Land Use Law Outline ‘Spring 2012 1. Introduetion a, Modern Land Use Regulation 1. Authority 1. Local governments are regarded as instrumentaltes oftheir states, 2. Planning and zoning enabling laws authorize municipalities to control land through comprehensive land use plans and zoning districts. 8, Zoning regulations conform to the land use plan, generally. ‘a. Subdvisions b. Site plan development 4. Smart growth iawsiregulations. 5, Overlapping federal-stato-local raguiation |i. Zoning Procedure and Judicial Reviow 1, Local admin. agencies review/approve indvidual development proposals 2. Procedures: a. Public meetings b. Public notice ©. Citizen participation 3, Important: Two cons'stent standards of al land use laws: ‘a. Must accomplish a legitimate public purpose Must allow the landowner some economically viable use. 4. Courts tend to defer to the judgment of land use regulators and impose a hheavy burden on those who challenge regulatians to prove that such regulations are arbitrary, capricious, ula vires, deny economical use of the land, or violate constitutional protections, b. Public contral of land use i. Willage'of Edelid V"AmbIeFREBIIYC8, (1926): Village adopted a zoning ordinance Under authority from the state, which had the constitutional authority to enact laws to protect the heaith, safety, morals, and welfare. Was a zoning ordinance that divided IT's land into three separate use districts constitutional? 1, Holding: The zoning law was a valid exercise of the villagelstate police power because there was a danger to the public in the mixing of industrial, ‘commercial, and residential land. Thorofore, the law was constitutional. 2, Ambler failed to prove any actual effect on the propery; only speculative. c. The Law of Nuisance Intentional, non-trespassory interference with the use and enjoyment of land in the possession of another. Must be substantial and unreasonable. li. Private Nuisance: Private parties attempting to control land use through lawsuits. Balancing the right of individuals to use their land by establishing that landowners may not do so in a way injurious to the rights of others, 1, Is the land use reasonable? 2. Suitability of the activity tothe character ofthe place 3. Value to society of the alleged nuisance 4. Hardship on the A of an injunction or damage award, li, Public Nuisance: Significant and unreasonable interference with health, safely, and ‘welfare; interference with a “public right” Also, statutory, 'v. Clark v. Wombold (Wis. 1917): [] owned a lakefront summer home neighboring a's pre-existing pig yard. The pig yard was kept in as sanitary condition as reasonably possible, but stil generated terrible odors that I] said interfered with the use & enjoy. 1, Holding: No action for nuisance because the pig yard is kept in conditions as clean and sanitary as can be reasonably attained 2. Rationale: “One man's enjoyment of property cannot always be the contraling factor, but must be considered in connection with the reasonable ‘and lawful use of other property by his neighbor.”Land Use Law Outline ‘Spring 2012 3, “[Pligs will be pigs, and we m ‘and his stil more odorous per 4, Court stil encourages farmer to move the pigs Immediately adjacent to II's residence to another area. Be a good neighbor vs, exercising a minor right! 3t put up as best we may with the odorous pig 4d. Zoning and the Law of Nuisance \. Hadacheck v. Sebastian (1915): 4 convicted of continuing to operate a brickyard/kinifactory in an area of LA that had been limited strictly for residential use, rendering the land and 4's investment useless for its prior use. TC held that this was a valid exercise of the police power. 1, Holding: Conviction aff'd because the zoning law was a valid exercise of the police power to protect public healt, safety, welfare 2. Private Interests must yield to Public Interests: "To so hold would preclude development and fix a city forever init primitive conditions. There must be progress, and iin its march private interests are in the way they ‘must yield to the good of the community.” li, Note: Some uses are per senuisances, such as lurkyards, cemeteries, ammunition factories, brick yards in urban areas. Prohibited outright in certain zones. ii, N.3, p. 35: Lucas v. $.C. Coastal Council & land use regulation that prevents all (not ust most valuable) economically beneficial uses of the land is a per se Fegulatory “taking.” 1. Activities in compliance with zoning laws typically cannot be a nuisance. 2. Many existing activites are grandfathered into zoning ordinances. 3, Sometimes itis more socially beneficial o award ITs damages than to issue ‘an injunction against 4 requiring A to cease productive economic activites. @. Servitudes: Easements and Covenants |. Servitudes are private land use controls that supplement public law. |i. West Alameda v. Jefferson County (Colo. 1969): TC invalidated a subdivision covenant requiring the land to remain residential, alowing two shopping centers to be built. TC looked to development outside the subdivision not burdened by the covenant to determine that the servitudes were inequitable to enforce. Rule: In determining whether the purpose of the restrictions has come to an ‘end, a court must look to the development of the subdivision that is ‘subject to the covenants, and not outside development, to determine whether the original purpose of the covenants has been maintained. 