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Land Use Ball, Fall 2009

THE PLAYERS IN LAND DISPUTES i. Developer ii. Neighbors iii. General-purpose local gov’t  reconciles competing interests/seeks funding for local streets, utilities, and other infrastructure from the developer. Uses four tools: a. comprehensive plans - statement of goals and maps; b. zoning ordinances - control building bulks, size and shape of buildings, uses of land/buildings; c. subdivision regulations - control location and design of streets, sewers, parks, and other infrastructures; and d. building and related codes.

I.

ZONING & THE CONSTITUTIONAL RIGHTS OF LANDOWNERS AND

DEVELOPERS A. 3 Major Types of Policy Arguments Underlying Claims: i. inefficient from social perspective a. Due Process (14th Am.) - requires each zoning restriction be reasonably related to a legit gov’t objective b. Takings Clause (5th Am.) - Some cts. used this to examine reasonableness of reg., until Lingle foreclosed this option ii. unfairly burdensome or disruptive of settled expectations a. Equal Protection Clause (14th Am.) / Takings (5th Am.) - prevent landowners from shouldering unfair burdens b. Due Process (14th Am.) / Takings Clause (5th Am.) - interferes w/ settled expectations iii. violative of landowner’s or developer’s civil liberties a. 1st Am. (free expression, free religious exercise, privacy, and association) B. Substantive Due Process—State’s Police Power to Regulate Land Use - Is zoning constitutional? Is it consistent w/state’s zoning power? Does gov’t have auth. to regulate? Place to start for const’l analysis. i. Judicial Deference - unless gov’t decisions seem totally arbitrary, local gov’t knows best; is zoning constitutional since it regulates the use of private property? ii. Village of Euclid v. Ambler Realty Co. (U.S. 1926) - starting point for answer. Principle of zoning okay, consistent with police power. Ps brought a facial challenge to an ordinance designed to stop expansion of city into residential neighborhood by zoning P’s land strictly residential. a. upholds validity of separating uses (strict zoning segregation - cumulative zoning), including multi-unit from single-family residence. Results in cookie cutter development. b. presumption of constitutionality - deference to local gov’t c. constitutional if ordinance is “fairly debatable” or unless it’s “arbitrary and capricious” - very high standard d. rational basis review - ordinance must be rationally related to health, safety, morals, or general welfare; as long as not arbitrary, then ok e. Just b/c may be unfair in one instance, not completely invalid; claim of injury too broad. Ct. won’t invalidate the entire thing by going through piecemeal to ensure each provision valid. f. Note: in Euclid, ct. did not require this, but today P must exhaust all nonjudicial remedies (i.e., submit specific proposal for development and seek any available variances) before challenging the validity of an ordinance in ct. - facial challenges very difficult to win iii. Cost/benefit analysis - zoning restriction inefficient when burdens on restricted landowner greater than benefits of restriction to landowner’s neighbors and other interested parties.

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Land Use Ball, Fall 2009

Determined by how much the people who gain from the policy value their gains vs. how much those who lose from the policy value their losses (Kaldor-Hicks test). a. Nectow v. City of Cambridge (U.S. 1928) - P wants to use entire land for industrial purposes, but some of it zoned residential. Gov’t refused. Ordinance violates D.P. b/c constitutes invasion of P’s property w/out nec. basis; won’t promote (not related to) healthy, safety, morals, or general welfare - determinative. 1. “As applied” challenge (vs. Euclid facial challenge) iv. Today - how far does police power go? a. Stoyanoff (Mo 1970) (“ugly house”) - landowners try to build a modern house that didn’t match architectural style of neighborhood. Review bd. denied app. 1. Statutory challenge: whether it’s in line with the State Zoning Enabling Act (SZEA) A. IS consistent b/c authorizes reg. (auth. architectural review bd.) B. if falls w/in broad lang. of act, then argument would be that includes arch. review bd. C. could argue over the term “reasonable” - not a commercial property, still just a house; matter of aesthetics, is that “reasonable”? Character different from aesthetics. 2. Constitutional challenge: whether prohibition is constitutional b/c doesn’t harm general welfare - is it consistent w/the police power (D.P. claim)? A. IS consistent w/police power; ct. suggests that aesthetics alone may not be enough, but protecting prop. values consistent w/promoting general welfare of community i. increase tax revenue ii. protecting investments - general welfare of people already there who have already built B. Ask: is it proper police power (objective) or is it giving too much subjective power to regulators (is standard too vague)? i. could argue that one can rationally assess value of prop. and put a hard no. or dollar range - objective standard. ii. could argue “ugly, grotesque and unsuitable” entirely subjective b. Kuvin (Fla. 2007) (truck) - man parks truck in ritzy neighborhood, ord. invoked to say no. 1. No rational relation b/w ord. and protection of general welfare; no legitimate reason 2. City argued certain feel to neighborhood - parking truck ruins that. Trucks have connotation of lower class (gov’t doesn’t really go there but implied) 3. Ban on commercial trucks overnight parking ok, but is ban on personal use trucks ok? Ct. says no. Commercial trucks serve diff. purp.; would change character of area (i.e., takes away from residential character of municipality). 4. Ask: what review process is in place that will make these determinations? Are there concrete, objective standards? A. difference b/w Stoyanoff & Kuvin (Stoyanoff: can call realtors and get a no.) B. house more stable, cars come and go C. could you establish that cars coming and going will affect prop. value? D. Stoyanoff: can you build (come) here? Kuvin: you are already here and may have to leave. c. Anderson (Wa 1993) (incompatible commercial development) - man makes proposal, denied 3 times (diff. feeling from surrounding buildings) 1. facial AND as applied challenge 2. closer question is facial challenge re: whether standards in ord. are too vague; is there enough meat in the bones to give sufficient guidance to prop. owners for D.P.? v. Critical issue in D.P. is whether the challenged action is legislative or administrative a. If legislative, purp. of policy is irrelevant for rational basis analysis; question only is whether a rational basis exists b/w the policy and any conceivable legit. gov’t objective

