Government Control of Land Development Fall 2009 Prof. Davis Samsel II.

I. Constitution: Substantive DP, EQ, & Takings; Fed Ct Barriers 1: Substantive DP 2: EQ 3: Takings o 3: Intentional Takings (Eminent Domain) o 4: Unintentional Takings: Physical Invasions & Regulatory Takings 5: Categorical Takings: : Loretto (Physical) & Lucas (Economic) 6: Penn Central Balancing Test; 7: Exactions 7: Remedies (2 options) 7: Fed Methods of Suit/Available Remedies 8: Fed Barriers to Const. Relief (Ripeness & Abstention); 1983 Euclidean Zoning 1: Zoning Power 2: Procedural Hurdles: Standing; Exhaustion of Remedies; Securing Judicial Review; Form of Remedy 5: Standard of Review: Fairly Debatable Test (Hard look v. Soft look) 6: Recurring Issues: Density & Intensity of Use (Large Lot & Site Rqmts) 7: Residential Uses (Single/Multi-Family; Family; Mentally Handicapped) Family 8: Manufactured Housing 9: Commercial & Industrial Uses: Formula Biz, Control of Competition 11: Nonconforming Uses: Hastening Disappearance & Amortization (affm) 13: Special Protection Uses: Adult & Religious (4 authorities) Exclusionary Zoning (low income) & Discrimination (race) 1: Exclusion: Affordable housing (state) 2: Discrimination: Standing & Claims (Constitutional or Fed Fair Housing Act (FFHA)) (fed) Flexible Zoning: Variances, Exceptions, & Amendments 2: Zoning Variances: Use & Area 3: Special Exception 4: Rezoning (Amendment): Estoppel/Vested Rights; Spot Zoning; Quasi-Judicial v. Legislative 7: Other Forms: Floating Zone; Contract v. Conditional Zoning 8: Site Plan Review. Role of Comprehensive Plan. 9: Initiative & Referendum Subdivision Controls: Exactions & Takings (residential) 1: Subdivision Denials & Controls 2: Exactions: Dedications; In Lieu Fees; Impact Fees. Step 1: Exaction? 3: Step 2: Authorized? Step 2a: Zoning Issues. Step 3a: Nollan Nexus Test 4: Step 3b: Does Dolan apply? Step 3c: Dolan Rough Proportionality Test 5: Step 4: Tougher State standards? Growth Management Strategies & Alternate Urban Development Forms 1: Slowing Growth: Quota Programs (fed & state standards) 2: Facility Related Programs: Phased Growth & ADF (Adequate Public Facilities) 3: Controlling Growth: UGB (Urban Growth Boundaries) 4: Limiting Public Services (leapfrog)

III. IV. V. VI. VII.

CH. 2: CONSTITUTION: SUBSTANTIVE DP, EQ, & TAKINGS; FED CT BARRIERS SUBSTANTIVE DP LIMITS (FED CONST.) TERMINOLOGY Federal Cts call it substantive DP. State Cts call it unreasonable, confiscatory, arbitrary, etc. Bottom Line: Same thing. Relation to public health, safety, morals, or general welfare.

POLICE POWER Rule: States possess a general power to regulate to protect the public health, safety, morals, or general welfare. o This is the basis of power to regulate land use and development. Fed govt has NO police power, BUT possesses a large power to regulate in ways that affect land use and development under Art. I, 8 of the Const. LAND USE REGULATION General Rule: Govt can regulate the use of property by exercising their police power. Purpose: The right of govt to legislate (enact laws) to protect health, safety, public welfare, and morals. o Effect: NO compensation is required if the regulation is const. and otherwise valid. o Govt could hardly go on if to some extent the values incident to property could not be diminished w/o paying for every such change in the general law. Limit: Limited by the DP Clause of 5A and 14A. o When state or local regulatory legislation is found to be improper exercise of police power, it can be enjoined as a deprivation of liberty or property (or both) w/o DP of law. SUBSTANTIVE DP V. TAKINGS BOTH require legitimate state interest/concern + substantial relationship/advancement. Difference is the remedy: o Substantive DP: If the regulation is improper, the restriction will be struck down. o Taking: You get compensation. Effect: Even when a LO cant make a Takings claim (to get compensation), he can challenge the land use reg itself or the way it is applied. o Can be a Substantive DP claim or EQ claim Substantive Facial: not constitutionally permitted. Substantive As-Applied: Demand is not legitimately related to review EQ: similar demands not made on other developments. SUBSTANTIVE DP RULE: George Washington Univ., 183 Step 1: Standing-like Pre-Requisite: Must have a liberty or property interest to have Sub. DP claim. o 2 Tests for Finding a Property Interest (in the land use context): Minority Test: Must have an ownership interest in the land. 3rd Cir. Majority Test: New Property Inquiry: Focus on the structure of the land use regulatory process and look to the degree of discretion to be exercised by govt officials in granting or w/holding the relevant permission. The Rule! More discretion for officials = less likely a property interest Can start o E.g. virtually unlimited discretion = NO prop int. w/ either o Do board members get to apply their own personal tastes? step 1 or 2. o Mere expectancy is NOT enough for property int. Look to state law. Little or no discretion for officials = more likely a property interest o E.g. Absolute entitlement = prop int. (if you do this, this, and this, then you get this). E.g. bar exam. o Look for shall language, e.g. 2

Step 2: Even if a prop int is found, subst. DP imposes only very slight burdens on govt to justify its actions. o Requires land use regs to serve a legit govt purpose. o Rule: Constrains ONLY egregious govt misconduct. o Test: Egregious conduct can be found in 2 ways: 1) Ignore the law. i.e. Trammels significant personal or prop rights. 2) Irrational. i.e. Substantial infringement of state law prompted by personal or group animosity/hostility o Applied to GWU: Govt conduct was NOT egregious. Held: rational to treat students differently. Common setting for Sub DP challenges: o Exclusionary and aesthetic zoning and other regs that raise legitimacy of purpose issues. In Practice: Some cts reverse the order of GWU. Just find no DP violation and avoid property question.

Agins is still viable for a substantive DP analysis: We do need a nexus b/w the regulation and health, safety, and welfare, but that is a substantive DP analysis, NOT a takings analysis. Lingle, 171 EQUAL PROTECTION LIMITS (FED CONST.) EQ Protection claims rarely used for land use regulations/takings. EQ Claim: Similar demands not made on other developments. Requires fairness in the application of govt regulation. DP Clause applies to property, whereas EQ protection clause applies to people. Advantage over DP cases: Many courts do not place same limits on getting EQ claims into court. 3 Tiers of the Std of Review in EQ Protection cases: Strict Scrutiny. Applies when there is: o (1) a suspect class, OR e.g. racial discrimination in land use reg. o (2) a fundamental interest involved. e.g. free speech affected, by e.g. sign regulation. o Requires compelling govt interest, which courts seldom find. Intermediate Scrutiny. Applies when there is: o Discrimination based on certain characteristics, like gender. Rational Basis (most common). o Most land use regulation gets RB b/c they affect only economic interests in the land. Key! o Relaxed standard: Mere rational relationship, plus there is a presumption of const. o Apply this standard whenever there is NO suspect class, fundamental int, or certain characteristics. Class of One Cases/Selective Enforcement. o Claim: P alleges he is singled out. To win: o Rule: P MUST show (1) intentional different treatment + (2) NO RB for the difference in treatment. o Olech, 193 : P required to provide 33-foot easement for water supply when all others have 15-foot rqmt. P also alleged ill will. SCOTUS: No RB for different treatment. EQ violation. Ill will may make a difference. Davis: You MUST allege ill will to beat 12(b)(6). Then prove it to win claim.

TAKINGS Intentional Takings ED Unintentional Takings (govt takes land but doesnt mean to) Regulatory (police power preventing use) Inverse Condemnation (physical invasion)

I.

Intentional Takings: Eminent Domain

EMINENT DOMAIN The power to take private property for public use Both fed and state governments have ED power o Its the only inherent power of the fed govt (not provided for in the Const) Two Limits on ED Power o (1) Must be for a public use, and o (2) Must provide just compensation o 99% of fights in this area are about just compensation; 1% about public use o Fed Limit derives from 5A: No person shall be deprived of life, liberty, or property, without DP of law; nor shall private property be taken for public use w/o just compensation. o State Limits derive from State const (all require just compensation) & 14A: No state shall deprive any person of life, liberty, or property, w/o DP of law; nor deny to any person w/in its j(x) the EQ protection of the laws. Include 2 Limits: Public Purpose + Just Compensation PUBLIC USE = PUBLIC PURPOSE Public Use really means public PURPOSE Berman 70 o It may be ok for the property to end up in private hands w/o complete access to the public. o Govt condemned all land in the area b/c of blight, although Bs property itself was not blighted. o B challenged govt as giving property from 1 indvl to another o Held: Public use doesnt really mean use by the public o Govts ED was upheld b/c it served as public purpose, i.e. ridding blight. Public Purpose: Kelo Modern Standard/Spectrum o Clearly Unconstitutional: Govt may NOT take As property for the sole purpose of transferring it to B, even if A is paid just compensation. o Clearly Constitutional: Govt may transfer property from one private party to another if future use by the public is the purpose of the taking. o Gray Area: Govt claims public purpose. Public Purpose should be defined broadly, w/ deference to legislative judgments: Kelo Appears that if Legislature says its a public purpose, Court will not substitute its judgment. E.g. Transferring land among private indvls for economic development/revitalization IS a public purpose. Keys: (1) State authorized economic development and (2) city had Keys! comprehensive, thoroughly deliberated plan (not spur of moment). HI created rent-to-own program b/c 99% of land owned by 5 families. Midkiff, 71 Effect: Transferring land b/w private indvls Held: Even w/ no blight, it served a public purpose: freeing up land use and bringing down land prices. Reasonable Certainty Rqmt? NO. Once a Ct determines there is a public purpose and the means are not irrational, the Ct will NOT 2 nd guess whether the expected public benefits of the plan will actually accrue. 4

Amount & Character of Land Rqmt? NO. Again, once the public purpose is satisfied, the Ct will NOT 2nd guess whether the city needs particular tracts of land. These are legislative judgments. o Bottom Line: 5A sets the floor. 5A sets the fed constitutional floor for public use (i.e. public purpose)a minimal test to meeta legislative decision that gets substantial deference. States are welcome to further restrict the definition of public use by state const. Permissible public purposes include economic development, fix blight, & breaking up a land oligopoly to get the market to function normally. State Responses to Kelo: o 3 LegislativeTypes Substantive restrictions on the use of ED E.g. prohibiting ED for economic development purposes or restricting it to more narrowly-defined blighted properties. Imposing more procedural protections E.g. greater public notice and approval by elected public bodies. Requiring more than FMV compensation when principle residence is taken. o Judicial: Many states have rejected the Kelo rationale in applying state const. provisions.

JUST COMPENSATION Fair market value at the time and place of taking. o Standard: What willing buyer would pay willing seller. Objective appraiser. o NO sentimental/personal values: Excludes personal value attached to property/amt seller would ordinarily require to leave his home. o Thus, NOT full compensation b/c impractical to calculate additional values or relocation costs. II. Unintentional Takings: Inverse Condemnation (Physical Invasions & Regulatory Takings)

Inverse condemnation: Govt takes private property but fails to conduct formal proceedings/pay just compensation. Thus, indvl must sue the govt (hence, inverse from normal condemnation/ED) Two types: o Physical invasion (per se takings) o Regulatory (more controversial) Evolution of Regulatory Takings Rule: While property may be regulated to a certain extent (w/o requiring compensation), if it goes too far, it will be recognized not just as a police power exercise but also as a taking (which requires just compensation). Pennsylvania Coal, 82 o There is a scale/spectrum. Its a question of degree. o A strong public desire to improve the public condition is NOT enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. o A regulation can affect land so significantly that it is the f(x) equivalent of a taking of property for which compensation is paid. Issue Moving Ahead: Although govt does NOT physically take any land, at what point does an indvl have a taking action b/c the regulation takes the land? ROADMAP: A LO seeking to challenge a govt regulation as an uncompensated taking of private property may proceed under 1 of 4 theories: Categorical Takings: o (1) Loretto: Permanent, Physical Taking o (2) Lucas: NO economically viable use. 100% Total Regulatory Taking (3) Penn Central taking (4) Land use exaction violating the standards set forth in Nollan and Dolan. Key: Look at the effect on the LO; NOT whether it substantially advances a state interest. Lingle: The Agins Substantially Advances formula is NOT a valid takings test. o It has NO place in takings jurisprudence. 5

All regulations MUST advance a legit state interest to take to begin with, i.e. substantial relation to health, welfare, etc. Categorical Per Se Takings

A.

Categorical Taking: Game over. No further inquiry is necessary or allowed. Its a taking, period. REG TAKING #1: LORETTO: PERMANENT, PHYSICAL INVASIONS [119] Rule: Any (1) permanent, (2) physical invasion, (3) by, or authorized the govt is ALWAYS a taking. o Easement, e.g. Small cable box attached to house. Only unreasonable people change the world. o Permanent: Absolute right to exclude is taken. Temporary invasions are NOT per se takings. Govt doesnt take merely a strand of the bundle of prop rights, but chops through the bundle, taking a slice of every strand. J. Marshall. o Physical. Regulations are NOT per se takings. E.g. does NOT include rent control (price ceilings), forced pricing (setting electricity rates), etc. Mobile home park not required to rent if it doesnt like ceiling (i.e. no physical invasion by govt). Preventing LO from doing something on a portion of land is NOT physical. o Per se taking! Its irrelevant whether LO still has economically viable use for land. Bottom Line: If just regulating, as opposed to physical invasion or taking title, it cuts in favor of govt. o If taking or invading, cuts in favor of property owner. REG TAKING #2: LUCAS: NO ECONOMICALLY VIABLE USE [142] Rule: If the regulation deprives landowner of ALL economic value, govt must pay (its a taking). o No economic value means NO. 0%. If 1%, even if not what LO wants, go to Penn Central. Total, complete destruction of value. Palazzolo e.g. 2 parcels up on a hill did not deprive the entire 74 acres of all economic value. o Look at it from landowners perspective. o e.g. Beach Mgmt Act prevented all development (to prevent beach erosion). o Nuisance Exception: If what LO was doing amounted to a private nuisance, he never had a right to do it anyway. [148] E.g. Lake bed owner denied permit to build landfill b/c it would cause flooding of neighboring land; hence, a nuisance. o State Property Exception: The taking was an existing function of state (property) law. E.g. Nuclear plant ordered to remove all improvements from land upon discovery that it sits on an earthquake fault. E.g. something inherent in the title. State rights, perhaps. [154]. o Rationale for Exceptions: The use of the properties for the now-regulated (allegedly taken) properties was always unlawful. Limit: Does NOT apply to personal property. Whole Parcel (Denominator) Rule. o Vertical: Clearly established for up-and-down (air rights and mining rights). MUST look at the entire bundle. Cant sever portions and claim taking. Ct refused to find a taking for the 50% of coal required to be left alone. Keystone Coal, 118 o Horizontal: Can a taking exist where some lots have been taken, although others have value? SCOTUS hasnt addressed/resolved. o Various Approaches (for applying the Horiz. Whole Parcel Rule in Lucas cases): 1) Rebuttable Presumption (Mass. SC): Lots should be considered as one parcel when evaluating the economic effect of a govt regulation. Presumption can be rebutted by either side. o i.e. submit evidence that lots should be treated separately. o Separate addresses or separate tax treatment carry little weight.

