Land Use Outline SECRET

Land Use Ball, Fall 2009
THE PLAYERS IN LAND DISPUTES i. Developer ii. Neighbors iii. General-purpose local govt reconciles competing interests/seeks funding for local streets, utilities, and other infrastructure from the developer. Uses four tools: a. comprehensive plans - statement of goals and maps; b. zoning ordinances - control building bulks, size and shape of buildings, uses of land/buildings; c. subdivision regulations - control location and design of streets, sewers, parks, and other infrastructures; and d. building and related codes.
I.
ZONING & THE CONSTITUTIONAL RIGHTS OF LANDOWNERS AND
DEVELOPERS A. 3 Major Types of Policy Arguments Underlying Claims: i. inefficient from social perspective a. Due Process (14th Am.) - requires each zoning restriction be reasonably related to a legit govt objective b. Takings Clause (5th Am.) - Some cts. used this to examine reasonableness of reg., until Lingle foreclosed this option ii. unfairly burdensome or disruptive of settled expectations a. Equal Protection Clause (14th Am.) / Takings (5th Am.) - prevent landowners from shouldering unfair burdens b. Due Process (14th Am.) / Takings Clause (5th Am.) - interferes w/ settled expectations iii. violative of landowners or developers civil liberties a. 1st Am. (free expression, free religious exercise, privacy, and association) B. Substantive Due ProcessStates Police Power to Regulate Land Use - Is zoning constitutional? Is it consistent w/states zoning power? Does govt have auth. to regulate? Place to start for constl analysis. i. Judicial Deference - unless govt decisions seem totally arbitrary, local govt knows best; is zoning constitutional since it regulates the use of private property? ii. Village of Euclid v. Ambler Realty Co. (U.S. 1926) - starting point for answer. Principle of zoning okay, consistent with police power. Ps brought a facial challenge to an ordinance designed to stop expansion of city into residential neighborhood by zoning Ps land strictly residential. a. upholds validity of separating uses (strict zoning segregation - cumulative zoning), including multi-unit from single-family residence. Results in cookie cutter development. b. presumption of constitutionality - deference to local govt c. constitutional if ordinance is fairly debatable or unless its arbitrary and capricious - very high standard d. rational basis review - ordinance must be rationally related to health, safety, morals, or general welfare; as long as not arbitrary, then ok e. Just b/c may be unfair in one instance, not completely invalid; claim of injury too broad. Ct. wont invalidate the entire thing by going through piecemeal to ensure each provision valid. f. Note: in Euclid, ct. did not require this, but today P must exhaust all nonjudicial remedies (i.e., submit specific proposal for development and seek any available variances) before challenging the validity of an ordinance in ct. - facial challenges very difficult to win iii. Cost/benefit analysis - zoning restriction inefficient when burdens on restricted landowner greater than benefits of restriction to landowners neighbors and other interested parties.
Determined by how much the people who gain from the policy value their gains vs. how much those who lose from the policy value their losses (Kaldor-Hicks test). a. Nectow v. City of Cambridge (U.S. 1928) - P wants to use entire land for industrial purposes, but some of it zoned residential. Govt refused. Ordinance violates D.P. b/c constitutes invasion of Ps property w/out nec. basis; wont promote (not related to) healthy, safety, morals, or general welfare - determinative. 1. As applied challenge (vs. Euclid facial challenge) iv. Today - how far does police power go? a. Stoyanoff (Mo 1970) (ugly house) - landowners try to build a modern house that didnt match architectural style of neighborhood. Review bd. denied app. 1. Statutory challenge: whether its in line with the State Zoning Enabling Act (SZEA) A. IS consistent b/c authorizes reg. (auth. architectural review bd.) B. if falls w/in broad lang. of act, then argument would be that includes arch. review bd. C. could argue over the term reasonable - not a commercial property, still just a house; matter of aesthetics, is that reasonable? Character different from aesthetics. 2. Constitutional challenge: whether prohibition is constitutional b/c doesnt harm general welfare - is it consistent w/the police power (D.P. claim)? A. IS consistent w/police power; ct. suggests that aesthetics alone may not be enough, but protecting prop. values consistent w/promoting general welfare of community i. increase tax revenue ii. protecting investments - general welfare of people already there who have already built B. Ask: is it proper police power (objective) or is it giving too much subjective power to regulators (is standard too vague)? i. could argue that one can rationally assess value of prop. and put a hard no. or dollar range - objective standard. ii. could argue ugly, grotesque and unsuitable entirely subjective b. Kuvin (Fla. 2007) (truck) - man parks truck in ritzy neighborhood, ord. invoked to say no. 1. No rational relation b/w ord. and protection of general welfare; no legitimate reason 2. City argued certain feel to neighborhood - parking truck ruins that. Trucks have connotation of lower class (govt doesnt really go there but implied) 3. Ban on commercial trucks overnight parking ok, but is ban on personal use trucks ok? Ct. says no. Commercial trucks serve diff. purp.; would change character of area (i.e., takes away from residential character of municipality). 4. Ask: what review process is in place that will make these determinations? Are there concrete, objective standards? A. difference b/w Stoyanoff & Kuvin (Stoyanoff: can call realtors and get a no.) B. house more stable, cars come and go C. could you establish that cars coming and going will affect prop. value? D. Stoyanoff: can you build (come) here? Kuvin: you are already here and may have to leave. c. Anderson (Wa 1993) (incompatible commercial development) - man makes proposal, denied 3 times (diff. feeling from surrounding buildings) 1. facial AND as applied challenge 2. closer question is facial challenge re: whether standards in ord. are too vague; is there enough meat in the bones to give sufficient guidance to prop. owners for D.P.? v. Critical issue in D.P. is whether the challenged action is legislative or administrative a. If legislative, purp. of policy is irrelevant for rational basis analysis; question only is whether a rational basis exists b/w the policy and any conceivable legit. govt objective
b. If administrative, ct. determines whether decision maker acted rationally based upon the evidence; will be set aside as arbitrary only if record contains no rational basis for decision C. Equal Protection ClauseLine Drawing and Class of One Claims - how is govt regulating? Improper distinction b/w restricted owner and similarly situated owners? Restriction imposed b/c of who owner is - govt making some impermissible distinction that rises to level of discrimination under Const. i. Judicial deference - presumption of constitutionality; property owner has burden of showing no rational basis a. Ask: intentional? Irrational? Some circuits: ill will? (Olech: retaliation for previous suit?) Intentionality reqt - must establish govt intentionally discriminated against you. iii. Discriminatory line drawing a. Layne v. Zoning Bd. of Adjustment (Pa 1983) - ord. distinguishing boarding house and rooming house on basis of meal availability constitutional - presumption of validity, def. to govt 1. Meal service invokes health codes (commercial activity) - sufficiently substantial relationship to health, safety, morals and general welfare of community. Meal service makes it a commercial entity - legitimate distinction b. Cant be merely debatable - lines must be drawn somewhere; must be clear showing of abuse of legislative discretion iv. Class of one claims a. Village of Willowbrook v. Olech (U.S. 2000) - conditioning permit on owners granting of a 33 ft easement when all other neighbors had 15 was unconstitutional; arbitrary. 1. EPC does give rise to cause of action on behalf of a class of one where P did not allege membership in a class or group. Here, retaliation alone basis of claim. 2. Makes it more difficult for case to be dismissed on pleadings (prior to Olech, if D could offer or judge could imagine a rational basis, no need for discovery); cts. confused about how to reconcile traditional rules of deference w/liberal rules of pleading, and introduction of ill will creates a disputed fact re: state of mind of decisionmaker. 3. Ask: intentional? Irrational? Some circuits: ill will? Here, irrationality enough; ill will not reqd. But see Flying J. 4. Danger: every time someone alleges theyre being treated differently than others, you have a fed. constitutional claim. Concern that fed. cts. would be overwhelmed w/garden variety zoning disputes. Reqing ill will or animus one way to protect against this. b. Flying J. Inc. v. City of New Haven (7th Cir. 2008) - ord. not invalid just b/c adopted in response to one particular developt; must be irrational to violate Const. 1. Even if amended out of animosity, if ratl basis, then ok (if ct. can hypothesize any ratl reason for ord., then not invald). Presence of ill will alone not enough to make it irrational, w/class of one claims (though tends to be enough in group disc. claims; in those cases, irrationality or ill will/animus enough). 2. Animus only comes into play when no conceivable ratl basis and animus is only explanation. 3. Presumption of rationality - P must plead sufficient facts to overcome this presumption 4. Note: availability to govt to change its mind becomes more limited the farther along developt is (nonconforming use - already being used). Vested rights doctrine also relevant. v. Discrimination against a group - see section III; Race, socioeconomic class, disability, etc. Difft levels of scrutiny (race, gender, and religion require high level of scrutiny). D. Takings Clause - how is govt regulating? Primary purp. to prevent govt from forcing some people to bear burdens which, in all fairness and justice, should be borne by public as a whole. Allegation: on some level theres an impermissible targeting going on, but not what we would
consider to be a pure disc. claim. No intentionality reqt. Police Power Reg. taking; Eminent Domain Power Physical taking. i. If Due Process does not apply, proceed through Takings analysis: a. Does reg. codify common law restriction? 1. If yes, no taking, even if it deprives property of all EVU (economically viable use) 2. If no, then does reg. deprive all property of all EVU? A. If yes, then per se taking (Lucas) B. If no, then does it result in permanent physical occupation? i. If yes, then per se taking (Loretto) ii. If no, is there a taking under Penn Central? Most open-ended, categorical, factsensitive analysis ii. D.P. analysis precludes Takings analysis (antecedent to it): if impermissible, then no compensation could rectify the wrong. a. Lingle separates the two: D.P. analysis comes first; if no proper relationship b/w means and ends, thats it - reg. is unenforceable, injunction will be issued. Comp. will not be at issue, b/c doesnt matter how much govt willing to or forced to pay. b. Look at it through remedies: what is prop. owner after? Invalidation of the reg. (D.P. challenge), or comp. (Takings challenge)? iii. Nuisance Regulations (Never a taking) - complicated by Lucas a. Mugler v. Kansas (U.S. 1887) - NOT A TAKING: prohibition simply upon the use of prop. for purposes that are injurious to health, morals, or safety of community (selling liquor) not deemed a taking; physical seizure compensable, but not reg. re: use of prop. 1. creates a nuisance exception to the taking guarantee (not a regulatory exception) applies only to the noxious uses of property. A. could argue it wasnt a noxious use the day before law was passed (not spewing odors or pollution to neighboring properties) 2. Times change - doesnt mean const. right to be compensated every time something changes A. Could argue unfair to apply law retroactively - could say that from now on its illegal to use prop. in such a way, but any existing uses ok iv. Ad Hoc Analysis (Balancing Test) - physical taking of property reqing comp. vs. regulatory actions aimed at preventing harm a. Pennsylvania Col Co. v. Mahon (U.S. 1922) - TAKING: govt goes too far. Govt reqd to comp. coal mine owners for reg. prohibiting them from mining under private home. 1. Matter of degree of reg. (extent of dimunition of prop.) - here regulated to such an extent as to render prop. worthless. No general rule, depends on degree; here, akin to physical taking. A. Focuses on support estate only - support estate loses all value. Dissent: conceptual severance - should we sever prop. and look at diff. types of estates (support, surface, and mining) individually, or should we look at them as a whole. If latter, could say that while value of one goes down, value of another goes up, so not a taking. 2. Line drawing vs. balancing test - is ct. drawing a line (regs. that cross a line in diminishing too much value of the prop. reqs comp.), or is it employing a balancing test where extent of dimunition weighed against importance of govts interest? 3. Look at what is being regulated (liquor vs. coal); coal mining not a nuisance. Does not fall under nuisance reg. exception. 4. Reversing a harm vs. extracting a benefit: govt shouldnt have to comp. for abating harm, unless govt is extracting benefit from reg. to Ps detriment
5. Average Reciprocity of Advantage: if benefits coming back to owner, less likely it will be considered a taking (Plymouth Coal (U.S. 1914)). Look at benefits conferred to entire comm. b. Penn Central Transportation Co. v. City of New York (U.S. 1978) - confirmed that owner must be denied all economic use of land before a taking has occurred and comp. reqd; diminution in value doesnt mean taking per se. Applied balancing test re: dim. in value vs. economic impact. Factors considered: 1. economic impact on property owner A. Is this is a temporary taking? B. Is there some portion of the prop. that can be developed? (i.e. Palazollo could still develop upland portion of land.) Will still make a profit; doesnt have to be full profit. C. Average reciprocity of advantage - owner benefited by reg. along w/all other NYers (entire city benefits from reg. preserving a landmark). D. Anything short of a 100% dim. in prop. value must be decided w/in Penn Central framework (cf. Lucas: a 100% dim. of value falls outside Penn Central balancing test and will always require comp. unless reg. simply codifies already inherent limitations on owners title). 2. interference with reasonable investment backed expectations (RIBEs) A. What were the laws in place at the time? The history of govt action? Nature of the land? B. S.C. said city didnt prevent them from using Penn as it was; nor did it prevent Penn from ever using air rights, just couldnt build a 50 story building. C. Transferable Development Rights (TDRs) - still has ability to use pre-existing air rights b/c transferable to other parcels in vicinity. NOTE: TDR goes to whether adequate comp., not to whether theres been a taking (Suitum v. Tahoe Regional Planning Agency (1997)). 3. character/nature of the govtal action - taking more readily found when interference w/prop. characterized as physical invasion by govt than when interference arises from a public program adjusting to benefits/burdens of economic life to promote common good. Accounts for importance of the govt interest. 2 prongs: 1) akin to physical taking? 2) extent/degree of public interest. A. Penn claimed city had taken away their air and land rights and wanted just comp. S.C. said no partial takings - taking jurisprudence doesnt divide a single parcel into discrete segments and attempt to determine whether rights in particular segment have been entirely abrogated. Instead, focuses on both character of action and on nature and extent of interference w/rights in parcel as a whole. 4. distribution of the burden - how many prop. owners affected? v. Per Se Takings (Always a taking) - Exceptions to Penn Central a. Condemnation b. Permanent physical occupation 1. Loretto v. Teleprompter Manhattan CATV Corp. (U.S. 1982) - perm. physical occupation (cable on side of Ps townhouse) of prop. by 3rd party auth. by govt reg. always a taking, regardless of whether action achieves important public benefit or has only minimal economic impact on owner. A. Occupations qualitatively more severe than a reg. of the use of prop. c. Depravation of all viable economically beneficial use 1. Lucas v. South Carolina Coastal Council (1992) - after P bought land on coastline, govt enacted law prohibiting P from building any permanent structures, rendering land totally useless. Ct. established total takings test: preventing owner from building on land a taking b/c he could do nothing else w/it; was this reg. a guise to push land back into public domain?