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Land Use Ball, Fall 2009

b. If administrative, ct. determines whether decision maker acted rationally based upon the evidence; will be set aside as arbitrary only if record contains no rational basis for decision C. Equal Protection Clause—Line Drawing and Class of One Claims - how is gov’t regulating? Improper distinction b/w restricted owner and similarly situated owners? Restriction imposed b/c of who owner is - gov’t making some impermissible distinction that rises to level of discrimination under Const. i. Judicial deference - presumption of constitutionality; property owner has burden of showing no rational basis a. Ask: intentional? Irrational? Some circuits: ill will? (Olech: retaliation for previous suit?) Intentionality req’t - must establish gov’t intentionally discriminated against you. iii. Discriminatory line drawing a. Layne v. Zoning Bd. of Adjustment (Pa 1983) - ord. distinguishing boarding house and rooming house on basis of meal availability constitutional - presumption of validity, def. to gov’t 1. Meal service invokes health codes (commercial activity) - sufficiently substantial relationship to health, safety, morals and general welfare of community. Meal service makes it a commercial entity - legitimate distinction b. Can’t be merely debatable - lines must be drawn somewhere; must be clear showing of abuse of legislative discretion iv. Class of one claims a. Village of Willowbrook v. Olech (U.S. 2000) - conditioning permit on owner’s granting of a 33 ft easement when all other neighbors had 15 was unconstitutional; arbitrary. 1. EPC does give rise to cause of action on behalf of a class of one where P did not allege membership in a class or group. Here, retaliation alone basis of claim. 2. Makes it more difficult for case to be dismissed on pleadings (prior to Olech, if D could offer or judge could imagine a rational basis, no need for discovery); cts. confused about how to reconcile traditional rules of deference w/liberal rules of pleading, and introduction of “ill will” creates a disputed fact re: state of mind of decisionmaker. 3. Ask: intentional? Irrational? Some circuits: ill will? Here, irrationality enough; ill will not req’d. But see Flying J. 4. Danger: every time someone alleges they’re being treated differently than others, you have a fed. constitutional claim. Concern that fed. cts. would be overwhelmed w/garden variety zoning disputes. Req’ing ill will or animus one way to protect against this. b. Flying J. Inc. v. City of New Haven (7th Cir. 2008) - ord. not invalid just b/c adopted in response to one particular develop’t; must be irrational to violate Const. 1. Even if amended out of animosity, if rat’l basis, then ok (if ct. can hypothesize any rat’l reason for ord., then not invald). Presence of ill will alone not enough to make it irrational, w/class of one claims (though tends to be enough in group disc. claims; in those cases, irrationality or ill will/animus enough). 2. “Animus” only comes into play when no conceivable rat’l basis and animus is only explanation. 3. Presumption of rationality - P must plead sufficient facts to overcome this presumption 4. Note: availability to gov’t to change its mind becomes more limited the farther along develop’t is (nonconforming use - already being used). Vested rights doctrine also relevant. v. Discrimination against a group - see section III; Race, socioeconomic class, disability, etc. Diff’t levels of scrutiny (race, gender, and religion require high level of scrutiny). D. Takings Clause - how is gov’t regulating? Primary purp. to prevent gov’t from “forcing some people to bear burdens which, in all fairness and justice, should be borne by public as a whole.” Allegation: on some level there’s an impermissible targeting going on, but not what we would

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1. taking. Mahon (U. Comp. 4. (D.) . Does not fall under nuisance reg. prohibiting them from mining under private home. coal mine owners for reg. then does reg. No intentionality req’t. Gov’t req’d to comp. or safety of community (selling liquor) not deemed a taking. in such a way. owner after? Invalidation of the reg. value of another goes up. no taking. challenge). A.). or should we look at them as a whole. Mugler v. 1922) . and mining) individually. re: use of prop. that cross a line in diminishing too much value of the prop.is ct.Land Use Ball. then no compensation could rectify the wrong. if no proper relationship b/w means and ends. vs. to P’s detriment 4 . surface. proceed through Takings analysis: a. right to be compensated every time something changes A. a. 2. (Takings challenge)? iii. for purposes that are injurious to health. 1887) .P. i. exception. analysis comes first. balancing test . depends on degree. If latter. but not reg. but any existing uses ok iv. factsensitive analysis ii. Reversing a harm vs. types of estates (support. worthless. If Due Process does not apply. extracting a benefit: gov’t shouldn’t have to comp. Line drawing vs. Look at what is being regulated (liquor vs. If no. Fall 2009 consider to be a pure disc. Kansas (U.P. Dissent: conceptual severance .TAKING: gov’t goes too far. analysis precludes Takings analysis (antecedent to it): if impermissible. and look at diff.support estate loses all value. Does reg.reg. Matter of degree of reg. codify common law restriction? 1. here. then per se taking (Loretto) ii. that’s it .P. If no. or is it employing a balancing test where extent of dimunition weighed against importance of gov’t’s interest? 3. unless gov’t is extracting benefit from reg. coal). If yes.could say that from now on it’s illegal to use prop. Pennsylvania Col Co. will not be at issue. injunction will be issued. claim. physical seizure compensable.doesn’t mean const. Nuisance Regulations (Never a taking) .should we sever prop. b/c doesn’t matter how much gov’t willing to or forced to pay. could argue it wasn’t a “noxious use” the day before law was passed (not spewing odors or pollution to neighboring properties) 2. Ad Hoc Analysis (Balancing Test) . If yes. is unenforceable. categorical. D. is there a taking under Penn Central? Most open-ended. drawing a line (regs. v. deprive all property of all EVU? A. Look at it through remedies: what is prop.S. akin to physical taking. If yes.complicated by Lucas a. then does it result in permanent physical occupation? i.S.NOT A TAKING: prohibition simply upon the use of prop. Lingle separates the two: D. Focuses on support estate only . b. even if it deprives property of all “EVU” (economically viable use) 2. for abating harm. 1. morals. req’s comp. A. then per se taking (Lucas) B. Could argue unfair to apply law retroactively . No general rule.here regulated to such an extent as to render prop. If no. coal mining not a nuisance. (extent of dimunition of prop. so not a taking. Times change . regulatory actions aimed at preventing harm a. could say that while value of one goes down. Police Power  Reg. creates a “nuisance exception” to the taking guarantee (not a regulatory exception) applies only to the noxious uses of property. or comp. Eminent Domain Power  Physical taking.physical taking of property req’ing comp.

Condemnation b.) Will still make a profit. physical occupation (cable on side of P’s townhouse) of prop. 2 prongs: 1) akin to physical taking? 2) extent/degree of public interest. in prop. What were the laws in place at the time? The history of gov’t action? Nature of the land? B. rendering land totally useless. preserving a landmark). Ct. Penn claimed city had taken away their air and land rights and wanted just comp. Transferable Development Rights (TDRs) . C. always a taking. just couldn’t build a 50 story building. gov’t enacted law prohibiting P from building any permanent structures. 4.S.taking more readily found when interference w/prop. not to whether there’s been a taking (Suitum v. Penn Central Transportation Co. Instead. South Carolina Coastal Council (1992) . Fall 2009 5. Teleprompter Manhattan CATV Corp. of value falls outside Penn Central balancing test and will always require comp. Permanent physical occupation 1.still has ability to use pre-existing air rights b/c transferable to other parcels in vicinity. c. established total takings test: preventing owner from building on land a taking b/c he could do nothing else w/it. of the use of prop. focuses on both character of action and on nature and extent of interference w/rights in parcel as a whole. 2. City of New York (U. said no “partial” takings . req’d. simply codifies already inherent limitations on owner’s title). Per Se Takings (Always a taking) . Palazollo could still develop upland portion of land. 1982) . Look at benefits conferred to entire comm. in value vs. NOTE: TDR goes to whether adequate comp.e. Average reciprocity of advantage . was this reg.Exceptions to Penn Central a. value must be decided w/in Penn Central framework (cf. 3. S. said city didn’t prevent them from using Penn as it was.S. Average Reciprocity of Advantage: if benefits coming back to owner.S.after P bought land on coastline. A.C. by 3rd party auth. owners affected? v. D. b. S. doesn’t have to be full profit. a guise to push land back into public domain? 5 . 1978) . Loretto v. interference with “reasonable investment backed expectations” (RIBEs) A. Tahoe Regional Planning Agency (1997)). that can be developed? (i. nor did it prevent Penn from ever using air rights. less likely it will be considered a taking (Plymouth Coal (U. Applied balancing test re: dim. Is there some portion of the prop. 1914)). unless reg.. economic impact. (U. Lucas v. A.how many prop.perm.taking jurisprudence doesn’t divide a single parcel into discrete segments and attempt to determine whether rights in particular segment have been entirely abrogated. by gov’t reg. C. diminution in value doesn’t mean taking per se.owner benefited by reg.confirmed that owner must be denied all economic use of land before a taking has occurred and comp. economic impact on property owner A. characterized as physical invasion by gov’t than when interference arises from a public program adjusting to benefits/burdens of economic life to promote common good. Factors considered: 1. along w/all other NYers (entire city benefits from reg. Is this is a temporary taking? B. distribution of the burden . regardless of whether action achieves important public benefit or has only minimal economic impact on owner.Land Use Ball. Depravation of all viable economically beneficial use 1. Anything short of a 100% dim. character/nature of the gov’tal action . Lucas: a 100% dim.C. v. Occupations qualitatively more severe than a reg. Accounts for importance of the gov’t interest.