2. Holding: Because the original purpose of the covenant to keep the ‘subdivision residential has remained unchanged, covenant is enforceable. 1. Common Interast Gommunitios |. Ex: Cooperatives, condominiums, townhouse communities, PUDs, HOAs, etc. li. Design requirements, setback requirements, larger lots, common facilties/aroas. ii, Neponsit Property Owners’ Ass'n (NY 1938): Covenant in deed fora tract in @ residential community required HO + successors to pay annual dues, which can become a lien if unpaid, for maintenance of roads, paths, parks, beaches, sewers. 4, Rule: In order for a covenant to "run with the land,” passing wit title, ‘a. The grantor and grantee must intend that covenant run with the land; The covenant must “touch” the land with which itruns; and cc. There must be “privity of estate” between the claimantienforcer and the promisor/burdened party. 2, Holding: The covenant “touched” the land it burdened ~ owners gained the Tight of common use to the common areas ~ and there was privity of estate, 3, Honoring the substance of the arrangemenvagreement over the form. iv. Private Design ControlsLand Use Law Outline ‘Spring 2012 1, hue v. Cheyenne Homes (Colo, 1969): CH obtained an injunction against R, who attempted to move a 30-year old Spanish-style house into a neighborhood containing only 2-year old modem homes. CH's architectural control committee required prior approval for new homes in the neighborhood for the purpose of protecting property values, ‘a. Rule: Covenants of subdivisions will be upheld provided that such ‘communities do not unreasonably withhold their consent or refuse plans in an arbitrary and capricious manner, and made in good faith Holding: Injunction aif'd for CH because refusal decision was made in good faith in order to protect property values. 2. Note: When municipalities adopt architectural standards, they must bo ‘spectic enough to guide the discretion of a review board to avoid the claim that the standards are overbroad. The same applies to private committoes. I. Land Use Planning a. Public Policy and The Economics of Land Use Regulation iL Understanding the economic dilemma and the demands of the market is key to ‘appreciating the politcal realities that challenge the government's use ofthe police ower to decide how private citizens can use their properly to benefit the community. li, Zoning is not an individual private property right: its a community property right. Note 8p; 87: Protecting investments in commercial business: ‘Superior Outdoor Signs (Md. 2003): An owner of a business does not have standing to challenge variances granted to a competitor. Zoning ordinances {do not function to provide economic protection to existing businesses. 2, However, courts are more likely to uphold the protectionist purposes of zoning ordinances seeking to protect other businesses from competition, ‘such as an ordinance prohibiting the construction of new superstores ke Walmart. WabMart Stores v. Cty of Turlock (E.D. Cal. 2006) Land use plan adopted by planning boards; zoning ordinances adopted by local legislative bodies. cc. The Players in the Land Use Game Planners 1. Guide the development of short- and long-term plans to help communities ‘grow and revitalize, while guiding local officials to make decisions concerning ‘social, economic, and environmental challenges. 2, Examine current land use and provide recommendations based on this data for the design and layout of future land uses. 3, Help dratt new and interpret current land use regulations. 4._ Provide opinions regarding application of land use laws in particular cies. li, Legal Status of Planners 1. NJ Chapter, American Inst. of Planners v. NJ State Bd. of Prof! Planners (NJ 1967): NJ Supreme Court upheld the constitutionalty of a statute requiring planners to meet certain minimum educational and practice requirements in arder to be licensed, while licensed engineers, survayors, ‘and architects could automatically receive a planning license. ‘a. Growing importance of community planning, reasonable for State to regulate the profession. bb. Shortage of professional planners justitied automatic licensing for other professions. li Ethical Conduct of Parties on the Land Use Game 1. Nicholas v. Wilton Zoning Bd. of Appeals (Conn. 2001): Aly. formerly represented city in connection with {1's permit application. In 1975, attyLand Use Law Outline ‘Spring 2012 issued an opinion letter forthe city concerning the property. In 1999, he testi for the city. He currently represents [1 in his appeal of permit denial, ‘a, MR, 1.9 Disqualification for conflict of interest relating fo a former lent in same/simitar matter wlo prior client's consent. b. MAR. 3.7 Disqualification from acting as an advocate in atrial where the lawyer likely to be a necessary witness ©. Holding: City's motion for disqualification denied iL Attorney has not divulged any confidential inf, ii. 26 years passed since opinion letter. i. 16 years since attorney resigned as town counsel. iv. No compromise to administration of justice. v. [has an subst. interest in free selection of counsel. Not likely that attomey will be a necessary witness. 2. Note 1, p. 83: Walden Fed. S&L v. Walden (NY 24 Dept 1995): Law fm representing a municipality for 30+ years, including working on drafting of local site plan law, disqualfiad six years after ts last representation of the ‘municipality trom appearing before the municipality on behalf of another lent for site plan review. 