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LAND USE CONTROLS FINAL OUTLINE

I.

THE EVOLUTION OF THE ZONING POWER AND PRACTICE
A.

Nuisance
1.

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

o

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

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

o

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

Why Nuisance No Longer Works?
a. b. c.

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

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

d.

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

B.

Background
1.

Why Zoning Came about
a. b.

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

c.

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

d.

New ideal about residential life and family living

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

City Other people

e.

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

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

f.

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

2.

Zoning as extension of regulatory power
a.

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

b.

Zoning is practiced almost every where in the country

3.

Criticisms Against Zoning
a.

Market- economic argument, gov‘t can‘t make the correct choice about the use of land

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

b.

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

Private property has historically been highly protected.

c.

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

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

C.

Typical Land Use Disputes Involve:
1. 2.

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

Doesn‘t have to immediately abut the property Could also be competitors

3.

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

Local government includes:

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

ii.

Local Government‘s 4 Tools to Regulate Developers:
a.

Comprehensive Plan- consists principally of
 

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

b.

Zoning Ordinances- controls
  

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

―If the validity of the legislative classification for zoning purposes be fairly debatable. the ct. architectural styles. Amber Realty (1926) (89) o Issue: Is the ordinance invalid if it violates the constitutional protection to the right of property in the owner by attempted regulations under the guise of the police power. and the leverage to make developers pay for most of the improvements.gives local officials the power to control the location and design of streets.‖ o TEST. Not Ripe. and the alteration of historical buildings. Subdivision Regulation. then the city must simply show some plausible benefits (health/safety) and the statute will be upheld. the legislative judgment must be allowed to control.regulate the materials and designs permitted in new structures. sewers. which are unreasonable and confiscatory? o Holding: No.  Ripe Case.  . Euclidean Zoning Village of Euclid v. finds a ―rational relationship‖ between the excluded uses and the health and safety of the community. d. c. Uses to which the land and buildings may be put  Ordinance defines the boundaries of various zones.Is the provision clearly arbitrary and unreasonable? If it is. Some have control over signs. and other infrastructure. it is invalid. Building and Related Codes. says that if the statute is attacked generally (no Harry Hiker).Ct. and the substance of the controls vary from zone to zone. says that P must show that city is UNREASONABLE. parks.Ct.

Zoning is cumulative (uses build upon uses) Existing Uses.spells out the uses permitted in each zone and details restrictions on lot size. No longer a belief that a single plan can last  6. density is ugly. Zoning Ordinance has Two Parts:  Map. so not subject to future change e. Euclidean Zoning Encompasses: a. Planning can reasonably anticipate the future.more intense uses should be separated from less intense uses Health and Safety Aesthetic and Social Issues  b.   Zoning is comprehensive Zoning is final.classifies the city‘s land into zoning districts Text. Intensity of Use.can‘t change present uses. Zoning has become a piecemeal process  Little faith that the land use will actually match the original map Case-by-case decision making process No attempt to direct the future in as grand of a way as Euclidean Zoning had intended. c.g. families need open space. Industry must be protected from residential users and vice versa Zoning is becoming exclusive and not cumulative  c. so let them stay Zoning is increasingly non-cumulative  Changes from Euclidean Zoning: a. b. 5.  .  d. Modern Zoning Ordinances a.4. E. d.

Local governments may favor non-cumulative zoning b/c it promotes efficiency where industrial and residential users need different types of infrastructure. may precipitate conflicts. THE TOOLS OF ZONING: o VARIANCES Permits a non-conforming use which occurs after the zoning standards have been set to be legalized  Non-conforming uses are permitted to remain under some special conditions (grandfathered) o o BZA has the final word on granting a variance Most zoning ordinances are taken out of the SCZA . c. Caveats/Policy: a. b.  Maps are more narrowly defined and numerous. b. 7. II. d. Creating new zones improves a city‘s bargaining position b/c more ad hoc deal are possible Light industrial uses are more likely than single-family homes to contribute taxes sufficient to pay for the municipal services they consume.building placement. and may expose the industrial uses to nuisance or toxic tort suits. and similar issues. Modern Zoning Maps Characteristics:   Maps confirm existing use patterns Map assigns most undeveloped tracts to ―holding zones‖ (more restrictive zoning than is actually needed to be negotiated down later). building height. Development of other users in industrial districts may limit existing industries ability to expand.

 Area Variance.g. Unique Unnecessary Hardship- . Smith (MO 1986) (321)  Issue: two single family residences sit on 1 ½ acre lots (have been for 30 years) Two Tests: USE VARIANCE & AREA VARIANCE   Definitions:  Use Variance.  E. bulk buildings.UNECESSARY HARDSHIP.  USE VARIANCE TEST. and extent of lot coverage or minimum habitable area therein. but it is better to be over giving than to have a bunch more takings cases. height. o Variances are more than likely to be granted if no one opposes it (or no one voices opposition) You are overwhelmingly likely to win if you challenge a variance in court.must prove all 3: 1.Allows some flexibility (at least in the beginning) Most variance laws have now become laws instead of exceptions  o o Variances allow zoners to overcome possible takings problems More variances are issued than there are actual takings problems.one that permits a use other than one of those prescribed by the zoning ordinance in the particular district. size. No Reasonable Return  Does not maximize return Must show that he/she will be deprived of all beneficial use of the property under any of the permitted uses 2.o Variances were supposed to operate like the equity powers of the courts  Safety Valve. o Matthews v.deviations from restrictions that relate to permitted use.

no single factor controls.the ―type‖ of variance becomes an important issue because the classification determines the test used. and the like) enjoy a more favorable variance test (easier test). Use Will Not Change the Essential Character of the Locality Look to see if there is an increase in density in the neighborhood  AREA VARIANCE TEST. Difficult for courts to enforce substantive standards for grant of variances if the record is incomplete or cursory. d.  Arise in Three Ways: . 3. b. Use variances are much more controversial than area variances because the can quickly undermine Euclidean efforts to separate uses. day care centers. Self-Created Hardship. 4. 7. Unique hardship to property in question (not a hardship shared w/ others or generally) 3. balancing test: 1. 2. c. 5.variance is not available if the hardship is self-created. Notes: a. ―Inherently beneficial‖. Classification.commercial uses (such as for profit retirement homes. 6. e.PRACTICAL DIFFICULTIES. No reasonable return? Is the variance substantial? Essential character of neighborhood is changed? Granting variance will interfere with delivery of government services? Did property owner purchase property with knowledge of zoning restrictions? Can the problem be obviated by some other means? Is the spirit and intent of the zoning ordinance kept? 1.

Definition: local legislative body identifies unusual uses that are apt to special sitting problems (service stations. etc.the ―safety valve‖ has now become a ―steady leak. SPECIAL EXCPETIONS/ CONDITIONAL USE 1. b.) and declares in what zones and under what conditions they are to be permitted. houses of worship. B.  Applicant subdivides a tract Applicant develops property in violation of zoning restrictions Applicant purchase property knowing that it is not economically feasible to develop the property unless a variance is granted  f. BZA has power to grant or deny permits (power from city council)(judicial in nature)  2 Questions:  Did the local government adhere to the criteria in the zoning ordinance? Did the local government delegate powers in ways that are consistent with the zoning enabling act?  Gladden v. General Principles: i. 1995) .C. schools. Steady Leak.‖ the exception has become the rule. District of Columbia Board of Zoning Adjustment (D. c. Created to give flexibility but creates risks which may arise because a particular location Zoning Ordinance of the particular city sets special criteria which when met allows for a permit to be granted. a.

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

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

TWO STANDARDS OF REVIEW ON APPEALS:

Rational Basis- is there a rational basis for the BZA‘s decision?
 

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

Substantial Evidence In the Record

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

Notes:
o

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

o

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

o

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

o

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

C.

ZONING AMENDMENTS/ REZONING

1.

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

2.

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

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

Fears of unfairness, deceit, and abuse of power

c.

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

HEIGHTENED RATIONAL BASIS REVIEW

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

d.

Deal Making: Tension between Planning and Dealing

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

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

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

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

4 Natural Objects of Government‘s affection in dealing:
   

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

e.

Distinction between public interest and public choice politics:

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

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

―Growth Machine‖ model- predicts that governments will support developers‘ requests for rezoning if the proposed development will increase the city‘s net tax revenues.

f.

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

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

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

Arbitrary and Capricious

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

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

Planned legislative zoning receives a deferential standard . Man is granted rezoning.‖    Size of “rezoned” area  Look at size and shape of rezoned area 4. Griswold v. SPOT ZONING TEST a. City of Homer (AK 1996)  Facts & Outcome: Man seeks to return use of land to automobile lot. Definition of Spot Zoning. Is it so implausible that it screams that something else is going on.‖ b. Attempt to separate the legislative from the quasiadjudicative function of the legislative body. for the benefit of the owner of such property and to the detriment of others. a. 3.―the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area. Look at:  Consistency with the Comprehensive Plan  Does the plan provide for the use in the future or is it in pursuit of future goals?  Effects of small-parcel zoning on owner and community  Benefit and detriments to the community? Benefits to land owner? Size of are has been called ―more significant than all other factors in determining the presence of spot zoning.

b. but less likely to find spot zoning when the rezoning has ―slopped over‖ by extending the perimeter of an existing zone to include the rezoned area. then a heightened standard of review.Courts often find spot zoning in situations where the newly implanted zone is entirely surrounded by other zones. OR Area is characterized by mixed uses. ―Slops‖.  6. Quasi-judicial actions by legislative body may be held to a higher standard of review. MD courts adopted rule that a piecemeal zoning map amendment may only be adopted where there has been a substantial change in the character of the neighborhood or where there is a mistake in the prior zoning classification. or areas in transition. Notes: a.  Is the legislative body acting like a court? 5.  Rule does not apply to comprehensive rezonings. ―Spots‖ v.   Ways to increase judicial review: .  If there is a particularized interest. Absence of ―Change or Mistake‖ a. Rule has been specifically rejected in some states.  More likely not to be considered spot zoning if:  New use is compatible with current use.

Seems to hide the zoning decision from the public.o Accord less presumptive legitimacy to local government decisions per se Scrutinize ―spot zoning‖ Separate ―legislative‖ from ―adjudicative‖ or ―quasi judicial‖ functions Require ―change of conditions‖ Require conformity with comprehensive plan CONTRACT ZONING/ INCENTIVE ZONING 1.  c. Contract Zoning/ Conditional Zoning i. the hearing becomes a mere formality.‖ d. Definition: a. K zoning is when the developer makes a K with the city for mutual consideration Conditional Zoning is structured so that government doesn‘t commit itself to anything in response to the landowners‘ self-imposed conditions. o o o o D.  b. Government is bargaining away its powers by entering into contract zoning deals. Criticisms of Contract Zoning:   This is basically a type of spot zoning Uniformity Requirement. Response to Criticism:  Spot zoning has become more acceptable .you cannot single out particular parcels in the zone to meet different requirements  Corruption or Appearance of Favoritism:  K zoning allows the ―zoning power to be prostituted for the special benefit of the developer.

o No certainty that the development would be what P said it would be. P could decide to do something different or sell property and not tell new owner about promises to city. City of Raleigh (NC 1971)  Facts: P seeks rezoning to R-10. on multiple occasions.  Efficiency:  K zoning will increase in efficiency if developer is forced to internalize all of the costs of the rezoning. high-rise apartments.  Invalidation Where K zoning is found to be illegal. P promises to give city plans to the city detailing how the apartments will be built. Guilford County (NC 1988)  Facts: P runs a grain business and chemical business (predates zoning). Allred v. City rezones based on P‘s promised type of building. neighbors and other third parties can have the deal voided and the rezoning rolled back. to build luxury. City should not have granted the permit based on a promise to only develop in a specific way. K zoning must be calculated to achieve a specific goal and must be aimed at the welfare of the general public.  Contract v. Conditional Use Zoning- . o Chrismon v.  Holding: City failed to consider whether all uses allowed in R-10 would be appropriate.  Holding: Ct. adopts conditional use zoning as a viable method of zoning. Man moves part of business to newly acquired property where neighbors complain.

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

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

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

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

Local zoning authority maintains its independent decision-making authority

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

Cluster Zoning

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

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

An opposite idea to Euclidean zoning

Planned Unit Development (PUD)

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

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

Floating Zones

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

2.

Incentive Zoning
i.

Definition:
a.

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

Landowner ―buys‖ their way out of regulation at preset ―prices.‖

b.

Must look at how fairly the public‘s interests are being represented.

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

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

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

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

o

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

Notes:

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

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

III.

“PLAN ZONING”
A.

Background1.

Zoning Plan v. Zoning Ordinance
a.

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

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

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

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

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

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

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

Written findings are not mandatory

2.

Notes:
a.

Consistency Through Vagueness

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

Planning over zoning Legal doctrines that elevate planning over zoning enhance the political power of .  CONSISTENCY DOES NOT MEAN MUCH IF THE VOTERS CAN CHANGE THE PLAN BY INITIATIVE (pass a rule that is inconsistent with the plan that amends the plan). the General Plan is changed to be in harmony with the I. City of Walnut Creek (Cal.  The initiative was a zoning amendment and not a plan amendment  This case doesn‘t deal with whether or not initiative can amend the comprehensive plan. voters by initiative. but not floors In states that have adopted consistency statutes.  City says that the city has made a bad choice in choosing an anti-growth policy.  Opinion: Original Plan and new Plan are inconsistent. but the CA SC later decided that the CP can be changed by I. Plans as ceilings.  Standard of Review. Notes: a. 1990)  Facts: Walnut has a General Plan that states its future goals for the city. In 1985. The plan anticipates increases in traffic.Compelling State Interest (the court wanted to strike down the initiative and consistency was used because it was an available tool). pass a law that place a moratorium on building until traffic issues are perfected. Lesher Communications v.b. a developer may be required to comply with the stricter of the plan and the zoning provision. 3. Soon after the initiative is passed. The Plan in place at the time the initiative was passed is the one that should be looked at.

Criticisms of General Plan:  Consistency statute (CS) interferes with local autonomy CS fails to reduce corruption in the zoning process CS embraces a view of comprehensive social engineering that is unrealistic. Proponents of General Plan:  Formal plans help to ensure that zoning decisions are not arbitrary. Barriers to Plan Amendments:  Lesher-like interpretation of consistency requirements:  Encourages a local government to favor plans that severely restrict development.  Because Lesher implies that a liberal plan provision would trump a stricter zoning provision. which is apt to induce stricter planning.  Lesher. d.   c.  Municipal officials interested in striking deals want the power to readily amend a comprehensive plan to free a particular parcel from strict plan requirements. only draconian planning preserves a municipality‘s bargaining power with developers. thus also is likely to spawn increasing . b.interest groups that have more control over the planning process than the zoning process.

