paying twice, once for the assessment and again in other taxes to pay for outside schools.

Court adopts a standard that allows for averaging across the whole county, so long as the county can get all new developments to be in on the system.

What level of individualization does Dolan expect?

o

After Dolan a municipality would have a tendency to make general assessments, which would kick you back to Nollan, essential nexus.

Nolan v. Dollan

Depending on the specific facts, one prong made be more difficult to meet than the other.

Insiders v. Outsiders

Protect Outsiders:
o

Made in equal protection language:

Not an exaction but a tax must have uniformity of taxation. People who are the same cannot be treated differently, if there is a distinction, however, then you overcome the equal protection barrier.

Are insiders and outsiders different for a specific purpose in the St. Johns Case?

Outsiders are different because:

LOOK AT CHANGED CONDITIONS They are choosing to move into the county. Insiders have been paying property taxes that pay for the schools

Latecomers will often bear the cumulative impacts of building and be forced to make a greater contribution.

Ehrlich v. City of Culver City (Cal. 1996)

Facts: P wants to build a sports facility and does. After a time, he finds that he cannot operate it profitably and he closes it. Then he goes and says that he wants another rezoning for a business building. The city says that the guy going out of business means a loss of public recreational facility, which the community needs. The city asks the man to pay for the new tennis courts, does so under protest, and builds his business facilities.

Opinion: Court says that they can interpret the facts in such a way that it fit Nolan and Dolan.
o

Rational Nexus- Yes, City can use zoning to promote such facilities (its purposes) Rough Proportionality- No, the city can only charge the man the cost for zoning new land for recreational use not for the cost of the building and land.

Who gets to hold the value of the development?

This court holds that it is the developer and not the city.

Art in Public Places

Court holds that this is not a Nolan-Dolan case, so there is only a rational basis question.

The system is generalized (applicable to everyone) and not individualized and discretionary.

States different courses:

Different states apply Nolan/Dolan differently.

o

Del Monte Case- if no physical exaction, then no Nolan/Dolan problem

Centex Real Estate v. City of Vallejo (Cal. Ct. App. 1993)

Facts: Property Development Excise Tax is established on developers as a condition of the issuance of a building permit.

Holding: An excise tax may properly be imposed on the privilege of developing property. A fee is defined as a monetary exaction, other than a tax or special assessment, which is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project.

XXII.

PUBLIC SERVICES
A.

Background1. 2.

Equalization rights are limited Sources of equalization law are a) equal protection Clause; b) civil rights statutes; c) due process; d) state utility law and regulations.

3.

Mostly, service decisions are discretionary, Limits on discretion are a) arbitrary/unreasonable/rational basis, and b) discriminatory.

Hawkins v. Town of Shaw (5th Cir. 1971)

Facts: most important fact is that the town was funding all of its public improvements through general revenues. Discriminatory in how public services are distributed as between whites and blacks.

Opinion: strict scrutiny is used when there is a constitutional case. You have to show a compelling state interest in order to win.
o

This case was cut off at the knees by Washington v. Davis.

1.

Davis v. Washington- it is not enough to show that there is discrimination generally. In order to be unconstitutional, the action must be undertaken by a state employee and you have to have smoking gun evidence of a statement of discriminatory purpose. Not just racism.

2.

Ammonds Case- Note case, find it after Beal

Title 6 (civil rights act) and Federal Housing Act- congress sets forth certain types of rights that do not have to meet the Washington v. Davis standards. With federal acts, you can look at disparate impact in order to prove discrimination.

Beal v. Lindsay (2nd Cir. 1972)

Curtona Park- says that Shaw says that all you have to do is show that you are putting in the same imputs into one place as you do else where. You dont have to show the same out come from the same imputs. If a community has high crime, it does not have any right to have more policing than a neighborhood with low crime. Even if the neighborhood is racially identified.
1.

Just look at the inputs.

Moore v. City of Harrodsburg [Moore 1] (Ky. 1907)

Facts: Guy has a 30-acre parcel that he has his house on. He does not get water, light and paving to his property, but still must pay taxes for these services.

Opinion: Court says that there is a long line of cases that allows the town to collect taxes with out providing services.

Moore II

Facts: Guy goes back and wants to have services extended to his property. Opinion: The guy is told that the city is not required to provide services to his property. The decisions are within the discretion of the city. No public duty to extend services to his property and can still tax him.
o

Substantive Due Process- difficult to show, not a lot of traction to show sub. DP.