A. A 100% dim. of value falls outside Penn Central balancing test and will always require comp. unless reg. simply codifies already inherent limitations on owners title B. No nuisance exception: not a nuisance b/c not prohibited by common law i. fact that a particular use has long been engaged in by similarly situated owners and theyre permitted to continue use denied to P lack of any common-law prohibition C. Factors in total takings test: i. degree of harm to public lands/resources, or adjacent priv. prop., posed by Ps proposed activities ii. social value of Ps activities and suitability to locality in question iii. relative ease w/which alleged harm can be avoided through measures taken by P and govt D. Categorical rule: if reg. prohibits all economically viable use of prop., taking, unless reg. consistent w/or arises from common law nuisance principles. If so, Mugler is still good law, even when application of reg. deprives prop. of all EVUs. vi. Tensions b/w Penn Central and Per Se Rules (Loretto and Lucas) - following cases seem to backtrack from per se tests ct. embraced in Lucas. a. Palazzolo v. Rhode Island (U.S. 2001) - Fact that ownership came after reg. does not prevent takings claim. Sued under inverse condemnation; had standing despite purchasing land w/reg. Dont want to make constitutionality of reg. contingent upon passage of time; would impair a persons ability to pass land off/do what they want w/it, and would create 2 distinct classes of people (old owners v. new owners or buying vs. inheriting). 1. Not a Lucas claim, but remanded for analysis under Penn Central. A. owner not deprived of all economic use of prop. b/c value of upland portions substantial (so Lucas WONT work). B. BUT lower ct. erred in ruling that acquisition of title after effective date of reg. barred takings claim. Shouldve analyzed pre-acquisition notice issue under Penn Central. 2. NOTE: If reg. first, apply Penn Central. If ownership first, reg. second, apply Lucas. b. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (U.S. 2002) - Moratorium on developt imposed during process of devising comprehensive land use plan not a per se (Lucas) taking. 8-mo. moratorium was to work out plans b/c Tahoe was becoming over-developed. Temp. taking, not a categorical taking. 1. Temporary moratoriums are not per se takings b/c: 1) eventually get back economic value of land; and 2) would force govts to make decisions quickly - would result in poor planning 2. Fails under Lucas b/c regs. had only a temporary impact on Ps interest in prop. - no categorical taking. If govt had temporarily USED prop. for public use, would require comp. But since only a temp. reg. re: private use of prop., no taking. 3. Where govt regulates, better analyzed under Penn Central framework; starting point should be to ask whether there was a total taking of the prop. (Lucas) - if not, Penn Central applies. A. Rule in Lucas carved out for extraordinary cases in which reg. permanently deprives prop. of all value; the default rule remains that, in reg. taking context, fact specific inquiry (Penn Central) appropriate. B. Lower ct. found fails under Penn Central b/c (Penn Central factors): 1) temp. nature of regs.; 2) avg. holding time of lot in area 25-years (significantly longer than moratorium); and 3) Ps failed to offer specific evidence of harm. S.C. did not address this issue.
vii. Takings Analysis - substantially advances test no good a. Lingle v. Chevron U.S.A., Inc. (U.S. 2005) - Agins test: taking if reg. does not subst. advance leg. state interest. Ct. said test NO GOOD: different remedy - injunction v. comp. (inj. should be issued, stopping the reg., not comp. which would allow reg. to continue). Fine for S.D.P. claims, but D.P. clause should not be incorporated into a takings analysis. 1. Agins formula suggests a means-ends test - whether reg. of private prop. is effective in subst. advancing some leg. public purp. Not valid for discerning whether private prop. has been taken (doesnt look to impact on prop.) Cts. would have to determine efficacy of regs. - suitable for leg., not cts. 2. Appears to say that Takings Clause shouldnt be used (outside of exactions context) to give prop. owners the benefit of greater judicial scrutiny of leg. decisions. 3. Takings analyses focus on vertical burden (burden to land) and horizontal burden (how many people are affected? Distribution of burden?). Problem w/Agins: reveals nothing about magnitude/character of burden; provides no info re: how burden dist. among prop. owners. viii. Exactions - requires developer pay for or provide some public facility or other amenity as condition for receiving permission for otherwise prohibited land use; need some nexus b/w exaction and developt. Govt can ban developt altogether, wields power over developers however, ceiling on govts prop. rule protections, so exaction functions as liability rule protection. a. Developer pays for some public good. Problem: govt permitting developt w/condition attached, akin to a bribe? b. Adjudicative vs. Legislative - see Ehrlich (below) 1. Adjudicative: higher burden on owners, requires individualized assessment 2. Legislative: applies across the board, easier for govt to apply 3. When legislative body is acting adjudicatively, less deference to leg body; court will scrutinize more closely c. Reasons for exactions: 1. More efficient use of infrastructure by requiring developer pay for it (shifts initial cost) 2. Mitigate neg. effects developt may have on neighborhood, efficient to have developer and customers internalize costs 3. Growth enablers: developers can pay for infrastructure in areas that are growing rapidly, but govt cant pay for it 4. Can use to discourage growth 5. Redistribute wealth from developer to others, or to prevent developer from appropriating wealth created by activities of the local govt 6. Note: makes sense for govt to condition a benefit that the govt is not required to permit on the recipient of the benefits agreeance to waive constitutional rights d. Ask of govt? 1. Require connection b/w exaction and developt or exaction and neg. externalities of developt. See Nollan and Dolan e. Nollan v. California Coastal Commission (U.S. 1987) - Essential nexus test. Govt conditioned grant of building permit for a beach house on landowner granting town easement to beach. Not ok. Ct. says govt should have either rejected altogether, or permitted w/out condition. Need essential nexus between the means (exaction, i.e. the easement) and the ends (i.e. preventing psychological barrier to beach); none found, but ct. indicated broad range of possibilities; lang. suggests more than a reasonable connection
1. Exaction Analysis: means/end test appropriate when dealing with exactions. Here, condition (easement) does not do what it purports to do; not reasonably related to subst. advance leg. state interest (Agins standard (pre-Lingle)). f. Dolan v. City of Tigard (U.S. 1994) - govt failed to meet standard for relationship b/w impact of developt and condition on permit. City could not condition granting of Ps extension of her store on her dedicating portion of land to storm drainage and bike path (exaction: public dedication of land reqt). Higher burden: need to show rough proportionality and more factual basis. Went further, adds extra step; 2-step analysis (1-2 below): 1. Essential nexus b/w permit condition and legit state interest? Yes (bike path to eliminate congestion) - Nollan satisfied. Now, if yes, then must decide 2. Degree of connection b/w exactions demanded by citys permit and projected impact of proposed developt? Not ok, P lost right to exclude others from property w/bike path A. Rough proportionality standard - city has burden to prove (Dolan) (under Nolan, wasnt clear). Cant rely on tentative findings; must quantify findings. Here, findings not constitutionally suff. to justify conditions imposed B. Govt needs sound factual findings (must quantify findings); higher burden after Dolan; i.e. Goss - reqing dedication for highway development not proportional 3. Nollan looks at nexus relationship b/w means and ends. Dolan looks at impact of developt and nature and extent of exaction. In Nollan, impact of developt does not play a role at all -- what developer is adding in terms of problems to community does not matter. In Dolan, in addition to an essential nexus b/w means and ends, has to be an analysis about impact of developt and nature and extent of exaction; adds an extra step. 4. NOTE FOR ANALYSIS: If no nexus, need not go on to rough proportionality. If no nexus, may have a taking if govt goes ahead and demands exaction. If nexus, go on to determine whether rough proportionality test met. g. Monetary Exactions - Issue of whether Nollan and Dolan apply to fees (monetary exactions) has never been decided by S.C. -- cases below are state cts grappling w/issue 1. Ehrlich v. City of Culver City (Cal 1996): P asks permission from city to build recreational facility on prop. City amends ordinances, allows permit. Later, P realizes facility not financially feasible, asks permission to build condos. City says need for rec facilities. Finally allows condos w/condition that owner pays exaction fee. Also imposed an art exaction fee. A. Should difference b/w impact fee and dedication of land make a difference? Higher scrutiny b/c afraid of extortion? B. For ct., doesnt matter if its a fee or land, as long as they are applied on an individual discretionary basis then higher scrutiny, and Nollan and Dolan apply. Not a matter of land vs. money, but rather the distinction b/w an exaction that is adjudicative (discretionary burden to individual prop.) and one that is legislative (non-discretionary, arbitrary reg. of prop. rights) C. Does not take into account severity of exaction -- only matters how its applied. A very severe, nondiscretionary exaction may be more permissible than a very soft, discretionary exaction D. Land Money Adjudicative Dolan and Ex.: Recreational fee (discretionary) Nollan (Ehrlich) Legislative Ex.: Art fee (Ehrlich) (nondiscretionary)
Ct. finds that the art in public places fee is a legislative exaction, so its not subject to Nollan/Dolan analysis. Ok, b/c applies across the board, to everyone F. Rec. fee meets Nollans essential nexus test. But city incorrectly measured magnitude of its loss (i.e., the rec. exaction) by incorporating value of facilities it had no right to appropriate w/out paymentt (Ps rec. facility). There is a possible justification for rec. fee (possible impact re: rezoning to allow rec. developt elsewhere, and difficulty finding developers of rec. facility due to Ps condo). But remanded to determine proper valuation of exaction under Dolan so as to not include value of Ps rec. facility as part of loss due to Ps app. for a permit to build condos. G. Note: Why is Dolan adjudicative? Ct. says easement was requested of ALL owners on that shorefront. Gray area -- hard to say what is adjudicative and what is legislative. Ct. found Dolan adjudicative regardless 2. St. Johns River Water Management District v. Koontz (Fla 2009) - P requested permit to develop prop. Govt conditioned permit if he performed certain off-site mitigation involving prop. a considerable distance from Ps prop. P brought inverse condemnation claim; argued a taking reqing comp. P argued not that he cannot get economically viable use of property b/c of denial (not Lucas or Penn Central claim), but instead argued under Nollan/Dolan that no essential nexus b/w off-site mitigations to protect the value of that prop. (end) and exaction (means), and that exaction not roughly proportional to impact. Issue: taking? Holding: Yes. A. Does it make sense to apply Nollan/Dolan to this situation where exaction was never actually realized b/c property owner refused? B. Nollan/Dolan applied here may create incentives for govt to just say no (instead of yes, but), to pass legislation to make it non-discretionary, or to refuse to negotiate out of fear of being sued, and therefore forcing P to bring to the table potential conditions he would be willing to fulfill C. Dissent: ironic to punish govt for saying yes, but instead of just saying no. If govt had just said no, P would not have a taking claim at all most likely (would have to apply Penn Central test, but it is doubtful hed have a claim). P may have a due process claim if conditions arbitrary and capricious, but not a takings claim b/c no actual taking D. Also odd b/c govt didnt actually receive anything here. Govt took nothing, got nothing. The claim is essentially a preemptive taking claim. ix. Ripeness Doctrine a. Williamson County Regional Planning Commission v. Hamilton Bank (U.S. 1985) fed. lawsuit that goes to S.C., which decides they cant reach the ultimate taking issue b/c theres a ripeness issue; lawsuit is not ready for cts b/c every other option has not yet been exhausted. 1. 2 prongs to ripeness test: A. Final determination reqd: There was an option to seek a variance which was not sought; i. Need a final no from whatever entity has power to say no for at least the first time. Does not mean you have to appeal that decision (finality of admin. action vs. admin. remedies). Ex.: zoning regs often explicitly allow a waiver of their enforcement if you meet certain criteria. If P had applied for variance and been denied, final determination. But would not have to appeal initial denial. B. Comp. sought and denied (state remedies (inverse condemnation) must be exhausted): If state has mechanism in place that allows prop. owners to sue state in
E.