City of Rapid City (S.  Opinion:  Ordinance is unconstitutional because police power may not be abdicated or delegated without minimum standards and guidelines for their application. Stratton (Ill.D. 40% of neighboring landowners filed a written protest and overrule the application. 2. 1997)  Facts: P wants to have property rezoned in order to sell property. Cary v.‖  The ordinance provides no legislative bypass to allow for review of a protest. NEIGHBORS’ CONSENT/ ZONING BY INITIATIVE AND REFERENDUM A. 3.numbers of ad hoc amendments to comprehensive plans.  Neighbors had to defeat the proposed land use with a 2/3 majority. IV.  ―The property holders who desire to have the authority to establish a restriction may do so solely for their own interests or even capriciously. 4.‖  ―A standardless protest statute allows for unequal treatment under the law and is in clear contradiction of the protections of the due process clause of the 14th Amendment. Notes: . Neighbors’ Consent 1. Neighbors likely to be informed More likely to act in their own interest Gives greater legitimacy to decision because law makers don‘t have to guess City of Chicago v. 1896)  Chicago ordinance essentially gave neighboring landowners complete authority to grant permits for potentially controversial land uses proposed by developers.

then empower a neighborhood group to allow the activity. Ballot Box Zoning. 1. Buying the approval of neighbors. Noxiousness State courts have invalidated consent requirements for uses that are not noxious.may be able to buy off neighbors B. Establish/Wave Distinction If gov‘t can prohibit an activity. Ohio SC says that referendum circumvents legislature. If they decide to act for themselves rather than allowing the action to come through their representatives. Holding:   When someone who holds the police power legitimately exercises it. that is okay. there is no need for standards to guide their discretion. b. Zoning by Initiatives and Referenda City of Eastlake v.Substitutive direct democracy can completely bypass the legislative and executive branches of government. Cons of initiative/referenda zoning Inconsistent with the goal of long range comprehensive planning . then enable a neighborhood group to prohibit it? b. but upheld those for uses that are. (SC 1976)  Facts: Ohio city has a referendum for zoning. c. Inc.a. Notes: a. why shouldn‘t the government be able to allow an activity. which is given to the legislature.  The people hold the power. Forest City Enterprises.

Zoning. Idea that in addition to the constitutionally given right of property. I & R don‘t take intensity of voter preferences into account People are ignorant decision makers More like to be captured by special interests Less likely to protect minority interests Attempt broad or systemic reform Zone property more restrictively Undo zoning changes Secure relief from restrictions where a majority of voters perceived benefits from the development that the legislative body apparently did not perceive. the people themselves do not also have that authority. there is an independent right not to have the government behave arbitrarily. Violate the notice and public hearing requirements of the zoning enabling act. b. a.   Rezonings are beyond the scope of initiatives or referenda.Each zoning restriction must be reasonably related to a legitimate government objective. Substantive Due Process1. SUBSTANTIVE DUE PROCESS CHALLENGE TO ZONING DECISIONS A. 4 Forms of I & R Zoning:     V.     c. Due process clause is construed to bar ―confiscatory‖ controls and to make applicable . If zoning enabling act specifies that a municipality‘s legislative body has the power to amend the zoning ordinance.

Nectow argues that there is no economically useable purpose for his 65 feet of land as residential property. Inefficient from a social perspective. Kador-Hicks Testa. c. DOES IT UNFAIRLY BURDEN THE OWNER? DOES IT DISRUPT SETTLED EXPECTATIONS? Other possible claims are that the zoning restriction is: 1. B. IS THIS AN UNPRODUCTIVE (UNREASONABLE/INEFFICIENT/ARBITRARY) MEANS TO AN END? b. 3. and Violative of the landowner‘s civil liberties.‖ 2.‖ Nectow v. . Substantive Due Process Challenge: Judicial Review of the ―Reasonableness‖ of Legislative Line-Drawing Through COST/BENEFIT Analysis: 1. C. Substantive Due Process Really Says: a. Unfairly burdensome or disruptive of settled expectations. 2. ―considers a policy efficient if those who gain from the policy value their gains in an amount greater than the amount the losers from the policy value their losses. 2. ―A zoning restriction is inefficient when the burdens on the restricted landowner are greater than the benefits of the restriction to the landowner‘s neighbors and other interested parties. Inefficient Zoning Restrictiona.to state and local governments the Fifth Amendment‘s edict against taking of property without just compensation. City of Cambridge (1928)  Facts: Nectow‘s land falls on the border of a residential zone and an unrestricted zone.

v. If there is a lot of public benefit.  Opinion: . you have to have a lot of burden in order to fail the cost-benefit analysis and likewise with low benefit means lower burden to fail the analysis. there would not be adequate return on the amount of any investment for the developer of the property. P claims that the city has violated his due process rights because they acted arbitrarily.―the health . Village of Hoffman Estates (7th Cir. d. D.Coniston (Too Cold) => Twigg (Too Hot) => Cormier (Just Right) Coniston Corp.‖  ―no practical use can be made of the land in question for residential purposes. because amount other reasons herein related. 1988) (POSNER)  Facts: Owners are granted permits on several occasions. but this particular permit is rejected. Goldilocks Measure. Sliding Scale If cost/benefit for due process is a soft category that can change depending on the piece of land. convenience and general welfare of the inhabitants of the part of the city affected will not be promoted by the disposition made by the ordinance of the locus in question. Nectow makes DUE PROCESS a COST/BENEFIT ANALYSIS Benefit v. Burden  c. The reasoning of at least one member of the board is that there is too much unused office space already and another office building does not need to be built. then it stands to reason that the cost/benefit analysis may change depending on the person. safety.‖ b. Holding.

‖  ―legislatures can base their actions on considerations that would be thought improper in judicial decision making. .   EASTLAKESETTLED EXPECTATIONS.‖ a.‖  ―there was a hearing here – maybe not enough of one to satisfy the requirements of due process in an adjudicative setting but enough to give the plaintiffs all the process that due process in zoning could possibly be thought to require after Eastlake.Consiston seems to say that there is no violation of due process simply because a person‘s settled expectations are not met.  Property Interest Circuit courts have been reluctant to accept due process arguments without another claim of violation of property interests (due process violation of property interest cannot stand alone). Takings A P may wish to style their complaint as a substantive due process claim that the government‘s action was A & C because a takings claim has a stringent ripeness requirement. ―the Board‘s decision to approve or disapprove a site plan is a legislative rather than an adjudicative function. Notes:  A & C v.  POSNER WANTS TO KEEP ZONING DISPUTES OUT OF STATE COURT  ―This case presents a garden-variety zoning dispute dressed up in the trappings of constitutional law.

2. Relative gain to the public as compared to the hardship imposed upon the individual property owner (NECTOW TEST). safety. Twigg wants to put 4 residences. 1994)  Facts: Zoning board wants to separate agricultural and residential uses (smells. chemicals. Twigg asks for rezoning of the 25 acres into two 10-acre parcels and two 2 ½ acre parcels. Twigg has the idea to move himself and his family onto a 32-acre parcel (with several homes on the plot). etc. and Community need for the proposed use. is rethinking their comprehensive plan and want to down zone . Cormier v. 6. County of San Luis Obispo (Ct. 7. Care that the community has taken to plan its land use development. 5. 3. App.  If there are non-conforming uses nearby that were grand fathered in and there if farming in the area. at the same time. Extent to which property values are dimished by the particular zoning restrictions.). Ct. 1984)  Facts: Cormier owns a piece of land that is on a county road. leaving a 25-acre parcel. Existing uses and zoning of nearby property. Twigg sells off a piece of the property.  Opinion: Court looks at 8 factors in determining the validity of a zoning ordinance: 1.Twigg v.  THIS IS A VERY HIGH STANDARD OF RATIONAL BASIS  The problem with judicial review is that the local decision maker has a great deal of discretion. County of Will (Ill. 4. Length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. The county board. 8. morals or welfare of the public. App. Extent to which the destruction of property values of plaintiff promote the health. He wants to build a motel and restaurant. Suitability of the subject property for the zoned purposes.

the property where Cormier wants to build. 1991) (overturned below)  Facts: Consistency requirement (proposed use must be in line with general plan). but ultimately loses. Notes: a. App. Board of County Commissioners (Fla. public in general about the use Board took into account the reasons stated by the public and planners in making their decision.  Court looks at the reasons presented by the board as to why a business district should not be built. etc. The court found the validity of the Board‘s enactment was fairly debatable. Board took comments from planners. STANDARD OF REVIEW OF REASONABLENESS Snyder v.  Opinion: Court defines ―reasonable‖ as the board actually looking at the pros and cons to the proposed use. 2. Planning and zoning board denied the rezoning request without giving any reason. Discrimination is a part of ―arbitrary‖ in the ―arbitrary and capricious‖ standard.   2. Dist. Court of Appeals says that the landowner has the default right because he met the standards set out in the comprehensive plan and if city wants to stop him it is on them to show a reason. Ct. . and thus constitutional. in determining the ruling. Presumptions Both state and federal judicial opinions frequently assert that comprehensive zoning ordinances carry a presumption of constitutionality VI. Cormier starts lobbying the council. input from outside sources. some thought about the use.

Upholds Snyder I in that the nature of the Boards proceeding was quasi-judicial and the Board‘s denial was subject to heightened review. etc. Holding: Snyder court fears that zoning power is left up to politicization. morals. In Euclid. sufficient for judicial review.Review of governmental action denying or abridging a property owner‘s right to own and use property is subject to close judicial scrutiny. a landowner is presumptively entitled to use his property in the manner he seeks. safety. zoning is not grounded on the police power (public safety. as a matter of law. and 3) That the requesting land owner is entitled to the zoning classification and its denial without given reasons supported by the facts was. 1993)  Holding:  AGREED. o Effective judicial review requires the reviewing legislative body to make findings of fact and a record of its proceedings. and public morals. o Snyder shifts the burden to the zoning board to show that:    1) Zoning was consistent with the general plan. arbitrary and unreasonable and judicially reviewable and reversible. 2) Protects health.) but on nuisance. Board of County Commissioners v.  Property Rightso Unless an opposing governmental agency can show/prove otherwise (by clear and convincing evidence).  Close Judicial Scrutiny.  OVERRULED/DISAGREED Court says that it cannot uphold the notion that once the landowner demonstrates that the proposed use is consistent with the comprehensive plan. . Snyder (Fla. that he is presumptively entitled to his use and the burden shifts to the government.

 Permits localities to obtain concessions that may be beyond local legal powers to demand directly. c.in order to sustain the Board‘s action. Troublesome Suspicion Snyder Court is concerned that local governments will grant rezonings on the basis of ―political considerations‖ with disregard to legislative decisions. Notes: a. Limited Impact Zoning .  COMPETANT SUBSTANTIAL EVIDENCE.  Gives discretion to municipality in overcoming imperfections in the process that is used to achieve development that is compatible with its immediate surroundings. Landowner seeking rezoning has the burden to show that his proposal is consistent with the comprehensive plan and complies with all procedural requirements of the zoning ordinance – only thereafter does the burden shift to the government. Comprehensive Zoning v. That is why legislative decisions should be given great deference.  SMALL REZONINGS ARE ESSENTIALLY QUASIJUDICIAL DECISIONS 1. it must be shown that there was competent substantial evidence presented to the board to support its ruling. WAIT AND SEE ZONING Allows city to relate their regulatory process more closely to the process of development. b.

Sullivan (Haw. 5 years later the temple makes a second request. PROCEDURAL DUE PROCESS CHALLENGE TO ZONING DECISION A. VII. Interests Protected by Due Process: 1. Temple wants a contested case hearing (a hearing with cross examination).protects peoples dignity by requiring that the government explain its actions to those directly affected.  Reasoning is that limited impact zoning is presumed to impact a small group of people and may be done with bias. Balancing Test to Determine Requirements of Due Process: 1. 407) Korean Buddhist Dae Won Sa Temple of Hawaii v. Dignity Interest. are weighed against the fiscal and administrative burdens that the additional procedures would impose upon the government. The temple asks for a variance and is denied.‖ (p. 3. FL SC says that comprehensive rezonings are subject to traditional deference and limited impact zoning is subject to greater scrutiny. and the value of additional procedures in guarding against erroneous deprivations of that interest. B. Temple says that they built the temple higher for religious reasons. The hall is built too high (more than 66 feet) and is required to stop building. ―the private interest affected by the government interest. the department says no. 2. Representational Interest. 1998)  Facts: Temple requests a permit to build on to the hall. A public hearing is .allows for people affected by the decision to voice their opinions/ make arguments about how the rules should be applied to them. Efficiency Interest.ensures that governmental decisions affecting individuals are made fairly and efficiently.

specifically here. expert testimony). Because there is substantial evidence in the record. o  Notes: o Cross Examination. the court will uphold the decision.it is debatable whether cross examination will decrease errors but it certainly does give the perception of fairness. but the temple is allowed to give counter evidence.g.held and people testify without cross. o Notice and Opportunity to be Heard Many zoning enabling acts require that neighbors within a specified number of feet of the subject property receive notice by personal service or certified mail.This holding may lead neighbors and petitioners to hire lawyers to make arguments before the zoning board and cross examine witnesses (pay to play). it was harmless error because they were able to bring in any evidence they wanted to and had the chance to rebut the evidence. . G o Three factors: (Matthews Case)    Reasonable use of land without variance? Unique circumstances demonstrated? Alter essential character of the neighborhood?  Opinion: o Cross-examination is a good way to test the kind of evidence that will be brought into a zoning case (e. The court says that although there should have been crossexamination. crossexamination.  The initial public hearing needs to have the apparatus of judicial process.  Does the public have the right to cross any of the temple people and vice versa? o Court says that the question of ―religious hardship‖ was immaterial to the issues. THIS CASE SETS OUT WHAT A FAIR PROCEEDING IS. o Attorneys Role.