Crowell v. Hackensack Water Co. (NJ Bd. Pub. Util. Comm.s 1968)

Facts: P lives 1300 ft. within reach of the water main. If you want to have water you have to make a deposit against the risk of putting the pipe in and its profitability. Any time anyone new hooks up, P would get some money credited to his account. P shows that there are 10 or so house that will hook up, so there is no need to make the deposit.

Opinion: Commission says that the utility has to provide the services and cannot place the cost for them on Ps back. There is no speculative gamble here, because it is clear that there will be enough

people. Besides, the court says that the utility is rich and can handle the cost. Not all lines have to be profitable.
o

What is driving this is not the speculative nature, because they know what the risk is, but just decide to assign the cost to the utility.

RULE- utility has an obligation to serve its area to a reasonable capacity.

This is not explicitly stated in Crowell, but nevertheless is the rule. Obligation includes the requirement to anticipate the future growth of the community. Utility has to think about the path and rate of growth of a community.

Refusals to extend service are one way a community can manage growth.

First Peoples Bank of NJ v. Township of Medford (N.J. 1991)

Facts: Community is trying to manage growth and wants to limit its sewer treatment capacity by selling treatments permits. Bank wants to build something but there are no permits left, so the bank cannot build.

Holding: the court will not force them to expand their treatment facilities because it is reasonable to try and cap growth. Utility service policy can be used to limit growth.
o

Is having access to public services part of what we think use is? If it is, is this a taking? (if it is a municipal utility, then probably yes).

Yakima County Fire Protection District No. 12 v. City of Yakima (Wash. 1993)

Facts: Holding: Cant be forced to provide service outside your service boundaries. If you are the sole provider and say that you will provide for everyone then you probably will be forced to provide. Anything outside that and you probably would not be required to extend services.

Court intervention is not necessary in municipal decisions with utilities.

How does this differ from judicial intervention in exactions or takings?

XXIII.

USE OF EMINENT DOMAIN POWER & TAX INCREMENT FINANCING TO SHAPE LOCAL LAND USES
A.

Background1.

Eminent domain
a.

Eminent domain is though to be particularly necessary when many parcels must be assembled to complete a highway, airport, convention center, or other large project. Overcomes the hold out problem.

B.

Public Use Issue

Berman v. Parker (1954)

Facts: D.C. passes a Redevelopment Act that calls for the condemnation of housing and blighted areas. Act says that it is necessary to acquire the property to promote public health, safety, morals, and welfare. Acquisition of property is necessary to eliminate poor housing conditions. Condemnation primarily impacts poor people.

Opinion: The concept of public welfare is broad and inclusive. It is within the power of the legislature to have objectives of health and beauty for the community. It is up to the legislature to determine what a public use is. Once it has been determined that the object is within the authority of the legislature, the right to realize it through the exercise of eminent domain is clear.

Hawaii Housing Authority v. Midkiff (1984)

Facts: Half of Hawaiis land was owned by only seventy-two people, and the State wanted them to break up their estates.

Holding: A taking involving the transfer of property from one private person to another satisfies the Public Use Clause of the Fifth Amendment if it is rationally related to a conceivable public purpose.

Public Use

Broad View- public use requires that there be an advantage or benefit to the public.

Under the Broad View, a major manufacturer can just as easily condemn property to build a factory that will employ substantial amounts of people in the surrounding area.

Narrow View- requires the public actually use or have the right to use the condemned property.

Under the narrow view, property could be condemned only if it was used to provide a structure, which could serve a large number of people.

Pillar of Fire v. Denver Urban Renewal Authority (Colo. 1973)

Facts: Denver URA filed a petition to condemn Memorial Hall, the first permanent church building of the Pillar of Fire Church. Opinion: The court must balance the interests involved in the controversy and the state must show a substantial interest without a reasonable alternate means of accomplishment. Urban renewal is a substantial state interest that can justify taking property dedicated to religious uses. If the court were to review every acquisition of land by the Renewal Authority, any hope of efficient execution of an overall, integrated plan would vanish.

Notes:

Catering to Small Minority

Courts frequently invoke the Public Use Clause or other doctrines to prevent the execution of a government deal that would be suspiciously generous to a narrow special interest.

C.

Tax-Increment Financing

Wolper v. City Council of the City of Charleston (S.C. 1985)

Facts: Wolper challenges a tax increment-financing plan for the redevelopment of waterfront property within the city. Opinion: Issuance of revenue bonds must serve a public purpose. Public purpose includes the promotion of the public health, safety, morals, general welfare, security, prosperity, and contentment of our citizens. An incidental benefit to private individuals is not fatal to a finding of public purpose. Tax increment financing acts have a public purpose.

Notes:

37 states authorize municipalities to divert increments in property tax revenues in a defined area to finance improvements there.