no taking.S. taking context. Temp. Rule in Lucas carved out for extraordinary cases in which reg. in reg. prohibits all economically viable use of prop. Not a Lucas claim. starting point should be to ask whether there was a total taking of the prop. taking.C. BUT lower ct. of all value. reg. A.would result in poor planning 2. Mugler is still good law. B.Moratorium on develop’t imposed during process of devising comprehensive land use plan not a per se (Lucas) taking. 1. Inc. did not address this issue.following cases seem to backtrack from per se tests ct. posed by P’s proposed activities ii.. b/c value of upland portions substantial (so Lucas WON’T work). had only a temporary impact on P’s interest in prop. does not prevent takings claim. prop. If gov’t had temporarily USED prop. Lower ct. had standing despite purchasing land w/reg. fact that a particular use has long been engaged in by similarly situated owners and they’re permitted to continue use denied to P  lack of any common-law prohibition C. S. degree of harm to public lands/resources. or adjacent priv. embraced in Lucas. Tahoe Regional Planning Agency (U. If ownership first. even when application of reg. 2001) .no categorical taking. Factors in total takings test: i. of all EVUs. Penn Central applies. 2002) . Where gov’t regulates. 2) avg. apply Lucas. deprives prop. consistent w/or arises from common law nuisance principles. unless reg. Don’t want to make constitutionality of reg.Land Use Ball. But since only a temp. . new owners or buying vs. 1. better analyzed under Penn Central framework. first.. Tensions b/w Penn Central and Per Se Rules (Loretto and Lucas) .. barred takings claim. Palazzolo v.S. A. nature of regs. of value falls outside Penn Central balancing test and will always require comp. owner not deprived of all economic use of prop. Temporary moratoriums are not per se takings b/c: 1) eventually get back economic value of land. a.if not. B. apply Penn Central. inheriting). and 3) Ps failed to offer specific evidence of harm. taking. Sued under inverse condemnation. 6 . would require comp. would impair a person’s ability to pass land off/do what they want w/it. Fall 2009 A. 3. but remanded for analysis under Penn Central. v. 2. simply codifies already inherent limitations on owner’s title B. not a categorical taking. unless reg. (Lucas) . fact specific inquiry (Penn Central) appropriate. If so. 8-mo.. social value of P’s activities and suitability to locality in question iii. for public use. the default rule remains that. moratorium was to work out plans b/c Tahoe was becoming over-developed. relative ease w/which alleged harm can be avoided through measures taken by P and gov’t D. Categorical rule: if reg. and 2) would force gov’ts to make decisions quickly . and would create 2 distinct classes of people (old owners v. re: private use of prop. No nuisance exception: not a nuisance b/c not prohibited by common law i. Fails under Lucas b/c regs. Rhode Island (U. second. NOTE: If reg. found fails under Penn Central b/c (Penn Central factors): 1) temp.Fact that ownership came after reg. erred in ruling that acquisition of title after effective date of reg. contingent upon passage of time. permanently deprives prop. reg. vi. A 100% dim. b. Should’ve analyzed pre-acquisition notice issue under Penn Central. holding time of lot in area 25-years (significantly longer than moratorium). Tahoe-Sierra Preservation Council.

externalities of develop’t. a. Ct. should be issued. does not subst. .Essential nexus test. Fine for S.) Cts. indicated broad range of possibilities.whether reg. or permitted w/out condition.“substantially advances” test no good a.see Ehrlich (below) 1. ceiling on gov’t’s “prop. Gov’t can ban develop’t altogether.A. Takings Analysis .. Require connection b/w exaction and develop’t or exaction and neg.injunction v. Legislative: applies across the board. See Nollan and Dolan e. advancing some leg. Problem: gov’t permitting develop’t w/condition attached.P. 2005) . Adjudicative vs.S. rule” protections. Ask of gov’t? 1. owners the benefit of greater judicial scrutiny of leg. but gov’t can’t pay for it 4. Not valid for discerning whether private prop. Redistribute wealth from developer to others. stopping the reg. 1. Need essential nexus between the means (exaction. effects develop’t may have on neighborhood. Chevron U. Lingle v. Problem w/Agins: reveals nothing about magnitude/character of burden. public purp. but D.Agin’s test: taking if reg.D. provides no info re: how burden dist. says gov’t should have either rejected altogether. not comp.P. When legislative body is acting adjudicatively. decisions. (U. clause should not be incorporated into a takings analysis. Developer pays for some public good. i.S.. state interest. Gov’t conditioned grant of building permit for a beach house on landowner granting town easement to beach. Nollan v. to continue). claims. so exaction functions as “liability rule” protection.S. not cts. preventing psychological barrier to beach). requires individualized assessment 2. Inc. less deference to leg body. lang. would have to determine efficacy of regs.Land Use Ball. Ct. California Coastal Commission (U. efficient to have developer and customers internalize costs 3. Reasons for exactions: 1. advance leg.requires developer pay for or provide some public facility or other amenity as condition for receiving permission for otherwise prohibited land use. Agin’s formula suggests a means-ends test . or to prevent developer from appropriating wealth created by activities of the local gov’t 6. akin to a bribe? b. suggests more than a reasonable connection 7 . Not ok. Growth enablers: developers can pay for infrastructure in areas that are growing rapidly. said test NO GOOD: different remedy . of private prop. Legislative . 3. among prop. but ct. 1987) .e. More efficient use of infrastructure by requiring developer pay for it (shifts initial cost) 2. Fall 2009 vii. Exactions . need some nexus b/w exaction and develop’t..suitable for leg. comp. has been “taken” (doesn’t look to impact on prop. Takings analyses focus on vertical burden (burden to land) and horizontal burden (how many people are affected? Distribution of burden?). easier for gov’t to apply 3. (inj. owners. viii. Adjudicative: higher burden on owners. Note: makes sense for gov’t to condition a benefit that the gov’t is not required to permit on the recipient of the benefit’s agreeance to waive constitutional rights d.e. which would allow reg. wields power over developers however. 2. none found. is effective in subst. Appears to say that Takings Clause shouldn’t be used (outside of exactions context) to give prop. Mitigate neg. Can use to discourage growth 5. court will scrutinize more closely c. the easement) and the ends (i.