Appearance of impropriety is not sufficient. a. 1000 Friends of Oregon v.  o Disqualification relies on three standards:    Notes:  Quasi-judicial Decisions by Legislative Bodies Where there are no conflict-ofinterest statutes or ordinances. o Absent actual bias or personal interest related directly to the decision in question. They are more likely to have conflicts of interest more often. Wasco County Court (Or. They are members of the community and mix functions. Technical mistakes in the notice. o Sunshine Laws Laws that require certain public agencies to carry out all phases of their deliberations on certain types of decisions in meetings that are open to the public. courts . 1987)  Facts: One of the people who had voted yes to the proposal to get a charter for a new city has sold cattle to proponents of the city. the findings will not be invalidated. They are elected.  The incorporation of the city must be to the benefit or detriment to parties involved. The more the officer or agency purports to act as a court The closer the issues and interests at stake resemble those in traditional adjudications The disqualifying element moves from appearances through possible temptation and generic self-interest to actual personal interest in the outcome of the decision. Opinion: Has the impartiality been impacted? Does violation of impartiality void the decision? What kind of impartiality do the board members have to have? o  The board is more quasi than judicial. or insufficiently specific notices may violate due process guarantees.

  4.  When do you measure the FMV? At time of taking. Just Compensationa.  When a biased decision-maker casts the dispositive vote. 2. 3. Does not compensate people for subjective value they may place on property. has been interpreted to mean FMV. if the taking is not done for a public purpose. FMV does not mean replacement value.  Actual Bias Some states have statutes that call for the disqualification of persons who have a personal or financial interest in the proceeding.‖ . VIII. it is unconstitutional. at time of decision. Even if the government is willing to pay compensation. Public Purposea.traditionally have declined to invalidate decisions of legislative bodies because some participating legislators were tainted by bias or self-interest. Taking Where government destroys property but does not dispossess the owner in anyway. Historical Takinga. courts generally invalidate the decision. SOURCES OF TAKINGS CHALLENGE 1. in constitutional times there was not notion of ―takings. Government must take property for a public purpose. but so significantly affect the interest that it is as if the government had taken the property. etc.

..Kansas declares that they will be alcohol free and makes the manufacture and sale of alcohol a per se nuisance. Mugler v.people are protected against a physical taking by either federal or state government. 5th Amendment. . or spillover effects. the government seeks an advantage or to give an advantage then they have to pay compensation. If however. by reason of their not being permitted. and cannot be burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain. Allows government not to pay compensation.  Opinion: The meaning of nuisance changes over time so that legislators can come to new conclusions about what is harmful. Kansas (SC 1887)  Facts. Mugler challenges the law as a taking without just compensation. by a noxious use of their property. o Not a taking because there is not a physical taking (no hading over of title) (this is overturned in Penn Coal). o Right to prohibit a nuisance is not a taking and therefore requires no compensation. it should not be required to compensate. you don‘t have to pay just compensation. is not. to inflict injury upon the community.‖ o o Harm/Benefit Distinction If government action is for the purpose of preventing harm – no compensation is necessary.  When government acts to control negative externalities. even if you physically take the thing (Nuisance Exception). Kansas argues that if it is a nuisance. NUISANCE EXCPETION TO TAKING GUARANTEE o Applies to noxious uses and other nuisances. or the safety of the public. the morals. ―The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health.

as having several rights. o Reciprocity of advantage mitigates diminution in value.  Reciprocity of advantages Requires that an action both takes away and gives benefit. while taking about public and private benefits. Surface rights and ground rights. The court then in effect says. safety. Property is treated in Penn. The court says that the way they test diminution is commercial impracticability (not impossibility). The issue in Penn Coal is that the mining companies are having their ground rights taken away by the Kohler Act. which requires mining companies to leave enough coal so that the surface is supported and will not sink.becomes the majority in later cases.the court says that even if what they were talking about was the subsidence of public roads then it would still not be a public benefit. A restriction that is imposed to protect the public health.  Purpose of property is an expression of wealth and not necessarily that of personality.‖ and requires economic compensation.  Opinion: Diminution in economic value is the definition of ―too far.  BRANDEIS DISSENT. The single landowners are still the ones affected.Penn Coal v. This ay come from a private interest being taken away to benefit the public. Mahon (SC 1922)  Facts: involves the Kohler Act.  Big diminution is value with no reciprocity of advantage means that the government must pay the coal companies. o In this case there is no reciprocity of advantage because only a single landowner is burdened and there is no public benefit there from. that some economic activities both take away and give benefit (over turns Mugler). o DICTA. or .

too great a burden on the individual despite a public benefit.  Less Rigid Test Holmes‘ test of whether a regulation has gone ―too far‖ seems less rigid than other tests for permanent physical occupation and measures prohibiting nuisance. City of New York (SC 1978) .  This was a per se rule.  Keystone. Police power is meant to protect the people. but does not over rule the basic scheme of taking as presented in Penn Coal. Notes:  Test This rule basically says that when a regulation of a use of property that is not a nuisance imposes too great a burden on property owners. Makes the most full explanation of the takings exception.a land use regulation that deprives an owner of all economically valuable use of property by principle so property and nuisance law results in a taking. v.  Question of Degree What is interesting about this test is that it allows questions of degree rather than questions of the type of taking involved. IX. o  When you are preventing public harms.  Armstrong. and thus requires compensation. 1. Lucas. it cannot be enforced without compensation. you are solidly within the nuisance realm and do not have to pay compensation (no taking).morals is not a taking.seen to over rule Penn Coal. no matter what they warning of danger or contract may have existed. BALANCING TEST IN THE TAKINGS CHALLENGE Penn Central Transportation Co.

This circulatory reasoning is what makes the concept a somewhat shaky one. Economic Impact- . Notes: a. but was blocked by a Landmarks Preservation Law. o Reciprocity of Advantage   Balancing Test: 1.give a reciprocity of advantage Historical protection. marginal forms of ownership. Core v. 2. A law which does not interfere with an owner‘s primary expectation concerning the use of the property. Economic impact (Penn Coal) Extent to which development affects the owners‘ ability to get a return on their investment (Penn Central).has to do with the meaning of property and associated rights. a. The reasonableness of the return on the owner‘s investment must be based on the value of the property. specifically. Problematic Concepti. the value of the property is inescapably dependant on the amount of return that is permitted or available. The concept of ―reasonable return on investment‖ is problematic. and allows the owners to receive a reasonable return on their investment. 3. Character of governmental action (Penn Central)(this prong has undergone some change and might not still be part of the Penn Central Test (See Loretto)). Facts: Penn Central made plans to construct an office building over Grand Central Terminal. b. However.  Opinion: Court takes up and rejects conceptual severance. just as everyone else is.the P is benefited as a member of the general public. o Is the right of ―loss of economic viability‖ different that ―reasonable return‖  We don‘t know? TDRs. does not effect a taking which demands just compensation. they say that there is no taking of air rights. 1.

Inc.where the borders of your property are? Functional. v. c. d. o Penn Central. In light of Loretto. Refused to set out a specific length of time after which a moratoria would become a taking.i.what are your rights to use the property?  Facts: Some 400 lands owners buy land and are later held subject to a compact. Should the court look at the absolute dollar value lost or the percentage of value lost (Keystone would seem to lean toward the percentage of loss). Court holds that the only type of case that can be brought is a Penn Central type of case. Moratoria. First English. Tahoe rejects temporal severance.Anything less than a total loss of value requires a Penn Central Analysis. Tahoe Regional Planning Agency (SC 2002)  Property can be conceived as having 3 boundaries: o o o Temporal. Character of Governmental Actioni. ii. Weighting the scales to account for the historically special character of physical occupations or intrusions onto land. Allows unused building potential to be transferred to some tract for which a developer wanted to build beyond the allowed density. Opinion: Court goes through and applies Lucas. Tahoe-Sierra Preservation Council. TDR (Transferable Development Rights)i.how long you property rights exist? Physical. PER SE RULES IN THE TAKINGS CHALLENGE Comments- . X. the character of the governmental action prong is often ignored.moratoria are recognized as essential tools to regulate development o  Conceptual Severanceo o Penn Central rejects physical severance. and  Penn Central.

Heightened scrutiny is deserved when the rights have to do with property (takings) Loretto v. If you take away the right to exclude. o Shoehorning Plaintiffs should try to manipulate their factual allegations to shoehorn insubstantial claims into the per se rule‘s set formula.  Notes: o Nuisance Exception Loretto may not apply where the permanent physical occupation is necessary to contain or address a nuisance. (SC 1982)  Facts: A new building owner sued a cable company over the cable it was allowed to install on the building by a state statute (NYC). o o A permanent occupation is arguably the most serious invasion of an owner‘s property rights.  Opinion: o The right to exclude is the most fundamental property right.1.. from hurricanes.S.  o Bright line rule is better because we don‘t waste judicial resources implementing balancing tests all the time. A permanent physical occupation of an owner’s property authorized by the government constitutes a taking of property which requires just compensation. The wires run across the face of the building. The . Per se rules are the extreme cases 2. the islands help to stop erosion from the contiguous U. regardless of the public interests it may serve. South Carolina Coastal Council (1992)  Lucas claimed that a South Carolina statute which barred him from building on his barrier island property resulted in a taking without just compensation. you have a taking.C. Teleprompter Manhattan CATV Corp. Lucas v. Erosion is a major concern in S. The size of occupation has no relevance as to whether a taking has occurred.

 Lucas says that you cannot use your property to harm others and thus abatement of a nuisance is not a taking. if a regulation destroys all economically beneficial. it is a taking. p. as well as normal delays in issuing permits.majority says that you can use nuisance to justify a regulation and argue that it creates enough public benefit to withstand the takings .barrier islands are constantly being destroyed and rebuilt. o More succinctly. and thus requires compensation.What is the package under which the landowners‘ expectations are based on. (DICTA)   Narrow Meaning of Nuisance. 200 text book). 2 Exceptions to Lucas: o  1) When the destruction occurs in pursuit of nuisance abatement as defined in state law.  Opinion: A land-use regulation that deprives an owner of all economically valuable use of property by prohibiting uses that are permitted under background principles of property and nuisance law results in a taking. If part of their property is taken or severed from the whole this impacts the property owner‘s interest (see footnote 7. and 2) When the rights destroyed never existed as part of the definition of property in “background principles of state law. mere fluctuations of value are incidents of ownership and do not necessarily result in a categorical taking.” o  Notes: o Categorical Taking First English.  Tahoe. Conceptual Severance. o Doctrinal initiatives of court (projects):  Nuisance exception. The regulation is meant to prevent serious public harm. the court had exempted from categorical takings those restrictions mandated for safety reasons.Repudiate the notion that there is any per se exception for abating a nuisance.

Palm Beach Isles Associates v. you will be allowed to do so unimpeded.  Legislatures are illegitimate sources of the definition of harm.  Opinion: should look at the entire parcel. but later builders face stricter requirements.definition unless the land owner (takee) could have sued and won under the state law.are single sticks in the bundle the denominator or is the whole bundle the denominator? b. namely that the meaning of what nuisance means over time changes. Cannot codify what ―harm‖ is because they can‘t account for every possible future harm. Denominator Problemi. 311 acres in its entirety and not just at the part remaining in determining the amount taken. The remaining parcel is wetland and a lake. Notes: a. the regulation may be seen as an inherent limitation on the title and therefore would not require compensation (paid FMV). sells all but 50 acres of it. ii. o Early Bird Gets To Build Lucas implies that if you are one of the first to build. United States (Ct. 2. Landowner says that by not allowing them to develop the land there has been a taking. o Limitation Inherent in Title When a property owner acquires property after a particular regulation has gone into effect.  Implications:  Seems to cut back on the Mugler principal. Claims 1998)  Facts: Landowner buys 311 acres. Scrutiny for Takings- . Do you look at the property as an entire original unit or do you look only at what is remaining? Severance.

NONCONFORMING USES/ VESTED RIGHTS A. Also. c.Y. . o Amortization Period A length of time is given to landowners to get back part of the value of their investment. Under Nollan. Nonconforming Uses: Village of Valatie v. Agins Casei.   Notes: o Minority View Fear that amortization of nonconforming uses will deter investment by putting any landowner‘s reasonable expectations at risk and will result in deterioration as owners refuse to maintain their properties. Amortization periods are used to phase out nonconforming uses while allowing landowners to get a return on their investment. 1994)  Facts: Challenge to local law that terminates the nonconforming use of a mobile home upon transfer of ownership of land or mobile home. Application of general zoning law to particular property effects a taking if the ordinance does not substantially advance a legitimate state interest (Nectow) or denies an owner economically viable use of his land (Penn Central). the court held that the ordinance does not regulate ownership because it treats all owners and perspective buyers equally. Smith (N.i. P claims that the length of the amortization period must be related either to land use objectives or to the financial recoupment needs of the owner and that the local law violates the principle that zoning is to regulate land use rather than ownership  Opinion: The court held that amortization has never been based on land use objective and financial recoupment is implied by the fact that the ordinance allows the nonconforming use to exist until the time of sale. the taking must ―substantially advance‖ the ―legitimate state interest‖ or the state cannot take. XI.