XXIV.

REGIONAL OBLIGATIONS OF MUNICIPALITIES (875)

A.

OBLIGATION TO CONSIDER NEGATIVE SPILLOVER EFFECTS OF USES LOCATED NEAR MUNICIPAL BORDERS (877)

Borough of Cresskill v. Borough of Dumont (N.J. 1954)

Does Dumont, in order to pass rational basis review, need to please interests outside of local ones? (i.e. regional interests?). Holding: Island view of development only makes sense where the developing area is buffered by non occupied property. This is not the case however, because all of the small cities touched one another.
o

HEAR AND CONSIDER- views of outsiders and treat their views equally with those of Dumont. TREAT OUTSIDERS SAME AS INSIDERSThis is spot zoning- doesnt conform to basic concepts of zoning because it does not separate enough.

o o

City of Del Mar v. City of San Diego (Ct. App. 1982)

Facts: Opinion: Court is operating under the view that San Diego acted properly. The base line standard is that there is going to be some

harm. But the question is, what part of that harm have they mitigated in a reasonable way?
o

The development is going to happen anyway, so what are you going to do? Control and shape the development.

What could have del mar shown to prevail here?

Case shows that even in a jurisdiction where there is good judicial check on local governments, if a city has good documentation the judicial check will be abbreviated to seeing that there is documentation.

Change burden of proof- city has to demonstrate why is light of the presented concerns, the decision is good locally and regionally.

Higher Standard than Rational Basis- Show reason for decision

o

All the city has to do is come up with a reasonable rational, so by shifting the burden of proof, the city is going to have to show the basis for their decision making, which is a higher standard of judicial review.

B.

OBLIGATION TO CONSIDER REGIONAL NEEDS FOR LOCALLY UNDESIRABLE LAND USES

Beaver Gasoline Co. v. Zoning Hearing Bd. (Pa. 1971)

Locality entirely prohibits gasoline stations within its borders. Holding: Court says that it is not going to abandon the established policy that the validity of a zoning ordinance is presumed and that the burden of establishing is invalidity is upon the party who seeks to have it declared invalid. Cant say that you are going to prohibit something that everyone uses.

Rational Basis = Fair Share

o

Case suggests that it is unlikely that a city can prohibit those things that everyone has to have (gas stations, dry cleaners, etc.). Everyone must do their share in having businesses within their territory. (exclusion of commercial uses).

Note:

Valley View Case: Not clearly arbitrary and unreasonable for a residential village to pas an

ordinance preserving its residential character, so long as the business and industrial needs of its inhabitants are supplied by other accessible areas in the community at large.
1.

ENVIRONMENTAL RACISM (904)

i.

Because poor communities have little to offer, then look to offer the ability to pollute, which is one of the only bargaining chips that they have.

There are state based discrimination statutes.

C.

OBLIGATION TO ALLOW (OR PROVIDE) LOW- & MODERATEINCOME HOUSING (911)

1.

EXCLUSIONARY ZONING

Euclidian zoning is most prevalent in suburban areas, still a very useful tool.
o

Used to pursue a number of needs:

Large single family homes Homogeneity of community Tax structure that has no redistributive impact Exclusivity of community that has an impact on property values.

1970s- Urban Housing for the poor was brought to the forefront of peoples attention.
o

Federal hosing Act of 1978- looked at economic and racial integration of housing.

Premise of Exclusionary Zoningo o o

Concentration of rich and poor housing in desirable. Solidifies social/economic stratification Problems of poor communities are exacerbated by the fact that communities are shut to them Transfer of wealth, rising housing prices for poor are moving into the hands of the wealthy suburbanites.

Environmental Impacts:

The more and more people want to move into exclusive communities, the more new developments will be created, causing commuter problems, more expansion into environment, etc.

o o

Social Ills follow from concentration and segregation of poverty. Geographic location- concerns more than housing, acts as a nexus for other political and social rights.

Where you live determines where you go to school.

Where you go to school determines how likely you are to graduate, what kinds of jobs you can get, etc.

Has a lot to do with public services-access to road service, sewers, etc.

Residency connected with job opportunities- geographically located informal networks of employment.

Most new job openings are in suburban areas because they have large retail and service industries.

Poor who are kept out of developments impact a great number of other areas (down stream effects).