4d. Master/Comprehensive Land Use Plan 1. Whatis it? 1, Blueprint for future development and preservation of community 2. Primary: Physical and economic development of area land 8, Other: Social, environmental, and regional concerns 4. Generally precedes zoning ordinances, not does not need to be in place bbetore zoning regulations made. 5, Usually advisory li, How is itdeveloped or adopted? Pursuant io state stalutory authority Local board appoints planning boardicommmitte to develop a proposed plan. Significant public participation. Creative Displays, Inc. v. City of Florence (ky. 1960): A countywide. ‘planning unit was formed in accordance with state law. Boone County simply merged prior existing plans of two municipalities into one area-wide plan. The plan complied with al substantive requirements, but not all formal ‘a. Holding: The comprehensive plan was not validly proparod. Under the new law, itis not sufficient to compile existing individual plans for jurisdictions and merge them into one new area-wide plan. Preexisting plans do not address the needs and goals for the area- \wide unit and would not provide meaningtul opport. for public input. J. Failure to follow proper procedure nulifies a plan ii, Plan Consistency 4. Land use plan and zoning regulations generally must be consistent. 2 Fale oa Zoing wa cnfom ore conprenenive pan may bo ‘considered to be ‘exceeding the scope of the localiy's authority 3, Land use regulations are often challenged as “not in accordance with a ‘comprehensive plan.” Compare: 4, Elysian Heights Residents Assoc. v. Los Angeles (Cal. 1986): City issued ‘a building permit for an apartment complex, and a neighbor's association ‘sought a wrt af mandamus requiting the city to revoke the permit, alleging that the permit was not in accordance with the city's general plan, Permit did follow city’s zoning ordinance. ‘a. Denial of writ of mandamus affirmed '. Pormits are not to be scrutinized for consistency with the general plan, but rathor withthe city’s land-use regulations. 4Land Use Law Outline ‘Spring 2012 ©. Courts generally reluctant to invalidate a regulation adopted to implement a comprehensive plan, 5. Bone v. City of Lewiston (Idaho 1984): Bone requested his land be rezoned from low-density RU to a limited commercial use. The comprehensive plan map shows Bone's land as being commercial, but Council denied his request, Bone seeks a writ of mandamus forcing the city to enact an ‘ordinance in conformity with its plan. a. Holding: [T's request for a writ of mandamus denied. b. Courts wil not hold municipalities to a iteral interpretation of ‘in accordance with a comprehensive plan.” To do so wauld elevate the ‘comprehensive plan and map to the status of a zoning ordinance. 6. Aprojacted pattern of land use in a plan does not ereate an entitlement for a property owner with respect fo zoning, 6. P.111,n.2— Citizens Growth Mgmt. v. West Palm Beach (Fla. 1984): Court relies on standing grounds in deciining to consider a community group's claim that zoning ordinances authorizing a large-scale redevelopment were inconsistent with the plan. Iv. The Etfect of a Comprehensive Land Use Plan: Does it carry the force of duly tenacted legislation or it“dormant” until enacted through land use ordinances? 1, Cochran v. Planning Bd. of City of Summit (NJ Super. 1985): ‘a. Rule: Adoption of the comprehensive plan is a legislative act requiring action by the local legislative body to become effective and have the force of law. Rule: The plan itself is a mere declaration of policy and an indication of intention that does not take effect until implemented through ordinances. Unt then, itis dormant @. Interstate Compacts i. Congress may enact interstate compacts to empower two or more states to join planning efforts to protect sensitive natural aroas that cross state boundaries. |i. People Ex Rel. Younger v. City of EI Dorado (Cal. 1971): CA attorney gonorat seeking court order commanding 2 counties to pay the money necessary to support the Tahoe Regional Planning Agency. Lake Tahoe is “an area of unique and Unsurpassed beauty” and a complex ecosystem. 1. TRPA - Interstate compact between Cal. and Nev., authorized by Congress, to develop and enforce a regional plan covering land use, transportation, conservation, recteation, and public services and facilities. 2, Holding: Upholds the broad authority granted to the Lake Tahoe Regional Planning Agency on the basis of the significant state interests in protecting ‘and preserving the Lake Tahoe region. MI. — Zoning ‘a. Balancing Private Property Rights and the Public Interest: Limiting Principles, i. Substantive Due Process: Legitimate public purpose li. Administrative Process: Must folow procedural Standards of state statute and fairnass requirements of procedural due process, ii, Equal protection iv. Delegation of authority: No uttra vires regulation beyond state delegation v.58! Am: No taking of private property for public purpose w/o just comp. Vi. Preemption of local regulations by state legislation. vil. Freedoms of speech, expression, and exercise of religion. b. Early casesLand Use Law Outline ‘Spring 2012 « |. Goldman v. Crowther (Md. 1925): LO refused a permit to conduct a business located in a residential aistrict. Holding: Zoning constituted an artitcial pian of segragation