Complies with existing zoning ordinances and building codes.‖ o ―Due process considerations require that developers be able to take recognized action under fixed rules governing the development of their land.‖ o Rights Vest if developer files a building permit application that: a. b. o Advantage of Nonconforming Uses E. a nonconforming grocery store in a residential neighborhood. Vested Right: Valley View Industrial Park v.  Opinion: VV has a vested right to build 5 buildings and the zone is to remain light industrial with the option of building other buildings subject to compliance with the city ordinance.o Reasonableness of Amortization Period Many courts hold that the reasonableness of an amortization period depends upon whether the public benefits from termination of a use outweigh the landowner‘s cost of losing that use. subsequent users must conform to the zoning regulations. o Abandonment Ordinances often require that if a nonconforming use is abandoned. 1987)  Facts: Plaintiff wants to build an industrial park and gets permits. B. Then the city decides to change the zoning from light industrial to farming. etc. Is sufficiently complete.g. submits necessary documentation. will thrive because the zoning prevents competitors from opening up nearby. and . City of Redmond (Wash. o ―[C]itizens must be protected from the fluctuations of legislative policy so that they can plan their conduct with reasonable certainty as to the legal consequences. instead of withering away as desired.

religious uses of land are held to be ―inherently beneficial. Freedom of Religion 1.―The right of free exercise does not relieve an individual of the obligation to comply with valid and neutral law of general applicability on the ground that the law prescribes conduct that his religion prescribes. What is obscene is determined differently in each location 3. Religious entities have traditionally been given wide land use rights Traditionally. FIRST AMENDMENT CHALLENGES TO ZONING C. Cases are a series of pendulum swings back and forth from granting greater land use rights to religious groups to a decrease in the land use rights of religious groups. safety. Sexual explicit speech.  Notes: o Vested Rights Most courts will recognize vested rights only if the owner has made substantial expenditures in good faith reliance upon the issuance of a building permit or other approval. except in specified situations. First Amendment. particularly in the form of adult entertainment. o Development Agreements Essentially a contract between the developer and the government that allows the developer a ―freeze period‖ during which subsequently enacted laws or regulations will not be applied to the project. c.‖ and further the goals of public health.‖ .c. and welfare. is at the opposite extreme from religious entities. 2. Is filed during the effective period of the zoning ordinances under which the developer seeks to develop. b. a.free exercise and establishment a. Smith Case.

and 2) is the lease restrictive means of furthering that compelling governmental interest. and RFRA. (City of Boerne v. DRM asks for a special exception and is turned down. unless the government demonstrates that 1) it is in furtherance of a compelling governmental interests. Flores (1997)). Fla. Court avoids this argument all together. Secular purpose is about homeless shelters and food banks and not about churches.  DRM retorts that the basis of their church is the homeless shelter and food bank. b. v. City of Daytona Beach (M. DRM brings claims under establishment clause. general applicability. as to the rules and then you just have to pass rational basis review. Religious Freedom Restoration Act (RFRA) a. free exercise clause. Majority distinguished between laws that coerce belief and those that govern physical conduct. 1995)  Facts: DRM wants to open up a rescue church in Daytona Beach.Grosz three-part test: 5. Regulation of conduct not belief Law must have secular purpose and secular effect a.  Opinion: o Free Exercise.D. neutral. 6. Inc. generally applicable => rational basis review Daytona Rescue Mission. the SC overturned RFRA and returned the law to that of SMITH  The court said that what is wrong with RFRA was that Congress has exceeded their section 5 powers of the 14th Amendment.a.  . Valid.‖ b. In 1997. RULE: Neutral. 4. ―Government burden must result from a rule of general applicability.

no ―excessive entanglement‖. no distribution of benefits by religious identify. o Establishment Clause No governmental indoctrination. o RFRA Substantial burden. If first two met. then court balances the competing governmental and religious interests. and that the bald favoritism to religion shown by the traditional decisions undermines rather than fulfills the constitutional ideal of religious liberty.  Courts says that DRM is simply relabeling their free exercise argument.   Under RFRA difficult to justify the fact that all religious activity overcomes a compelling state interest. Compelling state interest.  Under RFRA city may give specific compelling state interests on a case-by-case basis. problems then arise in defining what constitutes a religious use or practice. Court wants to stay away from defining what a ―church‖ is.7.‖ o Definition of ―Religion‖ If religious groups should receive some level of protection against burdensome zoning ordinances. B. Freedom of Speech .   Notes: o Protection v. Privilege ―Most challenges to zoning ordinances by religious institutions are at the bottom about money and convenience not about religious belief.no substantial burden because DRM can go somewhere else in the city and have their church.city had safety and security concerns.

Ordinance discriminates against certain types of free speech. o Reasonable alternatives   Dissent.  Opinion: Renton has not used the power to zone as a pretext for suppressing expression.000 feet of any residential zone. Playtime Theatres. (SC 1986)  Facts: Adult movie business wants to use theaters to show adult films. place. City ordinance prohibits location of adult theaters within 1. safety. o Ordinance imposes special restrictions on certain kinds of speech. and manner regulations are acceptable so long as they are designed to serve a substantial government interest and don not unreasonably limit alternative avenues of communication. favoring content of one type of free speech over another. problems of economic suitability may be couched in terms of physical unsuitability. therefore not content neutral. Nearly all forms of physical and legal unsuitability may be couched in terms of economic unsuitability. but rather has sought to make some areas available for adult theaters and their patrons.? Distinction between economically unsuitable and practicably unsuitable. o Substantial governmental interest Is it done for the public.(Blackmun) o Ordinance selectively imposes limitations on the location of a movie theater based exclusively on the content of the films shown there.  Content neutral time. This is a free speech claim. etc. o .City of Renton v. but at the secondary effects. health. o Content Neutral The ordinance cannot be selective based on content. while at the same time preserving the quality of life in the community at large by preventing those theaters from locating in other areas. Inc.  Renton court gets around this by saying that the ordinance is not aimed at the content of adult films. Conversely.

 Notes: o Pornographic Speech Renton hints that ―sexually explicit materials‖ may be entitled to less First Amendment protection than other speakers. o Other Fundamental Rights Right to Privacy (abortion)  Some cities zone out abortion clinics. A. A landowner/developer who wishes to bring a takings challenge to any federal regulation limiting the use of land generally must proceed under the Tucker Act. ―Regulation having a substantial burden on the abortion decision must be justified by a compelling state interest.. you could disperse them by not allowing them to be within a certain distance of each other as well as barring them from family neighborhoods. West Side Women’s Servs.  Tucker Law. Tucker Acta. XII. RIPENESS. o Alternative Approach Alternative to the Renton approach of not allowing porno shops to be by residential neighborhoods. and will be deemed invalid if the proffered justifications are not substantial enough to justify the burden imposed. Inc. Jurisdiction1. City of Cleveland (Ohio 1983). v. ETC. PROCEDURAL ASPECTS: JURISDICTION.o Ordinance is invalid because it does not provide for reasonable alternative avenues of communication.Court of claims sits in DC and hears all cases brought against the US (for takings only) .

Ripeness1.  State court decisions. the developer may sue in federal court under the federal civil right statute. Civil Rights Statutea. 3. b. b.  Both state and federal takings are beginning to be excluded from federal court on the basis of ripeness. a. Has to do with the ability to make the decision. If a developer/landowner believes that state or local land use regulations violate the federal constitution or federal laws. you bring the case to normal federal court or state court. For cases other than takings. The court cannot waive the jurisdictional requirment.  Variances. Has grown over time into a jurisdictional requirement.  B. Federal court cannot make a decision until there is an actual concrete injury and the dimensions of the claim will not change in the future. 2.  You must pursue an action all the way through the state system. juris.  AVAILABLE STATE REMEDIES (comes out of Williamson case).case may not be completely ready for judgment. a. Specific character of the takings claim determines when the available state remedies prong has been met. Ripeness looks at the same kind of requirements as exhaustion. etc. Civil rights claims may also be brought in state court are court of gen. Requires a final decision or determination. . 2.

Oregon). You have to pursue and complete any administrative remedies before you bring a complaint of constitutional issues. a. but takes the case to federal court. and that the local government denied that application 5.Hamilton argues that they have a right to build because they determined on their original plat that a certain percentage of density. Must try to get:   Variance from BZA Don‘t have to necessarily try to get a legislative remedy unless re zoning is adjudicative (e. the landowner must show that it submitted at least one meaningful application for development. o Final Determination Requirement. Look to available state remedies first.means you have to go all the way through the administrative stuff and the state stuff. . Ripeness. only after that doesn’t work is the case ripe (specifically for takings questions only). o Final Determination Requirement4. Hamilton Beach (1985)  Facts: Board turns down right to build for 8 reasons.Williamson County Regional Planning Commission v. Hamilton Beach does not ask for a variance.No final determination and therefore case is dismissed.g. o Vested rights claim.  Vested rights is based on reliance and actions of other party that allows you to dig yourself into a hole.the person requesting the rezoning or variance must submit a meaningful application in order to be heard. In order to meet the final determination requirement.  Opinion: o Meaningful application.

The county says that the Dodds must bring the federal §1983 actions through the state court system first under Williamson. met the exhaustion requirements.No mechanism for a variance. Dodds claim is not claim precluded because the state court did not protest the simultaneously running of state and federal cases. Zoning process shows so much hostility that it would never take care of the constitutional violation (rarely win on this one).says that there is no way to look at the law that it doesn‘t violate the constitution.  Opinion: Rejects the notion that Williamson County means that in takings cases the federal forum can be used only to compensate for inadequacies of state taking procedures. Futility Exceptiona.  Mere enactment of the challenged regulation deprives the landowner of all economically viable use of the property.  As applied.the application of the rule in this specific case violates the constitution. hardship exclusion.  State Remedies RequirementDodd v. Requirement of an ―as applied challenge‖ not a ―facial challenges‖  Facial challenge. waiver. If you cannot do something to ameliorate the constitutional violation  No Escape Valve. Hood River County (9th Cir 1995)  Facts: Dodds did everything that they possibly could. 6. . etc.

2. o Dissent: court cannot treat physical and regulatory takings the same in all situations. Injunctive Reliefa. County of Los Angles (SC 1987) o Facts: First English has a camp up in the Angles canyon.  Case confines itself to retrospective temporary taking. which is destroyed by a flood. Los Angles County creates an ordinance by which no building is allowed in the canyon. First English Evangelical Lutheran Church of Glendale v. no compensation should be required. if there was a taking of private property. the court would provide injunctive relief in place of ―just compensation‖. the court would remedy the violation by proclaiming to restriction to be void or invalid. Notes: o Attraction of Federal Forum   Local Bias Issue may be unpopular locally Federal judges have greater understanding of the law XIII. .  Because this regulation was a valid safety measure. This is a temporary regulatory taking. Void/Invalidatea. Until 1987 (pre First English). Compensation Question 1. Pre 1987. o Opinion: An owner whose property has been subjected to a regulatory taking is entitled to compensation for the period during which the regulation denied the owner all use of the land. and not just mere declatory or injunctive relief invalidation the regulation. REMEDIES A. if a court determined that a zoning restriction deprived a landowner of federal constitutional rights.

5.‖ because the time is necessitated by the unconstitutionality of the ordinance. First English may have some deterrent impact on government officials. because of fear of liability might make decisionmakers err too much on the side of caution. . First English is now confined to the question of remedy. Public Policy. 8. Duration of restriction should be considered when determining whether a regulatory taking has occurred. The time a landowner spends applying for permits and litigating the facial validity of the ordinance is not a ―normal delay. Temporary takings in the sense that the Tahoe court talks about. a. out of fear of litigation.   You have to look at the property as a whole and cannot conceptually severe the different interests. 7. Justice Stevens writes the dissent in First English and the majority in Tahoe. Chilling Effecta.decision may lead local officials and landuse planners to refrain from enacting many forms of important health and safety regulations. Tahoe majority said that the First English did not address the question of the substance of the taking claim.Limits the holding of First English to that of showing the REMEDY for a TEMPORARY REGULATORY TAKING. Notes: 3. Tahoe has to do with prospectively temporary takings. First English then becomes only the necessary remedy for a temporary taking. thus inhibiting desirable regulations for which compensation would not be due. o TAHOE. Normal Delaysa. 4. 6.

Wheeler v. but strong opposition prods the city to pass an ordinance that outlawed construction of apartments.The court actually figures out what the damages should be because the lower court refused to do so. o Landowner should be awarded the market rate return computed over the period of the temporary taking on the difference between the property’s fair market value without the regulatory restriction and its fair market value with the restriction. spirit of takings clause is to shift the burden to prove a non-taking on the government. 1987)  Facts: P wants to build an apartment complex. . Wheeler IV.  Wheeler IV Formula: Owner‘s Equity in Market Value Without Restriction -.  Loss of income producing potential suffered over the period of the taking. the court must answer the question.  Opinion: To determine the amount of taking. On remands I and II the lower court gave no and $1 in damages respectively. o Movement toward economic measures for just compensation has created greater compensation for economic actors than for people who own land for non-economic purposes. ―what has the land owner lost? o The value of what is lost is determined by isolating it as a component of the overall fair market value of the affected property.Owner‘s Equity in Market Value with Restriction = Owner‘s Lost Value from Restriction x Market Rate of Return x Length of Restriction = Lost Return  Notes: o Better to be overcompensated than under compensated. City of Pleasant Grove (Wheeler III) (11th Cir.

o Actual Losses Some courts have held that only actual losses. date of denial of rezoning. SUBDIVISION REGULATION I A. Generally1. o Period of Taking Most courts have held compensation due from the date of the challenged regulatory action. Non-economic uses do not mean that the value is value less. temporary taking. 2.  o Rental Value Some court have required the government to pay the owner the FM rental value of the property for a physical. Predates zoning. o Mitigation Some courts have held that a landowner must mitigate their damages by using the land within the limits of the ordinance XIV. 3. Limits the sale of land unless certain conditions set by government are met.g. E. should be compensated in a temporary regulatory taking. and award compensation for the value of an option to buy the land for the period of the taking. Imbalance in the character of ownership and how it is impacted by just compensation rules. o Option Rule NJ court has treated temporary takings as equivalent to holding an option on the land. such as increased construction costs. People who are usually against zoning are in favor of subdivision regulation because subdivision regulation is thought to be directly impacted by health and safety because of the layout of the land. .

e. lighting. A way by which government gains new streets through dedication. parks. etc.g.)  d. Streets 1. In smallest form addresses: a. In larger jurisdiction: a. grading requirements. Provide access to garbage collection. c. Dedication means that the developer donates the street to the city and the city takes over all rights over the road. Comes much more close to zoning. postal deliver. Plat Requirements 1. Much more specification of zone amenities (width. Streets Roads Water Waste water Location of utility easements Access to a public way Concern itself with issues of drainage and flooding (storm sewers. B. f. b.  b. The same as with small subdivisions. etc. Characteristically concerns itself with the hard facts of the land. C.) 6. g. etc.4. marinating tree or vegetation cover) Environmental concerns (drainage. 5.) Dedication of public space (e. d. grade. Plat Maps are:   Show lot boundaries Serves as the gift over of streets and public easements and public spaces . etc. b. c. fire and ambulance service. Ultimate end of subdivisions planning is a Plat Map a. A major concern for development a.

accurately show lot identification. This causes a whole new round of negotiations.  Preliminary plat. Once approved there is a 90% chance that it will be upheld.  Determines ownership lines Shows permission to developer to sell the land and get building permits b. for example.document that goes through the deliberation process.a general sketch of the plat. shows boundaries.  Final Plat  Registered in land records Must be approved if meets zoning requirements and comprehensive plan and if the developer has met all of the requirements as originally . shows lot dimensions and boundaries  Document goes to planning commission. public places. Land Survey. which sends the plan out to other interested actors.  Contains a lot of background work  Identifies easements.every authoritative Plat begins with a Land Survey  It provides the geographic anchors that allow the Plat map to. c. Steps in Plat process:  First draft.  Approval of preliminary plat is free to be revoked by the planning commission.