Lack of a common development plan for the 2 lots, by itself, is NOT enough to overcome the presumption. 2) Flexible Approach (Ct of Fed Claims): Underlying principle: Fairness. Factors (not exclusive): Degree of contiguity, dates of acquisition, extent to which parcel was treated as a single parcel, and extent to which the regulated lands enhance the value of remaining lands. Temporal Whole Parcel Rule: You can NOT divide ownership over time and demand payment for periods. o i.e. You cant claim temporary deprivations of 100% of economic value. The deprivation MUST be unconditional/indefinite. Otherwise, apply Penn Central. Lucas was unconditional; city had NO intention of removing the land restriction. Tahoe was a temporary moratorium; halting growth to preserve the lake; it intended to lift the regulation when a plan was developed. B. Penn Central Takings: Balancing Test (1% to 99% restricted)

REG TAKING #3: PENN CENTRAL BALANCING TEST [104] Rule: To determine whether a regulation/restriction amount to a Regulatory Taking, apply 3 factors: o (1) General (Economic) Impact on the Land Owner (least important): i.e. actual impact of the regulation on any indvl Diminution in property value, standing alone, can NOT establish a taking. Applied: Station can be used exactly as it has been for years. Not all towers were denied; just said 55 stories was too tall. Not absolute. Transferrable Devel Rights (TDRs) may or may not be just compensation (not a taking here), but certainly a big factor easing the burden on LO. o (2) Interference w/ Investment Backed Expectations (big! subset of #1): Still getting reasonable return? Total rejection? Other compensation rights received? LO still getting a reasonable return. Maybe more; b/c tourist effect. Buying w/ Notice: Buying property w/ notice of existing taking/restriction does NOT prohibit a takings claim. o But it may affect the investment-backed expectations! e.g. Regulation requiring that 50% of coal be left alone for structure support was ok. Coal mining could still be profitable/practical at 50% rqmt. Keystone Coal, 118 o (3) Importance of the public interest served by the regulation or the Governments reason for imposing the temporary restriction. Tahoe modification i.e. Reasons for imposing the temporary restriction. [160] Safety issue? Amount to nuisance? E.g. mining structure supports. Former Penn Central Factor: Character of the Govt Action Physical invasion by govt = more likely to find a taking. Interference arising from public program adjusting the benefits & burdens of economic life to promote the common good = less likely to be a taking. Many zoning restrictions are OK (even when preventing most beneficial use): prohibition on industrial use; require parcels to be left unbuilt; height restrictions. Penn Central Facts: NYC imposed regs in landmark districts: o Affirmative duty: maintain building. Negative duty: Dont change building w/o commn approval. o Commn refuses to grant request for change to Penn Central station. PC challenges as Reg Taking. Held: NO taking. TOOLS TO ARGUE WITH: Every taking case weve read is still good law (although conflicting). Find the precedent that helps your cause to argue your case. Whole Parcel Rule (aka Denominator Rule): Dont look at each parcel of the property (e.g. air rights). o Look at the FSA to determine if a taking occurred. 7

Average Reciprocity: Most common for LOsthe reg is falling unfairly on just a few people. o e.g. Penn Coal gave up everything for nothing in return: No reciprocity of advantage. o Limit: Safety. Reciprocity of advantage changes. E.g. Must leave a pillar of coal for worker safety. NOT a reg taking. Plymouth Pro-Govt Language: A Taking can NOT be shown simply b/c P lost the ability to exploit a property interest to the full extent it believed was available for development. Uniquely Public Functions: Govt actions to acquire resources to permit or facilitate uniquely public f(x) have often been held to constitute takings. o Causby: Direct overflights above Ps land destroyed the present use of the land (chicken farm). o Held: Taking. Govt had not merely destroyed property but was using a part of it for the flight of its planes. Aesthetic Features: Can bear a subst. relationship to public welfare. Public Harm v. Public Good: DEAD. NO longer valid distinction/argument.

REG TAKING #4: LAND USE EXACTION. See Nollan and Dolan, Ch.6-Subdivision (p.177 also). C. REMEDIES for INVERSE CONDEMNATIONFIRST ENGLISH

All Takings are Equal Rule: Ct will NOT distinguish b/w different types of takings; A taking is a taking. i.e. Doesnt matter whether its a physical taking, regulatory taking, etc. Treat all the SAME. REMEDY for Inverse Condemnation (Physical or Regulatory): Rule: Once ruled unconstitutional (i.e. a taking), the govt has 2 options: o 1) Repeal the regulation and pay for the interim period*; OR (but NOT entire just compensation), o 2) Pay for the restriction, i.e. Condemn the property (ED) and pay just compensation. * Temporary Takings: o General Rule: If a govt pulls a bad regulation, it MUST pay for the interim period. i.e. the regulation already passed = Land restricted. Rationale: Its just like a physical invasion. If govt had it 2 months, it would pay 2 months. o Limit: Normal Delays in Govt Decisionmaking (before Regulation is passed) is NOT a taking. Drop in property value due to conversation about regulation is NOT compensable. Mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are incidents of ownership. Preliminary activity is NOT a taking. Exception: Extraordinary Delays may require compensation. e.g. First English involved an extraordinary period of years = temporary reg taking. (couldnt build church in flood plain). o Value for Temporary Takings. Various Options: 1) Fair Rental Value for the period, 2) Loss of income production 3) Claimants ability to recoup capital 4) Interest on present value of the property FED REMEDIES FOR CONSTITUTIONAL VIOLATIONS FEDERAL Methods of Suit/Available Remedies: Takings (Inverse Condemnation) Claims: o Method 1: Can directly sue the govt; 5A is self executing. First English Remedy: You ONLY get compensatory damages. o Method 2: Try a 1983 suit (but it has more limits): States: NO. Not a person under 1983. Municipalities: YES, including planners, mayor, etc. 8

Remedy: Consequential or punitive (not against city) damages MAY be available in addition to compensatory damages. DP, EQ, 1A, or Fed Statute claims: o Method: MUST use 1983. Can NOT just sue the govt. BIG LIMIT on BOTH: Even if there is an available method and remedy (above), a fed ct MAY decline j(x) under ripeness or abstention doctrines. A. RELIEF UNDER 1983 OF FED CIVIL RIGHTS ACT

Add 1983 stuff later. [See 197] B. FEDERAL BARRIERS TO CONSTITUTIONAL RELIEF

1. RIPENESS: Land Use Ripeness Rules Williamson County, 204 General Rule: Ripeness is jurisdictional: A fed ct does NOT have j(x) of a case that is not ripe. (1) Reapplication Rule: LO must make at least 1 meaningful application for approval of his development and MUST reapply if the application is rejected. o Exception: Futility Rule: Repeated applications are NOT required where special circumstances indicate a permit application is not a viable option, or that the local authority has dug in its heels and made it abundantly clear it will not grant a permit. (2) Final Decision Rule: Local land use agency must make a final decision on the application. o 1983 is NOT a bypass around the finality requirement. o Exception: Finality is NOT required for facial attacks. Action is ripe upon passage of act. o Typical Problem: Finality can be issue when LO goes to govt asking for something. Remember: Not really an issue when govt acts first. These rules o Finality v. Exhaustion apply ONLY in NOT required to exhaust all admin remedies. FED Courts!! Finality: Definitive position from the initial decision maker that inflicts an actual, concrete injury. Exhaustion: Admin or judicial procedures whereby LO can seek review of an adverse decision and obtain remedy if found unlawful. (3) Seek Variance: LO MUST apply for variance or other available admin relief from an adverse decision. o Until LO seeks variance, there can be NO conclusive determination that he has been denied all reasonable beneficial use of property. (4) State Court First: LO MUST sue in state court for compensation if state compensation remedy is available. o Practically ALL states have the required compensation remedy. o Exception: If alleging fed govt took the land, you can sue in fed ct. 2. ABSTENTION

2. ABSTENTION Pullman Absention Guideline: Fed cts should abstain from exercising j(x) when: o resolution of a difficult and unsettled question of state law would make a decision on a fed constitutional issue unnecessary. Especially true where a sensitive area of social policy is at issue. Less likely to apply abstention where 1A issues are raised in land use cases. Abstention is OPTIONAL for the fed judge. Principle: State cts should be allowed to decide cases when there are strong reasons for allowing litigation to be tried in state, rather than fed, ct. o Certification can also be used by fed cts to get help from state cts on unresolved issues.

Ch. 1: I.

INTRO TO LAND USE CONTROLS The Challenge of Land Use Policy

Why use Land Use Controls? Prevent conflict among LOs, and Resolve conflicts (if prevention doesnt work). Conflicting Uses of Land o Recreation, public transportation, housing development, ag, labor & capital, environmental quality o E.g. Transforming farmland into urban area is non-reversible. Either bad quality or housing. Connection to (1) taxation (primarily property) and (2) provision of public services Sprawl v. Smart growth Conflict & Conflict Resolution in the Use of Land i.e. Are we justified/should we do it? Policy Goal: Finding the proper balance b/w land use controls and the free market Pro Free Market: o Most efficient, in theory o Freedom o Less government spending Con Free Market o Externalities (effects that are not priced by the market; paid for by others) E.g. visual distractions, traffic noise, undesirable elements, noxious fumes, quality-of-life issues, or environmental impacts Unrepresented parties in the transaction o Imperfect information Planner v. Economist o Planner concerned about resolving conflict, preserving farmland, etc. o Economist concerned about growth, development, etc. I. NUISANCE & COVENANTS OR EASEMENTS (not on final)

A nuisance may merely be a right thing in the wrong place, like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. A. NUISANCE LAW

Nuisance law is the legal antecedent for land use regulation. Purpose: Protect against unreasonable interference w/ the use and enjoyment of land. Principle: One should use ones own property so as to not injure the property of another. o Most nuisance cases involve recurrent activity rather than an isolated wrongful act. Prospective Relief? Majority Rule: NO. Harm must occur before nuisance happens. o Court will NOT speculate. No enjoinment. Four Possible Outcomes of Nuisance Suit (depending on state): o No nuisance. o Nuisance: grant injunction o Nuisance: damages only, no injunction (D gets to continue his actions after compensating P) Boomer: Concrete company in industrial area. P wins but doesnt get injunction; D pays permanent damages and still gets to operate. i.e. permanent damages in lieu of an injunction o Nuisance: grant injunction BUT winning P must pay the D compensatory damages for losses caused by the injunction.

10

Two types: Private Nuisance (like Bove) o Most common o One LO claims a 2nd LO has substantially interfered w/ his use and enjoyment. o Elements (determined by the act itself; not the effect): (1) Intentional conduct, (2) Actual, substantial interference w/ use and enjoyment (whether intended or not) (3) Unreasonable harm Test: Weigh the harm against P v. social utility of Ds conduct o Gravity of Harm Factors: Extent, Character, Social value the law attaches to the land invaded (Ps land), Suitability of the land invaded to the nature of the area (e.g. industrial area), Burden on person harmed in avoiding the harm caused (who got there 1st, e.g.) o Social Utility of Ds Conduct: Social value law attaches to primary purpose of Ds conduct; Suitability of land for Ds conduct (zoned industrial?); Practicability of changing the conduct (better methods?) o Slight Harm to P? Most courts will still find a nuisance IF Ds conduct has little or no social value OR the nuisance is a result of pure malice or spite. o Bove: Being 1st is only a factor. P coming to a nuisance v. D condemning others to his use. Public Nuisance (like Webb) o Land use that interferes generally w/ the publics use of land. E.g. health and safety. Doesnt even have to be a land use. Could be a person walking around w/ a disease. o Standing: To bring suit, a private party MUST show special damages above what the general public suffers. o Webb: Town development encroaches on cattle feedlot (making the feedlot smell a nuisance). Held: Feedlot enjoined as public nuisance BUT developer pays the feedlot. Developer had special damage over general public. B. COVENANTS & EASEMENTS

Covenants & Easements Privately created. Promises relating to the use of land. Bind the promisor, promisee, and perhaps later successors. For the Burden to Run: o Intent (usually inferred); Writing; Privity of Estate (Horizontal and Vertical (entire interest)); Touch or Concern the Land; Notice (filed at recorders office or actual) For the Benefit to Run: o Intent; Writing; Privity of Estate (Vertical (some interest)); Touch or Concern the Land; Notice Remedy o Affirmative Promises: No equitable remedy/specific performance. Just have it done and sue for damages. o Negative Promises: Specific performance is okay. (i.e. I wont build a house.) Moving Ahead: Whats missing from just nuisance law & common interest communities (covenants & easements)? They are backward-looking. Lack effective planning. Still need public regulation. Dont embrace externalities.

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CH. 3: EUCLIDEAN ZONING: STATE COURT HURDLES; STANDARD OF REVIEW; RECURRING ISSUES Zoning: The division of land into districts having different regulations Focuses, or should focus, on the city as a whole and the relationship of various types of land use to a citys overall plan of development. I. STRUCTURE

A. ZONING ENABLING LEGISLATION Source of Zoning Power at the Local Level Starting Point: Local govts (municipal corporations) possess NO inherent right of self govt. Rule: To act, local govt MUST have power delegated from the state. Zoning Ordinances: ALL states have passed enabling legislation that authorizes local govts to enact and enforce zoning regulations. o Modern Zoning Ordinances: Districting has become the core feature. Most legal and policy issues about zoning trace back to choices made when the district lines and regs were drawn. Standard Zoning Enabling Act (SSZEA). Usually 3 govt bodies: Local Governing Body (LGB) * Elected.

Planning Commission (PC) Advise on enactment and amendment of original ordinances. * Appointed.

Board of Zoning Appeals (BZA) (aka Adjustment) Grant zoning variances & special exceptions. Hear appeals on enforcement of ordinance. * e.g. Does med clinic include vets? * Appointed.

AUTHORITY TO ZONE Zoning regulations may be enacted. KSA 12-753 Original Zoning: PC MUST recommend the nature and # of zones/districts before any can be adopted or regulations or restrictions enforced therein. KSA 12-756 Uniformity: ALL regulations, except as provided in the ordinance, MUST be uniform for each class or kind of building or land use throughout each district. KSA 12-756 o But regulations may differ from one district/zone to another, and Special uses may be designated w/in each district w/ conditions attached. Regulations may include, but not be limited to, provisions: KSA 12-753 o Restricting and regulating the height, # of stories, and size of buildings; o (Intensity) Percentage of each lot that may be occupied; o Size of yards, courts, and other open spaces; o Density of population; o Location, use, and appearance of buildings, structures, and land for residential, commercial, industrial, and other purposes; o Conservation of natural resources, including agricultural land; o Use of land located in flood plains; o (Setbacks): Distance of any buildings and structures from a street or highway. Regulations may include, but not be limited to, provisions which: KSA 12-755 o (1) Provide for planned unit developments (PUDs); o (2) permit transfer of development rights; o (3) preserve historic structures and districts; o (4) Control aesthetics of new or re-development; o (5): Provide for issuance of special exceptions/uses. Maps or Textual Descriptions may be used to define boundaries of the zoning districts. KSA 12-753 12

II.