reverse condemnation claim then prop. owner must take advantage of those remedies before going to fed. ct. i. Cant claim taking w/out comp. if didnt seek comp. - 5th Am. doesnt require preemptive or contemporaneous comp. 2. Purpose: to insulate - protects fed. cts from prop. owners who try to go to fed. ct. too early, before a final decision made by local govt. 3. NOTE: neither prong applies to facial takings challenges - facial challenge asserts the mere enactment of reg. deprives landowner of all economically viable use of prop. b. Braun v. Ann Arbor Charter Township (6th Cir. 2008) - T1: Ps request rezoning. T2: Rezoning denied. T3: Ps sued in state court, takings claim. T4: State ct. rules claim not ripe (under state ripeness rules, not Williamson County). T5: Ps apply for variance. T6: Variance denied. T7: Ps sue in fed. ct. Issue: Inverse condemnation (2nd) prong. Ct. found takings claim not ripe. But what about constitutional claims (D.P., S.D.P., and E.P.)? Are these also not ripe? 1. P.D.P. claim: ancillary to takings claim - essentially same claim, cant separate them. W/out takings claim, no D.P. claim (and vice versa); if takings claim not ripe, D.P. not ripe A. Reason: 1) cant say why taking occurred (i.e., D.P. violation) if unable to determine whether a taking occurred; and 2) Ps could bypass ripeness reqt by attaching ancillary D.P. claims to takings claims 2. S.D.P. claim: Can distinguish b/w claims that are ancillary and those that are not by remedy P seeking. If seeking comp., takings; if seeking injunction, another type of claim (Lingle). Insofar as remedy sought is same (money), S.D.P. claim subsumed by takings claim (not ripe if takings claim not ripe). Since also sought injunction under S.D.P, ct. applied S.D.P. analysis and found no violation. 3. E.P. claim: If really alleging a bias, doesnt sound like a takings claim. If bias is main thrust of claim, and that claim would disappear if they won the takings claim, then that claim is not yet ripe until takings claim is ripe. c. Insomnia Inc. v. City of Memphis (6th Cir. 2008) - no takings claim, but ct. says wont hear 1st Am. claim b/c its not ripe - applies Williamson County 1st prong (finality reqt) to 1st Am. claim arising from land dispute. 1. Ps argue 1st Am. claim ripe as soon as adverse decision made (diff. from Takings claim) 2. Ds argue w/out finality, ct. lacks subj. matter jd. - Ps proposal may still be approved if resubmit revised plan for prop. developt, rendering claim moot 3. Ct. considered 3 factors: A. likelihood that harm alleged by Ps will ever come to pass B. whether factual record sufficiently developed to produce fair adjudication of the merits C. hardship to parties if judicial relief denied at this stage in proceedings. x. Nonconforming Uses and Vested Rights a. Amortization Periods 1. Retroactive application of land use regulation - when that use which is being prohibited is already being carried out prior to the enactment and implementation of the ordinance, everyone agrees that taking action to preclude that use is unconstitutional b/c violates due process (so presumed unconstitutional) 2. Prospective application of land use regulation - presumed constitutional (Euclid) 3. Amortization provisions fall somewhere in the middle - whether a ct. upholds seems to come down to whether they put them more on the side of the divide w/retroactive or w/prospective.
10
4. PA Northwestern Distributors v. Moon (Pa 1991) - prop. owner opened adult bookstore; ord. passed shortly thereafter that adult stores not allowed in certain areas, including Ps location. 90 days from ordinance to comply. A. Lower ct. finds distinction b/w prospective application and amortization provisions is merely one of degree (relies on Sullivan). W/time comes change, and need to allow for flexibility to account for that change. B. PA S.C. overrules Sullivan (case-by-case analysis re: reasonableness) and creates per se rule against amortization provisions. C. Amortization and discontinuance of a lawful pre-existing nonconforming use is per se confiscatory and violative of PA Const. (Taking); facially unconstitutional. A lawful, nonconforming use establishes in the prop. owner a vested prop. right which cant be abrogated or destroyed, unless its a nuisance, its abandoned, or its extinguished by eminent domain. If govt wants to interfere w/lawful use which is not a nuisance, must compensate. Zoning laws should be designed to protect prop. owners reas. expectations. D. Substantial minority of states take this approach to amortization provisions. E. Proponents of reasonableness test consider following factors: i. Adequate notice to landowner? ii. Length of amortization provision in relation to nature of noncomforming use iii. Future development prospects iv. Public gain vs. private loss v. Nature of present use in relation to other uses in area 5. Valatie v. Smith (NY 1994) - Village enacted a law that forbade mobile homes. Allowed amortization period that ended when ownership of home transferred. Enough notice. Amortization period presumed valid - not facially violative. Burden on owner to prove irrational. Doesnt need to be tied to land use objectives - indeed, opposite is true; should be related to owners needs (otherwise would eliminate nonconforming use immediately). Here, tied to user, since use is the same. A. Validity depends upon reasonableness; reasonableness test applied on case-bycase basis (see Sullivan, above). Following factors are considered: i. Adequate notice to landowner ii. Length of amortization provision in relation to nature of noncomforming use iii. Future development prospects iv. Public gain (benefit to comm.) vs. private loss (burden on owner to conform) v. Nature of present use in relation to other uses in area 6. Greater Harrodsburg v. Romero (KY 2008) - cts will not invoke nonconforming-use doctrine when use of prop. has transformed inherent nature of pre-existing primary use. Resolution of what constitutes an existing use is defined on a case-by-case basis. Here, Bd. could not legally require a condal use permit for activities conducted. Owners permitted to expand permissible accessory uses of prop. A. Reactive leg.: cts. caution against reactive local leg. Should activities or use of prop. escalate to level of nuisance, surrounding prop. owners can seek appropriate legal remedies. But such a result cant be accomplished through zoning and deprive owners of otherwise legal nonconforming use of prop. 7. Alteration and expansion of nonconforming uses: A zoning ordinance that authorizes the continuation of nonconforming uses may sometimes be construed to allow such uses to expand. Moreover, some cts hold that a prop. owner has a const. right to expand a lawful nonconforming use to meet natural business expansion so long as health, safety, and welfare of comm.. are not jeopardized. Public welfare v. rights of ind. prop. owner. 8. 2 ways to end nonconforming uses:
11
A. Abandonment - intentional B. Dis-use - dont use for period of time, intent not reqd (implied) b. Vested Rights 1. Late vesting rule - Allows for greater flexibility but lacks predictability. Ad hoc analysis. Majority rule. A. Critical variables in analysis: i. how far developer had progressed in obtaining nec. govt approvals ii. amt. of unrecoverable expenses incurred in good faith iii. whether expenditures were for preliminary activities or for construction B. H.R.D.E. v. Romney (WV 1993) - Non-profit org. wants to build housing for elderly. Gets support from city. Retains architect, begins to build storm sewers/culverts, then loses subsidy. Deeds part of prop. to city. City changes zoning ord. i. Case-by-case determination: a. good faith b. notice of contemplated zoning change c. expenditures: substantial? Construction or preparation? ii. Ct. decides in favor of the land owner a. architecture 95% done and therefore full fees had to be paid b. architecture work specific to this cause (elderly home); couldnt be used for another building c. assurances from city council and mayor iii. How to improve this: Vested rights kick in when final determination on part of mun. C. NOTE CASE: Amt. of money by itself not enough; ct. will look to HOW the money is used and whether it is specific to this application or can be utilized for other purposes (i.e. gravel would have to be laid no matter what type of construction is being done and therefore will not be a significant monetary input). 2. Intermediary vesting rule A. Western Land Equities v. Logan (Ut 1980) - T1: Subdivision permit denied. T2: Lawsuit. T3: Ord. changed -- as of right special use permit i. Rejects substantial reliance test (H.R.D.E.) - not predictable. a. set quantum test - used by maj. of cts.; determines owner entitled to relief from new, prohibitory zoning if changed position beyond a certain point, measured quantitatively. Fails b/c no predictable pt. short of adjudication separating reliance that is less than substantial from that sufficient to result in a vested rt. b. proportionate test - determines % of money spent or obligations incurred before zoning change as compared w/total cost. Fails for same reason as above. c. balancing test - weighs owners interest in developing prop. and reasonableness of proposed use against interests of public. Fails b/c little predictability. ii. Holding: applicant for subdivision approval or a building permit is entitled to favorable action if application conforms to zoning ord. in effect at time of application, unless: a. changes in zoning ord. are pending which would prohibit use applied for; or b. mun. can show compelling reason for exercising police power retroactively to date of application iii. Protects owners while recognizing that municipalities can change their mind
12
3. Early vesting rule - just requires builder submit plans according to zoning at time. Most protective, easy to apply; local govts hate this rule b/c limits their ability to address problems before use. Counter to rule in most states. A. Per se rule - does not address factors that might make ind. case more or less compelling; right vests when party, prop. owner or not, applies for building permit and permit thereafter is issued B. Valley View v. Redmond (Wash 1987) - Ps land down-sized from light industrial to agricultural in response to pressure from various groups, and P had already submitted building plans in compliance w/then-zoning ords.; P won right to continue w/plans i. Developers right to build vests if building permit app.: a. is sufficiently complete; b. complies with then existing ordinances/building codes; and c. is filed during effective period of zoning ord. under which developer seeks to develop. 4. Need for certainty v. need for change: at what pt. is local govts need to respond to new learning and changed circumstances appropriately balanced against prop. owners need for certainty? E. Public Use Clause - Govt as Landowner, Developer, and Financier i. Eminent Domain a. Govts can compel an owner to transfer land to it in return for just comp. b. Especially nec. when many parcels must be assembled to complete a large project; if priv. firm attempted such an assemblage, some owners might recognize advantages of holding out for an exorbinant price; would-be land assembler lacking power of E.D. therefore might be discouraged from pursuing a socially worthwhile land consolidation. c. Must be for public use; govt cant simply act as agent of private entity (look out for K zoning) d. Which comes first, economic plan or identifying entities? If the former, more likely ok; if the latter comes first, problematic e. Both constitutional and statutory provisions limit govt exercise of the power of E.D. f. Public Use appears in Takings Clause of 5th Am.; D.P. clause of 14th Am. makes public use limitation applicable to the states ii. Federal Constitution a. Kelo v. City of New London (U.S.) - city purchased prop. from willing sellers and proposed to use E.D. power to acquire remainder of prop. it needs in exchange for just comp. Public use does not require that the govt retain title; can give to a private party (i.e., a railroad) so long as the use qualifies as public use. Argument fails if only the private party benefits. 1. Govt arguments: one parcel vs. entire parcel; plan for developt first, then picked beneficiaries of plan; public gain outweighs private benefit; needs of comm..: unemployment, pop. loss; increase tax base -- at same time, reduction in social ills as result of economic redevelopt, which reqs govt to spend less money and which advances gen. welfare of comm..; part of area will be accessible by public 2. Landowner arguments: slippery slope - no boundaries; unlike Berman and Midkiff, here, not preventing a harm (area not blighted) -- may be creating a benefit, but not preventing a harm (no harm arising from current ownership); taking from ordinary citizens to benefit large corp.; risk of capture of political process; demand reasonable certainty reqt that expected public benefits will accrue 3. Even though private facility (Pfizer research facility) economic benefit to city that is in disrepair (distressed mun.), and so sufficiently serves a public purpose (Midkiff fee title taken from landowners and given to lessees (for just comp.) to reduce
13
concentration of land ownership - upheld). Promoting economic developt qualifies as public purp. 4. Cant determine constitutional validity on piecemeal basis; must look at plan as a whole (Berman). Ct. says development plan part of comprehensive plan already in motion. 5. Judicial deference to city that wants to cure rampant economic harm of city presumption of validity. (Midkiff and Berman). Wont require govt to show a reasonable certainty that expected benefits will actually accrue; wont secondguess govts determinations re: what land it needs to acquire in order to effectuate project. 6. States can place further restriction on exercise of takings power; provides enough of a check 7. When primary motivation is just to benefit priv. party, and public benefit is just ancillary, no good; fact that members of public can come on to prop. and use it may not help argument if intent is to benefit the private party 8. OConnor dissent: wants public use to eliminate only public harms; otherwise you can essentially take land away from those who use it less productively. No harm here from current ownership; area not blighted. Economic developt does not qualify as public purpose - too broad of a def. of public use; govt can now take anything. Those w/$ and power will get the land; creates an imbalance. b. Limitations required for the taking after Kelo 1. Plan must be comprehensive 2. Thorough deliberation preceding the adoption 3. Serves a public purpose 4. Background facts that would show that city needs some economic revitalization ii. State Constitutions - state cts have typically been more aggressive than fed. cts. in policing against abuses by local policymakers. a. Southwestern Illinois Developt Auth. v. Natl City Enviro. (Ill. 2002) - govt cant just act as rep. of private entity and call it public use to further private entitys expansionist goals. 1. Govt arg.: literal public use -- parking lot -- anyone can come and use facility 2. Landowner arg.: not blighted; other options available here for racetrack that they did not look into b/c cost more money; quick-take application is problematic - particularly it identifies the entity first then the economic plan 3. Revenue expansion not enough to justify improper expansion of E.D. power 4. E.D. for economic developt not ok 5. City may not take prop. and give to priv. party for a profit when prop. not used for public use; priv. party used govt agency as way to get around market and expand profits b. County of Wayne v. Hathcock (Mich 2004) - govt wanted to use E.D. to construct business and tech. park. Intended to reinvigorate struggling economy by attracting businesses. 1. Ct. found not a public use 2. Overrules Poletown: 1) should not give so much deference to leg.; and 2) economic benefits do not justify transfer of prop. to priv. entities - every business does this, would render useless the constitutional limitations 3. Transfer to priv. entity only justified in 3 instances, none of which applicable here: A. condemnations involving pub. necessity of the extreme sort otherwise impracticable - i.e., in which collective action nec. to acquire land for vital instrumentalities of commerce (ex.: highways, railroads, canals, etc.) B. priv. entity remains accountable to public in its use of prop. - must be devoted to use of pub., independent of will of corp. taking it; pub. must maintain measure of control over prop.