encumbrances. etc.  Issues:  Who will maintain the road? (A money issue) If you intend to create private roads or common areas that will be help privately for the benefit of a planned community.   Private community would be responsible for the upkeep of the roads.set forth after the submission of the preliminary plat.  Anything on the plat gives notice to buyers as to the shape of title. or other private place.  Covenants: . d. you must specifically give those lands to the private community so that they do not become public by implied dedication. You are bound by all of the rights and duties set forth on the Plat Map. Creator of rights in land  Doctrine of Dedication:  Done explicitly in the Plat  Some other jurisdictions require a separate deed showing the transfer of the property to the city.  Implied Dedication.the reference to public places on the map shows implied dedication even if the land is never specifically given to the city.

if it is on the plat map.  should not receive compensation for the building. a new title is created and this is therefore a taking of both the land and the building.  . o The public had notice that if they built on the site they They are monetarily compensated for the land because they receive a benefit from the streets (reciprocity of advantage (not usually used in a physical takings case)). Time goes by and now Brooklyn determines that it is time to open a street that is designated on the map. In re Furman Street (1836)  Facts: Claim of takings. The map is public. Brooklyn will compensate people whose houses were there before the map was created and not compensate those who built after the map was created.Do they have to compensate for the building built after the map? Adverse possession. Not a takings because the public map imposes a condition that there should be a street.because the buildings were there for so long.  Opinion: A landowner who erects a building within the path of a previously mapped street may have no constitutional right to receive compensation for the structure once the street opens. Early in its development. Takings Claim.     So even if the title searcher does not find something on the present title. Brooklyn decided what the community would look like in the future. CCRS that will govern the land and apply to all land owners Set up working rules of private community Run by a home owners association Covenants are often contained on the final plat. the homeowner is bound by the covenants and servitudes.

to be tentative and subject to amendment prior to actual development.). they cannot gain adverse possession. Planning Board of Millbury (Mass.more a part of regulatory takings law and not so much physical takings law. Miles v. . like a comprehensive plan. o Courts regard an official map.Is burden on landowner properly counter balanced by a legitimate public purpose?  Balancing test. 1989)  Facts: Municipality requires much better streets than is necessary (broader.  o What kind of notice did the map really give? Substantive Due Process Claim. a landowner would have no incentive to mitigate damages and would tend to over invest capital on sites designated for future public acquisition. Did city authorize their presence? If so. private burden. forecasting future.  Opinion: o Town need look only to its standards in ―similarly zoned districts. Developers are concerned because the city is requiring them to pay for future use and not sole on current use. Better to bring this stuff in at the beginning then to bring it in after the fact (much more cost effective. etc. o o Localities tend to under price the amount that it will cost to build. prudent. Benefits gained from use of the street.   Notes: o If compensation were to be routinely paid in Furman-type situations.‖ Board may be guided by different policy considerations than those that apply to already existing streets. Developers says that village wants better streets than they need and the cities past actions show that they do not really need what they are asking for. public benefit v. better materials).

 Apply standards for subdivision improvements.benefits from coordination of major transportation arteries and other public infrastructure. XV.o May not be in the best interest of the localities.  The only people that a community wants to attract to the community are the people who will raise property values. and that surface water escaping from the new development will be properly channeled.local officials can help ensure that local streets connect together at subdivision boundaries. SUBDIVISION REGULATION II A. 1991) . (Cal.  The process allows the municipality to:  Enforce lot-dimension requirements appearing in its zoning ordinance. Inc. Immediate Neighbors.  Notes: o Important Power.  o Beneficiaries of Subdivisions:  Prospective Lot Owners. that street names are not confusing. The Vesting of Rights to Subdivide City of West Hollywood v. Beverly Towers.The review of proposed subdivision maps is one of a municipality‘s most important powers.  Obtain lands designated for public uses on its official map or comprehensive plan.benefit from a final subdivision map that accurately each lot.   Community-at-large. and Exact contributions and design modifications from the subdivider.

the city incorporates and declares a moratorium on converting to condos and makes new rules that say that there have to be other requirements (beyond which developer had already complied). City of Little Rock Planning Commission (Ark.  Right to Subdivide = Right to Build A right to subdivide is empty unless it encompasses the right to build on the subdivision‘s lots. the developers did not need a vesting tentative map or development agreement with the city because no further discretionary permits were required in order to proceed  Notes: o Permit & Spending Requirement Some states do not protect a builder from a zoning change until the builder has both obtained a building permit and spend substantial funds on actual construction. Thereafter. State court holds that the developers have a vested right to convert the apartments. o In this instance. B. Grounds for Rejection of a Preliminary Map Richardson v. o  “When a subdivision ordinance specifies minimum standards to which a preliminary plat must conform.” . 1988)  Facts: city ordinance regulates the size and shape of lots. Facts: developers have sought a permit to make apartments into condos.  Opinion: Developer obtained every permit necessary to make the conversions. The developers have gone through the permit approval process but had not made any sales of the apartments. The plat does not conform to these standards initially. it is arbitrary as a matter of law to deny approval of a plat that meets those standards. Opinion: The commission doesn‘t have discretion to go beyond the positive standard that is stated in the regulation. That developers have yet to sell a unit is a trivial factor that has no effect on the City‘s zoning and planning power.

discretion may be inappropriate. the municipality cannot then change its standards and require further approval of permits.  Dissent: argues that the commission has to have some discretion to be able to do what it needs to do. Neighbor’s Rights Lyman v. Even if the ordinance creates discretionary power.  Notes: o If Richardson is correct. The ordinance creates discretion because it uses appropriateness language. etc. then the plat by definition is in ‗harmony‘ with the existing subdivision‖ o ―a planning commission may not disregard the regulation set forth in the subdivision ordinance and substitute its own discretion in lieu of fixed standards applying to all cases similarly situated. o Dealmaking/Leverage Discretion to approve or disapprove specific development proposals provides local officials with the leverage to exact maximum concessions and payments from developers. every conceivable thing must be written in the regulation because the commission has no adjudicative power to change with the times. o Vesting Principle Once a developer has started the development process. 1967)  Facts: Planning Board regulation says that a definitive plan shall take into account conditions and facilities on property adjoining the .o ―if a plat is within the use permitted by the zoning classification and meets the development regulations set forth in the subdivision ordinance. C.‖ o o Discretion is adverse to developers’ interests. Planning Board of Winchester (Mass.

Overcrowding. New Functions of Building Codes: .  Opinion: The Boards regulations did not preclude it from approving developer‘s plan without requiring it to project its roads. make sure they are safe for human inhabitation. Reasons for Building Codes: 1. Negligence liability  XVI. water lines. Humanitarian.  Notes: o Opposition from Existing Residents Homeowners living on adjoining subdivided acreage may oppose a new subdivision on the ground that it would increase traffic and otherwise disturb the status quo. Fire.recognition that what happens to your house impacts what happens to your neighbors.land being subdivided (neighbors interests). BUILDING CODES A. 3. and sewers to the boundary. Sanitation. Place the burden on the person most able to protect against the defect or harm. o Questions to ask:  What role do neighbors have on the decision to allow for the building of sub divisions? How are neighbors going to be effected by development?   Very difficult to include in the ordinance the desires of the neighborhood. B. Buyers need codes because they cannot inspect the buildings themselves. Externalities. a.these are all reasons why building codes were introduced. o Four Measure of Subdividers Liability to Neighbors   No liability Strict liability Strict liability only for the spillover effects of uncommonly injurious activities. a.increases habitability of buildings. 2. Neighbor will not have access to sewer and roads if it is done according to the definitive plan.

1.forces builder to spend money on something that he would not otherwise spend money on (almost never successful). No programmatic approach to enforcing the codes. . 2. a.apartments in warehouses. Building codes are ―reactive‖ a.due process claim is more likely to prevail. Have affordability impacts on those who can obtain housing.1. Would we agree with the current building codes if they were strictly enforced? a. etc.  C.  Choice is enforcement or homelessness. Due process. Aesthetics Represent a middle class perspective of how much risk we are willing to take. single family houses. b. economic. Building code regulation is so irregular and uncertain that it is difficult to say that it conforms to the standards of law. etc. 2 Challenges Against Building Codes: 1. Maintain conformity and homogeneous of appearance. Building codes are just not enforced enough in order to make it a public issue. fair.  Defacto non-enforcement of building codes in many poor places. 2.  Especially done in the case of overcrowding violations (set by standards from the 1950s)  Illegal apartments. No one wanders around looking for code violations. Would they be practical. Takings.? D. 3. 2.

Less corruption (less likely to be able to bribe an insurance agent than an building code enforcer)   c. then you can sue). b. Locality can amend the code but they don‘t often do it because they do not have the expertise to do it. etc. Enforce safety codes after the fact: a. . A bunch of other economic interests are being protected (manufacturers.access to justice is the gatekeeper. Establish liability for negligent construction (if a building fails. a.)  c. labor interests.  After the fact liability. Model Codes 1. poor don‘t have enough money to sue. Most building codes derive from a system of model codes done by trade unions primarily. b.  Likely to get more local variation than with Building Code Requirements Less under enforcement because insurance and banks have more of an interest. etc. Enforce code standards through private insurers (refusual to extend insurance or a mortgage if the building fails to meet certain requirements mandated by the bank or insurance company). Codes are justified as protections of public health and safety. Codes are written in order to keep other out of the market (barriers to entry). states. Problems:  Rely upon liability. Alternatives to Building Code Standards: 1.people and property is damaged and could have been corrected before if there was regulation. become formal law when model codes are adopted by cities.E. F.

 Although not used often. 1983)  Facts: have a property owner who has 3 pieces of land and wants to make a retirement home.land owners lose the right of income from property when they are forced to meet building codes c. There is no public purpose in applying building codes where no codes apply. Town of Framingham (Mass. Difficult to show economic impact issues: a. 1982) . civil fines. City committed actionable negligence because they acted outside of scope of the law. the municipalities have immunity from such suits or there are caps on damages. and criminal violations. b. Applies for a building permit and plumbing permit. Commonwealth v. Collins sues for improper enforcement of building codes. Ct. o Enforcement measures include permits. Collins (Ky.G. Owner uses plastic pipe and city inspector issue a stop work order.  Notes: o Judicial Review for Neighbors Neighbors must seek judicial review promptly if they deem that a building permit has been granted improperly. o This is a due process claim  In most locals. o Test for due process: reasonable with respect to the interests of the public as a whole. App. Dinsky v. can still be used in an extraordinary case.  Opinion: Exemption for farm steads. Why doesn‘t takings work in the case of buildings codes? 1. No complete loss of economic value (usually) Private expectations. Give of property right to use your property the way that you want (don‘t have full use and control of your property).

Noerr doctrine does not exempt from antitrust liability persons who urge a private code-writing organization to engage in anticompetitive action. a defendant owes a duty of care to a plaintiff with whom the defendant has a ―special relationship.‖ In building code cases. Building codes require homebuyers to invest present dollars to ensure future soundness. . ―Codes establish minimum levels of housing quality and require that all consumers. It is for the city to decide what standards to require to be met. purchase at least a minimum package of quality and safety features. o Holding: ―In the absence of a special duty owed to the plaintiffs. B. Majority Rule o Notes:  According to conventional tort doctrine.‖ b. Building Codes do create inefficiencies in the free market a.  o What about overly strict provisions of a code?  Infer from Dinsky that if the code is too strict. a special relationship is rarely found to exist. Code War1.‖   Can‘t make the city the insurer of every building project. XVII. Market Distortions Caused by Building Codes 1. Only have to pay damages if a ―special relationship‖ exists. regardless of their individual consumption preferences. DEBATE OVER BUILDING CODES A. not cause of action for negligent inspection can be maintained.o Facts: Can you sue for under enforcement of building codes? P says that city should have done a better job of inspecting the building and is therefore liable for the damage to Ps property. different from that owed to the public at large. plaintiffs rarely succeed in proving the existence of this sort of relationship.

The owner in this case is entering the stream of commerce and the public should be protected. Brune (Mo.C. 1967) o Facts: Code called for a certain type of product and Ds argue that the product used was not the appropriate product. You could make the same argument for owner occupied houses. Applying Standards Retrospectively: Housing Codes City of St. Cook (Wash. There are some types of defects that are extremely difficult to detect.code can be unreasonable because it is too strict. City would have to spend more time inspecting the work of amateur plumbers that the work of licensed plumbers. Boise argues that the product was equivalent to the required product. The law says that to do the work you have to be a certified contractor unless you are going to be an owner occupant. Gwinnett County (ND Ga. v. 1967)  Facts: Who can do particular kinds of building work? P wanted to do own plumbing in a house that he is going to rent out to others. Louis v.  Reasonableness. Corruption. o Opinion: compliance with the specific building material is not required if an equivalent product is used.the construction industry has an incestuous relationship with the building codes people.  Alternative Construction Methods  Can you use innovation? o o It must be backed by industry/lobbying Proven difficult to overcome the barriers to entry to force open doors for various types of innovation. State v. 1974) . o D. Constitutional Challenges to Excessive Building Regulations Boise Cascade Corp.  Opinion: Licensed professionals should do the work if others are going to live in them because it promotes public safety. A strong bias to use the products from a certain industry. which not licensed people cannot detect.