PROCEDURAL HURDLES: GETTING A ZONING CASE INTO STATE COURT

3 scenarios where indvls would seek to file suit in court: 1) LGB takes action that LO does not like. 2) LO asks LGB for something and LGB says no. 3) LO is satisfied w/ LGBs decision, but neighbor/3rd party is unhappy. o 3rd party is the P; LGB is usually the D. Hence, look at 4 hurdles. A. STANDING

Who has standing to file suit challenging a zoning approval, such as rezoning? Step 1: RTGDS: Read the God-Damn Statute. Look to the statute, it governs. o Standing for LGB Final Decisions: W/in 30 days of the final decision of the city, any person aggrieved may file suit in the county district court to determine the reasonableness of such final decision. KSA 12-760 o Standing for BZA Appeals: W/in 30 days, any person, official, or governmental agency dissatisfied w/ any order or determination of the BZA may file suit in the county district court to determine the reasonableness of such order or determination. KSA 12-765(f) Step 2: Any person aggrieved is common language. o If ambiguous, use rules below. General Rule: LOs have standing. Problems emerge for neighbors/3rd parties. o Majority Rule: An adjacent property owner has standing to challenge a zoning decision w/o showing special harm. i.e. next door or across the street; NOT down the street. o Minority Rule: To obtain standing, a P must allege particularized harm resulting from the decision; injury in fact, economic or otherwise. Center Bay Gardens, 237 Proximity is ONLY a factor; must still demonstrate special damages or harm. Examples: Sufficient harm, e.g.: 750 ft away, greatly increased traffic, noise & pollution from cars, possible increase in crime, lights from parking lot (all due to WalMart SC) Blanchard, 241 Insufficient harm, e.g.: general allegations of harm, 1875 feet away from site. Sufficient harm, e.g.: shared boundary, noise from trailer park, litter, threats of violence, fire & health hazards (like raw sewage), crime, destruction of prop by children. (temp RV park used as permanent mobile home park). o Taxpayer Status: Very few states have adopted this, which would permit any taxpayer in the area o Group/Neighborhood Organization: SCOTUS: Very tough standard: actual injury to organization or its members rqrd. Majority State Trend/KS: Grant standing, as long as really representing neighborhood KS! interests (a light standard). Tri-County, 244 o Same Community Rqmt? NO. Same analysis. (Mission Hills v. Mission Woods can be ok). o Property Option Right? YES. If LO has option to buy + intent to develop the land, he has standing. o Fed cts: Standing is governed by case and controversy rqmt of Const. and prudential standing rules adopted by SCOTUS. Effect: If you can keep other side from getting standing, you get easy win. B. EXHAUSTION OF REMEDIES

EXHAUSTION OF REMEDIES General Rule: A P may NOT sue (bring ct action) to challenge the legality of a zoning statute or ordinance UNLESS he has exhausted his admin remedies.

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Exhaustion IS generally required when non-constitutional issues are present or factual contexts are needed for deciding a const. issue. 2 keys: i.e. As-Applied Challenges generally require exhaustion. Is appeal to Exhaustion also generally required for a case w/ both const. and non-const. issues. BZA an E.g. Exhaustion required for application for initial provision, appealing ZBA action, option? variance is still available, etc. Is variance an o Exception 1, Facial Challenges: Exhaustion is NOT generally required when the constitutionality option? of the statute is the ONLY issue raised in case. o Exception 2, Futility: Need NOT exhaust admin remedies if it would be futile. Two types: 1) The body doesnt have authority to resolve the issue. 2) The body is clearly on record against you. Source of Admin Remedies: Can be provided by statute or a zoning or other land use ordinance. Purpose: Allow an admin agency to perform f(x)s w/in it special competence, to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies. Neighbors/3rd Parties: Neighbors MUST also exhaust admin remedies (if available). o Limit: There are usually NO remedies available for 3rd parties. Ben Lomond, 246 : City erroneously approved permit for BL; it then revoked. BL could have appealed to BZA or asked for variance. Rather, BL went straight to ct (to avoid public hearings). o Held: BL did not exhaust admin remedies as required. Ct lacked j(x). Distinction b/w Finality v. Exhaustion o Finality: Whether initial decision maker has reached a definitive position that inflicts actual, concrete injury. o Exhaustion: Admin and judicial procedures whereby an injured party can seek review of an adverse decision Zoning Amendments: Legislative v. Quasi-Judicial o Rule: Exhaustion is generally required ONLY when the action (e.g. zoning amendment) is considered quasi-judicial. Majority Rule: A zoning amendment is quasi-judicial. Thus, exhaustion IS required, which means a P can be required to file for a zoning amendment to permit his land use before filing suit. C. SECURING JUDICIAL REVIEW

Certiorari: Minority Rule: Direct (Non-Collateral) Attack is permitted IF you are an aggrieved person w/ standing. o KS follows this rule. KSA 12-760 and 12-765(f) o i.e. Just file suit in court. Majority Rule: (adopted Standard Zoning Act): o Persons aggrieved by a decision of the BZA may obtain review by way of a writ of certiorari (an extraordinary remedy to review admin agency decisions for j(x) defects or illegality in the exercise of j(x)). o Rule: Certiorari (a direct attack) is available ONLY for review of admin or quasi-judicial decisions. Thus, if youre not an aggrieved party, or its a legislative decision, you MUST use a Collateral Attack: 1) Injunction: Stop act,, ordinance, public offl, etc. 2) Declaratory Judgment: Declare the rights of the city and indvl 3) Mandamus: Order from superior ct to lower ct stating it had NO j(x) to make the initial decision. o Legislative Decisions: There is NO direct judicial remedy. Use collateral attack above. Copple, 252 : Held: Enactment/amendment of comprehensive zoning ordinance is legis. in nature; no direct appeal lies.

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D.

REMEDIES IN LAND USE CASES

1. FORMS OF REMEDY Injunction: o When used: Standard remedy to challenge zoning actions by LGB in states where the zoning process is legislative. o B/c an alternative legal remedy is unavailable. o Its a negative remedy; not affirmative. o Claim: LO argues that zoning restriction, as applied to his prop is unconst. or illegal, and that enforcement by municipality should be enjoined. o Test: Injunction may be granted ONLY on a showing of irreparable injury. May NOT be granted if harm is merely threatened. E.g. Conditional approval is NOT sufficient. o Enforcement of a zoning ordinance Injunction can still be brought and cts do NOT require an irreparable injury to enforce. Declaratory Judgment: o Nature: Authorizes ct to make a declaration of rights even though P has not suffered actual harm. Can be brought w/ injunction action (common). o Examples: A land use action is imminent (such as comprehensive plan) but not yet occurred. Adjudication of Ps rights in advance can forestall an adverse action. Test the legality of a procedure to avoid going through time and expense of applying for a land use approval as required by procedure. Obtain interpretation of a zoning ordinance to clarify zoning rqmts that might impede sale or use of prop. Mandamus: o Nature: Compels public official or agency to perform a ministerial act IF he has shown a clear legal right to have the duty performed b/c he has complied w/ all rqmts for the exercise of the duty. o Limit: Discretionary Acts. Mandamus can NOT compel the performance of a discretionary act. But: Mandamus CAN be used to compel an offl to make a discretionary decision or to set aside an exercise of discretion when its arbitrary. Practical Effect: Much zoning administration is discretionary, so mandamus is often unavailable to compel the exercise of discretionary authority. 2. SPECIFIC RELIEF Setting: P wins his challenge and the ordinance/law/statute is invalidated. o Issue: When do you have a right to specific relief, i.e. do what you want to do? i.e. Invalidation + What? Question of Law (rare): Ct can grant specific relief. Refusal to Zone or Rezone (Upzone or Downzone) & Legislative Decisions: o Majority Rule: Specific relief is NOT available Injunctive relief ONLY (city cant enforce the zoning restriction). Ct will NOT issue affirmative order to rezone the land to what P wants. Rationale: Ct is looking at the restriction; NOT the proposed use/development. o Ct is not approving the proposed use; merely striking down restriction. Ct will NOT usurp legislative f(x). Effect: Ct will give the city a prescribed period of time for further legislative action. P must return to the LGB. o Alternatives to Specific Relief Minority Rule: Ct will invalidate the current zoning law and leave unzoned. Majority Rule: Leaving land unzoned is unacceptable. May invalidate zoning regs as applied to Ps land and threaten to leave it unregulated unless the city rezones w/in specified time period.

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Downzoning: Some cts will invalidate downzoning (more restrictions on P) and order reinstatement of prior zoning classification. Denial of Variance or other Remedy & Admin/Quasi-Judicial Decisions o Rule: Ct may grant specific relief ONLY if P shows clear right to relief (e.g. no discretion). Standard Act, 7: Ct may reverse or affirm, wholly or partly, or may modify the decision brought up for review. No Discretion: E.g. If variance or special use permit is denied, where such discretion does NOT lie w/ a legislative body, a ct may grant specific relief if it believes the appellant has sufficiently proved facts that support specific remedy. Remand is appropriate where right to judicial relief is not clearly shown. Limit: If the action is classified as legislative f(x), Ct may NOT issue specific relief. STANDARD OF REVIEW FOR ZONING OR REZONING DISPUTES

III.

Roadmap: Youve got past the procedural rules; Now in court. Goal: Beat the standard of review that is weighted heavily in favor of deference to govt. o Limit: Some countervailing rules will help this. General Rule: The zoning technique, in its general aspects, does NOT violate 14A DP as a means of govt control of private land use. Euclid Effect: Focus of judicial attention is now on the details of implanting zoning, rather than concept of zoning Substantive DP & Zoning Euclid v. Amber Realty [88] Starting Point: All zoning laws and regs MUST find justification in the police power; otherwise it violates substantive DP (if fed) or is confiscatory, unreasonable, arbitrary (if state). o i.e. a sufficient nexus to health, safety, morals. Standard of Review: Fairly Debatable Rule: If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment MUST be allowed to control. o Nuisance law is helpful. A right thing in the wrong place, like a pig in the parlor instead of the barnyard. o Some good uses may be prohibited, but if its w/in a reasonable margin, its OK. o Excluding commercial uses from residential areas is OK. Here, even excluding apts was ok. Bottom Line: The idea of zoning is const. Not in every application of zoning, but a good idea on its face. o Universal agreement even prior to Euclid that restrictions on building heights, materials, open space, nuisance biz etc., were ok to protect dangers of fire, collapse, overcrowding and the like. Zoning can be OK even when some uses are neither offensive nor dangerous. Facts: Amber Realty waiting for industrial uses to reach it, then cash in. Euclid zones the land, restricting it to industrial uses, decreasing its value. Claim: Substantive DP challenge (not a taking). Facial attack. o Alleges that property values have been decreased w/o any nexus to health purpose. Issue: Does the comprehensive zoning plan have a sufficient nexus to health and welfare? Yes, fairly debatable. PRESUMPTION OF VALIDITY TEST (applied by all 50 states): Euclid Its the standard of review for Zoning or Rezoning (unless Spot Zoning) Decisions Step 1. BOP on P: Any govt zoning decision/classification can be overcome ONLY if P can prove by clear and convincing evidence that the zoning classification is: o (1) a significant detriment to P (i.e. unreasonable, confiscatory, A&C), AND o (2) insubstantially related to the public health, safety, morality, and general welfare of community. o Fairly Debatable Standard: If Ps evidence presents nothing more than a debatable question, the govt wins. Will NOT subvert the int of the public for a fairly debatable question. o Devil in the Details: Satisfying the A&C/Reasonableness/Confiscatory Standard: States vary widely in how strictly they scrutinize and apply the language above. Fed Approach/Majority of States/Krause: Cts really leave the decision to the legislature. 16

Applies the presumption of validity liberally. o Decrease is economic value alone is certainly insufficient. o Difference in value + something improper required. Down and Dirty Approach/TJP/Guhl Factors: Ct will take hard look for A&C. Favors LOs. Some cts will just take stricter look; a very few apply the 6 Guhl factors: o 1) Existing uses and zoning of nearby property; o 2) Extent to which property values are diminished; o 3) Extent to which destruction of value on Ps prop promotes the health, safety, morals or general welfare of the public; o 4) relative gain to the public v. hardship imposed on indvl prop owner o 5) suitability of the subject property for the zoned purposes; and o 6) length of time the prop has been vacant as zoned, in context of land development in the area. KS uses the Guhl (Gold in KS) factors TJP held that economic decline is again NOT determinative; rather, focus on the value of the property as it is currently zonedNOT what it could be zoned. Does it have any value? Step 2: Only if P meets BOP is the LGB required to present evidence justifying a zoning ordinance as reasonably related to the public interest.

Cluster Zoning (makes prop more valuable): Development design that concentrates buildings in specific areas on a site to allow remaining land to be used for rec, common open space, or preservation of envtl or historic features. Facial v. As-Applied Attacks Facial: When a ct strikes down an ordinance provision as facial invalid, the regulation is effectively wiped off the books and cannot be enforced by the city against any land user. o Tougher Std: To prevail, a P must show that under NO circumstances can the ordinance be applied validly. o Consider ONLY the language of the text; never its application to a land user. As-Applied: Seek relief from a specific application of a facially valid statute or ordinance to an indvl or class of indvls who are under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which its applied. IV. RECURRING ISSUES IN ZONING LAW

Spectrum: Residential CommercialIndustrial Even w/ this spectrum, a large residential tower w/ hundreds of apartments can be regarded as more burdensome on adjoining land uses than a modest group of retail and service stores. Hence, a focus on density and intensity of permitted use, whether residential or non-residential. A. DENSITY & INTENSITY OF USE

Land development is a biz. Generally: Greater density = More profit/cheaper. Developer seeks greater density. o Contra: City/county wants less dense. While new tax revenues and economic activity, also brings costs of additional municipal servs. Density/Intensity Typical Measures: Residential: # of dwelling units permitted per acre of land (density). o Minimum lot size requirement (intensity). o E.g. Density of 2 d.u./a. (dwelling units per acre) = Intensity of 20,000 sq. ft. minimum lot size. [1 acre = 40,000 sq. ft.]. Non-Residential: # of square feet of building allowed. Remember: large densities or intensities = land is worth more (for developer) 17

1. DENSITY RESTRICTIONS: LARGE LOT ZONING Large Lot Zoning: Land use strategy for achieving low densities in suburban areas. Legal Justifications that tie zoning restrictions to Police Power (health, safety, welfare, morals): o Open space, environmental (runoff), character of community/history, waste disposal, neighborhood building. Developers Perspective: You cant sell a 3-acre lot for 3 times the amount of 3 1-acre lots. o Developer wants more intense zoning. General Rule: At some point, all of the legal justifications (above) become so attenuated that they do NOT justify the increased limits. o Rule of Thumb: Anything less than 2-acre lot requirement is generally ok. (i.e. 1.9 or less). 2-acre lots or larger (3-acre, 10-acre, etc.) can be a problem. i.e. It becomes very difficult to justify the relation to police power. Environmental Justification? Works ONLY where there is a real problem (like Johnson). o You cant make up a general environmental argument for less intense zoning. o Johnson, 283 : 3-acre minimum lot size rqmt. Rule: Ct applies the Presumption of Validity test (above). Key: As residential lot size rqmts increase, it becomes more difficult to justify the rqmts. Generalities re: the public benefit of large lot zoning will NOT carry the day. o In such a case, the city has the burden to prove its actions are justifiable. Held: Constitutional and substantially related b/c City provided specific evidence that 3acre zoning was necessary to protect the special ecology of Edgartown Great Pond and Marthas Vineyard. Bottom Line: 3-acre lot zoning probably requires unique circumstances. Character of the Community Justification? Does NOT work UNLESS you have other justifications. o We want to be our own city doesnt work. Liberty, Gardner, etc, saying we dont want to be KC Takings? Generally NOT a serious argument in large lot zoning b/c still has economic value, albeit less valuable at lower densities. Leading Case Striking down Large Lot Zoning Kohn, 291 : o Rule: Zoning may NOT be used to avoid the increased responsibilities and economic burdens which time and natural growth inevitably bring. o Held: 4-acre zoning struck down b/c not necessary nor reasonable; failed presumption of validity. General sewage, pollution, fire, road, and character arguments were insufficient. 2. SITE DEVELOPMENT REQUIREMENTS AS A FORM OF CONTROL

Rule: Even site development requirements, which are universally accepted, reach the point where they go too far and become a problem (i.e. city requires too much/large). Claim: These planning tools can be attacked as unreasonably related to health, safety, morals, welfare. o Like above, even if not a taking, they cant be justified as valid exercise of police power. Common Site Development Requirements o Yard & Setback Regs: A rqmt of front yards by mandating minimum setbacks from street. Usually include side and back yard setbacks also. Std of Review: Justifications: Separation from street noise, attractiveness, ensure availability of light & Reasonableness air. o Frontage Rqmts: Require lots to have a minimum street frontage. Justifications: Same as above + control on density. o Height Limits: Max height limits that also limit building bulk. Justify: Tradtl DP + Aesthetic basis. o Site Ratio: Limit percentage of lot that can be occupied by building (controlling density and building bulk). o Floor Area Ration (FAR): Specifies a ratio b/w the square footage allowable in a building and the square footage of the building lot (controlling building bulk). 18

o o o

E.g. 2:1 FAR = 2 sq. ft. of building for each 1 square foot of total lot. E.g. on [293]. Limit: Still subject to setback and height limits, etc. Minimum Lot and Building Size Rqmts: Not only must the lot be a minimum size, but the house must also be a minimum size. Off-street Parking: Limits building area by requiring off-street parking. Residential Areas: Based on # of dwelling units in multifamily projects. Non-Residential: May be based on square footage or type of use. Open Space and/or Landscaping: Specifies a percentage of lot that must be left in its natural condition. Helps w/ runoff, aesthetic, etc. RESIDENTIAL DISTRICTS

B.