as long as they are applied on an individual discretionary basis then higher scrutiny. 2-step analysis (1-2 below): 1. In Nollan. state interest” (Agins standard (pre-Lingle)). not “reasonably related” to “subst. findings not constitutionally suff. Here. doesn’t matter if it’s a fee or land. Not a matter of land vs. higher burden after Dolan. Here. f. Exaction Analysis: means/end test appropriate when dealing with exactions. City amends ordinances. If no nexus. If nexus. City could not condition granting of P’s extension of her store on her dedicating portion of land to storm drainage and bike path (exaction: public dedication of land req’t). A very severe..) and one that is legislative (non-discretionary. of prop. Dolan looks at impact of develop’t and nature and extent of exaction.cases below are state cts grappling w/issue 1. to justify conditions imposed B. Also imposed an art exaction fee. Essential nexus b/w permit condition and legit state interest? Yes (bike path to eliminate congestion) . wasn’t clear). i. arbitrary reg.what developer is adding in terms of problems to community does not matter. Can’t rely on tentative findings. Dolan v. Finally allows condos w/condition that owner pays exaction fee. Degree of connection b/w exactions demanded by city’s permit and projected impact of proposed develop’t? Not ok. rights) C. P lost right to exclude others from property w/bike path A. A. but rather the distinction b/w an exaction that is adjudicative (discretionary burden to individual prop. adds an extra step. City of Tigard (U. money.: Recreational fee (discretionary) Nollan (Ehrlich) Legislative Ex. Should difference b/w impact fee and dedication of land make a difference? Higher scrutiny b/c afraid of extortion? B. Goss . Higher burden: need to show rough proportionality and more factual basis. impact of develop’t does not play a role at all -. advance leg. 4.Issue of whether Nollan and Dolan apply to fees (monetary exactions) has never been decided by S. need not go on to rough proportionality. 1994) . Gov’t needs sound factual findings (must quantify findings).gov’t failed to meet standard for relationship b/w impact of develop’t and condition on permit.e. if yes. may have a taking if gov’t goes ahead and demands exaction. Rough proportionality standard . Ehrlich v. Monetary Exactions . nondiscretionary exaction may be more permissible than a very soft. Now. discretionary exaction D.Nollan satisfied. adds extra step.C. must quantify findings. Fall 2009 1. Does not take into account severity of exaction -. Nollan looks at nexus relationship b/w means and ends.only matters how it’s applied. and Nollan and Dolan apply. Went further.: Art fee (Ehrlich) (nondiscretionary) 8 . P realizes facility not financially feasible. in addition to an essential nexus b/w means and ends. go on to determine whether rough proportionality test met. Land Money Adjudicative Dolan and Ex.city has burden to prove (Dolan) (under Nolan. City of Culver City (Cal 1996): P asks permission from city to build recreational facility on prop. g. asks permission to build condos.Land Use Ball. In Dolan. Later. has to be an analysis about impact of develop’t and nature and extent of exaction. then must decide 2.S. City says need for rec facilities.req’ing dedication for highway development not proportional 3. allows permit. -. condition (easement) does not do what it purports to do. NOTE FOR ANALYSIS: If no nexus. For ct.

Need a final “no” from whatever entity has power to say “no” for at least the first time. sought and denied (state remedies (inverse condemnation) must be exhausted): If state has mechanism in place that allows prop. P argued not that he cannot get economically viable use of property b/c of denial (not Lucas or Penn Central claim). lawsuit is not ready for cts b/c every other option has not yet been exhausted. P may have a due process claim if conditions arbitrary and capricious. but…”). fee meets Nollan’s essential nexus test. Final determination req’d: There was an option to seek a variance which was not sought.. to everyone F. Koontz (Fla 2009) . and difficulty finding developers of rec. Hamilton Bank (U. facility). says easement was requested of ALL owners on that shorefront.hard to say what is adjudicative and what is legislative. to pass legislation to make it non-discretionary. 9 . but it is doubtful he’d have a claim). but instead argued under Nollan/Dolan that no essential nexus b/w off-site mitigations to protect the value of that prop. Note: Why is Dolan adjudicative? Ct. which decides they can’t reach the ultimate taking issue b/c there’s a ripeness issue. Comp. finds that the art in public places fee is a legislative exaction. There is a possible justification for rec. Gov’t took nothing. Ripeness Doctrine a. But city incorrectly measured magnitude of its loss (i.Land Use Ball. argued a taking req’ing comp.e. owners to sue state in E. lawsuit that goes to S. but…” instead of just saying “no. b/c applies across the board. The claim is essentially a preemptive taking claim. the rec. Does it make sense to apply Nollan/Dolan to this situation where exaction was never actually realized b/c property owner refused? B. action vs.. Gray area -.C. got nothing.P requested permit to develop prop. and therefore forcing P to bring to the table potential conditions he would be willing to fulfill C. facility due to P’s condo). facility as part of “loss” due to P’s app. admin. remedies). “final determination. If P had applied for variance and been denied. Issue: taking? Holding: Yes. fee (possible impact re: rezoning to allow rec. for a permit to build condos. 1. P brought inverse condemnation claim. or to refuse to negotiate out of fear of being sued. develop’t elsewhere. B. ix. Gov’t conditioned permit if he performed certain off-site mitigation involving prop. and that exaction not roughly proportional to impact. Fall 2009 Ct. Johns River Water Management District v. 2 prongs to ripeness test: A. a considerable distance from P’s prop. Williamson County Regional Planning Commission v.: zoning regs often explicitly allow a waiver of their enforcement if you meet certain criteria. Ct. exaction) by incorporating value of facilities it had no right to appropriate w/out paymentt (P’s rec. Dissent: ironic to punish gov’t for saying “yes. A. 1985) fed. so it’s not subject to Nollan/Dolan analysis. G.S.” But would not have to appeal initial denial. Ex. Does not mean you have to appeal that decision (finality of admin. P would not have a taking claim at all most likely (would have to apply Penn Central test.” If gov’t had just said no. Also odd b/c gov’t didn’t actually receive anything here. But remanded to determine proper valuation of exaction under Dolan so as to not include value of P’s rec. St. (end) and exaction (means). but not a takings claim b/c no actual taking D. Nollan/Dolan applied here may create incentives for gov’t to just say no (instead of “yes. i. found Dolan adjudicative regardless 2. Ok. Rec.