of land uses, had nothing to do with advancing the public safety, health, or welfare, and violated the rights of clizens to hold and enjoy property as they wish, so long as no nuisances li, State ex rel. Carter v. Harper (Wisc. 1923): [1's application to enlarge his dairy and Imik pasteurizing facility was denied pursuant to the city's zoning ordinance prohibiting enlargement of facilities for nonconforming uses. ii, Holding: The ordinance was, in all respects, a reasonable, valid, and constitutional enactment ofthe legislature under the State's police powers to promote the safety and welfare of the public. City acted within ts authority. iv. Willag@°o? Etielid V"AmbIEr RealtY'CO. (1926): Dovoloper who purchased a large Parco! of land intended to develop the property for industrial use. The Village Subsequently passed an ordinance and comprehensive zoning plan that resulted in the developers planned uses being prohibited. Developer claimed this resulted in a 75% diminution in the value of the property, which it claimed was an unconstitutional ‘deprivation of his property rights without due process. 1. Rulle: State governments have the power to making zoning laws and restrict certain uses, unless itis clear that their action “has no foundation in reason Seals a mre afar or ala exer ol poner haere substan ‘Saar publ haath the ple mera, pbli oto he Init proporoeree’ 9 Vand otocsool paca poner 2. Ratangt"the ordnance ms Goncral soope end dominant fects Isa va Guree of uthony «Eater fo prove re apparaus suitable for he character and inoaty eho dover each aaron b Insatos the slay ru soniye no Be epee eran etapa tale: Decree nose, effe, Zoning, Rezoning, and Conformance with the Comprehensive Plan iL’ Standard Zoning Enabling Act (U.S. Dopt. of Commorco, 1926) p. 168 1. § 1 Grant of Power: State logislature enables local legistatve bodies to regulate and restrict bulding and land uses for health, safety, morals, and welfare of the community 2. §2 Districts: Authorizes local legislative body to divide the municipality into disticts of such number, shape and area as best suited to carry out the ‘purposes of the act. 8, §3 Purpose in View: Zoning ordinances shall be made in accordance with a ‘comprehensive plan for the purpose of promoting the health, safety, morals, ‘and welfare of the community, li, Spot Zoning 1, The rezoning can be invalidatod where the amendment singles out a parcel cf land or special treatment or privileges not in harmony with the other use absont a varianco, their property was practically usoloss. €. Willnotaltor tne essential character of the district or ‘substantially/permanently impair use of development of adjacent property...detrimental to public welfare, 4. Variance will ford the least intrusive solution 2, Holding: HOs failed to prove that a variance was needed to avoid Unnecessary hardship; that the hardship was not sell-ceated; that unique physical circumstances caused it; that variance was least intrusive solution. ‘a. Hardship not ‘unnecessary’ simply because a family wth a small child needs a play area. b. Os created hardship via prior addition covering 75% of property. ©. Steep back yard not unique to homeowners’ property. 3. Note 1(b),p. 214: ‘a. Hardship must be unique and peculiar to the property and not prevalent in the neighborhood, b. Hardship must be due ta conditions nat personal to the owner, but rather to conditions affecting the land. Iv. Sasso v. Osgood (NY 1995): Waterfront LO sought a variance to allow him to RES for a 250-unit, evelopment. Rezoning denied; develco. applied for a variance with the ZBA. ZBA, ranted. Challengers argue that ZBA's decision to grant the variance was impermissible, as a 100-acre parcel was too large to be subject to land use variance. 1. Rule ~ Factors of an Unnecessary Hardship: ‘a. Property cannot be used in a manner consistent with existing zoning, b. Owners plight is due to unique circumstances that may reflect the Unreasonablenoss of the zoning Variance will nt alter character ofthe locality. d._ Hardship is not selt-created, 2. Holding: Affirmed order upholding ZBA's grant of variance.Land Use Law Outline ‘Spring 2012 Q. Administrative Treatment - Special Use Permits |. Land uses allowed and encouraged by the ordinance, li, Special land uses are permitted in certain zoning distiets, but are subject to certain Conditions that protect surrounding properties from adverse impacts. ii, Ex. Gas stations, ullties, hospitals, junkyards, churches. iv. They are considered harmonious with the zoning district, but are sufficiently diferent to be subject to certain conditions. ¥. Chicago Heights v. Living Word (II. 2001): Church's special use permit application was denied on the grounds that noncommercial use would be at odds with the ‘comprehensive development plan forthe location, which planned for a commercial se ofthat area in order to raiso the tax baso ofthat district in a broko-ass city. 1. Rule: Six mandatory criteria for issuing a special use permit: ‘a. The special use will not be unreasonably detrimental to the health, safety, morals, comfor, or general welfare Not injurious to use and enjoyment of other property in are, nor ‘substantially diminish property values. . Willnot impede normal development of surrounding property for permitted uses, 4d. Adequate utlities, roads, drainage, and other necessary facilties| have been or are being provided. fe. Adequate measures to provide ingress and egress designed to minimize traffic in public streets. {. Conforms to all other applicable regulations of district. 