1. SEPARATION OF SINGLE-FAMILY & MULTIFAMILY USES Single-Family Residential Use Basis. 2 Justifications: o (1) Prevent fire: Less danger of building being lit on fire to begin w/ (1 family v. many families) Control spread of fire; more space b/w houses. o (2) Promote health and general welfare of society Fresh air, freedom of play for kids, cultivate land, reduce spread of disease, reduce traffic, reduce noise General Rule: Exclusive 1-family residential districts are const. o Limit: Can bring as-applied challenges. [299]. 2. DEFINING FAMILY: SINGLE-FAMILY: NON-TRADITIONAL FAMILIES FAMILY Traditional Definition: One or more person occupying a single dwelling and using common cooking facilities, provided that no family shall contain more than 5 adult persons. o Key: The number of adult persons varied from one ordinance to another, but there was generally NO rqmt that persons be related by blood marriage, or adoption. o Didnt Fare Well: fraternities, sororities, and retirement homes for elderly. o Split Success: Group homes for juvenile offenders or mentally retarded or drug treatment centers. Modern Problem/Definitions: Cities began change ordinances to limit the # of persons unrelated by blood, marriage, or adoption. Village of Belle Terre, 300 : 6 unrelated students living in house; bring EQ claim. o SCOTUS upholds ordinance restricting family to only 2 unrelated persons. o Std of Review: Applies RB Test: Rational relationship to legit state interest. No fundamental right or suspect class. Rule: It appears ok to limit the number of unrelated persons to no more than 2. o i.e. You can set limits outside the family. Limit: You can NOT mess with the nuclear family (related persons). Moore, 305 o E.g. Generational limits, which prohibited more than 2 grandkids, struck down on Subst. DP. o Its a private realm of family life which the state cannot enter. MENTALLY HANDICAPPED Cleburne, 308: P wants to build group home for 13 retards in area zoned for such, but requiring special permit. City denies special permit; P files As-Applied EQ claim. o Standard of Review: RB Test; Not a quasi-suspect class. o Held: Ordinance fails as-applied to P; it bears NO rational relationship to the states legit int. Mentally retarded group home was no different from other permitted uses which did not require a special permit: apt houses, dorms, fraternities, nursing homes. 19

Congress response to Cleburne: Fair Housing Act 1988 Amendment: o Prohibits discrimination against group homes for handicapped, including discrimination through zoning. Thus, generally eliminates the need to proceed directly under the Const. o Handicapped: physical or mental impairment which substantially limits 1 or more of such persons major life activities. Includes alcoholism, drug addiction, and persons w/ AIDS. State &/or Local Rqmts re: Density, Space, or Quotas o State and local ordinances are subject to the FHA, both facially and as-applied. o Larkin, 504 : MI statute sets group home rqmts for mentally handicapped: (1) spacecant be w/in 1500 feet of existing group home and (2) notice must be given to neighbors. Held: Facially discriminatory. Rule: Statutes that single out group homes for handicapped persons for regulation are facially discriminatory. Test: For facially discrim statutes to survive a challenge under FHA, the govt must demonstrate they are warranted by the unique and specific needs of those handicapped persons to whom the regs apply. Thus, some special safety standards for the protection of such persons can survive. BOP is on the govt. Integration is NOT a sufficient justification for quotas. Exception: Reasonable Occupancy Limits are permitted under the FHA (to prevent overcrowding). City of Edmonds, 509 But this means total people, NOT the type of people, family, etc.

3. MANUFACTURED HOUSING BACKGROUND: Mobile Home: Built entirely at the factory, then shipped to its site and placed on a base. Manufactured Housing: Includes mobile homes, but also housing built in modular sections at a factory and then assembled on-site. Local Resistance to Mobile Homes: o Health problems (proper facilities), High density development, Association w/ low-income status, Neighborhood stability (transients), Aesthetic objections (less relevant today). GENERAL RULES FOR MOBILE HOMES: Total Exclusion? NO. Ordinances which totally exclude mobile homes are invalid or highly suspect. o E.g. Ordinance requiring on-site construction had NO substantial bearing on public health, safety, morals, or general welfare of community. Thus, invalid. Yurczyk, 321 Restrict to Mobile Home Parks? While not totally excluding mobile homes, LGB attempts to minimize negative impact upon community by requiring them to be located in mobile home parks, which are often subject to a special licensing rqmt. o Majority Rule: Yes, its ok to require mobile home park locations. o Minority Rule: No, unconstitutional. Bears no reasonable relationship to police power. Exclusion from Residential Areas and/or Industrial/Commercial Areas? Zoning ordinance doesnt require location in a mobile home park, but excludes them from traditional residential areas. o Majority Rule: Yes, exclusion from any of the districts (residential, industrial, commercial) is ok. Require Conditional or Special Use Permit? Require ZBA approval on case-by-case basis. o Majority Rule: Yes, ok. But: Court can reverse denial of a conditional use permit if it believes it improper. Appearance Codes? Require mobile homes to conform to conventional housing in appearance and size. o Majority Rule: Yes, ok. Aesthetic compatibility is a legit govt purpose. State Statutes/Preemption. o State Licensing of Mobile Homes: Some states require licensing of mobile homes. General Rule: These statutes do NOT preempt local zoning control over mobile homes. 20

State Certification of Mobile Homes: Some states enact require certification that mobile homes meet state construction standards. Majority Rule: These statutes DO preempt local regulation of mobile homes under building codes, and in some cases, under zoning ordinances. Warren, 324 KS: Cant exclude mobile homes entirely. Cant enforce zoning regs that exclude residential design manufactured homes from single-family districts solely b/c they are manufactured homes. KSA 12-736 COMMERCIAL & INDUSTRIAL USES

C.

Conceptual basis for regulation of non-residential uses is the same as for residential zoning, but the different factual and policy settings create a distinct set of rules that have specific application to commercial and industrial sites. 1. COMMON ZONING PROBLEMS: IN THE ZONING ORDINANCE These commercial zoning problems turn on issues of policy and planning, to which cts give cities generous room for discretion. GENERAL PRINCIPLES BP America, 328 General Rule: Same basic principles apply to commercial and industrial zoning: Step 1. Presumption of Validity. BOP on P: All zoning ordinances are presumed constitutional. Any govt zoning decision/classification can be overcome ONLY if P can prove by clear and convincing evidence that the zoning classification is: o (1) a significant detriment to P (i.e. arbitrary and unreasonable), AND o (2) insubstantially related to the public health, safety, morality, and general welfare of community. o Fairly Debatable Standard: If Ps evidence presents nothing more than a debatable question, the govt wins. Will NOT subvert the int of the public for a fairly debatable question. Step 2: Only if P meets BOP is the LGB required to present evidence justifying a zoning ordinance as reasonably related to the public interest. Aesthetics of the community CAN be considered a legit state interest. o BP America: Prohibiting gas stations in downtown historic district was OK to protect the aesthetic values of the community. Loreto, 331 : L (who wanted a Wal-Mart) denied special use permit which limited retail stores to 10,000 sq. ft. of floor area and to 10 employees. o Rule: Economically viable use of regulated property is irrelevant to validity of zoning ordinance. Legitimacy of govt int is the key, i.e. reasonableness. o Rule: A zoning reg need NOT be in tune w/ modern trends OR allow the most profitable retail development. o Held: Building 1 large store is NOT the same as building 10 smaller stores, so the evidence showed. o Held: Restriction on # of employees failed to reasonably serve a legit state interest. o Bottom Line: Still apply the Presumption of Validity to zoning regs. Determine if there is legit state interest and then determine if the reg is reasonably related, using the Fairly Debatable standard. FORMULA BUSINESSES Formula Business: Standardized products and buildings/signs. Rule: To restrict formula biz or big box stores, a city MUST have a special area to protect, e.g. downtown. o Govt interest: Preservation of area, aesthetics. o Applied: This would NOT work in Lawrence, KS. It would work in Carmel, CA. INCENTIVE ZONING & SPECIAL DISTRICTS Incentive Zoning: A land use regulatory technique whereby city trades valuable density increases for site improvements that are thought to benefit the general public. o E.g. city may permit taller or bulkier building or relax on-site parking rqmts. 21

Special District: Takes the place of the set of underlying zoning regs that would otherwise apply zone-byzone w/in the targeted area. CONTROL OF COMPETITION AS A ZONING PURPOSE

2.

These commercial zoning problems raise legitimacy of purpose issues, where a zoning decision can favor competitor over another. This section addresses control of competition as handled by STATE law. Regulating Economic Activity Hernandez, 342 General Rule: Merely regulating competition is NOT a sufficient relation to health, safety, morals, and welfare. Primary Purpose Test/Rule: o Regulation of economic activity is ok (even if direct and intended) IF the primary purpose of the ordinance or actioni.e. its principal and ultimate objectiveis the advancement of legitimate public purpose. Must find a relation to health, safety, morals, and general welfare! E.g. of good regulation: Direct and intended effect prohibits some businesses from downtown shopping district. This is OK IF the primary purpose of the reg is to preserve the existing downtown district (which is a legit state interest). i.e. its more of a secondary effect, which is OK. o Limit: Simply trying to protect old biz from new biz is NOT permissible. i.e. the private anticompetitive goal of protecting or disadvantaging a particular favored or disfavored biz or indvl is NOT permissible. Applied: Although Citys ordinance was in part intended to regulate competition (prohibit sale of furniture in downtown area, thereby protecting local biz), the primary purpose was to preserve the historic nature of the downtown area. Thus, it was valid, serving a traditional zoning objective. Bottom Line: As long as a city can articulate a rational basis for its ordinance, its going to be upheld. Too many Businesses = Dead Land? o Rule: If you can convince a ct that you have enough tools to make an accurate determination, you probably CAN convince a ct that an ordinance limiting the businesses does relate to health, safety, and welfare. D. NONCONFORMING USES

Nonconforming Use: Uses that were once legal, but became unlawful upon passage of zoning laws. Zoning is NOT retroactive. The use will be permitted some time. NONCONFORMING USES KSA 12-758 Rule: Zoning regulations shall NOT apply to any existing use of any land or building (prior to enactment), o Except: Zoning regulations DO apply if there is: (1) A change in use of any land or building OR (2) An alteration of a building to provide for a change in use. Test for Same Use. 3 factors: (1) Extent to which the new use reflects the nature and purpose of the prevailing NCF use; (2) Whether the new use is a different manner of utilizing the same use OR constitutes a use different in character, nature, and kind, and (3) Whether the new use has a substantially different effect on the neighborhood. BOP is on the party asserting that the use is substantially the same. Conforti, 358 : Converting a movie theater to provide live concerts was NOT the same use. Likewise, converting a restaurant to a disco was NOT the same use. Belleville, 360

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o All the same + more = not same use. Qualitative difference: Louder. Damage Rule: If a building is damaged by more than 50% of its FMV, it can be restored ONLY if it meets the zoning regulations. Expanding Nonconforming Use? Expansion is generally prohibited. Repair, Alteration, & Reconstruction: o General Rule Repair is allowed at least to meet health and safety (building) codes. o Limit: Ability to reconstruct is often limited. KSA 12-758 Change of Ownership? Generally does NOT affect the NCF use, which is held to run w/ the land.

HASTEN DISAPPEARANCE OF NCF USES: Traditional Starting Point: NCF uses are bad; they infect the area and should be eliminated. General State Rule: Elimination of NCF use w/o compensation is an unconstitutional taking. Modern Local Approaches to Hasten Disappearance of NCF Uses: o (1) Prohibit or restrict the physical extension of nonconforming uses; E.g. cant build bigger screens, add seats, etc. o (2) Impose limits on the repair, alteration, or reconstruction of nonconforming structures; and E.g. dont want to extend life of the building. o (3) Prohibit resumption of nonconforming uses after abandonment or discontinuance. Rule: Once discontinued, a nonconforming use may NOT be resumed. Majority Rule: Requires voluntariness o i.e., Intent to abandon + Some overt act of abandonment. o Natural disasters are NOT voluntary (e.g. fire, storm, etc.). Minority Rule: Will presume an intent to abandon from mere failure to exercise the nonconforming use o Nonuse for a certain period, e.g. 12 months, will terminate NCF use. o (4) Amortization (below) Competing Standard of Reviews: o (1) Expansive view of police power, favoring gradual elimination of NCF uses for the public welfare; or o (2) More restrictive; view restrictions on NCF uses as a taking of rights vested under zoning ord. AMORTIZATION (most controversial method for eliminating NCF uses and structures) Amortization: Systematic and comprehensive elimination of the NCF use or structure. o Affirmative Process: Determine the normal useful remaining life of the building and prohibit the owner from maintaining it after expiration of that time. Majority Rule: The elimination of existing uses w/in a reasonable time does NOT amount to a taking nor does it necessarily require the use of property so that it cannot be used for any reasonable purpose. Exam o Constitutionality? Apply Penn Central (below). analysis o Gage, 364 : Ordinance amortized a residence that was previously used for plumbing biz and residence. LO given 5 years to relocate biz. Held: Facially constitutional: Valid exercise of police power. Held: As-Applied constitutional: Reasonable location nearby and reasonable costs. Ordinance does not prevent operation of biz; merely restricts location. Minority Rule: Amortization is merely a catch phrase. Amortization is an unconstitutional zoning technique. Only GA and PA apply this rule. Lamar, 368 Amortization Periods: Some ordinances set out the factors to be considered in determining the appropriate amortization period. o 3-Factor NY Test: (1) Length of the amortization period in relation to the investment; (2) Nature of the nonconforming activity prohibited Nonconforming uses normally get shorter periods than nonconforming structures. (3) Public gain by exercise of police power v. Private loss suffered by owners of nonconforming use.

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Rule: While an owner need NOT be given time to recoup his entire investment, the amortization period should NOT be so short as to result in a substantial loss. Substantial Loss Factors: initial capital investment, investment realization to date, life expectancy of investment, and existence or nonexistence of a lease obligation as well as contingency clause permitting termination of the lease. Statutory Authority for Amortization? Most states imply authority to amortize when express authority is not provided. KSA 12-758.