14
C. when selection of land to be condemned is itself based on public concern - prop. must be selected on basis of facts of ind. pub. significance (i.e., underlying purp. for resorting to condemnation, rather than subsequent use of condemned land, must satisfy Const.s pub. use reqt). Ex.: condemnation of blighted housing resale for priv. use, but condemnation itself is a public use c. Goldstein v. NY Urban Devlopt Corp. (NY 2009) - interpretation of public use under NY law not more restrictive than under fed. Const.; P did not succeed on fed. claim, wont succeed on state claim. Standard not more restrictive. Ct. found proposal to bring prof. basketball team to Brooklyn a public use not incidental to priv. benefits. 5 of 8 blocks affected are blighted 1. Ps argue distinction b/w use and purpose - must look to framers intent when used use - fed. cts. interpret use to mean purp. but state should be more restrictive in interpretation. 2. Narrow def. rejected; public use cant be precisely defined - evolving concept, must not remain static in time. Must interpret public use as quest. presents itself on facts at present time in present case 3. Any use which contributes to public welfare = public use/purp.; prop. owner has burden to prove no ratl relation F. Religious Land Uses i. Free Exercise Clause - 1st Am.: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. a. Until fairly recently, state cts. was skeptical of land use regs. that zoned rel. uses out of subst. portions of city or imposed reqts that made it costly for a religion to establish use on chosen site. b. 1980s - important lower fed. ct. decisions broke from tradl state ct. view. Ex.: construction of church building in a residential district has no rel. or ritualistic significance. c. 1990 - S.C. decides Smith: right of free exercise does not relieve an ind. of obligation to comply w/valid and neutral law of gen. applicability on ground that law proscribes (or prescribes) conduct that his religion prescribes (or proscribes). A gen. app. crim. law that has incidental effect of burdening particular rel practice need not be justified by a compelling govtal interest, but need only met the usual ratl basis standard. 1. Denounced by many rel. groups: decision would allow communities to zone all rel. uses, or disfavored religions, out of their jds. d. 1993 - Congress enacted Religious Freedom Restoration Act (RFRA) providing that govt shall not subst. burden a persons exercise of rel. even if burden results from a rule of gen. app. unless govt demonstrates that its: 1) in furtherance of a compelling govtal interest; and 2) the least restrictive means of furthering that govtal interest. Overruled Smith and reinstated compelling state interest test. e. 1997 - S.C. declared RFRA an unconstitutional restriction of the states - found Congress had exceeded its enforcement powers under 14th Am. f. Congress passed Religious Land Use and Institutionalized Persons Act (RLUIPA) (2000). g. Lighthouse Inst. v. Long Branch (3d Cir. 2007) - Ord. did not list church as permitted use but listed several secular uses as permitted. Ord. strictly limited use of prop. w/in area. Purp: to achieve redevelopt of segment of city (wanted vibrant downtown - state statute prohibits liquor w/in 200 ft. of house of worship). Also prohibited schools and govt buildings. 1. Unlike RLUIPA, Free Ex. Cl. does not define land use as a rel. ex. 2. Would not hinder ability to practice rel. - could move elsewhere. Indirect, financial, or aesthetic burden not an imposition - if can go elsewhere w/out unnec. hardship, not a violation 3. Subject to strict scrutiny only if not neutral and generally applicable
15
A. Neutral: no ev. govts plan for area developed w/aim of infringing on rel. practices (no rel. animus) and no value judgment that rel. reasons for assembling less imp. than secular reasons. Even if incidentally burdens right to free ex., still only ratl basis review. B. Generally applicable: govt pursued aims evenhandedly; generally allowed kinds of uses that would further leg. goals and prohibiting those that would interfere w/them. Not discriminatorily enforced. C. Note: Do not apply strict scrutiny merely b/c no waiver or amendment provision 4. Survives ratl basis review; burden on P, didnt show unreasonable or arbitrary and bears ratl relationship to some conceivable permissible obj. ii. Religious Land Use and Institutionalized Persons Act (RLUIPA) - addresses only land use regs and the rel. rights of institutionalized persons. 2 sections/primary claims: a. Substantial burdens provision: RLUIPA prohibits govt from imposing or implementing land use reg. in manner that imposes subst. burden on rel. exercise of a person, including a rel. assembly or institution, unless govt demonstrates that imposition of the burden on that person, assembly, or institution A) is in furtherance of compelling govtal interest; and B) is least restrictive means of furthering that compelling govtal interest. 1. Religious exercise defined as any exercise of religion, whether or not compelled by, or central to, a system of religious belief. Goes beyond 1st Am. Free Ex. Cl. 2. Using, building, or converting real prop. for rel. exercise purp. is a religious exercise 3. Acts aim of protecting rel. ex. to be construed broadly and to maximum extent permitted by terms of statute and Const. 4. Once determined rel. ex. burdened, burden shifts to govt to prove compelling govt interest and least restrictive means furthering that interest. Must show compelling interest in particular case, not in general. b. Discrimination and Exclusion provision: 1. Equal terms - no govt shall impose/implement a land use reg. in a manner that treats a rel. assembly/inst. on less than equal terms w/a nonrel. assembly/inst. 2. Nondiscrimination - no govt shall impose/implement a land use reg. that discriminates against any assembly/inst. on basis of rel. or rel. denomination 3. Exclusions and limits - no govt shall impose/implement a land use reg. that: A. totally excludes rel. assemblies from a jd.; or B. unreasonably limits rel. assemblies/insts./structures w/in a jd. c. Westchester Day School v. Mamaroneck (2d Cir. 2007) - Orthodox Jewish day school submitted expansion plans and application for special permit; zoning bd. denied application. 1. Proposed developt must do more than just enhance overall experience of students; must be rel. exercise. Just b/c rel. inst., not enough to constitute rel. ex. In this case enough b/c all proposed buildings would be used at least in some part for rel. teachings. Project is a use of prop. for purp. of rel. exercise, so is a rel. ex. (every classroom used for rel. ed.) 2. Subst. burden on rel. ex. b/c coerced P to continue teaching in inadequate facilities A. Must be close nexus b/w coerced/impeded conduct and rel. ex. to be subst. burden B. Effects-driven tests dangerous; thus, gen. app. burdens, neutrally imposed, not subst.; restrictions arbitrarily, capriciously, or unlawfully imposed are subst. burdens C. No quick, reliable, and financially feasible alternatives D. Subst. burden less likely to be found when denial of app. not absolute (where P has reas. opp. to resubmit app.); conditional denial may be subst. burden, however, if condition itself is burden on free ex., reqd modifications are
16
economically unfeasible, or zoning bd.s stated willingness to consider a modified plan disingenuous. 4. RLUIPA is constitutional A. 3-prong analysis - govt action interacting w/religion must: i. have secular purpose (YES - to lift govt-created burdens on priv. rel. ex.) ii. have principal effect that neither advances nor inhibits religion (YES - merely permits rel. practitioners free exercise w/out being burdened unnecessarily by govt) iii. not bring about excessive govt entanglement w/religion (YES - entanglement becomes excessive only when it advances/inhibits religion; merely reqing states not to discriminate against/among rel. institutions does not advance rel.) d. Westgate Tabernacle v. Palm Beach (4th Cir. 2009) - church activities as homeless shelter not fundamental to rel. ex.; just b/c inconvenient to change locations of shelter, not a subst. burden on rel. ex. Mere permit reqt not a subst. burden; must exhaust admin. remedies, cant predict permit would be denied if applied. e. Lighthouse Inst. v. Long Branch (3d Cir. 2007) - See above. RLUIPA - Equal Terms claim: 1. P need not show subst. burden for equal terms claim 2. Must show secular comparator that is similarly situated as to reg. purp. of reg. (not same uses); determination hinges on comparison of how it treats entities/behavior that has same effect on reg.s objectives A. P need not show a sec. comparator that proposes same combo of uses/functions B. If neutral and gen. applicable, presumed valid; does not cease being neutral and gen. app. simply b/c it allows certain sec. behaviors but not certain rel. behaviors. Impact of behaviors must be examined in light of purp. of reg. C. If would exempt for secular use that would have similar impact, must exempt for rel. use. But if impact on reg. not similar, then not comparable (and no violation) D. Heightened scrutiny warranted only when principled distinction couldnt be made b/w religious vs. secular comparators effects on reg. objectives E. Govt must have a clear objective, and explain why rel. enttites excluded but sec. uses that seem to have a similar impact permitted. F. Here, wide range of activities prohibited, not just rel. activities 3. Strict liability standard; not strict scrutiny. No burden shifting; if P can show unequal app. of terms to a secular user vs. religious one, end of analysis; statute has been violated. 4. P asserting equal terms claim must show: A. it is a rel. assembly/inst. B. subject to a land use reg., which C. treats the rel. assembly on less than equal terms with D. a nonreligious assembly/inst. E. that causes no lesser harm to interests reg. seeks to advance G. Free Speech i. Sexually-Oriented Businesses a. Renton v. Playtime Theatres (U.S. 1986) - ord. prohibited any adult motion picture theater from location w/in 1000 ft. of any residential zone, single- or multiple-family dwelling, church, park, or school. Issue: whether ordinance (even when prospectively applied) violates free speech clause. 1. Content-based vs. content-neutral - look to intent A. Content-based: apply highest level of scrutiny - govt must show compelling interest and means least restrictive
17
B. Content-neutral: time, place, and manner reg. Standard: intermediary scrutiny ok so long as designed to serve subst. govt interest and doesnt limit reas. means of comm. 2 inquiries: i. whether predominant concerns motivating ord.. were secondary effects (not content) ii. whether mun. can demonstrate a connection b/w speech regulated and secondary effects motivating ord. 2. Owners argument - content-based: but for the type of movie, theater would be permitted 3. Govts argument - not banning them, just saying where we want (or dont want) 4. Ct. asks: Is censorship primary motivation or not? What were predominant concerns of govt when it enacted the leg.? Was it to go after the speech, or counter the secondary effects? 5. Ct. determined predominant concerns were to combat crime, loitering, decrease in prop. values, etc. (secondary effects). Not banning altogether; not intended to suppress expression. 6. Content neutral analysis: A. Subst. govt interest: to preserve quality of urban life i. May rely on studies of other cities to satisfy that there are neg. secondary effects; need not conduct new studies so long as ev. relied upon is relevant to problem B. Reas. means of comm.: left plenty of space in town open for use as an adult theater site. Fact that those areas not open irrelevant; must deal with the priv. real estate market. Constitution not violated b/c there arent as many sellers as P would like there to be. i. Question: is over there practical? Are the theaters being shoved to only those areas where they cannot possibly develop (i.e., on an airport runway)? b. LA v. Alameda Books (U.S. 2002) - prohibition of operation of businesses that are too close (1000 ft.) to other similar uses; city did study in 1977 showing concentration of businesses associated w/higher rates of crime in surrounding neighborhoods. Mun. went further to say that no more than one of these uses in same structure permitted. P rents videos and has booths; qualified as two uses, thus violating ord. 1. Content-neutral - burden on P to case doubt on rationale. If P does so, burden shifts to city to provide ev. supporting theory/justifying ord. 2. Evidentiary reqt: even though have not studied effects of concentration w/in one structure, ok as long as its reasonable to believe that when you have these businesses concentrated in one structure, youre more likely to experience the secondary effects (reasonably believed to be relevant). A. Need not show empirical data that ord. will be successful; must give mun. reasonable opportunity to experiment w/solutions to address secondary effects of protected speech. Balance b/w 1st Am. analysis and def. to citys studies re: local problems. 3. Merely an attempt to drive out adult businesses? Splitting them up would result in 2 operations instead of 1 -- hardly likely to achieve purported goals. Is it really contentbased? c. Majority of cts. uphold retroactive application of provisions reqing existing businesses to phase out or come into compliance as long as amortization period is reasonable. ii. Billboards and Signs a. Reasons for regs: 1. Promote beauty/discourage ugliness
18