Southern Burlington County NAACP v. Township of Mount Laurel [Mt. Laurel I] (N.J. 1975)

Facts: current residents and non-residents who would like to have affordable better housing in Mt. Laurel along with representative groups. N.J. decides this case under its own state constitution. Under 14th amendment, housing is not a fundamental right, exclusion by wealth is not a discriminatory classification, so start route was the only way to go. All single family residential use requirements, large lots and house sizes. Also some industrial land , which pays high property taxes and does not use public services. Just one area in Mt. Laurel zone R-3, where all of the poor people lived. Restrictions on number of children. Those that would permit children had strict limits on children in a room and there was a ratio for maximum

number of children before developer had to pay for the additional childrens education.

Holding: Equal protection and substantive due process of N.J. constitution means that poor and moderate-income people must be given the opportunity to buy housing in Mt. Laurel. NJ says that under their constitution they can provide greater protection for s. d. p. and e. p.
o

All local governmental regulations must be consistent with police power purposes. The police power purposes must be interpreted in terms of regional impact. This kind of isolated fiscal self-protection goes beyond the police powers in that it does not protect public health and safety, welfare, etc.

FISCAL ZONING- used by Mt. Laurel to keep the property values up, the property taxes up, and the drain on public services very low.

This case did not cure the problem, but helped to move along the cause Also shows how courts are fundamentally limited in their ability to take over local governments in order to get done what needs to get done.

Local Governments can buck the system for a very long time.

RULE

REASONABLE OPPORTUINTY/ FAIR SHARE RULE/ REGIONAL OPERATION

Seems to limit the rule to developing municipalities (growing communities)

Premises of Rule

If you take away the artificial barriers then people would buy housing

Mt. Laurel II (N.J. 1983)

Facts: S.C. saw lots of cities trying to resist the mandate of Mt. Laurel. The legislature did not meaningfully help implement Mt. Laurel one (could have restructured taxation to help out local communities in education, could have created regional planning or zoning entities which would take away the ability of local governments to act in a self interested way, take away zoning powers and give to body that will be fair). Ct. is very upset, and wants to find a way to shut down the resistance from below.

Opinion:
o

Creates a new obligation to include every municipality in fair share and reasonable opportunity. Increase the enforcement responsibilities. Good faith effort is not good enough, if just lifting the barriers doesnt work, then there are certain affirmative requirements:

o o

Look at subsidies offered to help pay for low income housing Undertake affirmative governmental devices- amounts to inclusionary zoning (use of zoning powers to create incentives to build low income housing (by way of inducements to developers to create low income housing)).

Builders Remedy- this is the big stick, it says that if you can demonstrate an exclusionary pattern, you ask for the appropriate changes and you are turned down, and the court will order the permit issued and you can build. Judicial bypass of local control.

Special Master- Opinion contemplates taking over local regulatory structure by creating a special master, putting part of the city into receivership to allow the special master to act.

Specialty Courts- Ct. appoints several judges that would handle all of the Mt. Laurel cases.

Dramatically more effective for a short time that Mt. L. I.

Legislature created an agency that would take over the Mt. Laurel responsibilities from the courts.
o

Agency would determine what your fair share was, make sure you met all of the statutes and then you would be certified and be exempt from builders remedies suits for a number of years.

Standard of review was by way of clear and convincing evidence

Agency was supposed to make things more predictable.

Did the agency really carry forward Mt. Laurel requirements?

Not really, it was gutted more or less.

Hills Development Co. v. Township of Bernards (N.J. 1986)

Opinion: SC says that Mt. Laurel responsibilities were to be shifted to the legislature and that was okay.

Builders Remedy- very effective so was welcomed by some and shunned by others.
o o

Mass. Loved the remedy Most states have not gone the route of the builders remedy and have use other mechanisms including:

Judicial review Attractive inducments to local governments

Subsidies to local governments or to private developers Subsidize peoples income to help them buy housing

Planning processes- ensure voluntary compliance with regional concerns

Regional compacts Imposed from state level down School taxation-

Reshape taxation structures

Fair Share- every community has to provide for lowincome housing.

Problems- sometimes it is better for localities to specialize because it is more economically efficient, gives greater quality of life, etc.

Strong, coercive Mt. Laurel power has not been used widely.

D.

MUNICIPAL OBLIGATIONS TO ACCOMMODATE REGIONAL GROWTH (956)

1.

JUSTIFICATIONS FOR GROWTH MANAGEMENT (957)

a.

GROWTH CONTROLS

A more difficult problem that exclusionary zoning. A response to the real conceived problems that growth can create. Act to keep those qualities that are good in the community ( pace, open space, style, etc.) Growth has to go somewhere

Often the impact of growth controls looks the same as exclusionary zoning

Keep housing prices high (discriminate against poor)

Debate begins in the 1970s with the notion of Urban Sprawl

Sprawl

Loss of open space More use of cars because public transit has not developed

Local City concern for growth:

Infrastructure- in order to keep up with growth, taxes will rise to pay for the new public facilities.