2. Holding: Reversed. Permit should have been granted. h. Noneantorming Uses (NCU) i. Created when existing land uses, valid when established, are prohibited by a new or ‘amended zoning law. |i. When property owners propose improvement, expansion, rebulding, or other change in their nonconforming use, they must comply with local regulations, Hi, Important: Zoning law wishes to eliminate NCUs over time. |v. Law usually allows owners NCUs to perform normal maintenance and intemal alterations that do nat increase the degree of noncompliance. v. Expansion or Extension - State v. Perry (Ct. 1962): Existing industrial use of the ice cream plant became NCU when the property was rezoned from industrial to ‘commercial-neighborhood. Eight years after rezoning, A brought a large taller to the premises, used to store materials for ice cream. The taller was roadworthy and could bbe moved easily, butits temporary registration had expired, 1, Ord, prohibited the extension or expansion of NCU. 2. Holding: A attempted to provide additional enclosed space to expand, ‘enlarge, and extend the nonconforming use. Violates ordinance 10Land Use Law Outline ‘Spring 2012 VL. Discontinuance - Requires an act of “abandonment” by owner of NCU, 1, Morehouse v. Hunt (Wisc. 1940): Bullding used as a frat house became a NCU when the district was rezoned to residential, The house was then used ‘as a rooming house for 2 years. Then the dean of the law schoo! leased the: property for 5 years. Once the owner regained possession, he sought a NCU permit for renewed use as a fraternity house. Denied > appeals board revs. ‘a. Rule: Discontinuance requires more than mere cessation; it invalves abandonment > look to owner's intent. . Holding: Because the owner did not intend to abandon the right to use the residence as a frat house, and the use as a private residence was only intended to be temporary, NCU permit should be granted. vil Destruction - Moffatt v. Forrest City (Ark. 1961): Court affirms injunction granted to city preventing Moffats from rebuilding its NCU meat market was found to be damaged by a fire to the extent of 60%¢ ofits reproduction value, under ordinance, vil. Amerzation (Grace Period) of NOUS ‘Some ordinances require certain NCUs to be amortized over a specified period at the end of which they must be terminated. 2. Courts look to see whether the benefits to the public of eliminating the NCU are sutfciently great to balance the detriment to the property owner. 3. AVR v. City of St. Louis Park (Minn. 1998): p. 252 ~ Factors used in changed character of prop. ‘a. B&B dominated the character and use of the residence, and therefore its not a traditional home occupation. Itis more lke @ bboardinghouse, Use exceeds the 25% limitation inthe ordinance. c._ No estoppel argument against the local government. \v. Toussaint (Maine 1997): Code enforcement officer issued Waddle permit to operate «dog kennel as a home occupation under Ord. [|-Touissants, summer residents of the neighborhood, sought to prohibit the Kennel due to continuous barking 1, Holding: Decision of the board to issue permit aftimed. 2. Breadth of the ordinance + the evidence before the board that many kennels. in surrounding communities were operated on residential property -> reasonably supports the board's conclusion that @ kennel qualified as home ‘occupation customarily conducted on res. property. IV. Subdivision Control ‘a. Essential Reasons for and Nature of Subdivision Controls, i. p. 285, bottom: Land-use controls governing the division of land into two or more lots, parcels, or sites. Provide criteria for internal design of a land development, as well as the standards by which public improvements are constructed. |. Community intorests: Permanence of development Pianning for future service demands Health and Safety considerations ‘Tax Base and Fiscal Concems Accurate records (clear and accurate description of subdivided lots) b. Procedure: Role of the Planning Commission |. Subdivision Ordinance li, Preliminary plat: nial planning and layout of streets and lots, and type, size, and placement of utes 1, Planning commission reviews the preliminary plan. Factors: p. 286-287, 2. Public hearing with comments from developer, staf, and interested citizens 3, lacommendatian to legislative body to approve, approve w/ conditions (dedications, public impravernents, etc.), or deny. 4. Legislative body will take a formal action approving or denying prelim. plan, ii, Final Plat: Precise drawings containing necessary information to fix the location of lots and streets with reference to survey markers. Accompanied by engineering ‘drawings and supporting technical analyses. Sometimes Include erosion and sedimentation control during development, other specialized issues. 