 Facts: whether or not every dwelling unit has to have a shower or a tub that is connected to the public water system with hot and cold water.  Holding: Substantive due process claim decided by the specific economic impact as the regulation applied to the two current buildings. Regulation is an inconvenience to those tenants who choose to pay a minimum rent in return for incomplete facilities. No tenants have complained of the conditions even though they have no flushing toilets or lavatories with hot or cold water. safety.  o o Housing codes impair the welfare of poor households by forcing them to purchase housing of a higher quality than they would voluntarily choose. Argument that you don‘t need a bath or a shower to bathe in your apartment. Is there a reasonably subjective view on what is aesthetic beauty so that it can be communicated to . Suggest that aesthetics do not impact the public health. b. etc. The buildings are not saleable. a. Historical Preservations ask the following questions: 1. Background 1. XVIII. o Look at the individual impact on the individual building instead of the impact on the public as a whole. Early aesthetics cases are strongly founded in the nuisance rationale. AESTHETIC REGULATION A.  Notes: o Enforcement Upon Change of Occupancy A few cities have enacted ordinances that require that a residential property be inspected for code consistency each time a new occupant is about to move in. welfare. The regulations as applied to the P are confiscable because it would take away his ability to rent the property.

land owners and so that legislative bodies can sufficiently communicate those standards to the judiciary? 2. Do aesthetics fall under the police powers or is it the classic case of giving benefits to the public? a. Williams Excerpt:  It is a set of majoritan preferences that are used to sort between preferred and unpreferred action. Whether something is within the police power is a separate question from whether or not they have to pay for it. Peterson Bill Posting (NJ 1905)  The only reason you can regulate signs and billboards is if they present a specific danger. 1993) . 3. Whether or not the values that are embodied in these kinds of values embody first amendment rights? Historical preservation cases sharpen the takings issue—are too few people bearing too much of the burden a la Penn Central? City of Passaic v. and not against fences. extremism. City of Issaquah (Wash. o Repress innovation. ARCHITECTUAL STANDARDS  When enacted by public entities. and other extensions of the human personality. Ct. 2. No public interest rational because the law only looks at signs and billboards and does not look at other comparable things like fences. Anderson v. That fact that this ordinance is directed against signs and billboards only. indicates that some consideration other than the public safety led to its passage. o  Visual reality of signs have impact outside the property (externalities)  Opinion: Use of property for commercial reasons can be regulated. App. dissent. you have constitutional protection.

Erickson (Minn. The commissioners enforced not a building design code but their own arbitrary concept of the provisions of an unwritten ―statement‖ to be made on Main Street. because they make their money designing buildings.  Opinion: Standards are void for vagueness. Facts: We have a guy who wants to build a commercial building (modern style) in an area. o Fairness to individuals. (Renton Case) o This is not content neutral because it dictates “content” or the way that a house should look.you must have notice about what you are supposed to do. You can prevent someone from demolishing something but cannot make them fix it without it being a taking.  Notes: o Stance of Architects Architects have a special interest in allowing for architectural expression. 1979)   Facts: how does a court determine what is of historical significance? Opinion: Court uses environmental protection laws and looks to federal laws that govern houses of historical significance (Federal National Register Law). Standards ask for harmony between valley and mountains and a series of judgment between appropriateness between the old down town and new construction.Is it content neutral? If so all you have to show is that is promotes the public interest and then all you have to do is provide another forum for expression. which includes old-fashioned buildings. . Cabin in arbitrariness of government. HISTORIC PRESERVATION State by Powderly v. o  Free Speech. only a landowner who wished to build or renovate must submit plans for municipal scrutiny. o Upgrading Architectural review typically is exclusively prospective.

St. by consensual sale or eminent domain. o Preservation through Acquisition A city can acquire. Bartholomew’s Church v. o Backdoor Subsidies A local government may employ transferable development rights to cushion the burdens of an owner it has compelled to maintain an historic building. St. o Tax Incentives The IRC has included a variety of incentives for rehabilitation of historic buildings. o Although the regulation may “freeze” the Church’s property in its existing use and prevent the Church from expanding or altering its activities. Barts loses a free exercise argument because the court says that they can continue to do what they are already doing. The court uses Penn Central with out every referring to Penn Central. 1990)   St. it cannot change it into a skyscraper. . Barts can continue its existing charitable and religious activities in its current facilities.o The National Register Law is very vague  We think we know more about what is historically significant but do not know what is aesthetic. Opinion: Court says that because the church is a historical site. Rector of St. easements of control over the historically important facades of a building. Barts wants to build a skyscraper to generate money for the poor.  Notes: o Definitions of Historically Significant:    Noteworthy for events that occurred on the premises Singled out for its architectural excellence Buildings that typify construction practices during a prior era may be worth preserving to memorialize customary living patterns. City of New York (2d Cir. Penn Central explicitly permits this because it can still operate for its original intended use.

but also all older structures in a historic district. o o Vague. Hard to say that there is no alternative to the current building. standard of incongruity is vague and therefore unconstitutionally delegates power.  Notes: o Landowner Taking Claims Taking argument is less plausible when a city is trying to preserve. ASP Associates v.can tell what is incongruous with Victorian buildings Equal protection. 1979)  Facts: City of Raleigh designates a certain district a historical district. Landowner may choose to all the property deteriorate or be destroyed. equal protection.  Opinion: o Due process claim. City of Raleigh (N.  Notes: o Religious Buildings Exempt from Historical Designation CA legislature has immunized the buildings of religious organizations from the statutory powers of counties and cities to designate historic landmarks.historical district does not include additional property on the same block. Developer buys an empty lot but does not want to have to comply with the restrictions. Bring substantive due process claim (police power). not just an isolated landmark. o Equal protection. so why does that apply to ASP? The court says that they are similarly located by not similarly situated because the developer bought property knowing it was in a historic zone. o Building Deterioration/Destruction An owner who finds landmarking burdensome may respond in a socially destructive manner.C.if it is not suspect then all you have to do is show rational basis. .Court say that historic preservation (don‘t go so far as to say that aesthetic regulation in general is) is a legitimate part of the police power.

2. a. B. NEPA/WEPA were some of the first environmental laws. XIX. Initial Modelsa. WHEN IS AN EIS REQUIRED? Chinese Staff & Workers Ass’n v. City of New York (N. EIS 1. b. Decision maker simply has to consider and explain Non action forcing statutes. C. they are in effort to shape Hard look standard. Background1. ENVIRONMENTAL IMPACT STATEMENTS A.if it is apparent that the agency gave a ―hard look‖ and made a reasoned decision then the decision is considered to be a valid one.  .o Displacement of Poor Argument that the designation of an area as an historic district may lead to the displacement of poor households (costs become too great). Threshold under NEPA for requiring an EIS:  When an action significantly affects the quality of the human environment EIS is required. c. The proposed condos would displace low-income residents and businesses if land is taken over to build condos. 2. Increase public participation Allow for presentation of scientific data Obligation to gather information for the EIS is upon the agency. 1986)  What does environment mean? Do you have to take into account the ―human environment?‖ Opinion: NY law talks about displacement of populations. 3.Y.

However. .conflict of interest problems  Propose the project and decide if the project will be allowed.  ―[an] agency [must] consider the potential long-term secondary displacement of residents and businesses in determining whether a proposed project may have a significant effect on the environment. but rather to make sure that the EIS is properly done and serves its purpose. and (2) the discussion of alternatives is inadequate. This scares people because it gives the decision makers too much power. D.  People think that the decisions of local actors will be biased. require an EIS. Government projects. 1988)  Facts: Regents bought a big building and want to move a research enterprise into the building.  Noteso o Private projects that require a permit.court does not exist to assess the decision itself. The conclusion reached does not have to be correct in the eyes of the court.o NY‘s decision in this case goes against NEPA because it only includes the natural world and not the human world. there was substantial evidence in the record that the environmental impact will be mitigated. The impact must be physical and not social.  Opinion: The court found that the EIS was inadequate because: (1) it fails to discuss the anticipated future uses of the new facility and the environmental effects of those uses. WHEN IS AN EIS ADEQUATE? Laurel Heights Improvement Ass’n v. but is there simply enough evidence to support the conclusion of the agency. The initial assessment reveals that the contents of the lab could have an impact on the surrounding environment. Regents of the University of California (Cal. o Substantial Evidence in the Record Standard.

―No Build‖ Alternative o If land is zoned to allow some development as of right. so long as there is a feasible and prudent alternative. Complete record. Department of Environmental Conservation (NY App. Economic considerations alone shall not justify such conduct. or destruction of natural resources located within the state. 1980)  Facts: City and developer sought permits to build a shopping center.  Noteso Some states require that where there are reasonable alternatives. the alternatives considered in and EIS must be the ―no build‖ alternative. Div. so long as these measures are reasonable in scope and are reasonably related to the adverse impacts identified in the EIS. The statute authorizes the approving agency to implement measures designed to mitigate the adverse environmental impacts identified. WHAT IF AN EIS IDENTIFIES ADVERSE IMPACTS? Town of Henrietta v. Opinion: SEQRA requires an approving agency to consider fully the environmental consequences revealed in an EIS and to take these consequences into account when reaching a decision whether or not to approve an action. o  SEQRA requires a decision maker to balance the benefits of a proposed project against its unavoidable environmental risks in determining whether to approve a project. impairment. o Factors in Balance In MN the grant of permit likely to cause pollution. The DEC issued the permit subject to 18 restrictions. E.court basically says that you have to write a full record with the major options and the reasons for choosing a specific option. arguably. o Standard of Review- . the agency must use the feasible alternatives.

Equitable Servitudes. Background1.if you allot voting according to amount of property owned or money paid for property.  E.g.if the association made it rules in good faith and did so to advance the association‘s purposes.is the restriction reasonable as a general matter. B. then the majority rules. RESIDENTIAL ASSOCIATIONS A. Two Standards: Both very deferential  Reasonableness Per Se Rule. no pets policy. XX. then shouldn‘t the private governments be treated under public lands. The standard of review should be the same whether the court is presented with a positive EIS and looks to deny the project or is presented with a negative EIS and seeks to uphold the project. 2. 3.when the developer messes up and does not uniformly restricts all of the properties.generally valid. What is it about the structure of the private government that separates them from public governments. 2. Limited judicial review: a. although in some specific cases it would not be.  Burden of proof is on plaintiff to show that the association did . Small-unorganized governance process with almost no external checks. Flaws in Informal Government: 1. The test is a common scheme. Plutocracy.  Doesn‘t even clear a minimum rational basis standard.  Business Judgment Rule. and if their functions are converging. even if it acted stupidly. then the restriction are deemed valid.

there is a 50/50 split. DEVELOPER DOMINATION OF THE ASSOCIATION Tobin v. One wants to build a tennis court and the other is not told about the tennis court. Violation for association rules can be either a fine or an injunction (for specific performance). ARCHITECTURAL REVIEW Town & Country Estates Association v. STANDARDS OF REVIEW Levandusky v. 1975)  Facts: Two property owners buy plots at roughly the same time.  On the one hand. in good faith.not act in good faith and to advance association purposes. not against tennis court holder. Find for plaintiff. 1987)  Proposed new home meets size standards and other building standards. but does it any way. but equity demands that the very expensive tennis court be allowed to stay. o This case could have gone the other way. . But. (N. Paparone Construction Co. Holding: Courts holds that the association can have the o  NY court adopts the business judgment rule and finds that the association acts within its powers. and were trying to pursue the general goals of the development. Slater (Mont. (N. in fact. C. o Court explicitly disclaims the reasonableness standard as applied by the lower court. a court could hold that the Tobins had constructive notice and therefore failed to protect their own interest and thus have no fraud claim. Unreasonable to withhold consent because the renovations would not. D. E. Seeks to get permission and is denied.  Opinion: Court holds that developer made a fraudulent sale.Y. impact the integrity of the building. 1990)  Property owner wants to reconstruct their kitchen in their condo.J. but does not meet the common price of all of the lots. One Fifth Avenue Apartment Corp.

1976)  Facts: Private development contemplated that persons buying lots would build both a hanger and a residence on each lot.  Holding: Even though a modification was made to the original plan of development.  o Association may not regulate:  Purpose of associations are economic and the nature of the associations are bound up in Harrison v. Holding: Rule is void for vagueness. A modification will be upheld if it is not unreasonable in light of the general scheme of development. but was changed to not permit a hanger to be built before a house). Air Park Estates (Tex. Association does not act in good faith because the subdivision rules do not say that houses have to be worth a certain amount. Have to wear orthodox Jewish attire. Ct. rather than abrogated. it was consistent with the overall plan of development and was neither unreasonable nor prohibited by law. o Can make a more restrictive rule than was originally given without being found . Harrison wanted to build a hanger before he built a house (was permissible under the old rules. Court uses a reasonableness standard. Because the modification enhanced. Unreasonable association rules. we hold it to be reasonable. the original plan specified in the contracts between the developer and the various lot owners. o Association may regulate:   Viewing of sexually explicit material.  Notes: o o Court will uphold an associations right to enforce CCRs. Takings like economic claims. App.

but the next time it may be the villas. Dist.Theiss v.  Merits of Residential Community Associations    Protection (gates and fences around perimeter) Sense of community Commendable venture in private ordering Take away burden on local government for some services. XXI. In this instance most of the money went to the upkeep of the apartments. Background- . Apartment repairs need to be done and Villas owners did not want to pay for the apartments to be fixed (didn‘t benefit the villas). App. which will need the repairs. but the original declaration specified otherwise. Ct. FISCAL TOOLS FOR LAND USE POLICY: A. The sharing of common expenses based upon a proportion of each unit‘s value may be advisable. SPECIAL ASSESSMENTS 1. 1975) o Facts: In the original condominium plan both apartments and condos paid equal fees. o Holding: The appellants had a right to rely on the fact that their proportionate obligation to share in the common expenses could not be altered unless they agreed to it.  Implied Duty to Pay Assessments An association that lacks express authority to levy assessments may be held to have implied authority to do so to the extent necessary to maintain common areas. Island House Association (Fla. o Notes:  Special Fees & Assessments The association could have levied special charges against the owners of the units in the few buildings whose roofs required repairs.

more attractive to local governments than property taxation or user/impact fees. c. waste systems.  Special Assessments. b. Bargaining over land use—exactions. Property tax makes up the largest chunk of local government‘s budgets. Local governments provide very expensive services:  Schools. police. With greater resistance to property taxation.  Other fees and assessments are growing in importance. fire. drinking water.  2. Benefit of fees for land use Creates reciprocity in the exchange. Have to be distinguished from taxes:  Taxes are for general societal purposes. d. Special Assessment a.provides disproportionate benefits to a specific group of property or people.  Must be a ―special‖ or ― direct‖ benefit to a narrow group of people  Water pipes.a. The benefits are not general like with taxes. . garbage collection. local governments have been forced to get money in different ways.  The theory is that that part of the community that will receive the bulk of the benefit should pay more for that benefit.  Doesn‘t mean that everyone will feel the impact of the spending of the tax dollars. asphalt.