claim ripe as soon as adverse decision made (diff.D.e. T2: Rezoning denied. everyone agrees that taking action to preclude that use is unconstitutional b/c violates due process (so presumed unconstitutional) 2. D. 3. too early. takings claim. x. if seeking injunction. Ct. develop’t. Braun v. from Takings claim) 2. takings. and 2) Ps could bypass ripeness req’t by attaching ancillary D. claim: If really alleging a bias.5th Am.. 2008) . Amortization provisions fall somewhere in the middle .protects fed. cts from prop. 2. Since also sought injunction under S.D. Ct. ct. doesn’t sound like a takings claim.P. not Williamson County). Insomnia Inc. claim (and vice versa). claim: ancillary to takings claim . Can’t claim “taking w/out comp. before a final decision made by local gov’t. S.P.P. Fall 2009 reverse condemnation claim then prop.P. S. Insofar as remedy sought is same (money).P.P’s proposal may still be approved if resubmit revised plan for prop. W/out takings claim. Issue: Inverse condemnation (2nd) prong.D. upholds seems to come down to whether they put them more on the side of the divide w/retroactive or w/prospective. deprives landowner of all economically viable use of prop.facial challenge asserts the mere enactment of reg. P. Ps argue 1st Am. no D. and that claim would disappear if they won the takings claim. 3.D. Amortization Periods 1.P. if takings claim not ripe.Land Use Ball. rendering claim moot 3. D. Ds argue w/out finality.. i.P. If bias is main thrust of claim. City of Memphis (6th Cir. 2008) .” if didn’t seek comp. doesn’t require preemptive or contemporaneous comp. likelihood that harm alleged by Ps will ever come to pass B. NOTE: neither prong applies to facial takings challenges . says won’t hear 1st Am.essentially same claim. owners who try to go to fed. ct.P. 1. analysis and found no violation. Nonconforming Uses and Vested Rights a. ct. claims to takings claims 2. claim arising from land dispute.when that use which is being prohibited is already being carried out prior to the enactment and implementation of the ordinance. . another type of claim (Lingle). matter jd. claim: Can distinguish b/w claims that are ancillary and those that are not by remedy P seeking. But what about constitutional claims (D.applies Williamson County 1st prong (finality req’t) to 1st Am. T3: Ps sued in state court.no takings claim. owner must take advantage of those remedies before going to fed. claim subsumed by takings claim (not ripe if takings claim not ripe). 10 .P. E. Ann Arbor Charter Township (6th Cir. v.P.P. but ct. lacks subj. then that claim is not yet ripe until takings claim is ripe. applied S. S. hardship to parties if judicial relief denied at this stage in proceedings. Prospective application of land use regulation . found takings claim not ripe. T4: State ct. T5: Ps apply for variance. . rules claim not ripe (under state ripeness rules. ct. If seeking comp. can’t separate them. T7: Ps sue in fed. T6: Variance denied. b. violation) if unable to determine whether a taking occurred.)? Are these also not ripe? 1.P.whether a ct. c.T1: Ps request rezoning..D. ct. Retroactive application of land use regulation . not ripe A. Reason: 1) can’t say why taking occurred (i. Purpose: to insulate .D. and E.presumed constitutional (Euclid) 3. whether factual record sufficiently developed to produce fair adjudication of the merits C..P. claim b/c it’s not ripe . considered 3 factors: A.

8. Here. owner’s reas. Amortization and discontinuance of a lawful pre-existing nonconforming use is per se confiscatory and violative of PA Const. But such a result can’t be accomplished through zoning and deprive owners of otherwise legal nonconforming use of prop.indeed. Zoning laws should be designed to protect prop. PA S. Allowed amortization period that ended when ownership of home transferred. W/time comes change. B. 7. ord.) vs. Resolution of what constitutes an existing use is defined on a case-by-case basis. Adequate notice to landowner? ii. Public gain (benefit to comm. private loss (burden on owner to conform) v. some cts hold that a prop. Alteration and expansion of nonconforming uses: A zoning ordinance that authorizes the continuation of nonconforming uses may sometimes be construed to allow such uses to expand. and welfare of comm. Reactive leg. reasonableness test applied on case-bycase basis (see Sullivan.cts will not invoke nonconforming-use doctrine when use of prop. C. Moon (Pa 1991) . Adequate notice to landowner ii. caution against reactive local leg. Doesn’t need to be tied to land use objectives . Burden on owner to prove irrational. unless it’s a nuisance. should be related to owner’s needs (otherwise would eliminate nonconforming use immediately). Enough notice. A.C. owner a vested prop. Here. finds distinction b/w prospective application and amortization provisions is merely one of degree (relies on Sullivan). owner has a const. passed shortly thereafter that adult stores not allowed in certain areas. private loss v. Length of amortization provision in relation to nature of noncomforming use iii. surrounding prop. expectations.not facially violative. facially unconstitutional. above).Land Use Ball. A lawful. tied to user.Village enacted a law that forbade mobile homes. or it’s extinguished by eminent domain. owner opened adult bookstore. Validity depends upon reasonableness. Bd. Greater Harrodsburg v. Romero (KY 2008) . Fall 2009 4. it’s abandoned. and need to allow for flexibility to account for that change. Should activities or use of prop. right to expand a lawful nonconforming use to meet natural business expansion so long as health. since use is the same. must compensate. rights of ind. Public gain vs. Public welfare v. Owners permitted to expand permissible accessory uses of prop. Moreover. owners can seek appropriate legal remedies. right which can’t be abrogated or destroyed.. E. D. A.prop. has transformed inherent nature of pre-existing primary use. Nature of present use in relation to other uses in area 6. escalate to level of nuisance. Length of amortization provision in relation to nature of noncomforming use iii. Following factors are considered: i. Lower ct. Valatie v. safety.: cts. If gov’t wants to interfere w/lawful use which is not a nuisance. prop. “Substantial minority” of states take this approach to amortization provisions. A. 90 days from ordinance to comply. (Taking). Future development prospects iv. Amortization period presumed valid . Smith (NY 1994) . including P’s location. overrules Sullivan (case-by-case analysis re: reasonableness) and creates per se rule against amortization provisions. Nature of present use in relation to other uses in area 5. 2 ways to end nonconforming uses: 11 . could not legally require a cond’al use permit for activities conducted. nonconforming use establishes in the prop. Proponents of reasonableness test consider following factors: i. PA Northwestern Distributors v. owner. opposite is true. Future development prospects iv. are not jeopardized.