1. Detailed review by planning commission, chacked against the SD regs + zon. 2. Public hearing 3. PC makes recommendation to legislative body > Approve 12Land Use Law Outline ‘Spring 2012 4, Formal action by legislative body > Approve 8. Developer completes required improvements or posts performance bond, 6. Subdivision plan recorded. c. Governmental Power to Regulate Subdivisions i. Ridgefield Land Co. v. Detroit (Mich, 1928): Developers pla included two streets, whose widths did not conform to the city's general plan. The city praposed conditions, but the developer refused and sued to compel the city to accept the plat. 1, Holding: Atfirms denial of mandamus. ‘a. City authorized under ordinance to reject nonconforming plats, including for street width, and to impose reasonable conditions. . Conditions imposed on the developer wore reasonable and necessary for the public safety — the city needs wider streets to accommodate present trafic conditions. |i. Note 1, p. 294: Subdivision regulation isa fair exchange for the privilege to record the plat and enabling the subdivider to sell lots by number, rather than legal description. ii, Dawe v. Scottsdale (Ariz. 1978): Owner of a parcel recorded an approved subdivision plat prior to the application of a new zoning law that had the effect of making the late substandard Holding: Atfirmed for city. 2) [Ohad no vested right to develop substandard los where thre was no ‘attempt to improve the property and it remained vacant from the date of the filing of the plat through the implementation of the new zoning law. 3, Where the amount of work done toward improving land under a permit was ‘minimal, permittee acquired no vested right to camplete the work \v. Corpus Christi v. Unitarian Church (Texas 1968): Church requested a building Permit to improve its property for church purposes. The city conditioned approval on edicating a strip of land on the plat to widen an existing street. 1. Holding: The city had no authority to require the dedication because the ‘ordinance only applied to the subdivision of land, and in this case the church {id not request permission to divide its lot, but rather to improve its property. 4. Cluster Zoning i. Ordinances allowing for dense or clustered” development on subdivisions in order to preserve open spaces, school sites, recreation areas, promote sustainabilly, etc li. Chrinko v. South Brunswick (NJ Super. 1983): Township + planning board enacted two ordinances permitting clusteriopen space zoning through reduced minimum lot size and dimension requirements at the discretion of the board. [1s challenged ords. 1. Holding: Judgment for 4 township + planning board. ‘a. Preservation of land in its natura state is @ widely recognized public purpose, and even absent specitic state statutory authority, a cluster Zoning ordinance reasonably advances this legitimate purpose. Otherwise valid legislation is not nullified because it accomplished an incidental bonefito one or a few private individuals, .Enactment of ords. was done in good faith, in accordance with legislative objectives in zoning, and through proper procedures. ii. Orinda (Cait. 1970): HOs sought invalidation of rezoning of a parcel trom SFR to PUD, claiming the rezoning was in conflict with the statute. 1. Cluster Zoning: “A device for grouping dwellings to increase dwelling densities on some portions of the development area in order to have other portions free of buildings.” Purposes: ‘a. Control of density 13Land Use Law Outline ‘Spring 2012 b. Reservation of green/open spaces better than frontiback yards. 2, Holding: Judgment in favor of County affirmed. ‘a. Zoning regulations must be uniform, not individual dwellings. bb. Bd. of supervisors has the right to modily zoning regulations in the exercise of its police power. . Subdivision Exactions i. Rationale: Subdivider is @ business that places costs on the community at large. li, Traditional Exactions: Requiring applicants to set aside land for parks or other recreational uses, surfacing, curbing, and guttering streets, and installing and Sornocttig tar and cena fous, ie pay a fos si aot 1) els vi NepePYM (I, 1256): Undor Ord, city mposod curbs, gutters nd sw dranago systoms that would cost [Is an additonal $19K. Uevoloper ‘argued that the requirements in the ordinance were unnacessary, created an Unreasonable burden without any relationship to public S/H/MMWV. ‘a. Holding: The exactions were reasonable. "The imposition of reasonable regulations as a condition precedent to the subdivision of lands and the recording of plats...is not a violation of the constitutional requirements of uniformity of taxation or tantamount tothe taking or private property. 2, 181 Inc. v. Salem County Planning Bd. (NJ Super. 1976): 181 required 10 dedicate @ portion ofits subdivision for proposed future widening of an abutting road. ‘a. Rule: Exaction must be specific and, at a minimum, for the imminent use of land, not mere “banking” for unscheduled future use. b. Rule: Compulsory dedication can be valid only if t bears a rational nexus to or is reasonably necessary by subdivision. Holding: No rational nexus between the subdivision exaction and the need far widening in futur. 8. Note 1, p. 829: Sparks: Exaction of right-of-way for future widening of a ‘substandard abutting streets upheld because development would cause a ‘doubling of trattic. Hi. OfF-St0 provements and impact Fooe Divan Builders (NJ 1975): Pursuant to ordinance, board imposed a $20,000 fee “to improve the downstream conditions ofthe stream which carries the may be compensable under 5" Am, |i. Per Se Takings: 1, Permanent physical invasion, however minor. ‘a. Ex. State law requiring landlords to permit cable companies to instal cable facies effected a taking requiring compensation. Loretto. 