EXAM ANALYSIS: IS AMORTIZATION A TAKING? Not a Categorical Taking: o Not Loretto physical invasion b/c physical means PHYSICAL. Nothing physical here. o Not Lucas deprivation of all beneficial use b/c other uses still permitted. Thus, apply Penn Central factors (in combination w/ amortization factors above) o Investment-backed expectations o overall impact on the owner (i.e. private loss), and o as rearticulated in Tahoe, the importance of the public interest being served. Non-Amortization Takings? Probably NOT. If the choice is b/w continuing a NCF use that cannot be changed or expanded, OR relinquishing NCF status to better exploit the property, this voluntary choice eliminates any takings claim. E. USES ENTITLED TO SPECIAL PROTECTION

1. ADULT BUSINESSES: FREE-SPEECH PROTECTED USES Setting: Free speech review of zoning ordinances applies to a limited number of land uses: Adult sex businesses, e.g., adult book stores and cinemas. Sign regulation. TEST FOR COMMERCIAL FREE SPEECH (including adult biz) Renton, 374 Standard of Review: Cts reverse the usual presumption of validity; rather, review more intensively the justifications for zoning restrictions. Step 1: Ordinance/land use reg MUST be content-neutral, NOT content-based. o Content-neutral: Does NOT focus on the content of the activity (e.g. adult films), but rather the secondary effects of such activity on the surrounding community. E.g. Time, place, and manner regulation Content-based would get S/S (compelling interest/least restrictive means), thus likely lose o Key: The predominate intent must be to regulate the secondary effects (of the adult theatre) rather than suppress free expression of the content. Applied: Citys legit interests: prevent crime, protect citys retail trade, maintain prop values, and generally protect and preserve the quality of the citys neighborhoods, commercial districts, and quality of urban life. It was NOT the suppression of unpopular views. Step 2a: The ordinance/land use restriction MUST serve a substantial govt interest. o Rule: Interests above are sufficient (i.e. preserve urban life quality, etc.). o BOP/Necessity of Studies: Cities can rely on studies from other cities so long as reasonably believed to be relevant. Limit: Shoddy data or reasoning is impermissible. If P casts doubt on citys justifications, the city has the burden to supplement the record w/ additional evidence to fairly support its rationale for the ordinance. Alameda, 382 n.3 o Method of Attack: City can choose alternate methods to address the same problem. E.g. city can disperse adult theatres or concentrate them; its a legislative judgment. Policy Note: Most cities have concluded that dispersal is better method. Step 2b: The ordinance/land use restriction MUST allow for reasonable alternative avenues of communication. o Ordinance permitted the restricted use in over 5% of the city, which SCOTUS held sufficient. 24

That indvls were forced to fend for themselves in the real estate market, on an equal footing w/ other prospective buyers and lessees, did NOT rise to 1A violation. Tough shit. Outbid them. o Cant completely restrict the activity. Schad, 374 o Boss Balancing Test. Factors: (1) geographical size, (2) # of acres available as percentage of geographical size, (3) where sites are located, (4) # of adult establishments currently in existence, (5) # of adult establishments wanting to operate. Boss, 383 n.4 Site Acceptability Test: Must be (1) genuine possibility that a site will become available for new commercial uses w/in reasonable time; (2) a site is available if reasonably accessible to public; (3) a site in a manufacturing zone w/ infrastructure is available; (4) a site for relocation must suit some commercial biz, but not necessarily particular needs of adult biz; and (5) commercially zoned plots are available. Topanga, 384 n.6 Renton: Ct upheld restriction that adult theatres be 1000 ft away from residential zones, church, park, or school.

2. RELIGIOUS USES Setting: Conflict b/w: Zoning ordinances (enacted to protect community well-being) versus Location and expansion limits of religious institutions and their accessory uses, particularly in residential areas and downtown redeveloping areas. Problem: Churches and their accessory uses often face substantial opposition when they seek the necessary approvals in the zoning process. Can be directed at non-mainstream religions. 4 Possible Authorities for Zoning Regulations affecting Religious Uses a) State constitution b) State statute c) Fed Constitution d) RLUIPA (Religious Land Use and Institutionalized Persons Act) a) State Constitutions Majority Approach: Most states treat religious uses slightly better than other group uses. o Rule: Apply subst. DP (reasonableness/confiscatory) analysis to zoning restrictions, reversing the presumption of constitutionality normally accorded to zoning ordinances. Minority Approach: Some states treat religion same as other congregate uses (where people get together for things) NY Balancing Approach: o Premise: Total exclusion from residential district serves NO end that is reasonably related to morals, health, welfare and safety of community. o Controlling Consideration: Overall impact on the publics welfare. Does the particular religious use enhance or detract from the publics health, safety, welfare, or morals? b) State Statutes: Little RFRAs (Religious Freedom Restoration Act) Many states have adopted RFRA acts which provide more protection that fed or st const. o (based on federal RFRA that was struck down). Rule: If religious exercise is substantially burdened by govt regulation, the govt MUST demonstrate that the regulation is narrowly tailored to achieve a compelling state interest. In Practice: Little RFRAs have NOT been broadly interpreted in favor of religious uses. c) U.S. ConstitutionFree Exercise Clause Prior to Smith, fed courts applied a 3-part test to determine if a land use regulation violated the Free Exercise clause: o 1) Govt regulation must regulate religious conduct, NOT belief; o 2) Law must have secular (separate from religion) purpose and secular effect; and o 3) If (1) and (2) are met, perform a balancing test: Govt interests v. religious interests. 25

Govt interests: Substantial infringement of citys zoning policy if conduct were allowed to continue; versus Religious interests: Conducting services in compliance w/ applicable zoning restrictions or relocating in suitably zoned district. Modern Test: Similar to RLUIPA test (above), however Smith held that rules of general applicability were not subject to the strict scrutiny test. o Rule: Zoning ordinances are laws of general applicability; thus, it could be argued that Free Exercise clause does NOT require S/S of them. o Limit: It can be argued that RLUIPA replaced Smith, subjecting these ordinances to S/S. o No SCOTUS case has considered application of the Free Exercise Clause to a land use regulation.

d) RLUIPA Rule: Land use regulations that substantially burden religious exercise MUST be the least restrictive means of advancing a compelling govt interest. o Step 1: Key/Biggest Issue: Determining whether there is a substantial burden o Three Tests for Substantial Burden on Religious Exercise: A substantial burden is: 1) Very Easy Standard: Any regulation that inhibits or constrains the use, building, or conversion of real property for the purpose of religious exercise. CA 10-like This test would render meaningless the word substantial, for the slightest obstacle to religious exercise incidental to the regulation of land use (however minor the burden to impose) could then constitute a burden sufficient to trigger RLUIPAs strict requirement. 2) Just Right Standard: Any regulation that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise (including the use of real property for the purpose thereof) effectively impracticable. CLUB, (CA 7) 392 3) Too Tough Standard: Any regulation that completely prevents the individual from engaging in religiously mandated activity OR requires participation in an activity prohibited by religion. Midrash, (CA 11) 393 o Typical Result: The financing expense of locating a religious use where the zoning allows it, albeit through special review procedures, is merely an inconvenience and NOT a substantial burden required to find a RLUIPA violation. o Step 2a: Least Restrictive Means? o Step 2b: Compelling Govt Interest?

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Ch. 4: EQUITY ISSUES IN LAND USE: EXCLUSIONARY ZONING & DISCRIMINATION I. STATE LAW: EXCLUSIONARY ZONINGLOWER INCOME

Exclusionary Zoning: Use of zoning ordinances by (primarily) suburban municipalities to exclude housing that is affordable to lower-income households. Discrimination is a related issueracial and otherwise. Rules of Thumb: o State courts deal w/ affordable housing and other income-related issues. o Fed courts deal w/ discrimination. A. APPROACHES FOR REDRESSING EXCLUSIONARY ZONING

The Problem: No decent housing opportunities for low- and middle-class. General ordinance effectively permits only people of at least middle income. o Townhouses, apartments, and mobile homes completely prohibited in the town. Signs! o Limits on # of kids, required amenities like A/C, etc, all effecting to keep out poor people. o Rationale: Keep (property) taxes low; fewer schools, public services, etc. MOUNT LAUREL DOCTRINE General Principle: The constitutional power to zone is but one portion of the police power; it must be exercised for the general welfare. o Land use regulations that conflict w/ the general welfare abuse the police power and are unconst. o Specifically, regulations that do NOT provide the requisite opportunity for a fair share of the regions need for law and moderate income housing conflict w/ the general welfare and violate St rqmts of substantive DP and EQ. Specific Rules o (1) Citys own poor (Developed): In its land use regs, a city MUST provide a realistic opportunity for decent housing for at least some part of its resident poor who currently occupy dilapidated housing. Cant wait for housing to dilapidate and kick em out. o (2) Outsiders (Developing): A city MUST provide a realistic opportunity for a fair share of the regions present and prospective low- and moderate-income housing needs. o (3) Show Me the Numbers: A city generally must be able to prove its fair share of low and moderate income housing in terms of the # of units needed immediately, as well as the # needed for a reasonable period. Numberless resolution that an ordinance addresses some housing is insufficient. o (4) Judges: NJ SC will pick the judges. o (5) Affirmative Action Rqrd: City MUST use affirmative govt devices to provide realistic opportunities for construction of its fair share of low and middle income housing, including lowerincome density bonuses and mandatory set-asides. Elimination of barriers is probably NOT enough (if you cant prove actual housing). o (6) Proportional: Low and middle income housing is required, and it MUST be proportional to the need. o (8) Builders (Specific) Remedies: Court will grant specific remedy IF P has (1) acted in good faith, (2) attempted to obtain relief w/o litigation, and (3) proves that he will meet the Mount Laurel test where city has failed to do so (i.e. vindicate the const. obligation). Affirmative Measures Required IF Removal of Barriers is Insufficient o Mandatory Set-Asides Set aside land for poor and middle income housing o Inclusionary Zoning (more attractive to all parties): Usually density bonuses, maybe subsidies. E.g. normally build 160 units City permits 25% bonus, or 200 units.

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II.

FED LAW: DISCRIMINATORY ZONING A. FED STANDING RULES

Rule: To challenge allegedly exclusionary (or discriminatory) land use control in federal ct, standing is permitted ONLY to developers of subsidized housing seeking site-specific relief from zoning or other land use restrictions. NO one else has standing, including: o Civil rights organizations, o Low-income housing sponsors/local advocacy groups/home builders association, o Individual taxpayers, and o Area residents w/ low or moderate incomes (who are also members of minority racial or ethnic groups). o NONE of these parties have standing under Art. IIIs case and controversy rqmt. Warth, 483 No concrete injury. Even minorities might not be affected if they cant afford housing. Thus, NO one can allege that a general, overall effect of land use restrictions is exclusionary. B. RACIAL DISCRIMINATION

Start: Can bring a constitutional claim (very hard) or FFHA claim (easier) for racial discrimination. 1. CONSTITUTION (EQ thru 14A)

Successful claims of exclusionary zoning in fed ct have alleged that restrictive land use controls violate EQ by indirectly discriminating against minorities by excluding low-income and moderate-income households from suburbs. Barrier 1: Proof of discriminatory intent is essential to the success of a racial discrimination claim under 14A. Village refused to rezone from single-family to multi-family, which would allow lower-income housing. P alleged discrimination against minorities. Rule: Proof of discriminatory intent or purpose is REQUIRED to show a violation of EQ Clause. o Racially disproportionate impact is NOT sufficient to prove an official action unconstitutional. o Discriminatory intent need NOT be the dominant or primary purpose, but it MUST be a motivating factor. Arlington Heights, 485 Standard of Proof of Discrim Intent: Direct and circumstantial evidence can be used to prove discriminatory intent. Ct will look to at least 4 factors: o (1) Historical background of the decision Is there a series of official actions taken for invidious purposes? o (2) Specific sequence of events leading up to the challenged decision Is there a sudden change of zoning that adversely affects the party? o (3) Departures from the normal procedural sequence Usual procedures or something different? o (4) Substantive departures Do the factors normally considered important by the decisionmaker strongly favor a decision contrary to the one reached? Big Pic: Unless you have stupid people running their mouth, its very difficult to show a discriminatory intent or purpose. o Only the most blatant cases will find a case of discrim intent.

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2.

(FED) FAIR HOUSING LEGISLATION (most cases)

FFHA forbids racial discrimination in housing: It shall be unlawful to make unavailable or deny a dwelling to any person b/c of race, color, religion, or national origin. 42 USC 3604(a) Primarily concerned w/ rooting out indvl acts of discrimination by sellers, landlords, realtors, and banks. BUT some courts have held that discrimination in zoning ordinances ALSO makes housing unavailable under the statute. o Claim: Most exclusionary zoning litigation in fed cts allege that local land use controls, as applied, violate the FFHA. A violation of the FFHA can be established by a showing of discriminatory effect w/o a showing of discriminatory intent, at least in some circumstances. Arlington Heights, CA 7, 493 (on remand) Focus is on the language because of: o Narrow View: Intent is required. o Broad View: Intent is NOT required; its sufficient for FFHA where the natural and foreseeable consequence of an act is to discriminate b/w races. Minority Balancing Test: To determine if FFHA is violated, weigh 4 factors: o (1) How strong is Ps evidence of discriminatory effect?; o (2) Is there evidence of discriminatory intent, although not enough to satisfy const. violation?; o (3) What is Ds interest in taking the disputed action?; and o (4) Does P seek to compel D to affirmatively provide housing for minority groups OR merely to restrain D from interfering w/ indvl property owners who wish to provide such housing? Majority Test: Huntington, 494 o Step 1: Is there a prima facie case of discriminatory effect/impact? i.e. Prove the challenged practice of D actually or predictably results in racial discrimination. Two Types: (1) Adverse impact on a particular minority group or applicant o E.g. disproportionate impact on blacks. o Look at proportionate (impact) #s (11% of whites v. 28% of blacks) NOT absolute #s (22,160 whites v. 3,671 blacks). (2) Harm to the community generally by perpetuation (reinforcement) of segregation. o Is the restriction restricting integration to only areas where large minority populations already exist? o Step 2: If a discriminatory effect is established, is there nonetheless a legitimate non-pretextual justification articulated by the city? Two-Part Test: (A) Are there less discriminatory alternatives? (B) Are the reasons given by the city bona fide and legitimate, i.e. reasonable attempt to address a substantial concern? APPLY this test to the 2 different types of justifications below: Two types of Justifications: (1) Site Specific: o i.e. traffic, health, etc. concerns specific to the site. o (A) Usually NOT less discriminatory alternatives; thus, survives part 1. o (B) Are concerns legit or just made up? Must have subst. evidence. (2) Plan Specific o i.e. Goals of the plan; e.g. limit private development to revitalize deteriorated areas, etc. o (A) Usually less discriminatory methods; thus fails 1. E.g. Encourage development in urban renewal area w/ tax incentives or abatements; rather than restrict multi-family development to urban renewal areas only. 29

o (B) Same as above, but can be remedied by (A) in any event. CH. 5: FLEXIBLE ZONING: VARIANCES, EXCEPTIONS, & AMENDMENTS Traditional, Euclidean system is Basic, Self-Executing Features, which contemplates the division of the community into districts, in which land uses are allowed as-of-right. This system is simple and non-discretionary, and remains the heart of zoning administration. Flexible Features: However, Standard Zoning Act also provides for discretionary administrative procedures and a process through which the zoning ordinance could be amended. Intended to provide relief from land use restrictions of the zoning ordinance. We now FOCUS on these discretionary features. ROADMAP Traditional statutory techniques through which LOs secure a change in the zoning restrictions applicable to their property 514 o Zoning Amendment: In theory, amendments are made in response to substantial changes in environmental conditions or other instances where a policy change is indicated. In practice = Spot Zoning. Amendments are often used to take care of limited changes in use, usually confined to 1 lot, a technique disapprovingly called spot zoning. This takes on adversary characteristics giving it adjudicative features. o Zoning Variance: Requires unique and individual hardship! Administratively authorized departure from the terms of the zoning ordinance in cases where a strict application of the terms of the ordinance would be unconstitutional. Granting a variance is meant to avoid an unfavorable holding on constitutionality. o (Special) Exception/Special Use/Conditional Use (all the same): A use permitted by the ordinance in a district in which it is not necessarily incompatible, but it might cause harm if not watched. Exceptions are authorized under conditions that will ensure their compatibility w/ surrounding uses. o Hypo: LO of small lot doesnt like current restrictions; wants to change applicable zoning restrictions. What are his legal options? 1) He can ask LGB (likely the PC) for a map amendment to apply a different zoning classification. 2) He might be able to request a variance (from BZA). 3) He can also apply to BZA for a special exception IF the use he proposes is listed as a special exception use in the zoning district in which his land is located. Newer Forms of Flexible Zoning o Floating Zone o Contract Zoning Roles in the Zoning Process o Site-Plan Review o Comprehensive Plan Initiative & Referendum in Zoning Process Standards that Govern Variances: statutory standards. Special Uses: standards in the zoning ordinance

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I.