weighs owner’s interest in developing prop. can show compelling reason for exercising police power retroactively to date of application iii. Retains architect. of money by itself not enough. ii. of cts. Critical variables in analysis: i. c. A. Rejects “substantial reliance” test (H. mun.) .not predictable. or b. C. NOTE CASE: Amt. prohibitory zoning if changed position beyond a certain point.determines % of money spent or obligations incurred before zoning change as compared w/total cost. gravel would have to be laid no matter what type of construction is being done and therefore will not be a significant monetary input).T1: Subdivision permit denied. i. measured quantitatively. How to improve this: Vested rights kick in when final determination on part of mun. Abandonment .e. begins to build storm sewers/culverts.. Ct.Land Use Ball. then loses subsidy. set quantum test . intent not req’d (implied) b.Allows for greater flexibility but lacks predictability. Fails for same reason as above. couldn’t be used for another building c.E. assurances from city council and mayor iii. a.intentional B. expenditures: substantial? Construction or preparation? ii. notice of contemplated zoning change c. whether expenditures were for preliminary activities or for construction B. Gets support from city. proportionate test . Late vesting rule . Logan (Ut 1980) . Protects owners while recognizing that municipalities can change their mind 12 . b. City changes zoning ord. Fails b/c little predictability. Romney (WV 1993) .E. balancing test . Fails b/c no predictable pt. H. 2. Vested Rights 1. ct. good faith b. T3: Ord. T2: Lawsuit. Case-by-case determination: a. Fall 2009 A. how far developer had progressed in obtaining nec. are pending which would prohibit use applied for.don’t use for period of time. Deeds part of prop. in effect at time of application.R. architecture work specific to this cause (elderly home).Non-profit org. Majority rule.D.D. architecture 95% done and therefore full fees had to be paid b. determines owner entitled to relief from new. Dis-use . Holding: applicant for subdivision approval or a building permit is entitled to favorable action if application conforms to zoning ord. Western Land Equities v. amt. gov’t approvals ii. Intermediary vesting rule A.R.used by maj.“as of right”  “special use permit” i. to city. Ad hoc analysis. wants to build housing for elderly. and reasonableness of proposed use against interests of public. decides in favor of the land owner a. of unrecoverable expenses incurred in good faith iii. v. changed -. short of adjudication separating reliance that is less than “substantial” from that sufficient to result in a vested rt. changes in zoning ord. will look to HOW the money is used and whether it is specific to this application or can be utilized for other purposes (i. unless: a.

. Landowner arguments: slippery slope . gov’t can’t simply act as agent of private entity (look out for K zoning) d.D. Even though private facility (Pfizer research facility) economic benefit to city that is in disrepair (“distressed mun. Both constitutional and statutory provisions limit gov’t exercise of the power of E.P’s land down-sized from light industrial to agricultural in response to pressure from various groups. public gain outweighs private benefit. “Public Use” appears in Takings Clause of 5th Am. Public use does not require that the gov’t retain title. here. is filed during effective period of zoning ord. Especially nec. and c. increase tax base -. b. part of area will be accessible by public 2.S. firm attempted such an assemblage. economic plan or identifying entities? If the former. 4. clause of 14th Am. Valley View v. unlike Berman and Midkiff. Developers right to build vests if building permit app. risk of “capture” of political process.Gov’t as Landowner. problematic e. applies for building permit and permit thereafter is issued B. then picked beneficiaries of plan.) to reduce 13 .at same time. Public Use Clause .no boundaries. not preventing a harm (area not blighted) -.” Argument fails if only the private party benefits. Federal Constitution a. owner or not. prop. case more or less compelling. Kelo v.: unemployment. welfare of comm.does not address factors that might make ind. it needs in exchange for just comp.. loss. Per se rule .. Eminent Domain a. if the latter comes first.D.city purchased prop. Counter to rule in most states. 1. is sufficiently complete..e. entire parcel. taking from ordinary citizens to benefit large corp.D. P won right to continue w/plans i. and so sufficiently serves a public purpose (Midkiff fee title taken from landowners and given to lessees (for just comp. and Financier i. but not preventing a harm (no harm arising from current ownership). Must be for public use. owner’s need for certainty? E. if priv. is local gov’t’s need to respond to new learning and changed circumstances appropriately balanced against prop. local gov’ts hate this rule b/c limits their ability to address problems before use. Developer. demand “reasonable certainty” req’t that expected public benefits will accrue 3.P.. D. some owners might recognize advantages of holding out for an exorbinant price. under which developer seeks to develop. which req’s gov’t to spend less money and which advances gen. right vests when party. a railroad) so long as the use qualifies as “public use.may be creating a benefit. more likely ok.) .Land Use Ball. reduction in “social ills” as result of economic redevelop’t. f. therefore might be discouraged from pursuing a socially worthwhile land consolidation. Fall 2009 3. Need for certainty v. and P had already submitted building plans in compliance w/then-zoning ords. complies with then existing ordinances/building codes. plan for develop’t first.: a. b. from willing sellers and proposed to use E.”). City of New London (U. can give to a private party (i.. needs of comm. power to acquire remainder of prop. c. when many parcels must be assembled to complete a large project.. pop. need for change: at what pt.just requires builder submit plans according to zoning at time. Redmond (Wash 1987) . Most protective. makes public use limitation applicable to the states ii. easy to apply. Which comes first. Gov’t arguments: one parcel vs. would-be land assembler lacking power of E. Early vesting rule . A. Gov’ts can compel an owner to transfer land to it in return for just comp.

1.D. Transfer to priv. of “public use”. taking it. Can’t determine constitutional validity on piecemeal basis. When primary motivation is just to benefit priv.particularly it identifies the entity first then the economic plan 3. 1. no good. priv. quick-take application is problematic . gov’t can now take anything. 14 . Revenue expansion not enough to justify improper expansion of E. must maintain measure of control over prop.too broad of a def. City may not take prop. Judicial deference to city that wants to cure rampant economic harm of city presumption of validity. park.parking lot -. otherwise you can essentially take land away from those who use it less productively. entity only justified in 3 instances.every business does this. to construct business and tech.upheld). Serves a public purpose 4. Nat’l City Enviro. v. entities . and 2) economic benefits do not justify transfer of prop. State Constitutions . and public benefit is just ancillary. cts.anyone can come and use facility 2. Promoting economic develop’t qualifies as public purp.state cts have typically been more aggressive than fed. Those w/$ and power will get the land. Intended to reinvigorate struggling economy by attracting businesses. to acquire land for vital instrumentalities of commerce (ex. Overrules Poletown: 1) should not give so much deference to leg. Landowner arg. party used gov’t agency as way to get around market and expand profits b. would render useless the constitutional limitations 3. creates an imbalance.: not blighted. etc.D.. found not a public use 2. Limitations required for the taking after Kelo 1. Economic develop’t does not qualify as public purpose .i. County of Wayne v. to priv. other options available here for racetrack that they did not look into b/c cost more money.must be devoted to use of pub.e. Fall 2009 concentration of land ownership . priv. in policing against abuses by local policymakers. (Midkiff and Berman). independent of will of corp. for economic develop’t not ok 5. . 2002) . won’t secondguess gov’t’s determinations re: what land it needs to acquire in order to effectuate project. Ct. and give to priv. must look at plan as a whole (Berman). a. Won’t require gov’t to show a “reasonable certainty” that expected benefits will actually accrue.: highways. b. E.. none of which applicable here: A. condemnations involving pub. Background facts that would show that city needs some economic revitalization ii. party for a profit when prop. 5.gov’t wanted to use E. entity remains accountable to public in its use of prop. says development plan part of comprehensive plan already in motion. O’Connor dissent: wants public use to eliminate only public harms. No harm here from current ownership. States can place further restriction on exercise of takings power. (Ill.Land Use Ball. Hathcock (Mich 2004) .gov’t can’t just act as rep. fact that members of public can come on to prop.: literal public use -. power 4. Gov’t arg. and use it may not help argument if intent is to benefit the private party 8. of private entity and call it public use to further private entity’s expansionist goals. railroads. area not blighted. Ct. 6. necessity of the extreme sort otherwise impracticable . canals. Plan must be comprehensive 2.D. pub. provides enough of a check 7. not used for public use. in which collective action nec. Thorough deliberation preceding the adoption 3. 4.. Southwestern Illinois Develop’t Auth. party.) B.