‖ o Front Foot standard. Special exceptions are not.most common way of measuring. so government does it for you and then charges you for it. 1977)  Facts: Street paving and curbing are done in a town. farm land may be exempted from special assessments. a person gains special direct benefit from the thing. non-profit entities are exempt from property tax.  Taxation is subject to horizontal and vertical equity. but not from special assessments.g.J.hard to get all of the neighbors together to make improvements that will benefit the neighborhood. Taking.  o o Collective action problem. Township of Teaneck (N. P says that the assessment was improper because ―there was not attempt made to assess for the peculiar benefits to each property as a result of the improvements.when cost is greater than actual value.  o Creates flexibility Fee must bear a reasonable connection to the service McNally v.g.  E.  Why does the difference matter?  Rules apply to taxation that do not apply to special assessment:  E. look at whether or not the project benefits that person. Assumption: the true value of the improvement is reflected in the amount of cost. the town makes special assessments to some 300 residents. .

1965)   Facts: library district is created to finance a library. Inability to development land and assessment for water pipes. Special Assessments . o Schools.may be an instance of unreasonableness. We are in a world of rough approximation.general practice is treated as an element of general taxation. Reasonableness is the appropriate standard here.Louisville & Nashville Railroad v. but libraries are not constructed primarily to enhance the value of the real estate surrounding them. Street lights.g.could do it but may not want to for policy reasons. o o o  Using costs as reasonable basis of determining value is okay.  Legal impossibility. (SC 1905)  Facts: railroad doesn‘t feel that they should pay a special assessment because they don‘t really use the railroad.  E. Barber Asphalt Paving Co.sometimes included as special assessment and sometimes not. Heavens v. o o  Dissentingo Park like atmosphere surrounding library. Holding: The construction of public libraries is a legitimate and laudable exercise of governmental power for the general education of the community at large. even though the park benefits more than those just within the neighborhood. peculiarity. King County Rural Library District (Wash. o Things like parks are a great benefit to the surrounding properties so an assessment fee may be exacted. School busses. Holding: Justice Holmes is saying that this is rational and this is the best they could do in terms of assessment.  There is substantial inconsistency from state to state as to what is in and what is out.

JUSTIFICATION a. Unusual case.government rarely asks for reimbursement o Givings law. California Coastal Commission (1987) o Facts: Nolans own a lot and want to tear down the shack and build a new house. may want to use taxation to keep progressivity.doesn‘t service everyone because only protects that with property.  Very regressive. Nollan v. Police.general taxation because service everyone Relationship between special exceptions and property taxes  CA is the hotbed of observation. Backgrounda. B. they should be able to capture the benefits. The exaction can be made against part of all of the land without impacting the developers desire to develop. Costs that are exacted are reasonably associated with benefits to the payer of the exaction.  New growth is the prime candidate for development of exactions. Henry George  Makes the point that there is nothing inefficient about exactions.serve all Emergency services.    Fire.when government creates benefits. . 2. EXACTIONS I 1. The CC says that they will give a permit if the Nolans create a right of way to get from one public beach area to another.  Municipalities moved toward up front exactions for financial reasons (collect up front) and also for simplicity and ease.

City of Tigard (1994) o Facts: Storeowner wants to expand store and wants to build a parking lot. a. The purpose of the permit condition.o Opinion: S. o TEST: ESSENTIAL NEXUS. This is not decided under the theory of a physical takings.  The city could have denied the business owners permit out right. seems to acknowledge that the power that the CC is giving is within its power and discretion. but chooses to try and deal.  Nolan says that the purposes of the CC‘s condition is that the concern will create a psychological barrier between the public and the beach (don‘t think they can get access to the beach because they see a private residence)  Creating a lateral right of way is not going to mitigate the psychological barrier problem.  You have to keep the two things connected in terms of ―kind.‖ a. the city says that they have to set aside a green area and deed over a public right of way for a bicycle path (in order to ameliorate traffic problems created by the business expansion).  Holding: .  If a regulatory condition is imposes on a development permit.must be a nexus between the goal and the nature or kind of condition that is desired.C. that condition must substantially advance the same governmental purpose that refusing the permit would serve or else the action will constitute a taking and require just compensation. does not fulfill any of the stated ―access‖ purposes. but is a regulatory takings case because it is based on a regulation. As a condition of issuing the permit. Dolan v.

o As cities have been required to make proportionality assessments.  Exactions are constitutional provided the benefits achieved are reasonably related and roughly proportional. a. Underlying current in the SC that there is a right to develop. money. o Exactions. court seems to indicate that the local governments are within their police powers.g. Nolan and Dolan may give the developer a little more bargaining power because they can threaten to take them to court.  Seems to suggest that all that government can ask is to take care of all of its externalities.   Bike path is considered a benefit.allow a city to relax zoning ordinances in exchange for goods. both in nature and extent. services. e. the exaction costs have increased significantly. CA exactions have increased by 85%. Court looks at Dolan‘s loss of right to exclude as something very fundamental to the nature of her interest. to the impact of the proposed development. o o o Nolan and Dolan are in direct conflict with what George says.is the denominator just her increased business traffic or is it the increased traffic in the whole district. or the dedication of easements. but court also recognizes the expanding of land use power and a need to check it. Flood plain is seen as preventing harm. The benefits of an exaction must be ―roughly proportional‖ both in ―nature‖ and ―extent‖ to the impact of the proposed development. .  TEST: ROUGH PROPORTIONALITY Denominator question.  Difference between preventing harm and providing a benefit.

‖  ―we hold that no impact fee may be collected under the ordinance until such time as substantially all of the population of St. . Northeast Florida Builders Assoc. Find a per unit cost for additional developments. the benefits are to everyone and not just to these particular people Will the fees actually be used for school construction?   ―there is nothing to keep the impact fees from being spent to build schools to accommodate new development within a municipality that has not entered into the interlocal agreement.Rough Proportionality?  No. Inc.  Dual Rational Nexus Test: o Dolan. then there would be rough proportionality. o Nolan Question. C. it is possible that each of the houses will have children in them.‖  If the school district was to keep the funds in a separate account until all of the districts had been collected from.  Opinion: Such an assessment can be done. EXACTIONS II St.‖  ―there is no restriction on the use of funds to ensure that they will be spent to benefit those who have paid the fees. some families are going to have children. Johns County v. An ordinance is passed which allows assessments to be made. (Fla. Only about 35% of the possible exactions are being captured.Rational Nexus?  Yes. John‘s County is subject to the ordinance. 1991)  Facts: Kind the locality assess new residential developments for the cost of providing something that the locality is already required to provide? Educational Assessment Impact Fee. at some point in time.

however. if there is a distinction. Outsiders  Protect Outsiders: o Made in equal protection language:  Not an exaction but a tax must have uniformity of taxation.  o Are insiders and outsiders different for a specific purpose in the St. so long as the county can get all new developments to be in on the system.  What level of individualization does Dolan expect? o After Dolan a municipality would have a tendency to make general assessments. Denominator test. which would kick you back to Nollan. Insiders have been paying property taxes that pay for the schools . o Court adopts a standard that allows for averaging across the whole county.  Nolan v.  Free rider problem. one prong made be more difficult to meet than the other. once for the assessment and again in other taxes to pay for outside schools. Dollan Depending on the specific facts. People who are the same cannot be treated differently. essential nexus.what is the appropriate denominator?  People who move into this area will be paying twice. Insiders v. Is this what Dolan requires?   Earmark funds? Probably not. John‘s Case?  Outsiders are different because:    LOOK AT CHANGED CONDITIONS They are choosing to move into the county. then you overcome the equal protection barrier.

the city can only charge the man the cost for zoning new land for recreational use not for the cost of the building and land.  The system is generalized (applicable to everyone) and not individualized and discretionary. Latecomers will often bear the cumulative impacts of building and be forced to make a greater contribution. City of Culver City (Cal.if no physical exaction. which the community needs. does so under protest. then no Nolan/Dolan problem Centex Real Estate v. Ct. The city asks the man to pay for the new tennis courts.  o Who gets to hold the value of the development?  This court holds that it is the developer and not the city. .Yes. o Del Monte Case. City of Vallejo (Cal. o Art in Public Places Court holds that this is not a Nolan-Dolan case. States different courses:  Different states apply Nolan/Dolan differently.  Opinion: Court says that they can interpret the facts in such a way that it fit Nolan and Dolan. The city says that the guy going out of business means a loss of public recreational facility. and builds his business facilities. City can use zoning to promote such facilities (its purposes) Rough Proportionality. he finds that he cannot operate it profitably and he closes it. 1993)  Facts: Property Development Excise Tax is established on developers as a condition of the issuance of a building permit. App.No. o Rational Nexus. Ehrlich v. 1996)  Facts: P wants to build a sports facility and does. Then he goes and says that he wants another rezoning for a business building. After a time. so there is only a rational basis question.

Town of Shaw (5th Cir. Davis v. In order to be unconstitutional. service decisions are discretionary. which is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project. A fee is defined as a monetary exaction. 1971)  Facts: most important fact is that the town was funding all of its public improvements through general revenues. PUBLIC SERVICES A. other than a tax or special assessment. You have to show a compelling state interest in order to win. the action must be undertaken by a state employee and you have to have smoking gun evidence of a statement of discriminatory purpose. and b) discriminatory. Mostly. Discriminatory in how public services are distributed as between whites and blacks. find it after Beal Title 6 (civil rights act) and Federal Housing Act. b) civil rights statutes. 1. c) due process. Hawkins v. o This case was cut off at the knees by Washington v. Equalization rights are limited Sources of equalization law are a) equal protection Clause. Washington. Davis. 2. 3. 2. you can look at disparate impact in order to prove discrimination. XXII.congress sets forth certain types of rights that do not have to meet the Washington v. d) state utility law and regulations. Limits on discretion are a) arbitrary/unreasonable/rational basis. Background1. Holding: An excise tax may properly be imposed on the privilege of developing property. Lindsay (2nd Cir.Note case. 1972) . Not just racism. Beal v. With federal acts.it is not enough to show that there is discrimination generally. Davis standards.  Opinion: strict scrutiny is used when there is a constitutional case.  Ammonds Case.

it does not have any right to have more policing than a neighborhood with low crime. light and paving to his property. (NJ Bd. He does not get water. Even if the neighborhood is racially identified. City of Harrodsburg [Moore 1] (Ky. Curtona Park. No public duty to extend services to his property and can still tax him. 1907)  Facts: Guy has a 30-acre parcel that he has his house on. Crowell v. You don‘t have to show the same out come from the same imputs. If a community has high crime. Moore II  Facts: Guy goes back and wants to have services extended to his property. within reach of the water main. Opinion: The guy is told that the city is not required to provide services to his property. Hackensack Water Co. Comm.difficult to show. o  Substantive Due Process. There is no speculative gamble here. because it is clear that there will be enough .says that Shaw says that all you have to do is show that you are putting in the same imputs into one place as you do else where. Pub. Moore v. If you want to have water you have to make a deposit against the risk of putting the pipe in and its profitability. DP. not a lot of traction to show sub.  Opinion: Commission says that the utility has to provide the services and cannot place the cost for them on P‘s back. so there is no need to make the deposit. The decisions are within the discretion of the city.  Opinion: Court says that there is a long line of cases that allows the town to collect taxes with out providing services. P would get some money credited to his account. Any time anyone new hooks up. 1. Just look at the inputs. but still must pay taxes for these services. P shows that there are 10 or so house that will hook up.’s 1968)  Facts: P lives 1300 ft. Util.

because they know what the risk is. Township of Medford (N. Bank wants to build something but there are no permits left. o Is having access to public services part of what we think use is? If it is. If you are the sole provider and say that you will provide for everyone then you probably will be forced to provide.people. . Yakima County Fire Protection District No. Besides. 1991)  Facts: Community is trying to manage growth and wants to limit its sewer treatment capacity by selling treatments permits.  Holding: the court will not force them to expand their treatment facilities because it is reasonable to try and cap growth. Obligation includes the requirement to anticipate the future growth of the community.utility has an obligation to serve its area to a reasonable capacity. City of Yakima (Wash. o RULE.  This is not explicitly stated in Crowell. but nevertheless is the rule.   Refusals to extend service are one way a community can manage growth. 1993)   Facts: Holding: Can‘t be forced to provide service outside your service boundaries. so the bank cannot build. is this a taking? (if it is a municipal utility. Anything outside that and you probably would not be required to extend services. Utility has to think about the path and rate of growth of a community. but just decide to assign the cost to the utility. o What is driving this is not the speculative nature. First Peoples Bank of NJ v. the court says that the utility is rich and can handle the cost. Not all lines have to be profitable. then probably yes). 12 v. Utility service policy can be used to limit growth.J.

morals. Public Use Issue Berman v. USE OF EMINENT DOMAIN POWER & TAX INCREMENT FINANCING TO SHAPE LOCAL LAND USES A. airport. It is up to the legislature to determine what a public use is. . Acquisition of property is necessary to eliminate poor housing conditions.o Court intervention is not necessary in municipal decisions with utilities.C. Background1. Overcomes the ―hold out‖ problem. B. Once it has been determined that the object is within the authority of the legislature. safety. Condemnation primarily impacts poor people.  Opinion: The concept of public welfare is broad and inclusive. Act says that it is necessary to acquire the property to promote public health. It is within the power of the legislature to have objectives of health and beauty for the community. the right to realize it through the exercise of eminent domain is clear. or other large project. Eminent domain is though to be particularly necessary when many parcels must be assembled to complete a highway. passes a Redevelopment Act that calls for the condemnation of housing and blighted areas. and welfare. Hawaii Housing Authority v. Midkiff (1984)  Facts: Half of Hawaii‘s land was owned by only seventy-two people. convention center. Parker (1954)  Facts: D. Eminent domain a.  How does this differ from judicial intervention in exactions or takings? XXIII. and the State wanted them to break up their estates.

property could be condemned only if it was used to provide a structure. C.  Under the Broad View. Tax-Increment Financing . the first permanent church building of the Pillar of Fire Church. a major manufacturer can just as easily condemn property to build a factory that will employ substantial amounts of people in the surrounding area. which could serve a large number of people. Denver Urban Renewal Authority (Colo. integrated plan would vanish.  Under the narrow view. Urban renewal is a substantial state interest that can justify taking property dedicated to religious uses. Holding: A taking involving the transfer of property from one private person to another satisfies the Public Use Clause of the Fifth Amendment if it is rationally related to a conceivable public purpose. If the court were to review every acquisition of land by the Renewal Authority.public use requires that there be an advantage or benefit to the public.  Narrow View. Opinion: The court must balance the interests involved in the controversy and the state must show a substantial interest without a reasonable alternate means of accomplishment. any hope of efficient execution of an overall.  Public Use Broad View. 1973)  Facts: Denver URA filed a petition to condemn Memorial Hall.   Notes:  Catering to Small Minority Courts frequently invoke the Public Use Clause or other doctrines to prevent the execution of a government deal that would be suspiciously generous to a narrow special interest. Pillar of Fire v.requires the public actually use or have the right to use the condemned property.

views of outsiders and treat their views equally with those of Dumont. An incidental benefit to private individuals is not fatal to a finding of public purpose. o  HEAR AND CONSIDER. Public purpose includes the promotion of the ―public health. REGIONAL OBLIGATIONS OF MUNICIPALITIES (875) A. morals. general welfare. 1954)  Does Dumont. OBLIGATION TO CONSIDER NEGATIVE SPILLOVER EFFECTS OF USES LOCATED NEAR MUNICIPAL BORDERS (877) Borough of Cresskill v. City Council of the City of Charleston (S. XXIV.e. Holding: Island view of development only makes sense where the developing area is buffered by non occupied property. security. safety. in order to pass rational basis review. This is not the case however. and contentment‖ of our citizens. The base line standard is that there is going to be some .   Notes:  37 states authorize municipalities to divert increments in property tax revenues in a defined area to finance improvements there. Borough of Dumont (N. Opinion: Issuance of revenue bonds must serve a public purpose.Wolper v. App.doesn‘t conform to basic concepts of zoning because it does not separate enough. because all of the small cities touched one another. 1982)   Facts: Opinion: Court is operating under the view that San Diego acted properly.J. 1985)  Facts: Wolper challenges a tax increment-financing plan for the redevelopment of waterfront property within the city. TREAT OUTSIDERS SAME AS INSIDERSThis is spot zoning. Tax increment financing acts have a public purpose. City of San Diego (Ct. o o City of Del Mar v. prosperity.C. regional interests?). need to please interests outside of local ones? (i.