Public schools- have a difficult time keeping up with the increasing population.

Planning Crisis

A community that suddenly has lots of land use conflicts and doesnt have the ability to regulate Growth controls can be an interim mechanism that allows the city time to get the tools & mechanisms it need to deal with the growth

Environmental Concerns: sewage capacity, water supply, air pollution, quality of life concerns (preserving open space, etc.)

2.

MORATORIA (966)

Associated Home Builders v. City of Livermore (Cal. 1975)

Facts: voters in Livermore enact a moratorium on building until a performance standard is met. Performance standards look at Educational facilities, sewage, and water supply. Trade group challenges the ordinance on two grounds: 1) exceeds the police power; and 2) violates the constitutional right to travel.

Imposition on a fundamental right, such as the right to travel, is governed by the higher standard of compelling state interest.

Holding: CA SC says that the right to travel has been impeded constitutionally before and it does here. The standard is therefore the rational basis review.

Regional Impact- Must judge how far the ordinances reach is and those who it reaches are those whose interests you have to look after (may extend well beyond the boundaries of the city).

REAL AND SUBSTANTIAL TEST FOR RATIONALITY

Must have a real and substantial relation to the public welfare.

Forces the inevitable

Reasonable Accommodation- dont have a measure here, but that is what the court says should be used. DISSENT

Any absolute prohibition on housing development is presumptively invalid. Local regulations, based on parochialism, that limit population densities in growing suburban areas may be found invalid unless the community is absorbing

a reasonable share of the regions population pressures. TAKINGS

Tahoe- gives legitimacy to moratorium, necessary part of good decision making because it slows things down.

Temporary taking problem- absolute destruction of personal property for a limited duration is not unconstitutional under Lucas, you have to look at Penn Central.

First English is really a case of remedies, what you can get after an ordinance, which is intended to be permanent and is later invalidated, is revoked and there was a temporary taking.

Vested Rights- even a moratorium cannot stop people from bringing vested rights claims.
3.

GROWTH PHASING PROGRAMS (976)

a.

If you can do in under nuisance, you can do it by zoning. Similarly, if you can do it under zoning, you should be able to do it under growth controls.

Golden v. Planning Board of Town of Ramapo (N.Y. 1972)

Facts: Point system with a certain minimum number of points is required to get a permit. You get points by making sewers, drainage, parks and rec. areas, roads, and fire facilities.

Opinion: court says that even though it may be 18 years before a permit can be granted, it is not a taking and this program has a legitimate end. Its goal is to try and make orderly a planned growth process and that it is a legitimate end to shape the pace and pattern of growth.

Should there be any time restriction on how long a city can say it will wait before proper infrastructure can be created.

Takings- Does the point system bring Golden into the realm of Nolan and Dolan? (that implies that you get past Penn central)?

Doesnt have the discretionary element that Nolan and Dolan require. This is a generally applicable regulation

Line is between general measures applicable to all v. the problem of extortion by local governments on individuals.

4. 5.

ADEQUACY OF PUBLIC FACILITIES PROGRAMS (980) RATE OF GROWTH OR QUOTA PROGRAMS (983)

Construction Industry Association v. City of Petaluma (9th Cir. 1975)

City is going to cap growth at 500 units per year (6% per year) and is working on a point system based on what type of building and where you want to do it (e.g. if you are filling in empty space, get more points than if you are contributing to sprawl).

Regional Impact- if every one were to have these rules, there would be a substantial shortage of housing regionally.

Petaluma Impact- if you look only at Petaluma, the system will actually have more housing.

Holding: all zoning has exclusionary impacts and there is a rational basis on which to use such a system (legitimate purpose)

Petaluma is decided by the federal court and later CA SC comes out with Livermore, which comes out differently.

This is a legislative matter (according to 9th Cir).

State courts would be more likely to take an active role in the decision because it directly impacts them.

Rational basis- means something different depending on the circumstances and is

interpreted differently by differently courts. Here the 9th Cir. is not using any sort of heightened basis review.

Test out of Livermore is is this a reasonable accommodation?

Is 6% a reasonable accommodation?

Fair share- what are the growth rates in the region?

Specialization argument- argument is that because you are unique, you should not have to do your fair share.

URBAN EXPANSION LIMITS (989) Urban Growth Boundaries

Definition: No maximum growth level but has a space maximum. You can build as densely as you want but it must be within certain boundaries.

More or less legitimate?

Do deviate from the other planning tools that can be used

Infringement of all of your property rights (actual land and time).