C. or aesthetic burden not an imposition . when selection of land to be condemned is itself based on public concern . interpret “use” to mean “purp. Until fairly recently. basketball team to Brooklyn a public use not incidental to priv. g. but condemnation itself is a “public use” c. f. Subject to strict scrutiny only if not neutral and generally applicable 15 . Indirect. e.fed.Ord. out of their jds. 1980s . Purp: to achieve redevelop’t of segment of city (wanted vibrant downtown . financial.: “Congress shall make no law respecting an establishment of religion.”. 2007) .S. Cl. Also prohibited schools and gov’t buildings. decides Smith: right of free exercise does not relieve an ind. significance” (i. uses. Ex. use req’t).state statute prohibits liquor w/in 200 ft. “public use” can’t be precisely defined . or ritualistic significance. app. Standard not more restrictive. Religious Land Uses i. d. won’t succeed on state claim. did not list “church” as permitted use but listed several secular uses as permitted. not a violation 3.important lower fed. law that has incidental effect of burdening particular rel practice need not be justified by a compelling gov’t’al interest. that zoned rel. Narrow def. but need only met the usual rat’l basis standard. of obligation to comply w/valid and neutral law of gen.Land Use Ball. app. benefits. A gen. hardship.found Congress had exceeded its enforcement powers under 14th Am. does not define land use as a rel. and 2) the least restrictive means of furthering that gov’tal interest.prop. Would not hinder ability to practice rel.if can go elsewhere w/out unnec. or disfavored religions. crim. owner has burden to prove no rat’l relation F. state cts. presents itself on facts at present time in present case 3. Any use which contributes to public welfare = “public use/purp. of house of worship). strictly limited use of prop. P did not succeed on fed. cts.. groups: decision would allow communities to zone all rel. prop.: condemnation of blighted housing  resale for priv. 1. Congress passed Religious Land Use and Institutionalized Persons Act (RLUIPA) (2000).e. rejected.C. Denounced by many rel. 1993 . 5 of 8 blocks affected are blighted 1. Long Branch (3d Cir. 1990 . applicability on ground that law proscribes (or prescribes) conduct that his religion prescribes (or proscribes). must not remain static in time. Free Exercise Clause . 1.” a.Congress enacted Religious Freedom Restoration Act (RFRA) providing that gov’t shall not subst. Goldstein v. burden a person’s exercise of rel. portions of city or imposed req’ts that made it costly for a religion to establish use on chosen site. for resorting to condemnation. use. v.evolving concept. declared RFRA an unconstitutional restriction of the states . ex. unless gov’t demonstrates that it’s: 1) in furtherance of a compelling gov’tal interest. underlying purp. Fall 2009 C. b.S. Ex. 1997 . pub. must satisfy Const..must look to framer’s intent when used “use” . w/in area. Overruled Smith and reinstated compelling state interest test. Ct. found proposal to bring prof.interpretation of “public use” under NY law not more restrictive than under fed. was skeptical of land use regs. or prohibiting the free exercise thereof. Ord. Const. Ps argue distinction b/w “use” and “purpose” . decisions broke from trad’l state ct. view. claim. Free Ex. 2.” c. even if burden results from a rule of gen.: “construction of church building in a residential district has no rel. ct. uses out of subst.1st Am. Must interpret “public use” as quest. rather than subsequent use of condemned land.could move elsewhere. Unlike RLUIPA. must be selected on basis of “facts of ind. Lighthouse Inst. . NY Urban Devlop’t Corp. 2.” but state should be more restrictive in interpretation. (NY 2009) .’s pub.

or institution A) is in furtherance of compelling gov’tal interest. Subst. including a rel.. burdens. for rel. Religious Land Use and Institutionalized Persons Act (RLUIPA) .no gov’t shall impose/implement a land use reg. didn’t show unreasonable or arbitrary and bears rat’l relationship to some conceivable permissible obj.Orthodox Jewish day school submitted expansion plans and application for special permit. and financially feasible alternatives D. or converting real prop. burden on rel. 2 sections/primary claims: a. unreasonably limits rel. in a manner that treats a rel. a system of religious belief.no gov’t shall impose/implement a land use reg.Land Use Ball. so is a rel. reasons for assembling less imp. Act’s aim of protecting rel. still only rat’l basis review.” Goes beyond 1st Am. Equal terms . burden. Neutral: no ev. or unlawfully imposed are subst. ex. assembly or institution. to be construed broadly and to maximum extent permitted by terms of statute and Const. Once determined rel. assembly/inst. or B. Project is a use of prop. to be subst. Exclusions and limits . conditional denial may be subst. opp. Mamaroneck (2d Cir. ex. C. not enough to constitute rel. Not discriminatorily enforced. assembly. or rel. goals and prohibiting those that would interfere w/them. 1. Using. must be rel. exercise.no gov’t shall impose/implement a land use reg. generally allowed kinds of uses that would further leg. c. that discriminates against any assembly/inst. and B) is least restrictive means of furthering that compelling gov’tal interest. not subst. teachings.). denomination 3. ex. burden on P. ed. 2. denied application. burdened. if condition itself is burden on free ex. unless gov’t demonstrates that imposition of the burden on that person. than secular reasons. Subst. assemblies from a jd. Nondiscrimination .. thus. or central to./structures w/in a jd. Note: Do not apply strict scrutiny merely b/c no waiver or amendment provision 4. 1. (every classroom used for rel. No quick. animus) and no value judgment that rel. Effects-driven tests dangerous. gen.. rights of institutionalized persons.. ex. app. Must be close nexus b/w coerced/impeded conduct and rel. Cl. reliable. burden B. Substantial burdens provision: RLUIPA prohibits gov’t from imposing or implementing land use reg. Even if incidentally burdens right to free ex. on less than equal terms w/a nonrel. Westchester Day School v. on basis of rel. Just b/c rel. totally excludes rel. burden shifts to gov’t to prove compelling gov’t interest and least restrictive means furthering that interest. Fall 2009 A. Discrimination and Exclusion provision: 1. exercise. In this case enough b/c all proposed buildings would be used at least in some part for rel.addresses only land use regs and the rel. ex. 2. B. zoning bd. Must show compelling interest in particular case.. Free Ex. restrictions arbitrarily. exercise purp. to resubmit app. assemblies/insts. 2007) . burden less likely to be found when denial of app. req’d modifications are 16 . neutrally imposed. exercise of a person. however. Generally applicable: gov’t pursued aims evenhandedly. “Religious exercise” defined as “any exercise of religion. in manner that imposes subst. not in general. assembly/inst.) 2. burdens C. burden on rel. that: A. Proposed develop’t must do more than just enhance overall experience of students. capriciously. Survives rat’l basis review. is a religious exercise 3. of rel. building. ii. 4. ex. not absolute (where P has reas. inst. b. whether or not compelled by. gov’t’s plan for area developed w/aim of infringing on rel. for purp. practices (no rel. b/c coerced P to continue teaching in inadequate facilities A.