18Land Use Law Outline ‘Spring 2012 ._ Interferes with the most fundamental of property rights — the right exclude others 2. Deprivation of “all economically beneficial use.” Ex. Lucas. li, Regulatory Takings: Penn Central Transp. Co. ad hae factors (see below) iv, Holding: Court unanimously rejects Chevron's proffered ‘substantially advances a legitimate public purpose" test for regulatory takings. The Penn Central factors apply to regulatory takings cases, such as here. 1. Per Se Regulatory Taki i (1992): Lucas bought two lots on the iste of Palms, intonding to build SFRs on each. Two years later, SC enacted the Boachtront Management Ac wich arr Luca rom orcing to stuturos on Ni and Fule: A, ‘occurs whore a regulation denies all ‘economically beneficial or productive use of land. 2, Holding: The statute as applied is a “taking.” 3. “VWhhen the owner of real property has been called upon to sacrifice all ‘economically beneficial uses in the name of the common good...he has suffered a taking.” 9. Exactions |. Nollan v. Cal. Coastal Com. (1987): Coastal Commission conditioned the approval cf a building permit on the recording of a public access easement across Nollan's bbeachront property. Nollans wanted to build a bigger home on the property 1, Holding: A “permanent physical occupation’ has occurred, where individuals are given a permanent and continuous right to pass through, 2. This amounts to a taking requiring compensation 3. Rule: If government action results in permanent occupation of land, there, ‘must be an “essential nexus between the legitimate state interest and the permit condition exacted by the city.” 4. Holding: There was no rational nexus between the condition and a LSI \DolanivATigatal (1994): Dolan sought a permit 1o expand her store and pave her parking lot. The city conditioned permit approval upon her (1) dedicating a greenway ‘along a nearby creek to alleviate stormwater runoff and (2) a pedestriarvbike path to relieve traffic congestion, all in accordance with the city’s land use plan, 1. Rulle: Bulls on Nollar's “essential nexus" test ‘a. There must be an essential nexus between the legitimate state interest and the permit condition exacted by the city b. If such a nexus exists, the exactions imposed must be roughly proportionate to the projected impact of the construction |. No precise mathematical calculation is required, but must be done by individualized determination. ii. Court specifically rejects a “reasonably related” test in favor cf a ‘roughly proportionate" test consistent with 5" Am. (444) 2. Holding: Conditions imposed on the permit constituted a "taking" because the ity failed to salisty the essential nexus and roughly proportionate standards. h. Ad Hos Factual Inquiries i (1978): New York City’s Landmarks Preservation Commission declared Grand Central Terminal a landmark site, requiring LPC ‘approval for exterior alterations or improvements to be made. Despite the Terminal's designation as a historic landmark, Penn Gentral Transportation Co. entered a lease 10 build a 50-story office tower above the Terminal. LPC rejected two different plans. ‘and PCT filed sult, arguing that the historic designation was a “taking.” 1, Rule: “Ad hoc" Inquiry for economic impacts constituting “takings” ‘a. Economic impact of the regulation 16Land Use Law Outline ‘Spring 2012 Interference with distinct investor-backed expectations c.Character of the government intrusion: is it physical invasion or merely affecting property interests? 2, Holding: No “taking,” no deprivation of property wio DP. PCT could not ‘establish a “taking” simply by showing that they had been denied the ability to exploit a property interest they believed was available for development. ‘a. Substantially and reasonably related to promotion of general welfare b. Sill alowed reasonable beneficial use of the site. |i. Palazzolo v. Rhode Island (2001): A preexisting regulation affecting land cannot be Used as a per se device to deny compensation to a claimant who purchased land aftor enactment. 1. Equal Protection |. Olech (2000): IIs pettioned -Village for connection to the public water supply. Conditioned the connection on [Is granting the Vilage a 33-foot easement. [1s objected because other POs similarly situated only had to grant 15-foot easements. Ts claim that 4's demand for an easement 18 fest larger than necessary was irrational and arbitrary, motivated by ill will and intent to dopriva [1s oftheir nghts. 41. Rule: To state a claim for an Equal Protection claim under a “class of ono" thoory, [] must allago that sho has boon intentionally treated aitforontiy from ‘others similarly situated and that there is no rational basis for the difference. 2. Holding: Extending the “class of one” theory of Equal Protection to local land use decisions, [1s have successfully statod a claim for violation of EPC-14. |i, Note 2: City of Cleburne, Texas v. Cleburne Living Center (1985): The citys denial of special use permit to a group home far the mentally retarded was arbitrary and irrational since other group-ype hames do nat require special use permits in similar situations. i. Remedies i. First English Evangelical Lutheran Church v. Los Angeles (1987): Government ‘adopted an interim ordinance prohibiting the construction of structures in a flood zone; I1-Church challenged the ordinance as a temporary taking because they were Unable to rebuild their camping retreat fora five-year period 1, Rul: Ifa regulation is determined to have taken propery, the Takings Clause requires that compensation be paid during the time the regulation vas in effect; invalidation is not enough, ‘a. The 5" Am. Takings Ciause does not prohibit the taking of private property or interference with private property rights per se, but instead places a condition on the exercise of that power: just ‘compensation. b. “Thus, government action that works a taking of property rights necessarily implicates the ‘constitutional obligation to pay just compensation.” 