2. Promotes property values/encourages investment 3. Fewer distractions 4. Certainty b. Problems w/regs.: 1. Could affect freedom of expression 2. High degree of subjectivity 3. Legit exercise of police power? Substantive due process? 4. Too much burden on owner w/o corresponding benefit? Retroactive? 5. Interferes w/ commerce (billboard regulations) c. Metromedia v. San Diego (Ca S.C. 1981) - ord. prohibited all off-site advertising displays; on-site commercial ok. Non-commercial not allowed either off-site or on-site, w/exceptions. Amortization period calculated using balancing approach (public benefits vs. private loss). 1. Ps claim: A. D.P. claim B. 1st Am. claim C. Facial challenge to the amortization provisions (too short) 2. Govt reasons: A. Aesthetic purposes B. Traffic safety 3. D.P. claim: Proper app. of police power - promotes safety and welfare of public (proper objectives) A. Reasonably relates to traffic safety B. Aesthetic appeal alone can justify ord.; enough economic impact to make it legitimate (modern trend) 4. 1st Am. claim: Leaves open adequate means of alternate communication A. Possibility that ord. may impede an advertiser from communicating message to public not sufficient to invalidate ord. on its face, but as applied claims still available to ind. Ps (case-by-case basis) 5. Amortization period challenge: ok b/c ct. has found in prior cases that 1-5 years ok, so this period is alright. May be able to strike the period for individual cases, but not facially unreasonable d. Metromedia v. San Diego (U.S. 1981) - reversed CA S.C. (above). Certain features of ord. violated 1st Am. - exemptions discriminate on basis of signs messages. Reaches too far into realm of protected speech. 1. Commercial vs. noncommercial speech: Const. accords less protection to commercial speech than to other constitutionally guaranteed expression. 4-part test for determining validity of govt restriction on commercial speech: A. 1st Am. protects comm. speech only if concerns lawful activity and not misleading. A restriction on otherwise protected comm. speech valid only if it: B. seeks to implement subst. govt interest C. directly advances that interest, and D. reaches no further than nec. to accomplish the given obj. 2. Valid reg. of commercial speech: Only (C) at issue here - city has chosen to value one type of comm. speech (onsite advertising) over another (offsite advertising), reflecting that former interest, but not latter, is stronger than citys interests in traffic safety. Ct. says ok - city could reasonably conclude that comm. enterprise has stronger interest in identifying place of bus. and advertising products/services available there than it has in using or leasing its available space for purp. of advertising comm. enterprises located elsewhere. 3. Invalid reg. of noncommercial speech: ord. gives more protection to comm. speech than noncomm. speech - violates 1st Am.
19
A. Ok to ban all offsite advertising. But if going to allow onsite comm. speech, must allow onsite noncomm. speech as well. Restricts too little speech impermissibly underinclusive. B. Exceptions permitting various kinds of onsite noncomm. speech invalid - essentially content-based reg. City may not distinguish b/w relative value of different categories of noncomm. speech (though may do so for comm. speech). No compelling interest for distinctions. 4. Note: What if mun. got rid of exceptions, thereby prohibiting ALL non-comm. speech? Then problem becomes prohibiting too much protected speech; not that youre regulating too little, but too much - no subst. govt interest and no suff. alternative means of communication. e. Ladue v. Gilleo (U.S. 1994) - ord. prohibits signs; has exceptions (residential identification, church signs, commercial signs in properly zoned districts, on-site advertising for gasoline drilling, and for sale signs). Ct. found both underinclusive and overinclusive. 1. Exemptions problematic: underinclusive. Exemptions from otherwise legitimate reg. of a medium of speech may diminish credibility of govts rationale for restricting speech in first place (cf. Metromedia: exemptions from otherwise permissible reg. of speech may = content discrimination). If remove exemptions, problem solved. Still problem of overinclusiveness. 2. Time, place and manner analysis: content-neutral - goes after an effective means of communication, not targeted toward particular types of speech, which would be contentbased A. Not a subst. govt interest - reducing clutter no more compelling than precedent cases where found no subst. govt interest B. No suff. reas. alt. means of comm. - dangerous to foreclose an entire medium of expression. This part. type of comm. extremely affordable & convenient, & reaches people in a diff. way; identifies speaker more so than posting a flyer on a telephone pole. No practical substitute. f. NJ v. DeAngelo (NJ 2009) - Ord. prohibited all portable signs, balloon signs or other inflatable signs except grand opening signs. Various temporary (non-inflatable) signs permitted w/out permit. Purp.: aesthetic (to attract economic developt), safety, and prop. values. Invalid - unconstitutional and overbroad. 1. 1st Am.: speech re: public issues afforded widest room for discussion; any restriction on public issue picketing subject to strict scrutiny 2. Content-based: prohibition applies to all inflatable signs except for grand opening signs; no diff. b/w effect on health/safety b/w different types of inflatable signs. Same harm for both categories, yet one is allowed and one is prohibited. Highest level of scrutiny. A. Content-based b/c: 1) ord. favors comm. over noncomm. speech, and 2) violation of ord. based on purp. for which sign is displayed 3. 3 types of forums (character of property): A. traditional public forum (public streets, parks, and sidewalks) - govts ability to restrict very limited B. public forum created by govt designation C. non-public forum 3. To enforce content-based reg. in traditional forum, must show reg.: A. nec. to serve a compelling state interest (NO), and B. narrowly drawn to achieve that goal/to prevent no more than the exact source of evil it seeks to remedy (NO) 4. Ord. also overbroad - prohibits too much speech. Even if got rid of exception for grand opening balloons, reg. would be struck down b/c limits availability of balloons or
20
inflatable signs as a means of communication; left no ample alt. channels for communication. A. Test for prohibition of entire medium of expression: will be upheld only if narrowly drawn to accomplish a compelling state interest.
II.
ZONING CHANGES/FLEXIBILITY DEVICES & THE RIGHTS OF NEIGHBORS - prop. owners + govt vs. third parties (neighbors)
A. Actions by Administrative Bodies i. Administrative or quasi-judicial bodies involved in different types of mechanisms: a. Bd. of Adjustment/Zoning Appeals - responsible for variances (issuing or denial); also hear appeals on denial of zoning permits b. Planning Commission - consist of appointed members (real estate agents, lawyers, etc.). Sometimes hear variances, but usually more involved in hearing special use applications. Will also hold hearings in anticipation of a rezoning and make recommendations to leg. body re: whether a particular rezoning proposal should be adopted. c. Zoning/Land Use Dept. - depending on jd., very often involved in issues related to special uses or conditional uses. Diff. b/w this and Planning Commission: this is a branch of local govt -- made up of govt officials that work for mun., instead of being a group of people named. Will often make a recommendation to Planning Commission re: rezoning. d. Note: Very common for leg. body to have ability to hear appeals on denial or granting of variances or special uses. Depending on jd. and how regulatory system set up, may have a situation where variance first goes to Bd. of Adj. and is denied; may then appeal to leg. body. If denied by leg. body, then can go to ct. Same works in reverse -- if Bd. grants variance and neighbors dont like it, can go to leg. body. If leg. body affirms, can go to ct. ii. Variances a. Matthew v. Smith (Mo 1986) - owner wanted to get variance to have two single-family residences on lot, in area zoned for only single-family residences. In proper circumstances, use variances permitted; must meet 3 conditions to prove unnec. hardship, not met here. 1. Use variance vs. area variance: diff. standard applied A. Use variance permits a use other than one prescribed by zoning ordinance in particular district; permits use ord. prohibits B. Area variance authorizes deviations from restrictions which relate to a permitted use, rather than limitations on the use itself (i.e., restrictions on bulk, height, size, density (extent of lot coverage), min. habitable area therein, or setbacks) 2. To obtain a use variance, must demonstrate that an unnec. hardship would result from denial of variance: A. Land will yield no reasonable return w/out variance - if dont allow reas. return, might be a taking under Penn Central. i. Must show loss of all beneficial economic use of prop.; must show actual proof (dollars and cents) ii. Ct. concludes that not sufficient ev. to establish unnec. hardship - only evidence was owners opinion, but ct. wants actual figures. B. Plight of owner due to unique circumstances, not general conditions of neighborhood C. Use will not alter essential character of locality D. Note: where owner has been contributing cause for resulting hardship, will not help to meet unnec. hardship standard and wont help getting variance i. Divided land in such a way to make it difficult to conform w/existing zoning laws ii. Develops property in violation of existing zoning laws
21
iii. Purchases prop. knowing land will not be economically viable unless variance granted E. Note: personal hardships (i.e., poor health) not taken into consideration in unnec. hardship analysis 3. To obtain an area variance, must demonstrate a practical difficulty A. Ct. not very explicit as to what is reqd - elements might be similar; though first element will be different. B. Slightly less rigorous standard than unnec. hardship. i. May mean you dont need to show there is no reas. return on prop. unless variance is granted - need not rise to that level. Maybe there can be a few more area variances granted before run into problem for element 2, and can be more relaxed with element 3. Not necessarily that elements different, just less strict. 4. Note: Some cts. treat unnec. hardship and practical difficulty as interchangeable b. Driehaus v. Walworth County (Wisc 2009) - Owner wanted to convert upper level of garage into SFR, but didnt meet 20-ft. setback reqt for residences. Applied for conditional use permit (CUP); zoning committee approved but conditioned that P obtain variance for setback reqt. Zoning comm. held own proceedings re: variance (did not refer matter to Bd. of Adj.); voted to grant variance. Neighbors filed decl. judgmt, lost. On app., reversed/remanded b/c zoning comm. had no jd. to hear application for variance, and D failed to establish unnec. hardship in absence of variance. D submitted app. for variance to Bd. - denied. D appeals. 1. Presumption of validity when reviewing admin. agency decision; review decision itself, not decision of ct. 2. Use variance vs. area variance: A. D argues variance shouldve been granted b/c Bd. incorrectly applied use variance standard instead of area variance standard; claims shouldnt have looked at use at all, since conditional permit had been granted and was therefore settled. Also argues Bd. prohibited from granting use variances, so outside of Bd.s jd. i. Problem: CUP not equivalent to use variance. Conditional use is a permitted use in a specified zoning district that may be granted under special circumstances if use not harmful, offensive, or otherwise adverse to environment. Variance allows nonconformities that are otherwise prohibited by ord. B. Ct. agrees that no reasonable use standard should not apply to area variances. However, says owner exaggerates scope of precedent - use may be a factor for consideration in the area variance determination. It may not overwhelm the other considerations, but may play a role in analysis. More relaxed standard - cant require owners to show no reasonable use of prop. unless variance granted, but doesnt mean that use is irrelevant in analysis. 3. Oppressive and arbitrary argument: D claims met burden to show unnec. hardship, so Bd.s decision opp. and arb. A. Burden of showing unnec. hardship falls on prop. owner B. Bd. must evaluate hardship in light of purp. of ord. Here: to reg. lot coverage, pop. density and dist., and location and size of all structures w/in area, and to stabilize/protect natural beauty and prop. values of county. C. Ct. weighed both sides: found Bd. not unreasonable in finding that proposed use would have a significant and detrimental effect on neighbors. Not opp. or arb. c. Use variances can undermine Euclidean efforts to segregate diff. activities. Can limit incidence of use variances in following ways:
22
1. can interpret statutes modeled after Standard Enabling Zoning Act (SZEA) to bar award of use variances on theory that use variance is rezoning and power to amend ord. has not been delegated to BZA. 2. can construe relevant statutes and ords. to impose tougher criteria for award of use variances (undue hardship) than for area variances (practical difficulties) (Matthew). 3. some cities have adopted zoning ordinances that prohibit grant of use variances. (If state enabling act confers auth. to grant them, this method may be rejected) 4. state legs. have amended enabling acts to either eliminate or toughen standards for use variances iii. Special Exceptions/Special Uses/Conditional Uses - Flexibility devices designed to meet problem where certain uses, although generally compatible w/basic use classification of particular zone, shouldnt be permitted to be located as a matter of right in every area included in zone b/c of hazards inherent in use itself or special problems which proposed location may present. a. 3 kinds of uses: 1. Use as of right 2. Use allowed, but only if 3. Use prohibited (reqs variance) 4. Note: Unlike variance, which permits particular prop. to be used in manner forbidden by ord. by varying terms of ord., special use/exception/conditional use provision permits prop., w/in discretion of governing body, to be used in a manner expressly authorized by ord. 5. Note: neighbors challenges to grant of variances succeed more often than challenges to grant of special exceptions. Cts. presume variances should be granted rarely (Matthew), but presume special exceptions are too frequently denied. A. Cts. greater solicitude for special exceptions threatens to deprive local govts of discretion, and thus take away leverage to exact tribute from landowners. So, many local govts make it difficult for applicant to prove compliance w/ord. reqts by adopting vague standards for special exceptions (i.e., variant of promote the general welfare). Ords. of this type may be challenged as providing inadequate guidance. Cts. require that if leg. body delegates power to grant/deny special exceptions to admin. body, leg. must provide standards to guide admin. bodys discretion. Reqd precision varies by ct. b. Issues when considering special uses/exceptions: 1. Due process 2. Favoritism 3. Improper delegation: If legislature gives too much discretion to the zoning bd., ct. may say giving leg. auth. to an admin. body c. Gladden v. D.C. BZA (D.C. 1995) - neighbors upset b/c think youth rehabilitation home will have adverse effects on the neighborhood; already a lot of group homes in area. 1. Zoning regs. give BZA discretion to grant special exception as long as meets reqts of reg. Thus, limited discretion. Here, met both reqts. 2. Leg. deference - BZA decision will be upheld if: A. rational basis (is it legally consistent w/regs.? arbitrary/capricious?) B. decision accompanied by facts sufficient to enable a decision, decision follows as a matter of law from those facts, and facts have substantial support in ev. 3. Ps challenge findings - claims not adequately supported/addressed/explained A. rate of abscondence not an issue - when the run, they run far B. no ev. home will have neg. affect on neighborhoods d. Fairfax County v. Southland Corp. (Va. 1982) - Landowners objection to special use regime: other commercial uses permitted by right - exempt from special exceptions
23