(ZONING) VARIANCE

BACKGROUND (BZA) Setting: Variances intended to remedy situations where the property cant be used as its zoned; it would amount to a (unconst.) taking as applied to the particular property Standard Language: Most State enabling acts, and ordinances based thereon, use unnecessary hardship as the governing standard for granting variances. o Some acts use unnecessary hardship or practical difficulties Two Types of Variances o Use Variance: Allowing a use in a zone that wouldnt otherwise be permitted. More intrusive; higher need of necessity required. Unnecessary hardship standard applies here. o Area/Dimension Variance: Not a different use, but: Relaxation of physical rqmts (e.g. lot size, setbacks, height, etc.) Practical difficulties standard applies here. A. GRANTING USE VARIANCES KS Rule: Does NOT allow use variances. KSA 12-765(e). o Permits ONLY area variances. o Notwithstanding the clear law, some LGBs dont know or dont follow. General Proposition: Variances should be sparingly granted. o Profitability Rule: It is NOT sufficient that the property would be worth more or could be more profitably used if the restrictions were to permit another use. USE Variance RuleUnnecessary Hardship Standard: A variance should NOT be granted UNLESS: o (1) the property can NOT be reasonably used under a conforming use; Substantial evidence standard. Some courts use reasonable return instead of reasonable use This does Used interchangeably; makes more sense in commercial rather than res setting NOT apply o (2) the hardship MUST be unique or peculiar to the property for which the variance is sought; and in KS! Can NOT be general problem affecting multiple properties o (3) Can NOT be a self-created problem/hardship. o (4) the use to be authorized by variance can NOT alter the essential character of the locality. o MUST meet ALL 4 elements or variance should be denied. Leo, 524 Conditions/Conditional Variance: BZA can usually attach conditions to grant of a variance. 533 n.8 o Permitted even though most enabling statutes do not expressly confer such power. o Its administrative, so reasonable. E.g. require paving. Lucas Taking? A takings claim is NOT ripe in fed ct unless LO has already been denied a variance. In Practice: BZA grants variance like candy (w/o regard to law). Usually left to cts to clean up mess. Policy Justification: If this worked for 1 person, neighbor could jump on board and so on, destroying zone. Variances Run w/ Land b/c not personal; zoning deals w/ uses, not the users. Leo: LO wanted a small dentist office on 2nd floor of house; not permitted in residential zone. o Held: Variance is NOT appropriate even if it created no problem b/c house had a reasonable (conforming) use. Doesnt matter that dentist office would be more profitable or better suited. B. GRANTING AREA/DIMENSIONAL/SITE VARIANCES Setting: Area, bulk, and density are often more important to developers than use regulations. o Distinctions b/w zones, e.g. residential, are often based on density rather than use. o Density, in turn, can be controlled in a variety of ways: limits on dwelling units per acre, height limits, restrictions on % of lot that can be covered, open space rqmts per residential unit. o Developer can obtain a modification of these regs through dimensional, area, or site variances. Minor Request: e.g. setback change. Fundamental Request: Big increase in density to increase return on investment. Purpose of area/dimensional/site regs: Promote uniformity of development, lot, and building size. Rule: An area variance may be granted IF: KSA 12-765(e)(1) 31

(A): The condition is unique to the property, and NOT ordinarily found in same zone or district; If condition affects multiple properties, the ordinance should be amended, not a variance. o (A): The condition/problem/hardship is NOT self-created; Self-Created: LO/developer builds in willful or accidental violation of the zoning ordinance; LGB insists that violation be corrected. Self-Created: Developer pays premium price for land, then seeks variance on the ground of financial hardship. 532 n.6 NOT Self-Created: Merely buying property w/ existing condition, then seeking variance. o (B): It will NOT adversely affect the rights of adjacent property owners or residents; o (C): Strict application of would result in unnecessary hardship on LO; Courts vary in matter of degree, but emphasize the test for area variances is LESS stringent. Some cts call it the practical difficulty standard, some retain unnecessary hardship language, but ALL generally apply a lesser standard. BZA should have flexibility; area variances dont have same devastating effects. Unnecessary hardship permits NO discretion here; cts read it out of statute. Whole idea of variance is to allow something not otherwise allowed by the ordinance. Significance of the of the economic injury; Whether other feasible alternatives could avoid the difficult; o (D): It will NOT adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare; AND Magnitude of the variance Would variance unduly undermine purpose of the ordinance or public interest? o (E): It will NOT be opposed to the general spirit and intent of the zoning regulations. Area or Use Variance? Some variances fall in the cracks. o E.g. Density limits (2:1 to 3:1 ratio). Courts split on whether this is an area variance (which gets lesser standard) or use variance (which gets strict standard). 540 n.2 In Practice: If client is so inclined, go ask for a variance. Usually not public hearings; slip by neighbors. o Variances granted like candy. o E.g. LO wants variance, arguing its the best use of land. Even though this doesnt legally meet unnecessary hardship standard, or even practical difficulties, variances are granted anyway. Usually never challenged in ct. SPECIAL EXCEPTION/SPECIAL USE PERMIT/CONDITIONAL USE

II.

SPECIAL EXCEPTION/SPECIAL USE/CONDITIONAL USE Setting: A use permitted by the ordinance in a district in which it is not necessarily incompatible, but it might cause harm if not watched. o Limit: Although permitted, it must meet certain conditions to get approval. o Special use is preferable over variance b/c it has been planned for in advance. o Permitted as a matter of grace; NOT a matter of right. i.e. Bring your specific plan and ask them to grace itrequires special permission. o Legislature may require certain uses, which it considers to have a potentially greater impact upon neighboring properties or the public than those uses permitted in the district as a matter of right, to undergo the special exception process. Typically, the use demands a large amount of land, may be public or semi-public in character, and might often be noxious or offensive. E.g. Hospital in residential district, b/c extensive area, traffic, and other problems that may affect residential neighborhood. E.g. Gas station in light commercial district, b/c of its potentially noxious effects. o KSA 12-759(d)(e). Rule: BZA may grant exceptions to the zoning regulation where: KSA 12-765(e)(2) o (1) Specifically authorized (by statute and ordinance); o (2) the exception MUST be listed as a special use in the zoning regulation; AND 32

(3) the conditions of the use MUST in fact be present (cant fake the use). LOOK to the Standards in the Ordinance/Zoning Regulation. Then apply standard below. Is the BZAs decision supported by standard? Standard of Review: Substantial Evidence (maj.) o Majority Rule: When granting or denying a special exception, the BZA action is administrative. Even if LGB makes final decision acting on BZAs recommendation, still administrative. Standard of Review: Rule: If NO absolute criteria, the BZAs decision is discretionary subject to substantial evidence. o NO presumption of validity. o The BZAs decision MUST be supported by substantial evidence. Claim: All criteria are More than mere scintilla or fairly debatable. met, LO should get Less than preponderance. exception as matter of BZA Discretion: to determine whether (1) the use will be injurious to the public right. Depends on health, morals, safety, general welfare and (2) detrimental effect on use/value of whether BZA has nearby properties. discretion. No Discretion: If there is absolute criteria, the decision may be mandatory. BOP on the applicant for a special exception to prove statutory criteria are met; its not the BZAs burden to disprove. o Super Minority Rule: When granting/denying an exception, BZA acts legislatively. Southland, 542 Standard of Review: Decision gets presumption of validity: fairly debatable test. If P shows enough proof of irrationality, presumption of validity is defeated and BOP then shifts to LGB to show validity. o Intelligible Principle Rule (Maine only): Ordinances must have sufficient standards to guide the BZAs decision; otherwise, the LGB has improperly delegated legislative authority. ALL special use? NO. A district cannot be comprised wholly of special uses; something must be permitted as a matter of right. Rockhill v. Chesterfield, 544 Conditions on Special Exceptions? Generally ok, subject to same restrictions as variances. o Special uses may be designated w/in each district w/ conditions attached. KSA 12-756 o i.e. Reasonableness standard; only egregious will be struck down. Improper delegation of legislative authority? Getting to Court: KSA 12-765. Crooked Creek, 547: CC (denied shooting range (allowed as matter of grace, not right) argued they must be granted special exception b/c they met all criteria. Bring mandamus action (a right to it; no discretion). o Held: State criteria was NOT absolutepermitted discretion by the BZA. BZA has discretion to determine whether the use will be injurious to the public health, morals, safety, general welfare. o o III. ZONING AMENDMENT

Background: Zoning amendment is appropriate where LO is unable to reasonably use his land due to particular zoning restrictions that are unreasonable in application to a certain locality (multiple properties). If the oppressive result is to only a particular piece of land, a variance is appropriate. In practice: Spot Zoning. When the variance and special use fail, LO is left to seek a zoning amendment. Two types of zoning amendments 1) Comprehensive zoning changes o A) to the zoning text or map, affecting a substantial part of the community. 2) Spot Zoning (LO seeks only a map amendment for his tract of land) (more common) o Usually for Upzoning (permitting more intensive land use). Contra Downzoning: Moves the site to a less intense permitted use. o Spot zoning accomplishes the same result as a variance or special exception. REZONING Power: LGB may amend zoning regs (supplement, change, or generally revise boundaries). KSA-12-757 Initiation: Amendment proposals may be initiated by: KSA 12-757 33

LGB or PC, or Indvl LO (Spot Zoning), if proposed amendment would affect a specific property and not general revision. i.e. Rezoning, upzoning, or downzoning Presumption: If LOs proposed amendment is in accord w/ the land use plan or the land use element of a comprehensive plan, it shall be presumed reasonable. e.g. comp plan = residential; amendment = single multi-family residential. Factors for Approval/Disapproval: LGB shall establish the matters to be considered in the zoning regs. Protest Petition: Rezoning amendments REQUIRE 3/4 (75%) vote by LGB, following a PC vote (regardless of whether PC approved or disapproved), IF: KSA 12-757(f)(1) o Protest petition is filed w/in 14 days after public hearing, AND o Signed by at least 20% of real property owners in the area to be zoned/required to give notice. Rezoning Process: o PC receives request, holds hearing, put to vote. o Notice: public notice and mailed notice of land proposed to be changed by regulations. o PC: Majority vote rqrd (approve or disapprove) o LGB: Majority vote to approve PC or 2/3 vote to overrule PC. Can also send back to PC. o Neighbors can file protest. If 20% is obtained, then 4/5 vote is required of the PC and LGB.

o o

A.

ESTOPPEL & VESTED RIGHTS

Setting: Developer buys land zoned for a certain use. As he starts contracting plans, neighborhood opposition develops and in response the LGB downzones the area. What protection does LO have? Estoppel or Vested Rights Doctrines o Most courts use these terms interchangeably, although they are not exactly the same. o Estoppel: Focuses on whether it would be inequitable to allow govt to repudiate its prior conduct. o Vested Rights: Focuses on whether the owner acquired real property right which cannot be taken away by govt regulation. Vested RightsWhen rights vest: KSA 12-764 (a) Single-Family Residential Developments: Rights vest when LO records the plat (i.e. get all approvals) o NO construction is required (no shovel in ground). o The right expires if construction is not commenced w/in 5 years. (b) All other Developments: Rights vest when LO has all required permits + substantial construction. o Very pro government. Until this point is reached, LO reliance is sufficient to estop govt action. o i.e. Hole in the ground + some cement and boards. o Preconstruction Activities are NOT sufficient. e.g. architectural drawings, clearing of land, widening roads, general acts that are not exclusively related to the proposed project. (c) LGB Option: Can provide for earlier vesting of development rights if it chooses. Majority Rule: Same as KSA 12-764. Minority (Liberal) Rule: Rights vest at time of application if the proposed development meets the zoning rqmts UNLESS PC can show something was already pending or a compelling reason for going ahead.
Western Land, 560

Minority (Middle) Rule: LO must actually receive the permit to be locked in. B. SPOT ZONING

SPOT ZONING Setting: Treating a small tract of land in the same zone differently. Neighbors/3rd parties can attack the spot zoning by filing suit (could also petition to get 20%, but if dont know about it cant get 20% you can still file in court).

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Cause of Action: Allege unlawful spot zoning: No evidence in record of tying the spot zoning to the public good/purpose; therefore it is solely beneficial to the indvl LO. Test: The rezoning MUST reasonably further the public good or general plan (i.e. a public purpose tied to health, safety, morals, and general welfare). Otherwise its unreasonable. o Rule: If the rezoning simply benefits the indvl or group of indvls, it is unlawful spot zoning. o Look to the effect the change would have upon the comprehensive zoning in the community. Factors: Is there already the same zoning nearby? If so, why not require the LO to use that property? Kuehne, 568 Does a change in conditions justify rezoning? Those who buy property in a zoned district have the right to expect that the classification made in the ordinance will NOT be changed UNLESS a change is required for the public good. Pierrepont, 575 n.6 o E.g. of good spot zoning: Plan to decentralize biz community. Bartram, 569 Minority View: In addition to the test above, some states require the adoption of a comprehensive plan and the consistency of zoning with that plan. Griswold, 572 n.1 Ultimate Test is the reasonableness of zoning, determined by a # of factors such as compatibility w/ adjacent uses and consistency w/ the comprehensive plan. Rodgers Test: Whether the change is part of a well-considered and comprehensive plan calculated to serve the general welfare of the community. Alternate 3-Part Test: o (1) comparison w/ prevailing use in the area; o (2) size of the area or # of owners benefited; and o (3) benefit to public/accordance w/ a comprehensive plan. o Applied, Held Invalid Spot Zoning: PUD (planned unit development zone) benefited only 1 owner, did not benefit the public or the significant wildlife in the area, and conflicted w/ the comprehensive plan which designated other area for commercial development. Yellowstone, 574 Change-Mistake (Minority) Rule: A rezoning MUST be justified by either: o (1) an original mistake in the zoning ordinance, or o (2) by a change in conditions. o Exception: Rule does NOT apply to comprehensive zoning. Wakefield, 575 n.6 o BIG burden on those seeking spot zoning. C. QUASI-JUDICIAL V. LEGISLATIVE REZONING

REZONING: IS IT LEGISLATIVE OR QUASI-JUDICIAL? If characterized as legislative, there are few protections for DP concerns and reduces the ability of cts to review the process or substance of the zoning hearing. If characterized as quasi-judicial, the procedures at the local level change and cts can modify the usual standards of review (i.e. fairly debatable substantial evidence). RULES Legislative Rezoning: Initial/original zoning, comprehensive rezoning, or rezoning affecting a large portion of the public. o Legislative action results in the formulation of a general rule of policy. o Standard of Review: Fairly debatable test. o Process: Raise your hand. No record is required. Quasi-Judicial Rezoning (KS): Rezoning which entails the application of general rule or policy to specific indvls, interests, or activities. o Judicial action results in the application of a general rule of policy. Individualized decisions (either changing or leaving it alone) based on specific facts. Policy application rather than policy setting. o Standard of Review: Upheld only if supported by substantial evidence. Fairly debatable test goes out the window. If NOT supported by SE, the decision is A&C. o Process:

35

o o IV.

Make Written Record: Govt body (whichever it is) must state its reasons and make a record of its findings of fact (reviewable by a court). Zoning amendment will be judged against the comprehensive plan (as a std) BOP on LO to prove (1) his proposal complies w/ reasonable procedural rqmts of ordinance and (2) the use sought is consistent w/ comprehensive zoning plan. Presumption: If LO meets BOP, he is presumptively entitled to use the property in the manner he seeks UNLESS: Govt proves by clear & convincing evidence that a specifically stated public necessity requires a specified, more restrictive use (tie to health, welfare, morals, safety). Taking? If govt proves the last step, the burden switches to LO to show this more restrictive use amounts to a taking of his property. Snyder, 576 Limit: Some states reject the quasi-judicial distinction altogether. Wait, 584 n.5 Key: Character of the hearing.