2. Holding: private parties can sue the government for just compensation. VL. Appeals to Court ‘a. Important: See Diagram + PA MPC Provisions! b. Fritts v. Ashland (Ky. 1961): Neighboring LOs challenge rezoning of a 4-acre tract from RES to L-INDUS as A/CIL.. The rezoning was done to prevent a garment factory from leaving the city. The tract isin the city center, in a residential neighborhood, near a grade school and: high school, and 1.5 miles from the nearest industrially zoned property. a7Land Use Law Outline Spring 2012 |. Holding: Because there was no evidence in the record of change in the neighborhood since enactment of the original ordinance, nor proof that the tract was distinguishable from surrounding propery, the zoning change was arbitrary, capricious, and Unreasonable. Clear example of spot zoning, li, Changes should be made in accordance with systematic planning, &.Neuzil (loa 1990): Ns own a 8.5-2cre tract. The city downzoned the tract, limiting it to SF or duplex at &-units per acre, whereas it used to permit greater density. Ns sued to invalidate the downzoning and for damages for tortious interference. iL Rule: Ordinances. including their amendments, carry strong presumptions of validity: that thoy rationally rolato to public H/SIW. |i. Rule (More liberal and floxibie): The govemiing body may amend its zoning ordinance anytime it deems circumstances and conditions warrant, and such amendment is valid if the procedures in the statute are followed. |. Holding: The city acted within its authorized power because there was substantial evidence to support the city's reasons for downzoning the tract. d. Fasano (Ore. 1973): New Perspective: In granting permits, making exceptions, and deciding particular cases, planning commissions are not legislative bodies entitled to presumptive validity, but administrative: |. Quasi-judiial: Public hearings, findings of fact, recommendations. |i, Board's exercise of authority was judicial, not legislative, and not entitled to presumptive validity. ii. Instead of placing the burden on challengers to show that the decision was arbitrary, capricious, and unreasonable, the party seeking change must show that there was a public need for the change and that the need would be best served by changing, iv. Holding: Because the record does nat show that the rezoning was made in accordance withthe city’s comprehensive plan, or that the factors in the statute were tiven consideration, reversal of the board's decision is aff. ©. Nova Horizon, Inc Nev. 1989): Afor purchasing a property to develop, Nova submitted an application to PCom. for re zoning to alow ito buld a hotelcanvention contr. PC Feommended approval, but city eouncl unanimously denied i. |. General Rule: A court is not empowered to substitute its judgment for that of a zoning board it the decision is supported by substantial evidence and isnot an discretion li, Rule: Under Nevada statute, zoning must comply wth the masterplan. “Here, the rezoning would conform with long-term plans ofthe city: requested at the suggestion of planning staff: consistent with the surrounding property; ‘only one person atthe public hearing appased the project; and Nava invested 8 substantial sum in anticipation of the ety’s approval 2. No evidentiary basis exists for the denial of rezoning. i, Holding: Reverses ety couneci’s denial of Nova's requested rezoning, |. SpaliMEZBATGEPHIIA. (2009): PA Assombly enacted §17.1 of Home Rule Act, which increased fines for city code violations and limited the standing for appeals of zoning hearing bboards to ‘aggrieved persons" and the "governing body vested with legislative powers.” "Aggrieved persons,” as defined excludes general taxpayer standing from such appeals. ‘Spahn opposes Woodstock's variance to construct two single-family residences, which the ZHB granted. SCRUB opposes Shannon's variance to construct a new billboard in their members’ neighborhood. Iv. Holding: Under ine pain language of §17.1, general taxpayer standing in Philadelphia for appeals of ZH decisions is revoked. v. Holding: Regardless, neither Spahn nor SCRUB have “traditionat” standing to challenge the decisions of the ZHB in granting the variances. They're not ‘aggrieved 18Land Use Law Outline Spring 2012 persons” under Wiliam Penn such that they have an interest that is substantial, direct, and immediate, as required under Wiliam Penn. 1, Substantial = Discernible effect on some interest other than the abstract interest all clizens have in the outcome of the proceedings. 2. Direct = Causation of harm to the person's interest. ‘a. Immediate = Causal connection between the action camplained of ‘and the injury tothe person challenging vi. Spahn happens to live 1.5 blocks away and only walks by the two lots; SCRUB is just ‘an organization with a general interest in enforcing the zoning code. vi. Their grievances are no diferent than any other taxpayer's in Philadelphia 19