process. Smaller establishments (quick service food stores) unfairly singled out. E.P. argument (apply rational basis review). 1. 22 other categories of commercial enterprises that also must apply for a special use permit 2. Distinction county relies on: traffic per square foot 3. As long as meets ratl basis test, then can be as underinclusive or overinclusive as it wants -doesnt matter if other commercial enterprises that are similar are not included in special exception reqt; does not in and of itself invalidate reqt 4. Exercise of right of power to grant/deny special exceptions/special use permits belongs to leg.; presumed valid unless reasonableness challenged, then must prove reasonableness. e. Crooked Creek Conservation & Gun Club v. BZA (Ind. 1997) - ord. reqts for granting of special exceptions: 1) whether injurious to public safety, health, etc.; 2) whether will adversely affect use and value of other prop. in immediate area; 3) whether will be consistent w/character of district. Ct. makes distinction b/w those criteria that include objective standards and those that do not: 1. 1 & 3 are subjective - inherently gives discretion to BZA to determine whether reqts met 2. BZA may factor in other considerations (objections) to determine whether exception should be granted, even if evidence introduced to prove that reqts met. 3. Problem: must be careful - cant give Bd. too much discretion (improper delegation issue). 4. If meet all reqts undeniably (BZA determines meets reqts), then special exception grant is mandatory. P has burden of proving reqts met. If P fails to meet burden, BZA may deny, even where remonstrators dont present ev. to negate existence of reqts. 5. Standard of review for admin. decisions: whether lacks reasonably sound evidentiary basis. Ev. will be considered subst. if its more than a scintilla and less than a preponderance. A. Bd. not obligated to give more weight to Ps than to remonstrators ev.; may use discretion f. Strengthening of Judicial Review; cts still defer to local leg. unless: 1. Danger signals (spot zoning) 2. Suspicious of rezoning inconsistent w/comprehensive plan 3. Leg. body acting adjudicatively B. Actions by Legislative Bodies - only elected officials of mun. in question can change zoning laws. Where an admin. or quasi-judicial body attempts to rezone, reason enough to strike down law. i. Rezoning, Spot Zoning, and Comprehensive Plans a. Spot Zoning - term is at best but a description of a process of singling-out a particular piece of prop. for treatment/use classification that differs from that accorded neighboring props. If /when cts declare such zoning invalid, they must base this declaration on one or more of three grounds: 1) lack of connection to a police power purp., 2) lack of conformity to a comprehensive plan, or 3) unreasonable inequality in treatment of similarly situated lands (for benefit of some prop. owners and to detriment of others). Ct. will invalidate if prejudice, arbitrary, or improper motives. Claim brought by neighbor who feels he is being treated unfairly. 1. Ask: is the primary motivation to help the private ind. or to advance interests of community? What is the mun. after in creating the zoning ord.? Is rezoning consistent with Master Plan?
24
2. Griswold v. Homer (Ak 1996) - After auto garage grandfathered in as nonconforming use, stopped using for a year; request for rezoning granted. P brought suit alleging spot zoning. A. 3 questions to ask to determine whether spot zoning (must have reasonable relationship to legitimate govt purp.): i. Cost/benefit analysis: does this benefit owner to detriment of others? Not primary motivation. ii. Consistent w/comprehensive plan? Yes. iii. Size of rezoning? Legitimate. iv. Note: case-by-case analysis; criteria flexible and provide guidelines for judicial balancing of interests B. Holding: no spot zoning. There are benefits, but there are also detriments, so must keep it to the 13 parcels. Not primarily about helping particular owner; primary motivation for doing it in this way was to allow car dealerships to do so only in a very limited part of zone. If landowners benefit incidental to comm.s benefit, zoning amendment ok. C. Other ways it couldve been done: special use variance, amend Master Plan, couldve allowed auto-services anywhere w/in zone, etc. D. Role of leg., not cts., to decide whether statute/ord. is wise; presumption of legitimacy, burden on P to show S.D.P. violation (no ratl basis). 3. Some cts. separate inquiry into 2 steps: A. Treat factors such as size of parcel or consistency w/comprehensive plan as triggers. If so, then: B. Engage in cost/benefit analysis to determine whether spot zoning justified. 4. Other factors to consider for spot zoning: A. Spots vs. slops: cts. more likely to find spot zoning where newly implanted zone entirely surrounded by other zones than where rezoning slopped over by extending perimeter of existing zone to include rezoned area. B. Neighborhood character: whether surrounding lands devoted to uses compatible w/new uses rezoning would permit. Cts. more likely to protect stable residential areas than areas of mixed uses or in transition. C. Procedural irregularities b. Inverse Spot Zoning - owner being unfairly and improperly singled out for imposition of burden not imposed on neighboring properties (vs. benefit to owner that is not being given to neighboring properties (spot zoning)). Claim brought by owner who feels hes being treated unfairly. 1. Riya Finnegan v. South Brunswick (NJ 2008) - P applied to build drug store; neighbors challenged, said not allowed, but Planning Bd. and Zoning Bd. said permitted use in zone. Neighbors asked twnshp council to rezone parcel; argued surrounding parcels in area largely developed already, would increase traffic, noise, pollution, etc. A. Arbitrariness - standards for sufficiency of mun.s reasoning to rezone prop. in a way inconsistent w/Master Plan (not arbitrary): i. Mun. Land Use Law (MLUL) gives broad power to mun. to adopt/amend zoning ord., but reqs that all provisions of change in ord. must be subst. consistent w/master plan; if not, that alone grounds for striking provision down (though still must determine whether rezoning substantially inconsistent (not just any inconsistency - must be subst.)) ii. May adopt ord. inconsistent w/M.P. if have an affirmative vote from majority of governing bd. and set forth reasons for inconsistency in resolution iii. Even though mun. abided by procedural reqts of statute, not enough to shield it from making arbitrary rezoning decisions.
25
iv. City must provide experts, cant rely on info from neighbors; otherwise, decisions will be made based on which neighbors complain the loudest. May hear testimony from citizens, but must be grounded in facts. v. Policy: if all it took were neighbors complaining, developers would race to develop to avoid being the last parcel. B. Inverse spot zoning analysis - test: whether zoning change made w/purp. or effect of establishing/furthering M.P. calculated to achieve statutory objectives or if designed merely to relieve a lot or lots from the burden of a general reg. If latter, essentially a special exception/variance, circumventing Bd. of Adj. (leg. acting adjudicatively). i. Inquiry: whether in view of purposes of zoning act the action represents sound judgment based on policy of statute to advance public welfare or whether arbitrary and unreasonable and furthers purely priv. interests. ii. Fact that: 1) zoning changed and now more difficult for owner to develop in accordance w/new zoning designation; 2) neighbors were impetus for change and new zone doesnt further M.P.; and 3) planning bd. and governing body acted w/out expert planners = inverse spot zoning, and arbitrary and capricious. iii. Spot zoning and Inverse Spot Zoning are judicially-created doctrines. iv. May rezone last undeveloped parcel if changed as part of reexamination of M.P. or through statutorily-authorized enactment of a zoning ord. inconsistent w/M.P. c. Zoning W/out or in Conflict w/Planning - SZEA states that zoning regs. shall be made in accordance w/comprehensive plan. About 3/4 of states adopt that or similar lang. in zoning enabling acts. Where local govt has not adopted a plan, may zone w/out a plan - plan may be revealed in end product (not in ord. itself); no more is reqd by statute. But 1/2 of states have passed leg. specifically reqing govts to engage in planning. 1. Planning first, zoning second 2. About 1/2 of jds require creation of comprehensive/master plan as a distinct document 3. Many jds recognize an inconsistency w/comprehensive plan claim 4. Possible analogy: statute/reg. is to the Constitution as zoning ord. is to comp./master plan. Different, though, b/c more flexible & subject to change than a Const. (amended more easily). 5. Examples: NJ - Substantially consistent; Arizona - Shall be consistent 6. Haines v. Phoenix (Ariz. 1986) - P permitted to build beyond height restriction. Test: consistency = basic harmony. Ct. rejects ratl basis review (any conceivable ratl basis) as well as higher standard reqing govt to make written findings and articulate reasons. Instead, ct. says leg. created standard by statute: review consists of viewing evidence before city council and determining if council couldve decided that despite deviation from letter of plan there was consistency. P has burden of proof to show inconsistency. A. Presumption of legitimacy which is consistent w/ratl basis, but at same time city must have actually thought about that so that the goal is reflected in the plan ii. Contract Zoning - adverse affects on community structure might be addressed by specifying that a prop. owner dedicate land, undertake construction, or contribute funds for road improvements or for other purposes; compromises might be incorporated in express or implied agreements b/w developer and local govt, in covenants b/w developer and neighborhood assoc., or in rezoning ords. passed by local leg. bodies. Ok if unilateral, not bilateral, and didnt condition grant on acquiescence from P. a. Chrismon v. Guilford County (N.C. 1998) - owner of 2 tracts of land, operated a grain storage facility and facility for sale of fertilizer. New ord. made use impermissible, but permitted to continue as pre-existing nonconforming complying use. Moved some operations of grain storage to other tract, neighbors complained. Applied for and granted
26
rezoning and conditl use permit. Ps sought to invalidate rezoning am. and conditl use permit. Issues: did rezoning constitute K zoning? Holding: No. 1. Conditional use zoning vs. K zoning A. Conditl use zoning - govt body, w/out committing its own auth., secures owners agreement to limit use of prop. to particular use or to subject tract to certain restrictions as a precondition to any rezoning. i. Comprehensive zoning plans dont allow much flexibility; conditl use zoning increase flexibility to meet evolving comm. needs. Ok so long as: 1) reasonable, 2) not arbitrary or unduly discriminatory, and 3) in public interest. Appropriate means of harmonizing priv. interests in land, thus benefiting public. B. K zoning - transaction wherein both landowner whos seeking certain zoning action and zoning auth. itself undertake reciprocal obligations in context of a bilateral contract. i. Ex.: Council enters into agreement w/owner, which includes not merely promise of owner to subject prop. to deed restrictions, but council also binds itself to enact the zoning am. and not to alter zoning change for specified period of time. ii. Problem: zoning auth. abandons duty to exercise ind. judgment in zoning decisions. C. Differences: i. unilateral vs. bilateral ii. zoning auth. maintains decision-making auth. vs. binding itself contractually w/landowner iii. Here, unilateral, and maintained decision-making auth. b. Most recent decisions abandon prohibition on K zoning, at least for Ks now styled as conditl zoning. Some states have adopted statutes that appear to legitimize K or conditl zoning. iii. Judicial Review - When govt rezones/refuses to rezone and someone doesnt like decision and brings govt to court, what are the possible forms of judicial review available? a. Arbitrary and capricious/fairly debateable. See Euclid. No balancing at all. b. Inconsistency w/comp. plan (limited to state interests in document - basic harmony not strict consistency (more liberal standard) (not much balancing involved)). See Haines. c. Spot zoning/inverse spot zoning claim (more of a balancing test - benefits/detriments to comm. vs. harm to owner? Primary motivation? Issues of motivation/intent important consideration). See Griswold/Riya Finnegan. d. K zoning claim (improper bargain b/w mun. and owner? Did mun. limit its discretion going forward? Problematic when govt reaches priv. agreement w/priv. prop. owner, but not every agreement will be impermissible; must ask what govt was doing, why was it doing it, were there enough procedural safeguards to protect against govt acting at behest of particular owner, did mun. limit its discretion, etc.). See Chrismon. e. Heightened scrutiny. See Snyder. f. Snyder v. Bd. of County Commissioners (Fla. 1993) - Planning and Zoning Commission approved rezoning, but County officials ultimately deny rezoning w/out giving any reasons for its decision. Ct. found rezoning here quasi-judicial, not leg. in nature. 1. Legislative vs. quasi-judicial: A. Formulation of general rule/policy affecting broad class of individuals/situations (leg.) vs. application of general policy to specific, identifiable party (quasijudicial). B. Retrospective, determining rights/duties of parties under existing law and w/relation to existing facts (judicial) vs. prospective, determining what law shall be in future (leg.).
27
C. Initial zoning enactments and comprehensive rezonings or rezonings affecting large portion of pop. of public are leg. However, rezoning actions having limited number of persons/prop. owners, on identifiable parties/interests, where decisions contingent on fact(s) arrived at from distinct alternatives presented at hearing, and where decision can be functionally viewed as policy application (not policy setting), are executive, judicial, or quasi-judicial. 2. Heightened scrutiny where quasi-judicial in nature. A. Initial burden on landowner to show meet procedural reqts and consistent w/comp. plan (i.e., presumptively entitled to use land how he wants). Then burden on govt to prove maintaining existing zoning accomplishes leg. state purp. (specifically stated public necessity requires a specified, more restrictive use). Then burden back to landowner to prove taking. B. Makes a difference when talking about an owner lawsuit vs. a neighbor lawsuit, in terms of whether we apply strict scrutiny. Owners prop. rights that are being directly affected by decision not to rezone and owners prop. rights are not similarly negatively impacted when govt zones in way that owner wants it done i. Owner = heightened scrutiny ii. Neighbor = not heightened scrutiny C. Only when the leg. body makes an individualized decision and not coming up w/general policy but applying that policy to a specific case that stricter scrutiny applies to show a legitimate state interest C. Actions by Neighbors i. Chicago v. Stratton (Ill. 1986) - ord. permitted maj. of neighbors to waive prohibition if consented a. Leg. cant delegate power to make laws to any other body. Does ord. = del. to maj. of lot owners? b. Here, ct. upholds permissibility of ord. allowing neighbors to waive prohibition against particular use; c. Execution vs. enactment: not giving them power to enforce ord., only giving them ability to waive right to insist upon enforcement c. Whether neighbors are prohibiting an activity thats otherwise allowed under the ordinance vs. allowing an activity that is otherwise prohibited - latter (waiver) ok, but former (restriction imposed by neighbors) not ok. 1. Eubank v. City of Richmond (S.C. 1912) - ord.: if 2/3 of neighbors want to, they can impose a setback reqt. S.C. held invalid b/c ord. provided no guidance to neighbors improper delegation of legislative power 2. Cusack Co. v. City of Chicago (S.C. 1917)- ord.: no billboards, unless majority consent. S.C. upholds ord. b/c essentially a waiver 3. Washington ex re. Seattle Title Trust Co. v. Roberge (S.C. 1928) - ord. permitted residential group homes for children or elderly if 2/3 of neighbors consented. Ct. held invalid b/c no standards. 4. Note: no standards provided in Cusack, but Seattle Trust distinguished b/c use in Cusack was a noxious use or nuisance-like use as opposed to a use that was not noxious. ii. 3 questions to ask: a. is it an imposition of a prohibition, or is it a waiver? b. is there sufficient guidance/standards provided to neighbors as to when they should make these decisions and how (using what criteria)? See Eubank. c. is the use one that can be categorized as a noxious or nuisance-like use? If so, Cusack tells us that there does not necessarily have to be guidance. Seattle Trust tells us that there must be guidance if not a noxious use.