OTHER FORMS OF FLEXIBLE ZONING

Bringing flexibility to Euclidian systems (i.e. where everything is laid out). A. FLOATING ZONE (WITH PRE-SET STANDARDS)

FLOATING ZONE: Setting: LGB adopts the text of the zoning district, w/ its standards and procedures, as part of the zoning code, but does NOT create the district on a map until developer applies to have the district placed on his property. o E.g. describe a windmill zone/district, but dont place it on the map yet. Wait for developer to decide where he wants it. Its floating above the map waiting to come down. Could be in a residential, commercial, or any zone. o LGB keeps control over it; doesnt yet go to PC or BZA. Thus its a legislative act. The application of the zone to a particular property is a rezoning of that property. o Potential Uses: Can provide a platform for PUDs, mixed-use zoning, & other zoning techniques that require the exercise of discretion & the approval of a development plan as the basis for development. Standard of Review: Apply same stds as special exceptions: o Use MUST be compatible w/ the surrounding neighborhood, it must further the purposes of the proposed reclassification, and ensure its reasonable w/ existing uses. Rylyns Enters., 599 B. CONTRACT & CONDITIONAL ZONING (W/O PRE-SET STANDARDS)

CONDITIONAL ZONING V. CONTRACT ZONING Conditional Zoning: LGB makes NO promise (deal) and there is NO enforceable contract until the LGB acts to rezone the property. o General Rule: Valid UNLESS there is clear evidence of a contract deal. o Merely put conditions on a zoning request; i.e. Not signed, sealed, delivered. i.e. Rezoning conditioned on the execution of a private declaration of covenants restricting the use to which the parcel sough to be rezoned may be put. Contract Zoning: The deal, then LGB rezones the property. o Universal Rule: Contract zoning, as defined by a deal, is prohibited. Key: The deal. o States vary on how strictly they interpret a deal. Purpose: LGB will change zoning for requested use but NOT allow certain other uses permitted in the zone. o E.g. LO wants a dress shop, needs zoning change. Govt and neighbors are ok w/ dress shop, but dont want to allow dress shop to turn into liquor store.

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o V.

PC says Yes, but Limit to professional uses: Put a declaration of covenants in the zoning amendment. Everyone walks away happy: LO (requested use), neighbors (more restrictions), offls (reelection)

SITE PLAN REVIEW

SITE PLAN REVIEW Setting: Land use agency looks at the specifics/reviews the details of the project. o LOs have nothing to gain herethe use has already been determined lawful. o Often contentious b/c land use agency will take one last bite at LO, extracting 1 more thing. o E.g. Catholic church on corner; neighbors dont want it. Site plan review may give the LGB its only opportunity to review the design specifics of a development that is a permitted use and can be built as of right. Authorized by statute? Almost never. But not prohibited either, so cts usually allow by Home Rule. What can be reviewed? o Rule: LGB gets to decide ONLY the shrubbery, location, parking, etc; NOT the use. o Elements which are included in the zoning ordinance or local law, which may include: parking, means of access, screening, signs, landscaping, architectural features, location & dimensions of buildings, adjacent land uses and physical features meant to protect adjacent land uses, preservation of existing natural resources on site, conservation of energy, use of renewable energy. Permitted Use Rule: o If the use is permitted in the zone, LGB can NOT challenge a developers specific use and demand a different permitted use. Once the zoning body determines the zone (i.e. what is best for health, safety, & general welfare), it can NOT reserve to itself the discretion to decide which of the complying land uses will be permitted. To permit an LGB this power to deny a lawful use of property would run contrary to requirement of adequate standards. o Charisma, 613 : BZA had the power to demand that garage shop build in the middle of its lot, rather than towards the edge which would create noise and fume problems for neighbors. Overlap is ok b/w matters that might be properly considered during a site plan review and conditions that might properly be imposed by a ZBA in granting an area variance. Off-Site Conditions can be relevant. o E.g. compatibility w/adjacent historic district. o E.g. landscaping or buffer rqmts can consider the adjacent uses. o E.g. Traffic problems are NOT ok unless it concerns the ingress and egress of the plan to unsafe and inefficient vehicular conditions. Traffic problems would need to be considered in variance or exception requests. VI. ROLE OF THE COMPREHENSIVE PLAN IN THE ZONING PROCESS

General language: Zoning must be in accordance w/ a comprehensive plan. Majority Rule: Most cts dont give this rqmt its literal meaning. Kozesnik, 618 o If there is a plan, it affects the zoning process, depending on compatibility strictness. o KS: If LGB wants presumption of validity/reasonableness, it must meet the comprehensive plan. BUT its not necessarily required that zoning be in compliance w/ plan to be lawful. Minority Approach: State requires city to have a comprehensive plan to engage in zoning. o Zoning MUST be consistent w/ general plan or its per se unlawful. Fasano, 618 o Consistent: the various land uses authorized by the zoning ordinance are compatible w/ the objectives, policies, general land uses, and programs in the general plan. Key: States vary in how strictly they interpret consistency. Test: Look at the record before the LGB and determine if it could have, despite deviating from the letter of the plan, found consistency. Soft approach: basic harmony Haines, 621

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 VII.

Strict Scrutiny Std: LGB interpretation is given no deference. Hard look.

Shidel, 625

Other cts will apply the legislative v. quasi-judicial test/std of review. Neighbors/3rd Parties can allege that zoning is inconsistent w/ the plan and thus unlawful. o Tactic used when LO gets what he wants. INITIATIVE & REFERENDUM

INITIATIVE V. REFERENDUM Initiative: o Voters initiate something, e.g. zoning proposal/ordinance. LGB hasnt ever taken previous action. Citizens must get the required # of signatures, it will then go on the next ballot (possibly requiring a special election depending on time frame). Voters then vote to adopt or reject the ordinance. o E.g. Citizens want height restrictions or growth moratoriause initiative. o Can be used as a referendum in states w/o referendums. i.e. where LGB enacts zoning amendment, voters can challenge it, seeking to repeal the amendment and reinstate prior zoning. Referendum: o LGB acts, e.g. a zoning action. o Two Types: Permissive: A zoning ordinance will NOT be submitted to popular vote UNLESS a voter petition for a referendum is filed. Mandatory: Anything of a certain nature, if passed by LGB, MUST also be approved by voters. o Typical Case: Referendum is used to block zoning amendments that provide more intensive use of single piece of property. A. STATE RULES (most commonly used; NOT the fed limits below) Legislative v. Quasi-Judicial/Administrative Rules: o Rule 1: Referendums and initiatives can ONLY be used for legislative actions. CANNOT be used for administrative/quasi-judicial actions. o So Step 1: Determine whether the LGB action is legislative or quasi-judicial/administrative. If Legislative: Ref & Init are okay. e.g. Initial/comprehensive plan; comprehensive zoning/rezoning If Quasi-Jud or Admin: Referendums and initiatives CANNOT be used. e.g. Spot Rezoning; Eminent Domain; Repealing an Act; special use approval Typical cases: Large corporation or amusement park gets approved by PC and LGB; voters say NO! B. FED CONSTITUTIONAL LIMITS Very liberal standardNo DP concerns; rarely used. General Rule: Referenda and initiatives raise NO constitutional problems. Eastlake, 644 o A referendum is NOT a delegation of power, but rather a reservation of power by the people. Thus intelligible principle doctrine doesnt apply. o Distinction b/w legislative and quasi-judicial actions is irrelevant. Bottom Line: While referendum results may be invalid if A&C, the LGB does NOT violate any constitutional protections by holding a referendum. EQ? Requires discriminatory intent, which is difficult to prove.

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CH. 6: SUBDIVISION CONTROLS: EXACTIONS & TAKINGS Framework: Zoning v. Subdivison Regs Zoning: Focuses, or should focus, on the city as a whole and the relationship of various types of land use to a citys overall plan of development. Subdivision Regulations: Concentrate on the internal improvements to a particular parcel of land that is being converted from an undeveloped state to a residential development. o Purpose: Prevent future surprises and ensure that satisfactory infrastructure is installed when raw land is converted to residential use. o These subdivision regulations parallel the zoning regulations. o Traditional: These started before zoning, as method of land description. Then used to ensure that basic amenities conform. E.g. 95th St. remains so thru Lenexa, OP, Olathe, etc. Storm sewers, etc. o Modern Trend: LGBs attempt to pass on to developers and customers much of the cost of infrastructure required to support new development through exactions. Issue: Raises const. takings question, among others. Planned Unit Developments (PUDs): Combine elements of both zoning & subdivision controls in a review process that examines the proposed developmental design, intensity, and uses at the same time. I. SUBDIVISION CONTROLS

KS SUBDIVISION CONTROLS/POWER KSA 12-749 to -752 Prerequisite: Comprehensive plan MUST be in place to adopt subdivision controls (unlike zoning). KSA
12-749(a)

Rule: PC shall apply subdivision regulations to ALL land located w/in the city and some land outside. Subdivision Regulations MAY include, but not limited to, provisions for: KSA 12-749(b) o (b)(1) Efficient and orderly location of streets; o (2) Reduction of vehicular congestion; o (3) Reservation or dedication of land for open spaces; o (4) Off-site and on-site public improvements; o (5) Recreational facilities, including dedication of land for park purposes; o (6) Flood protection; o (7) Building lines; o (8) Compatibility of design; o (9) Stormwater runoff, including 100-year rain and snowfall patterns; and o (10) Any other services, facilities, and improvements deemed appropriate.

Subdivision Process: Put pins in the corners of the lots. Get plan approval. Take to Register of Deeds. Becomes known as Lot 51, e.g. Dont need to describe by metes and bounds. Lot must meet minimum size rqmts, width, length, etc. For improvements to the lot, LO must get additional approval. Make sure it matches up w/ other subdivisions. o Controlled by PC; final approval usually required by LGB. o Dedication of streets to city; developers dont want 1) liability or 2) tax burden DENYING SUBDIVISION REQUESTS Issue: When can a LGB turn down a proposed subdivision plat that meets all subdivision/zoning rqmts? Rule: Must LOOK to the enabling act and subdivision regulations to determine whether the LGB has authority to deny the proposed subdivision for the reason given. Standard of Review: Subdivision control legislation is much more specific than zoning legislation.

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II.

Effect: Does NOT provide the broad grants of authority that often allow cts to take a lenient view of scope of authority problems in zoning cases. o Rule: Cts will reverse a subdivision denial if it is based on a reason NOT authorized by the statute or subdivision regulations. o Denial MUST have reason in the statute or subdivision regs! Factual Record: Ct can also reverse a subdivision denial if it finds lack of support in factual record. Garipay, 677 : LGB authorized to deny subdivisions if offsite factors would render them scattered or premature. o Held: Dangerous offsite access road was premature, endangering well-being of residents. o Hazard Rule: LGB must ascertain what amount of development, in relation to what quantum of services available, will present the hazard described in the statute and regs (i.e. premature). At the point where such a hazard is created, further development becomes premature. o Bottom Line: Denial was appropriate b/c road leading into subdivision would be dangerous. Baker, 679 : B wanted to subdivide; met all requirements. City denied b/c would no longer be able to use the land as holding pondwould incur expenses to build a lift station to move the water. o Held: Denial was invalid; city cannot deny in the public interest to save money. Town not ready? NOT a sufficient justification to deny subdivision approval. Text, 684 n.4 EXACTIONS: DEDICATIONS, IN LIEU FEES, & IMPACT FEES

Exaction: Requiring a developer to provide, or pay for, some public facility or other amenity as a condition for receiving permission for a land use that the LGB could otherwise prohibit. i.e. Developer/LO goes to LGB. LGB says, Yes, but Three Types: o (1) Dedication: Give real property to the city (for public use) for public facilities. Remember: Upon final approval of plat, developer turns over FSA to city. These apply o (2) In Lieu Fees (PILOTS): Money paid over to city in lieu of land. ONLY when Primarily where its a small lot/development. LO goes to govt If city kept granting small developments, it could never take enough land from 1 first, then govt developer to build a school, etc. says: o (3) Impact Fees: Levied in the subdivision control process or at the time a building permit issues, Yes, but... to finance public facilities, on- or off-site, needed b/c of the new development. Legislative Money to city for something that may or may not be in the development area. decisions are Roads, sewers, etc., serving a much broader area than the development itself. different. Attempt to exact an amount proportional on new residents for the city-wide service. STEP 1: IS WHAT IS BEING ASKED FOR BY THE CITY REALLY AN EXACTION? Exactions v. Conditions/Non-Exactions NOT Exactions: o (1) Land Set-aside for Private Use Rule: Exactions MUST be for the public, NOT something set aside for private develop. e.g. Developer required to set aside rec land for residents in subdivision. Effect: This is a condition. MUST be challenged as a regulatory taking. Most likely Penn Central b/c it still has value. o (2) Taxes (rather than Fees) Rule: A tax is NOT an exaction. Tax rules would apply: Govt cant tax single, targeted indvls and can only tax for certain things anyway. Various Tests: Text, 724 n.7 Primary Purpose: Raise money (tax) or mere tools of subdivision regulation? Amount: A fee is a tax if it provides more revenue than necessary to provide the service. End Result: Does the money go into a general fund (tax) or segregated fund to pay the service (exaction)? o (3) Traffic Regulations

40

Rule: Condition requiring a traffic-free area/sightline as part of an approval for fast food site plan was NOT an exaction (dedication). Traffic regulations apply. Moving Ahead: If it IS an exaction, go to Step 2. Otherwise, apply the appropriate regulations.