Everyone must do their share in having businesses within their territory. But the question is.). if a city has good documentation the judicial check will be abbreviated to seeing that there is documentation.  What could have del mar shown to prevail here? o Case shows that even in a jurisdiction where there is good judicial check on local governments.  Higher Standard than Rational Basis. dry cleaners.  Rational Basis = Fair Share o Case suggests that it is unlikely that a city can prohibit those things that everyone has to have (gas stations. which is a higher standard of judicial review. so by shifting the burden of proof. o Change burden of proof. (exclusion of commercial uses).harm. B.  Note:  Valley View Case: Not clearly arbitrary and unreasonable for a residential village to pas an . v. Zoning Hearing Bd. Can‘t say that you are going to prohibit something that everyone uses.city has to demonstrate why is light of the presented concerns. OBLIGATION TO CONSIDER REGIONAL NEEDS FOR LOCALLY UNDESIRABLE LAND USES Beaver Gasoline Co. the decision is good locally and regionally. Holding: Court says that it is not going to abandon the established policy that the validity of a zoning ordinance is presumed and that the burden of establishing is invalidity is upon the party who seeks to have it declared invalid.Show reason for decision o All the city has to do is come up with a reasonable rational. (Pa. 1971)   Locality entirely prohibits gasoline stations within its borders. the city is going to have to show the basis for their decision making. ―what part of that harm have they mitigated in a reasonable way?‖ o The development is going to happen anyway. etc. so what are you going to do? Control and shape the development.

which is one of the only bargaining chips that they have.  There are state based discrimination statutes. o .  Premise of Exclusionary Zoningo o o Concentration of rich and poor housing in desirable. o Federal hosing Act of 1978. EXCLUSIONARY ZONING  Euclidian zoning is most prevalent in suburban areas.looked at economic and racial integration of housing. OBLIGATION TO ALLOW (OR PROVIDE) LOW. Solidifies social/economic stratification Problems of poor communities are exacerbated by the fact that communities are shut to them Transfer of wealth. 1.Urban Housing for the poor was brought to the forefront of peoples‘ attention. so long as the business and industrial needs of its inhabitants are supplied by other accessible areas in the community at large.& MODERATEINCOME HOUSING (911) 1. still a very useful tool. C. Because poor communities have little to offer. ENVIRONMENTAL RACISM (904) i.ordinance preserving its residential character. rising housing prices for poor are moving into the hands of the wealthy suburbanites.  1970s. o Used to pursue a number of needs:     Large single family homes Homogeneity of community Tax structure that has no redistributive impact Exclusivity of community that has an impact on property values. then look to offer the ability to pollute.

 Most new job openings are in suburban areas because they have large retail and service industries. large lots and house sizes. Just one area in Mt. Laurel I] (N. All single family residential use requirements. causing commuter problems. Southern Burlington County NAACP v. acts as a nexus for other political and social rights. housing is not a fundamental right. Laurel along with representative groups. Geographic location. Those that would permit children had strict limits on children in a room and there was a ratio for maximum . Also some industrial land . 1975)  Facts: current residents and non-residents who would like to have affordable better housing in Mt.o Environmental Impacts:  The more and more people want to move into exclusive communities. o o Social Ills follow from concentration and segregation of poverty. where all of the poor people lived. what kinds of jobs you can get. so start route was the only way to go. Township of Mount Laurel [Mt. o Residency connected with job opportunities. etc. Restrictions on number of children. etc.  Has a lot to do with public services-access to road service. more expansion into environment.geographically located informal networks of employment. the more new developments will be created. etc. sewers.  Where you go to school determines how likely you are to graduate. Under 14th amendment. decides this case under its own state constitution. Laurel zone R-3.J.J. N.concerns more than housing.  Where you live determines where you go to school. exclusion by wealth is not a discriminatory classification. which pays high property taxes and does not use public services.  Poor who are kept out of developments impact a great number of other areas (down stream effects).

  Local Governments can buck the system for a very long time. but helped to move along the cause Also shows how courts are fundamentally limited in their ability to take over local governments in order to get done what needs to get done. and e. etc.  Holding: Equal protection and substantive due process of N. NJ says that under their constitution they can provide greater protection for s.J. d.  RULE REASONABLE OPPORTUINTY/ FAIR SHARE RULE/ REGIONAL OPERATION Seems to limit the rule to developing municipalities (growing communities)  Premises of Rule If you take away the artificial barriers then people would buy housing . o All local governmental regulations must be consistent with police power purposes. p. the property taxes up.number of children before developer had to pay for the additional children‘s education.used by Mt.  This case did not cure the problem. This kind of isolated fiscal self-protection goes beyond the police powers in that it does not protect public health and safety. p. and the drain on public services very low. Laurel to keep the property values up. constitution means that poor and moderate-income people must be given the opportunity to buy housing in Mt. welfare. o o o FISCAL ZONING. The police power purposes must be interpreted in terms of regional impact. Laurel.

Laurel cases.  Opinion: o Creates a new obligation to include every municipality in fair share and reasonable opportunity. Ct. saw lots of cities trying to resist the mandate of Mt. putting part of the city into receivership to allow the special master to act. appoints several judges that would handle all of the Mt. and the court will order the permit issued and you can build.J.C. is very upset.Ct. .   Builders Remedy. it says that if you can demonstrate an exclusionary pattern.amounts to inclusionary zoning (use of zoning powers to create incentives to build low income housing (by way of inducements to developers to create low income housing)). if just lifting the barriers doesn‘t work. you ask for the appropriate changes and you are turned down. Laurel one (could have restructured taxation to help out local communities in education. The legislature did not meaningfully help implement Mt.Mt. take away zoning powers and give to body that will be fair).this is the big stick. Good faith effort is not good enough.  Special Master.Opinion contemplates taking over local regulatory structure by creating a special master. Increase the enforcement responsibilities. and wants to find a way to shut down the resistance from below. Laurel II (N. 1983)  Facts: S. could have created regional planning or zoning entities which would take away the ability of local governments to act in a self interested way.  Specialty Courts. Laurel. then there are certain affirmative requirements:  o o Look at subsidies offered to help pay for low income housing Undertake affirmative governmental devices. Judicial bypass of local control.

ensure voluntary compliance with regional concerns   Regional compacts Imposed from state level down School taxation-  Reshape taxation structures  Fair Share.very effective so was welcomed by some and shunned by others. o Did the agency really carry forward Mt. make sure you met all of the statutes and then you would be certified and be exempt from builders remedies suits for a number of years.every community has to provide for lowincome housing. v. o Agency would determine what your fair share was.  Builders Remedy.  Legislature created an agency that would take over the Mt.  Standard of review was by way of clear and convincing evidence  Agency was supposed to make things more predictable. 1986)  Opinion: SC says that Mt. .J. Laurel requirements?  Not really. o o Mass. Laurel responsibilities from the courts. Township of Bernards (N. I. L. it was gutted more or less. Loved the remedy Most states have not gone the route of the builders remedy and have use other mechanisms including:   Judicial review Attractive inducments to local governments  Subsidies to local governments or to private developers Subsidize peoples income to help them buy housing  Planning processes. Hills Development Co. Laurel responsibilities were to be shifted to the legislature and that was okay. Dramatically more effective for a short time that Mt.

have a difficult time keeping up with the increasing population.) Growth has to go somewhere  Often the impact of growth controls looks the same as exclusionary zoning  Keep housing prices high (discriminate against poor) o Debate begins in the 1970s with the notion of Urban Sprawl  Sprawl   Loss of open space More use of cars because public transit has not developed o Local City concern for growth:  Infrastructure. style.in order to keep up with growth. MUNICIPAL OBLIGATIONS TO ACCOMMODATE REGIONAL GROWTH (956) 1. etc.  Public schools. taxes will rise to pay for the new public facilities. A response to the real conceived problems that growth can create. gives greater quality of life. D. JUSTIFICATIONS FOR GROWTH MANAGEMENT (957) a. coercive Mt. Problems.sometimes it is better for localities to specialize because it is more economically efficient.  Planning Crisis A community that suddenly has lots of land use conflicts and doesn‘t have the ability to regulate Growth controls can be an interim mechanism that allows the city time to get the tools & mechanisms it need to deal with the growth  . Laurel power has not been used widely.  Strong. GROWTH CONTROLS    A more difficult problem that exclusionary zoning. open space. etc. Act to keep those qualities that are good in the community ( pace.

air pollution. Performance standards look at Educational facilities. Environmental Concerns: sewage capacity. DISSENT   ―Any absolute prohibition on housing development is presumptively invalid. MORATORIA (966) Associated Home Builders v. such as the right to travel.  Holding: CA SC says that the right to travel has been impeded constitutionally before and it does here. but that is what the court says should be used. The standard is therefore the rational basis review.‖ ―Local regulations. and 2) violates the constitutional right to travel.   Forces the inevitable Reasonable Accommodation. etc. 1975)  Facts: voters in Livermore enact a moratorium on building until a performance standard is met. sewage.don‘t have a measure here. based on parochialism. is governed by the higher standard of compelling state interest. quality of life concerns (preserving open space. Trade group challenges the ordinance on two grounds: 1) exceeds the police power. water supply.  ―REAL AND SUBSTANTIAL‖ TEST FOR RATIONALITY  Must have a real and substantial relation to the public welfare.  Imposition on a fundamental right.Must judge how far the ordinances reach is and those who it reaches are those whose interests you have to look after (may extend well beyond the boundaries of the city).) 2. City of Livermore (Cal. and water supply.  Regional Impact. that limit population densities in growing suburban areas may be found invalid unless the community is absorbing  .

if you can do it under zoning. Its goal is to try and make orderly a planned growth process and that it is a legitimate end to shape the pace and pattern of growth. . necessary part of good decision making because it slows things down. it is not a taking and this program has a legitimate end. Vested Rights.absolute destruction of personal property for a limited duration is not unconstitutional under Lucas. 3. which is intended to be permanent and is later invalidated. 1972)  Facts: Point system with a certain minimum number of points is required to get a permit. areas. Planning Board of Town of Ramapo (N. you should be able to do it under growth controls.a reasonable share of the region‘s population pressures. If you can do in under nuisance. what you can get after an ordinance.  Temporary taking problem.gives legitimacy to moratorium.  First English is really a case of remedies. GROWTH PHASING PROGRAMS (976) a.Y.‖ TAKINGS Tahoe. you have to look at Penn Central. parks and rec.  Should there be any time restriction on how long a city can say it will wait before proper infrastructure can be created. you can do it by zoning. Similarly.  Opinion: court says that even though it may be 18 years before a permit can be granted. is revoked and there was a temporary taking.even a moratorium cannot stop people from bringing vested rights claims. You get points by making sewers. roads. Golden v. and fire facilities. drainage.

 Holding: all zoning has exclusionary impacts and there is a rational basis on which to use such a system (legitimate purpose)  Petaluma is decided by the federal court and later CA SC comes out with Livermore.  Rational basis.  State courts would be more likely to take an active role in the decision because it directly impacts them. This is a generally applicable regulation  Line is between general measures applicable to all v.Does the point system bring Golden into the realm of Nolan and Dolan? (that implies that you get past Penn central)?  Doesn‘t have the discretionary element that Nolan and Dolan require.  Regional Impact.means something different depending on the circumstances and is . there would be a substantial shortage of housing regionally.if you look only at Petaluma. ADEQUACY OF PUBLIC FACILITIES PROGRAMS (980) RATE OF GROWTH OR QUOTA PROGRAMS (983) Construction Industry Association v.if every one were to have these rules. 4. get more points than if you are contributing to sprawl). the problem of extortion by local governments on individuals. 5. City of Petaluma (9th Cir. if you are filling in empty space. 1975)  City is going to cap growth at 500 units per year (6% per year) and is working on a point system based on what type of building and where you want to do it (e.  Petaluma Impact.g. the system will actually have more housing. which comes out differently. Takings.  This is a legislative matter (according to 9th Cir).

interpreted differently by differently courts.what are the growth rates in the region?  Specialization argument. Here the 9th Cir. is not using any sort of heightened basis review.  Test out of Livermore is ―is this a reasonable accommodation?‖  Is 6% a reasonable accommodation?  Fair share.  More or less legitimate?  Do deviate from the other planning tools that can be used Infringement of all of your property rights (actual land and time).argument is that because you are unique. you should not have to do your fair share. URBAN EXPANSION LIMITS (989) Urban Growth Boundaries  Definition: No maximum growth level but has a space maximum. You can build as densely as you want but it must be within certain boundaries. .