28
iii. Cary v. Rapid City (S.D. 1997) - statute allowing 40% of owners of neighboring land to protest rezoning ord. and ineffectuate it. Essentially gives neighbors veto power over legislative ords. S.C. says statute unconstitutional. a. Problem: No standard. Veto rather than a waiver. Cant look at statute and say that in all instances in which its invoked it will apply to a noxious use b. S.C. relies primarily on lack of guidance given to neighbors on how to make decision. c. S.C. suggests that were there a legislative bypass provided for, so that it came back to leg. after neighbors made their decision, could possibly be constitutional. But as written, unlawful delegation of leg. power. 1. need a review provision, so neighbors decision isnt final 2. allows small number of prop. owners to decide publics best interest. d. When leg. body retains police powers for itself, does not need to provide guidelines for decision, just cant be irrational; but when puts decision making in hands of neighbors, needs to provide guidance. Need more reqt than just a certain %. 1. protects against neighbors being able to protest for their own gain - need provision to remove power from protestors.
III.
WHAT IS IMPERMISSIBLE DISCRIMINATION IN LAND USE REGULATION?
- Fed. Const. plays a very limited role in these analyses (See Belle Terre/Arlington Heights) becomes very difficult to challenge these kinds of zoning decisions. Difficult for Ps to win as a practical matter, but not impossible. A. Unconventional Households i. Village of Belle Terre v. Boraas (U.S. 1974) - ord. restricting residences to single-family dwellings (i.e., excluding multi-family dwellings) where family specifically defined is valid. a. Family defined as one or more related persons or no more than 2 unrelated persons. b. Owners leased prop. to 6 college students. Ordered to remedy; challenged ord. c. Ct. said every line drawn by leg. excludes some. But discretion of the leg., not judiciary. d. Reasons for ord. are leg.; police power not limited to elimination of extreme wrongs. ii. Ames Rental Prop. Assoc. v. Ames (Iowa 2007) - ord. restricting number of unrelated individuals permitted in single-family zone not unconstitutional under U.S. or Iowa Constitutions. E.P. claim. a. Family defined as any number of related persons or no more than 3 unrelated persons. b. Ct. said ord. rationally related to legitimate govt interest. c. U.S. Const. analysis: Belle Terre more restrictive ord. and U.S. S.C. found that valid - no E.P.C. violation. d. Iowa Const. analysis: state const. says similarly situated persons must receive similar treatment under the law (E.P.) 1. 1st step: identify classes of similarly situated persons singled out for differential treatment. Here, related persons vs. unrelated persons. 2. If claimed dissimilar treatment does not involve a suspect class or fundamental right, any classification made by statute need only have a rational basis. A. Here, several bases, all found valid objectives in Belle Terre. Governing bodies have leg. interest in promoting and preserving neighborhoods conducive to families. 3. Determine whether objectives rationally related to ord. in question A. P argues could be achieved by narrower, more direct ord.; underinclusive (allows related individuals to live in large numbers in small areas and create noise,
29
litter, etc.) and overinclusive (prohibits unrelated residents who might live in reasonable numbers and not create noise, litter, etc.). B. Under ratl basis test, need not be narrowly tailored - classification need only have a reasonable basis. i. To be invalid under ratl basis test, must involve extreme degrees of over- or underinclusion in relation to goal. Reqs more than imagining extreme examples of groups of people who do or do not offend the goals of the ord. C. Relationship b/w ord. and goals neither arbitrary nor capricious i. Reasonable for city to conclude density will be lessened by ord. D. May do little to further goals, but citys prerogative to fashion remedies to problems affecting residents. 4. Although based on stereotypes, reasonable; ord. not limited to college students nor does it ban them from living in S-F zones. Def. of family flexible and expansive enough to encompass unmarried couples and groups of three unrelated persons. iii. Govt arguments: a. Density: traffic (noise, pollution); fire protection b. Family friendly atmosphere c. Anticipation of infrastructure iv. Landowner arguments: a. Valuing one form of family structure over all others b. Underinclusive - 15-member family; Overinclusive - 4 elderly women c. Freedom of association and/or privacy d. Discriminates on basis of socio-economic class v. Note: both cases came out in favor of govt B. Racial & Ethnic Minorities i. Where explicit racial classification, suspect - invalid unless furthers a compelling state interest (E.P.C. violation) a. Instead, attempts to create/maintain racial segregation take form of facially neutral ords. that have racially disparate effect. b. Several fed. cts. began applying E.P.C. to exclusionary zoning practices that stopped short of drawing explicitly racial classifications. Soon became unavailable. ii. Village of Arlington Heights v. Metropolitan Housing Dev. Corp. (U.S. 1977) - denial of rezoning application for low- and mod.-income housing not unconstitutional b/c Ps didnt meet burden of proving racial discrimination was a motivating factor. a. Opposition: 1) neighbors relied on zoning classification - prop. values would decrease; and 2) didnt meet apt. policy (not a buffer b/w S-F and community) b. Disparate impact - fact that ultimate effect worse on minorities not enough; must prove discrimination is a motivating factor (intent). 1. Need not be sole or even primary motivation; if racial discrimination any motivating factor, invalid. 2. Impact of action is starting point for determining intent 3. Impact alone rarely enough, unless clear pattern; must look to other evidence: A. historical background B. sequence of events leading up to decision - here, not suspicious C. departures from normal procedure sequence - here, met normal procedures (even held 2 extra hearings) D. substantive departures E. leg./admin. history - here, policy around & consistently applied for years; not suspicious c. E.P.C. no longer a viable weapon against exclusionary, but not explicitly racial, land use controls.
30
d. After this case, only a few litigants have been able to prove discriminatory intent. iii. Cine Sk8 v. Henrietta (2d Cir. 2007) - P got special use permit to operate dance club for teens at rec. center. P spent $2.3 million in renovations. After overcrowding incident, town bd. amended permit to prevent P from holding dances. P claims permit amended b/c Bd.s objected to racial composition of clientele. S.D.P. claim. A. Did not exceed occupancy limits, but reqd assistance for crowd control. B. Town supervisor wrote letter w/strong racial undertones; asked P to discontinue dances. At Town Hall meeting, supervisor said he didnt want these people in his town. Bd. voted unanimously to adopt amendment. C. P claims amendment caused P and Ps corp. to go bankrupt. D. P must prove: 1. P had valid prop. interest in special use permit as it was originally granted; and 2. Ds infringed on that prop. right in arbitrary or irrational manner. E. Valid prop. interest: 1. Relied on valid permit; spent $2.3 million. Am. rendered improvements valueless. 2. Ps established, unless countered, that this element met; at very least, issue of fact remains F. Ds infringed on prop. right in arbitrary or irrational manner: includes a planning dispute tainted w/racial animus OR fundamental procedural irregularity 1. Racial animus: A. Dist. ct. incorrect when found nothing to show decision tainted by racial animus b/c one member did not infect entire Bd. P never reqd to show that majority of public body acted w/racial animus to hold mun. liable B. D must prove that majority of Bd. based actions on legitimate grounds despite minority. Once P has shown minority of public body acted w/racial animus, burden on D. i. Even where maj. acting on leg. grounds, racial animus of minority can taint ultimate outcome; burden on govt to prove maj. acted permissibly. C. 3 members of 5-member Bd. made comments that a reasonable jury could find racially charged. So here, enough ev. anyway that maj. acted improperly to go to trial. 2. Fundamental procedural irregularity: A. Town zoning regs. dont permit Bd. to amend special use permits - may only issue a new one after initial permit revoked B. Reasons town gave may justify revocation or suspension, but not am. (not allowed) C. W/out auth. to take actions it took, ultra vires, and sufficiently arbitrary to amount to S.D.P. violation D. Even if allowed to amend, proc. here failed to comply w/proc. reqts of Code (must provide notice and a hearing before suspending/revoking special use permit). i. P given no opp. to cross-exam. anyone at hearing that made comments C. Individuals with Disabilities i. Exclusionary techniques: a. strict definition of family - cap on number of unrelated people in a dwelling unit (S.C. upheld in Belle Terre) b. require special use permit c. restrictive covenants - limit buildings use to S-F residences or explicitly forbidding group homes ii. City of Cleburne v. Cleburne Living Center (U.S. 1985) - city denied special use permit for operation of group home for mentally retarded. P claims facially and as applied invalid. Invalid as applied. a. Not a suspect or quasi-suspect classification
31
1. Immutably different class - states interest in dealing w/them and providing for them is legitimate; for leg. to decide, not judiciary 2. Fact that lawmakers address problems of disabled belies claims of antipathy or prejudice; judiciary need not interfere where leg. acting appropriately 3. Group not powerless, evidenced by leg. response and public support 4. Would make it difficult to know where to draw line b/w quasi-suspect classes and not quasi-suspect classes b. Minimum standard of scrutiny (ratl basis review) offers sufficient protection; need only be rationally related to legitimate govt purp. Gives leg. freedom and flexibility it needs while still offering protection. c. Invalid as applied: may city require permit for this facility when other care and mult. dwelling facilities freely permitted? 1. Difference of group irrelevant unless facility would threaten leg. govt interests in a way that other permitted uses would not A. Mere neg. attitudes of surrounding owners alone not a permissible basis for treating group homes differently than other permitted uses B. Denying permit based on vague, undifferentiated fears is allowing portion of comm.. to validate an otherwise invalid E.P.C. violation C. Concerns re: flood and liability issues no different for group home than for other permitted uses D. Fear of over-crowding w/in home same as for all potential uses E. Concerns re: avoiding concentration of people - congestion in streets same as for all uses 2. Reqing permit for this use grounded on irrational prejudice against mentally disabled iii. Schwarz v. Treasure Island (11th Cir. 2008) - one zone allows tourists, one does not. Halfway house in zoned area that doesnt allow tourists. Presumable that if turnover rate of greater than twice per year, tourist housing. Halfway house had turnover rate of greater than twice per year. High density areas allowed for tourist dwellings. P owns housing in both medium density (allows SFR, TFR, M-F) and low density areas (SFR only - no tourist dwellings permitted). If M-F unit prop., tourist (turnover) restriction does not apply. a. Claims: disparate treatment (no); disparate impact (no); failure to reasonably accommodate (diff. theory of disc. available to inds. w/disabilities, not available to others)(remanded) b. Disparate treatment claim: 1. Even if D motivated by discrimination, ev. that neighbors and city officials are biased against recovering substance abusers irrelevant absent some indication that recoverers treated differently than non-recoverers. A. W/selective-enforcement claims as here, evenhanded application of the law is the end of the matter. Analysis would be diff. if D claimed that city enacted occupancy-turnover rule in order to disc. against ppl w/disabilities B. Trying to figure out if impermissible motivations went into decision; even if ev. of improper motivation, not enough unless you have a comparison group that is similarly situated but treated differently c. Disparate impact claim: 1. P failed to present relevant comparative ev.; simply showing that a few houses are affected doesnt establish disp. impact. Impact does not equal disparate impact. d. Reas. accomm. claim: How do you determine reas. accomm.? Ct. looks at 2 things: 1. Whether imposes undue financial burden on town (not met here), or 2. Whether reqs a fundamental alteration A. City trying to maintain stability of neighborhood - would have to show that allowing these homes severely impacts setting you want to create.
32