STEP 2: IS WHAT IS BEING ENACTED AUTHORIZED BY THE STATE ENABLING ACT? Sources: Authorization can be found in subdivision regs (always), zoning regs, sewer regs, or elsewhere. Issue: Does the enabling statute that allows the city to subdivide, zone or have sewers permit the exactions? o e.g. Sewer regs permit a charge (exaction) to hook up to the sewer system. Moving Ahead: If the exaction is authorized, go to Step 2(a). Otherwise, its invalid. STEP 2(A): SPECIAL ZONING ISSUES: Conditional Zoning: Treat as Exaction issue AND Conditional Zoning issue. o i.e. In the special use permit/variance, City requests Exaction of some form. o MUST meet the conditional zoning rqmts/tests. Moving Ahead: If zoning issues are satisfied, go to Step 3. o STEP 3: ALTHOUGH THE EXACTION IS AUTHORIZED, IS IT CONSTITUTIONAL, I.E. TOO MUCH? Is there a ceiling on what the city is doing? (Its kind of a taking, but not really.) o Took it out of the takings realm and put it in the conditions realm. To what extent is it fair for the developer to pay for this? o Easy: Universally ok for city to exact for streets (unless maybe width), curbs, gutters, amt/thickness of concrete, etc. o Fights: police, schools, fire stations. General Rule: Govt may constitutionally require an exaction as a condition of developmentits NOT viewed as a taking (i.e. eminent domain for land, etc.). o Limit: Must meet the two-part test: Nexus (Nollan) + Rough Proportionality (Dolan) o i.e. City can take exaction for free if it meets the 2-part test. Otherwise it must pay. STEP 3(A): THE NOLLAN FEDERAL NEXUS TEST & TAKINGS CLAUSE Rule: There MUST be a sufficient nexus/relationship b/w the condition imposed (the exaction) and the advancement of a legitimate state interest (the citys purpose for taking). o Does the exaction (what city takes) have a connection to the public interest it was taken for/proposed use to which the city will put it? o Exaction must relate to the development. Taking: If there is NO reasonable nexus, the condition (exaction) is invalid. Example 1: City required dedication (the exaction) for stated purpose of widening street for increased traffic caused by rezoning (the state interest and proposed use). (City really wanted to fix intersection). o However, City admitted that the rezoning (LOs request) would have NO increased traffic. o Held: There is NO reasonable relationship b/w the exaction and state interest. Rohn, 689 The city can still take the land, but it MUST pay for it. Example 2: State requires an easement (the condition) for protecting the publics understanding that beach was there (the state interest: visibility, physical psychological barrier). Nollan o Analysis: State could have simply declared an easement, which would have been a Loretto taking (permanent, physical invasion). Different here b/c LO went to govt 1st; govt exacts. Rule: If property owner initiates action seeking govt permission, the govt can require something extra w/o it being a taking. o Held: There is NO reasonable relationship b/w the exaction and state interest. The State should have told truth (i.e. taking for public access), which would have been permitted. Legit State Interests: Road safety, aesthetics, etc. Moving Ahead: If nexus exists, go to Step 3(b) to decide if Dolan applies. Otherwise, exaction is invalid. 41

STEP 3(B): DOES DOLANS ROUGH PROPORTIONALITY TEST APPLY? Physical Dedications of Land: May depend on Legislative v. Quasi-Judicial. o Quasi-Judicial/Admin: YES, Dolan applies. Go to Step 3(c)! o Legislative: Fed Claim: These likely get Penn Central analysis! These get substantial more deference when they apply to everyone equally. e.g. City-wide rqmt: Landscaping of 10% and 1 tree for every 8 parking spaces where lot is bigger than 30 spaces State Courts can vary. TX (& CA): Would apply Dolan! Flower Mound Others would apply Penn Central. Krupp, 720 n.1 o If everyone has to pay it, its ok. Impact Fees (Money): Dolan probably does NOT apply. Del Monte and Lingle o Even if Dolan test applied, it would be easier to meet the rough proportionality test. These are demand-based exactions which are designed to measure the impacts created by the development on community facilities and to covert such demand to a value expressed in monetary fees. i.e. Impact fees are already proportional (from the start) In Lieu Fees: Probably get Penn Central analysis (unless removing all economic valueLucas) Total Rejection: If development is rejected altogether, Dolans rough proportionality test does NOT apply.
Del Monte, 711

Moving Ahead: If Dolan applies, use it. If not, then Regulatory Taking (Penn Central) likely applies.

STEP 3(C): THE ROUGH PROPORTIONALITY TEST DOLAN, 697 Rule: If a nexus exists, ct must then determine the rough proportionality. Rough Proportionality Test: Degree of connection required between (1) the Exactions (what the govt is taking) and (2) the projected impacts of the proposed development. o Rough Proportionality: There must be some individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development. Mere conclusory statements will NOT work. Probably some quantity is necessary. But no precise mathematical calculation is required. o Step 1: Determine the exactions (city rqmts) o Step 2: Determine the proposed developments projected impact o Step 3: Roughly proportional degree of connection (individualized determination)? Temporal Element: City can plan for something that isnt there yettake account of what will potentially be there when considering what exactions to impose. Sparks, 713; 718 n.2 o Middle Approach: If you want to wait, well pay for it. If youre in a hurry, you pay for it. (bad roads, e.g.) How far down the road can you look? Rural areas that will turn urban in x years, e.g. Example 1: LO want to enlarge store and pave parking lot. City requires easement (dedication) for (1) flood plain and (2) public walkway. DOLAN, 697 o Nollan Nexus is met: Sufficient nexus b/w easement for floodplain (b/c increased runoff by paving lot) and for walkway (increased traffic by enlarging store). i.e. States interests sufficiently relate to the conditions imposed by the permit. o No Rough Proportionality: Easement for floodplain purpose was fine, but NOT for allowing public access on it (LO should still have right to exclude others if merely floodplain purpose). Easement for walkway could have been fine, but NO individual determination was made: City merely found that the pathway could reduce some of the traffic demand, rather than showing how much will or likely to offset the traffic demand. o Now, after Lingle, this would be an unconstitutional conditional case, NOT taking case. Example 2: No increased traffic v. some land = NOT roughly proportional. Rohn, 689 o i.e. City takes something for nothing (no increased burden). 42

 Moving Ahead: Federal Constitution sets only the floor; State may have tougher restrictions (not looser). STEP 4: DOES THE STATE IMPOSE TOUGHER CONSTITUTIONAL RESTRICTIONS ON EXACTIONS? Illinois Tougher Standard for Degree of Connection b/w Exaction and the Proposed Development: o Specific and uniquely attributable Test: LGB must demonstrate that its exaction is directly proportional to the specifically created need. Otherwise, the exaction becomes a veiled exercise of the eminent domain power and a confiscation of private property behind the defense of police regulations. Exaction may take NO more than necessary to satisfy the additional burden. Moving Ahead: If govt meets the tougher standard Too Little (now dead b/c doesnt meet fed std): Anything to do w/ subdivision/generalized statements. Just Right Reasonable Relationship Std: o Valid Exercise of Police Power: The exaction must have some reasonable relationship or nexus to the use to which the property is being made; versus o Improper Exercise of Eminent Domain: Exaction is merely being used as an excuse for taking property simply b/c at that moment the LO is asking the city for some license or permit. Practical Matter: How do you ensure that developers will complete required improvements on the plats (e.g. construction of roadways, etc.)? Cash escrow, letter of credit from bank, refuse to issue certificate until all are completed

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Ch. 7: GROWTH MGMT & ALTERNATE URBAN DEVELOPMENT FORMS I. GROWTH MGMT STRATEGIES: SLOWING GROWTH A. QUOTA PROGRAMS

HOW THEY WORK Quota programs are the most direct control on growth. Least common method. Method: o Step 1: Each system places a carefully selected # limit or quota on the amount of development which will be approved during a designated time frame. o Step 2: Development proposals are evaluated and ranked: degree to which satisfied criteria. o Step 3: Quota is then allocated by rankings. Alternate Methods: Point systems; lottery; first-come, first-served. Irony of Quotas: o If a town wants to slow down growth, it could just zone all land to where it is developable, but NOT very attractive for development. This requires a zoning change to develop anything o Fancier schemes could be handled through zoning in a way that does not violate constitutional takings standards, but does not make it attractive to development. TAKING & OTHER CONSTITUTIONAL ISSUES: PETALUMA 1. FEDERAL STANDARD Rule: Very tough to challenge a quota program (on any method, 500 permits on point system, e.g.) on fed const. grounds. Petaluma, 772 Standard of Review: SCOTUS will apply substantive DP (as applied to an economic reg), and fall back on deferential review of land use regulations. o RB Std: Rational relation to a legitimate zoning purpose. o States Job to intervene and not the fed cts. Not a super zoning board o Even where brought as a right to travel claim, ct switches to DP analysis. 2. STATE STANDARDS (CAN BE TOUGHER THAN FED) General Rule: Unlimited restrictions/quotas on growth are unconstitutional on state grounds. Zuckerman, 777 o Theyre in derogation of the general welfare. Step 1: Does the state authorize the program/restriction/growth limit? If yes: Step 2: Constitutional limits. o Permanence Might be acceptable if it had a time limit or was temporary, but NEVER acceptable if it is unlimited or permanent This places a chokehold on future growth Mount Laurel Problem: Fair share of growth: Also, this ordinance does not serve the public welfare of the state b/c town cannot take on its fair share of the state population. o A city may allow itself breathing room to plan for channeling of normal growth (thru zoning laws), but it may not put a choke hold on further growth. Deflecting the growth onto neighbors does NOT serve general welfare. Preventing newcomers to avoid burdens on public services/facilities is NOT a valid public purpose. o What LGB may do to preserve its character and natural resources: Participate in state-enacted programs which limit growth by physically limiting the amount of land available for development as a practical matter; Plan & Growth: Slow growth for reasonable time to engage in planning and preparation for growth. o What it may NOT do: 44

Adopt a zoning law for the purposes of limiting the rate of growth for an indefinite or unlimited period. Bottom Line: EXCEPT when (1) used to give communities breathing room for periods reasonably necessary for the purposes of growth planning, OR (2) resource problem solving specifically, as determined case-by-case, SUCH quota/restrictions do NOT serve a const. purpose and are unconstitutional (state). o City permitted development on entire plat, but limited # of houses to 10. This went on for 15 years. Held: unconstitutional. NOT a taking issue. B. FACILITY-RELATED PROGRAMS

1. PHASED GROWTH PROGRAMS

Ramapo, 784

6-year groupings. Well build this far in 6 years, this far in 12 years, this far in 18. Well pay for it all. But if you want to develop it early, go ahead and pay for it, getting your 15 points. Program: It looked to where growth would take place & when it planned on building public facilities to meet this growth. A permit was granted if 15 points were awarded, where points were given for storm sewers, drainage facilities, parks & recreational facilities, schools, roads, & firehouses within 1 mile of the potential development. If the developer did not get 15 points, he could ask for a variance, build the improvements himself, pay for the improvements, get credit for future permits, or get a property tax cut if the area could not be developed. o Keys: NOT permanent restriction; planned growth. Held: Where existing physical & financial resources of the community are inadequate to furnish the essential services and facilities which a substantial increase in population requires, there IS a RB for phased growth plans. o NO constitutional violation: Delay as taking, legitimacy of program, NOR exclusion. o Balanced: Considered as a whole, both in inception and implementation, it was a reasonable attempt to provide for sequential, orderly development in conjunction w/ the needs of the city.

2. ADEQUATE PUBLIC FACILITY (APF) ORDINANCES Common Municipality Feature: You cannot build unless you have adequate facilities nearby. Adequate can be defined by statute, ordinance, courts, varies. o What is adequate response time for ambulances, e.g.? Could be roads, sewers, or full range of public facilities. Look to the subdivision regulations. Maryland-National Capital Park & Planning Commission v. Rosenberg (Mary. 1973): o Rosenberg asked the Planning Commission to approve his subdivision plan. County ordinance stated that before a subdivision plan is approved, the development must be within a within a reasonable distance to adequate public facilities, such as schools, fire protection, police, utility services, & parks & recreation. Planning Commission believed that this development would overcrowd already overcrowded local schools. Different groups submitted local schools numbers to the Planning Commission. One expert testified that the development would produce 134 extra students, but the local school only had 34 available spots. Another expert testified with different numbers. The check sheet submitted to the Planning Commission says there are no additions in the Capital Improvements Program which would increase the capacity of this school or any other elementary schools in the vicinity. Planning Commission decided that the local elementary school did not have enough space to take on the additional students that would result from this development, so it denied the plan. Rosenberg appealed. o Numbers that the Planning Commission relied upon were trivial & inaccurate, so the subdivision plan was approved. 4 other elementary schools were within a 1 mile radius, which is a reasonable distance & is adequate. These schools had sufficient space for these new students 45

School boundaries could be adjusted to take on these additional students The only reason the subdivision plan was denied was because of lack of available schools & this problem could be easily solved. Bottom Line: These ordinances look acceptable on their face, but often get into trouble when tested. o Definition of adequate was questioned in Rosenberg

II.

CONTROLLING GROWTH A. URBAN GROWTH BOUNDARIES: A CONTAINMENT STRATEGY [811]

City of West Linn [816] State plan enforced at the local level. Common on West Coast: OR, WA, VT, CA somewhat. Very bureaucratic system UGB: Urban Growth Boundary. Studies made every 10 years by cities (over 25,000 population). Step 1: If growth is necessary based on study, the city must determine which area to expand. o Relative Priority System (based on topography, current use, location proximity to current development) 1) Urban Reserve (prime for development) 2) Exception 3) Marginal 4) Agricultural/Forest Step 2: Complete the growth plan. Subdivision and all that comes after all this UGB stuff. West Linn determines it must add land to the UGB. P argues City used the wrong formula for calculating whether UGB needed expansion. o Held: Substantial evidence for Citys calculation. Argument 2: City must grow into Type 1 lands before using ours, Type 4. o Relies on the language of the statute. o Turns on the word adequate If strictly numerically, maybe not. BUT adequate also means other things: Comparatively easier. Implements Goal 14, Factors 3-7. Adequate means how it fits in w/ all the other factors. Standard of Review: Substantial Evidence; considered admin decision, NOT legislative. o NO deferential review. o Was there adequate evidence in the record to support the decisions made by LGB? 1 Issue 1: UGB could be expanded A County used a 1.6% growth rate, but the Plaintiffs only used a 1.225% growth rate B Held 1: Countys rate was acceptable because it was based on valid evidence 2 Issue 2: UGB expansion included the appropriate lands A Plaintiffs argue that their land that was included in the UGB expansion was 4 th priority farm & ranch land, & that the city was required to use up the 3 other higher priorities before it used this 4th priority land. i. Argued that the city may only use their farm & ranch land if the higher priority land was inadequate to accommodate the amount of land needed. B Held 1: Adequate means not only quantity, but also suitability i. Plantiffs land was closer to urban services, shopping centers, community colleges, buses, & downtown Portland, so it was more adequate than the higher priority land

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B.

CONTROLLING GROWTH BY LIMITING AVAILABILITY OF PUBLIC SERVICES

Dateline Builders v. City [830] City and county working together to control where growth takes place (NOT necessarily limit growth) o Will extend lines for sewers, roads, etc, as money becomes available. o But will NOT approve developments that leapfrog open lands, thereby extending facilities gradually. DB wants to hook up to city sewers; big enough development he cant build underground. o The trunk line is existing and nearby, but City denies the hookup. DB argues that city is public utility: o Must take all comers unless you have a capacity problem or a deadbeat. o Court disagreed. Distinguished CO & DL cases. Held: It was reasonable denial based on citys comprehensive plan and prevention of leapfrogging.

FINAL:

Multiple Enabling Statutes Go to Main Room 1st. 4 MC questions. 2-3 short questions 1 medium question 1 large question How does it fit together. Where client or mayor comes into my office; what are my alternatives, what would you recommend, and what is the legal basis? Bring anything that doesnt breathe.

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Duties of LGB, PC, & BZA LGB: City Council, City Commn, Bd of Supervisors (elected): Adopt comprehensive plan. May provide for the adoption or amendment of zoning regulations (zoning & rezoning) May initiate zoning amendments or rezoning (comprehensive). o Includes floating zones and conditional zoning. Establish the factors to be to be considered when approving or disapproving a rezoning request. Provide earlier vesting of rights than provided by statute. Approve or disapprove PC recommendations. Approve or disapprove BZA recommendations. Site plan review??? (specific details of the project: location, shrubs, etc.) Eminent domain (taking land for public purpose) PC: Planning Commission or Zoning Commission (appointed by LGB): Adopt and amend subdivision regulations. Apply subdivision regulations to all land w/in the city (and up to 3 miles outside city)/hear the permit requests. Advise on enactment and amendment of original zoning regulations/ordinances. May initiate zoning amendments or rezoning (comprehensive). o E.g. height, intensity, location, nature of use. Hear requests for zoning amendments to specific properties initiated by landowner (spot zoning) ??? May be designated to serve as the BZA. BZA: Bd of Zoning Appeal or Board of Zoning Adjustment (appointed): Grant or deny zoning variances (unnecessary hardship) o Use variance (prohibited in KS) o Area variance (not a different; just relax rqmts) Grant or deny special exceptions o Permitted in ordinance as matter of legislative grace o Not necessarily incompatible, but might cause harm if not watched. Hear appeals on application/enforcement of zoning ordinances. Provides reasonable procedures for hearings and notice requirements. Framework: 1) Can P get in fed ct? Ripeness & abstention barriers. A) If so, what method for which remedy? (Direct suit or 1983). 1) Does reg meet Fed Subst. DP? Should be easy unless egregious. 2) EQ claim? Probably not unless ill will. 3) Taking A) Eminent Domain? B) Categorical Taking? i) Loretto physical? ii) Lucas removal all economic value? C) Balancing Test: Does regulation go too fartake land? Penn Central. D) Does exaction take too much? Nollan and Dolan.

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