B. If use incompatible w/surrounding uses, may be fund. alt.; if not, prob. not fund. alt. If routinely waive rule, prob. not essential. C. Does it undermine an essential goal of activity/program in question? Would if mun. forced to permit group homes (tourist dwellings) in low density dist. that only allows SFR use. But for med. density dist., wouldnt constitute fund. alt. b/c MF units permitted w/in that zone do not have to comply w/tourist (turnover) restriction; low turnover, stability, increased peace/quiet, reduced traffic/noise, etc. not essential components of med. density dist. D. But D only reqd to make reas. accomm. if it may be nec. to afford equal opp. to handicapped; P must prove halfway houses nec. to recovering addicts. D. Sex Offenders i. Iowa v. Willard (Iowa 2008) - E.P.C. claim. D charged w/violation of law restricting sex offenders from living w/in 2000 ft. of school. D argues K-ed for house at time when legally permitted to reside there. D not legally permitted to reside there when he bought it - state merely agreed to postpone enforcement of statute (injunction in effect at time he purchased house). a. 1st step: ID classes of similarly situated persons treated diff. D doesnt ID classes of similarly situated ppl singled out for diff. treatment. b. D tries to trigger strict scrutiny by claiming severely impairs ability to make home with family 1. Must have a direct and subst. impact on familial relationship to be unconstitutional 2. Ds real complaint is rule prevents him from living in house of his choosing; not a fundamental right reqing strict scrutiny c. Ratl basis review (min. scrutiny) - need only be ratlly related to leg. govt interest 1. Burden on challenging party to negate every reasonable basis that might support disparate treatment 2. Presumed const. unless relationship b/w classification and purp. of it so weak that rule arbitrary and capricious ii. Mann v. Georgia Dept. of Corrections (Ga. 2007) - Taking claim. P lives in house w/wife, has job in area; complying w/law re: residencies for sex offenders. Ord. says if child-care facility comes w/in 1000 ft. of residency, offender must move/leave job to remain compliant. a. Residential restriction: 1. Under statute, nowhere a sex offender can live w/out risk of ejection. Possible that 3rd parties might purposely locate somewhere to force him out of community (effectively places police power in hands of 3rd parties). 2. No provision in statute to except someone in this position 3. Lingle - need not eliminate prop.s B.E.U.; must take into account all factors. Can be a taking if so onerous that effect tantamount to a taking (Penn Central ad hoc analysis). A. Econ. impact: Ps prop. interest in home sign.; utterly impairs use of prop. as a home. B. Functionally equivalent to govt physically ousting him from his home (not typical regulatory takings case). C. Risk of repeatedly happening precludes possibility of having any RIBE for any prop. he purchases as a home. 4. Ct. finds taking under a Penn Central analysis. Remedy for taking is comp.; could get same money for selling house on his own and just complying w/statute. So why takings claim? Maybe hope that if govt has to give away enough money as comp., will amend statute. b. Employment restriction: 1. Can still work in place w/in 1000 ft., just have to do it from home. 2. Prop. interest sign. (1/2 owner), but statute doesnt req. him to quit or relocate business 3. Not a taking.
33
E. Poor People i. Ps face two main obstacles: a. Arlington Heights probably signals that Ps would have to prove that motive of excluding poor families was a but-for cause of adoption of policy b. S.C. held that wealth not necessarily a suspect classification. If not suspect, even if disc. on basis of wealth proved, D govt wouldnt nec. have to show a compelling interest to justify it. ii. Mount Laurel I (N.J. 1975) - Exclusionary zoning: min. lot size reqt for available land, large unused industrial zone, residential districts S-F detached dwellings only, and Planned Unit Development (PUD) areas placed restrictions on children, aimed at upper-middle class, and reqd amenities. Claim: land use reg. system unlawfully excluded low and mod. income housing. D conceded discriminated against poor; argued in best interests of mun. and legally permissible/justified. a. Over the years, town has tried to keep out poor (tax concerns and people concerns) 1. NJs tax structure reqs R.E. taxes to pay for govt costs and for education; the less children, the lower the prop. tax rate. b. Every mun. must, by its land use regs., presumptively make realistically possible an appropriate variety and choice of housing; presumptively it cannot foreclose the opportunity of the classes of ppl that want/need low/mod. income housing and its regs must affirmatively afford that opportunity, at least to extent of mun.s fair share of present and prospective regional need. 1. Obligations must be met unless mun. can sustain heavy burden of demonstrating peculiar circumstances which dictate that it shouldnt be reqd to do so. 2. Must permit M-F housing, w/out bedroom restrictions, and small dwellings on very small lots, low cost housing of other types and high density zoning, w/out min reqts re: lot/building size 3. Where mun. zones for industry and commerce for local tax benefit purposes, must zone to permit adequate housing w/in means of employees involved in such uses. c. Not just a local consideration, also a state consideration (gen. welfare, safety, etc. of state); must account for welfare of those outside locality in state d. Presumptively invalid - shifts burden to mun. e. No mun. may exclude or limit categories of housing for fiscal reasons/purposes. f. Note: opinion based on state constitutional grounds, not fed. Const. 1. Arlington Heights would require Ps to prove disc. intent under fed. law 2. S.C. determined wealth not a suspect classification, so would only apply ratl basis review under fed. law iii. Mount Laurel II (N.J. 1983) - town still afflicted w/blatantly exclusionary ord. Nothing but determination to exclude poor. Cant wait for a political consensus to catch up. a. Every municipality is held to the Mount Laurel standard - not limited to developing municipalities b. Focuses on numbers must precisely demarcate mun.s region and fix specific number of lower-cost housing units as muns fair share. Good faith attempt insufficient must actually represent fair share. c. Affirmative action toward inclusionary zoning reqd - elimination of bad ords. not enough; deregulation (getting out of way of market) insufficient, aff. reg. reqd. Including: 1. Lower-income density bonuses 2. Mandatory set-asides 3. Mun. should cooperate w/developer to obtain fed. subsidies 4. Mobile homes may not be prohibited unless solid proof that mun. reqs such prohibition
34
d. Builders remedies awarded on case-by-case basis; where P acted w/good faith and attempted to obtain relief w/out lit., builders remedy will be granted, provided 1) proposed project includes appropriate portion of low/mod. income housing, and 2) its located and designed in accordance w/sound zoning/planning concepts, including enviro. impact. e. Comm. shouldnt fear residents will move to other suburbs as a result, b/c other suburbs will be reqd to do the same. iv. N.J. leg. responded by passing Fair Housing Act of 1985 a. Created admin. agency (Council on Affordable Housing (COAH)) - responsible for: 1. defining housing regions w/in state 2. determining regional need for low/mod. income housing 3. specifying criteria by which it should be allocated among municipalities w/in each region. 4. also gave COAH jd. over lit. under Mt. Laurel decisions: A. may determine whether mun. satisfying obligation to provide fair share of regional need B. prohibited cts. from setting aside that determination w/out clear and convincing ev. b. Allowed municipalities to transfer to other receiving municipalities up to 50% of their fair share under regional contribution agreements (RCAs) 1. some argue this just allows rich to get away with exclusionary zoning c. Limited use of builders remedy
IV.
REGIONAL OBLIGATIONS OF MUNICIPALITIES
When proposed land use would have no sign. impact beyond local boundaries, govt planning decisions left entirely to local officials. But problematic when it would affect welfare of persons living beyond local boundaries. Can result in inefficient decisions. A. Spillover effects i. Negative - If benefits (i.e., tax benefits, creating jobs, etc.) to mun. high, incentive for developt to be allowed despite neg. impact on region (Cresskill v. Dumont, Del Ma v. San Diego). Negative impact may include: a. traffic b. noise c. environmental degradation d. Problem: may be too much developt being approved by particular mun. b/c getting too much benefit and causing too much cost to surrounding areas not receiving benefits e. Examples: 1. Cresskill v. Dumont (NJ 1954) - one mun. permitting building of shopping center at edge of boundary. Neighboring municipalities complaining about fact that first mun. allowing developt - say they will get no benefits but will get many of the costs (traffic, noise, etc.). A. Should cts. deal w/this situation in a way that is diff. from how ct. would view allowing development in center of mun.? How close to boundary lines does it need to be for this to become an issue? Could result in cluster developt - will develop at borders to spread neg. effects to other muns. but keep benefits. B. Neg. externalities - ct. says must hear and consider rights of neighboring municipalities the same way residents of Dumont would be i. Developt of region shouldnt depend on adventitious location of mun. boundaries C. Affects the standard of judicial review. What does this mean re: options? Do we i. drop the presumption of validity (Euclid goes away)? ii. shift burden to local govt to prove reasonableness, ratl basis, etc.?
35
iii. insist govt have ratl basis for believing policy reas. relates to leg. regional purp.? iv. apply de novo cost/benefit analysis and strike down if inefficient from regional standpoint? v. invalidate policy if ct. concludes it wouldnt have been adopted if affected outsiders had been entitled to vote in local elections? D. Note: this is an example of a private challenge to a parochial decision (several landowners also brought suit) 2. Del Ma v. San Diego (Ca 1982) - huge area (S.D.) auth. huge development at border mostly residential. Neighboring mun. has two bases of complaint: 1) environmental impact degradation (taking on lots of costs w/no benefits), and 2) very little is affordable housing (S.D. not taking on responsibility, so neighboring area has to do more for S.D. to do less). A. Ct. says S.D. meets standard: superficially reas. ord. may be unreas. when viewed from larger perspective; muns. must consider more than self-interest. Const. test: ord. must be reas. related to welfare of those whom it sign. affects (here: entire region). i. Taking on some of neg. (internalities) as well a. Action here considerably less suspect b/c ord. inclusionary, not exclusionary (attempting to provide for fair share of housing need). ii. Operating in good faith - weighing interests of own residents and residents of neighboring municipalities and incurring some of the costs internally iii. Also, surrounding areas getting some benefits (job creation, etc.) iv. Growth not that big of a deal - wouldve grown anyway, just not quite as much v. Even if had to meet higher standard, would still be ok, so not deciding that issue vi. Closest to #3 on list above re: possible standards B. Note: this is an example of a local govt litigating against other local govts i. Standing: many cts. hold muns. have standing to challenge neighboring jd.s zoning decisions if mun. can demonstrate it would be subst., directly, and adversely affected in its corp. capacity. Some cts. refuse to grant standing on basis of such concerns. a. Even cts. allowing standing may not if it would interfere w/statewide interests b. Govt lacking standing in its govtal capacity may nevertheless have standing in its capacity as an owner of affected lands. ii. Standard of review: should standard of review or allocation of burdens of production/persuasion vary when P is a co-equal govt? Should presumption of rationality usually given to local govt decisions apply when two muns., both entitled to presumption, are at war? iii. Remedies: if local govt has right to receive some consideration from neighboring/overlapping govts, what remedies when rights violated? iv. Possible intergovernmental solutions: may involve creation of rights b/w govts or assignment of govtal functions to diff. govt units. Ex.: City A proposes use of site X. State S might: a) entitle City B and County C to enjoin that use or recover damages from A; b) compensate B and C from state funds; or c) confer regulatory control over activity to C, or to S itself. 2 ways higher govt may adopt land use controls: a. S might preempt As controls - good when extraterritorial impacts of activity are on balance beneficial (i.e., a prison); efficiency enhanced if local govts unable to veto developt. b. S could supplement As controls - developer would then have to pass muster twice, w/both state and mun. having independent veto power. Used only
36
where activity would have net external costs (i.e., garbage dump at edge of city). ii. Positive - If costs to mun. high, incentive to prohibit developt despite benefits to region (affordable housing (Mount Laurel), Beaver Gasoline, Environmental Justice Movement). Issue w/locally unwanted land uses (LULUs) - create not in my backyard reaction. Positive impact may include: a. helping meet regional needs for affordable housing b. group homes c. sewage treatment d. prisons e. Problem: Have to go somewhere, but no mun. wants to take it - where should it go? Whats obligation of mun. to take on responsibility even though benefits will go elsewhere? f. Example: 1. Beaver Gasoline (Pa 1971) - ord. prohibits gas station w/in borough. Who bears burden? A. Not abandoning presumption of validity, but reqing P to establish by aff. ev. the nonexistence of a proper zoning purp. in total prohibition of otherwise leg. bus. activity would be a virtually insurmountable burden. All P can do is show that D banned something relatively innocuous. B. Gasoline stations not inherently so noxious as to justify blanket prohibition C. Where a total mun.-wide prohibition of a non-noxious activity which on its face doesnt protect a leg. public interest, P meets burden by showing total prohibition and burden shifts to mun. to establish legitimacy of prohibition by ev. showing what public interest it protects. D. Very difficult for mun. to win a Beaver type lit. (something that justifies a complete ban of a non-noxious use). Essentially, if not noxious, must allow use somewhere w/in mun. iii. Environmental Justice Movement and Other Objections to Siting of LULUs a. Allegation by movement has been that, when it comes to placement of LULUs, its the same communities time and again that are ending up w/this type of developt that might very well benefit region but that imposes real sign. cost upon mun. These muns. tend to be comparatively poor and composed of minorities. b. 2 main legal claims: 1. E.P.C.: alleging essentially that there is overt and intentional disc. taking place in the decisions as to where these facilities should go. Problem: Arlington Heights - need to establish decision makers are taking race into account (proof of intent). Ps have, for the most part, failed in establishing that. 2. Title VI of Civil Rights Act: more promising (at least for a while) - Title VI prohibits disc. on basis of race by any org. that receives fed. funding. Dont have to prove intent of disc. - can win under disparate impact claim (or at least shift burden to govt). But in 2000 S.C. said Title VI does not provide for a private right of action. Put the brakes on env. justice lit. c. Whether disparate impact or not: some researchers say strong correlation b/w racial compilation of certain areas and amt. of LULUs contained w/in those areas; others say no correlation.
37

Land Use Outline SECRET

Diunggah oleh

Informasi Dokumen

Deskripsi Asli:

Hak Cipta

Format Tersedia

Bagikan dokumen Ini

Bagikan atau Tanam Dokumen

Opsi Berbagi

Apakah menurut Anda dokumen ini bermanfaat?

Apakah konten ini tidak pantas?

Hak Cipta:

Format Tersedia

Land Use Outline SECRET

Diunggah oleh

Hak Cipta:

Format Tersedia

Land Use Ball, Fall 2009

ZONING & THE CONSTITUTIONAL RIGHTS OF LANDOWNERS AND

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

WHAT IS IMPERMISSIBLE DISCRIMINATION IN LAND USE REGULATION?

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

REGIONAL OBLIGATIONS OF MUNICIPALITIES

Land Use Ball, Fall 2009

Land Use Ball, Fall 2009

Anda mungkin juga menyukai