Lighthouse Inst. No burden shifting.church activities as homeless shelter not fundamental to rel. Sexually-Oriented Businesses a. activities 3. e. secular comparator’s effects on reg. remedies.to lift gov’t-created burdens on priv. C. ex. merely req’ing states not to discriminate against/among rel. can’t predict permit would be denied if applied. or zoning bd. which C. and explain why rel. comparator that proposes same combo of uses/functions B. burden for equal terms claim 2. determination hinges on comparison of how it treats entities/behavior that has same effect on reg. applicable. prohibited any adult motion picture theater from location w/in 1000 ft.Equal Terms claim: 1. 2009) .) ii. not bring about excessive gov’t entanglement w/religion (YES . v. burden. just b/c inconvenient to change locations of shelter. Playtime Theatres (U.Land Use Ball. have principal effect that neither advances nor inhibits religion (YES . seeks to advance G.gov’t must show compelling interest and means least restrictive 17 . assembly on less than equal terms with D. single. religious one. burden on rel. treats the rel. Gov’t must have a clear objective. F. enttites excluded but sec. not just rel. ex. uses that seem to have a similar impact permitted. 2007) .’s stated willingness to consider a modified plan disingenuous. park.’s objectives A. Heightened scrutiny warranted only when principled distinction couldn’t be made b/w religious vs. behaviors but not certain rel. statute has been violated. E.. If would exempt for secular use that would have similar impact. Fall 2009 economically unfeasible.) d. Impact of behaviors must be examined in light of purp. P asserting equal terms claim must show: A. must exhaust admin. Renton v. it is a rel. subject to a land use reg. But if impact on reg. Content-based: apply highest level of scrutiny .look to intent A. that causes no lesser harm to interests reg. (not same uses).or multiple-family dwelling.gov’t action interacting w/religion must: i.S. not a subst. of terms to a secular user vs.See above. ex.entanglement becomes excessive only when it advances/inhibits religion. not similar. rel. does not cease being neutral and gen. of reg. of any residential zone.merely permits rel. 1986) . B. simply b/c it allows certain sec. Issue: whether ordinance (even when prospectively applied) violates free speech clause. 4. practitioners free exercise w/out being burdened unnecessarily by gov’t) iii. If neutral and gen. use. P need not show subst. must exempt for rel. if P can show unequal app. presumed valid. church. objectives E. 1. Strict liability standard. wide range of activities prohibited. have secular purpose (YES . then not comparable (and no violation) D. behaviors. Free Speech i.ord. of reg. Must show secular comparator that is “similarly situated” as to reg. not strict scrutiny. RLUIPA . Westgate Tabernacle v. 3-prong analysis . content-neutral . P need not show a sec.. Palm Beach (4th Cir. Long Branch (3d Cir. Mere permit req’t not a subst. Here. RLUIPA is constitutional A. app. 4. end of analysis. institutions does not advance rel. a nonreligious assembly/inst. assembly/inst. or school. purp. Content-based vs.

2 inquiries: i. Balance b/w 1st Am. will be successful. whether predominant concerns motivating ord.content-based: but for the type of movie. went further to say that no more than one of these uses in same structure permitted. Content neutral analysis: A. Subst. you’re more likely to experience the secondary effects (reasonably believed to be relevant). 2. real estate market. ok as long as it’s reasonable to believe that when you have these businesses concentrated in one structure. ii. Fact that those areas not open irrelevant. Reasons for regs: 1. not intended to suppress expression. relied upon is relevant to problem B.? Was it to go after the speech. gov’t interest and doesn’t limit reas. analysis and def. were secondary effects (not content) ii. Billboards and Signs a. 3. determined predominant concerns were to combat crime. 2002) . Fall 2009 B. 6.prohibition of operation of businesses that are too close (1000 ft. place. city did study in 1977 showing concentration of businesses associated w/higher rates of crime in surrounding neighborhoods.. (secondary effects). thus violating ord. to city’s studies re: local problems.Land Use Ball. means of comm. Mun. theater would be permitted 3. Not banning altogether. Question: is “over there” practical? Are the theaters being shoved to only those areas where they cannot possibly develop (i. Ct. need not conduct new studies so long as ev. Standard: intermediary scrutiny ok so long as designed to serve subst. Promote beauty/discourage ugliness 18 . 2. uphold retroactive application of provisions req’ing existing businesses to phase out or come into compliance as long as amortization period is reasonable. P rents videos and has booths. 1. Gov’t’s argument . and manner reg. Owner’s argument . loitering. supporting theory/justifying ord. or counter the secondary effects? 5. Content-neutral: time. Need not show empirical data that ord. can demonstrate a connection b/w speech regulated and secondary effects motivating ord. etc. A. Ct. reasonable opportunity to experiment w/solutions to address secondary effects of protected speech. means of comm. Alameda Books (U. secondary effects. May rely on studies of other cities to satisfy that there are neg.) to other similar uses. qualified as two uses. LA v. gov’t interest: to preserve quality of urban life i. must give mun..hardly likely to achieve purported goals. Is it really contentbased? c.e. just saying where we want (or don’t want) 4. decrease in prop. Majority of cts. asks: Is censorship primary motivation or not? What were predominant concerns of gov’t when it enacted the leg.burden on P to case doubt on rationale.not banning them.: left plenty of space in town open for use as an adult theater site. must deal with the priv. on an airport runway)? b. burden shifts to city to provide ev. Content-neutral . whether mun. Merely an attempt to drive out adult businesses? Splitting them up would result in 2 operations instead of 1 -. Reas. Evidentiary req’t: even though have not studied effects of concentration w/in one structure. Constitution not violated b/c there aren’t as many sellers as P would like there to be. values.S. If P does so. i.

is stronger than city’s interests in traffic safety. San Diego (Ca S. 1. claim: Proper app.Land Use Ball. Traffic safety 3. Ps claim: A. Non-commercial not allowed either off-site or on-site. claim C. May be able to strike the period for individual cases. claim: Leaves open adequate means of alternate communication A. and advertising products/services available there than it has in using or leasing its available space for purp. Ct. Amortization period challenge: ok b/c ct. reflecting that former interest. but as applied claims still available to ind. noncommercial speech: Const. claim B. . so this period is alright. reaches no further than nec. of advertising comm.violates 1st Am.C. gov’t interest C. prohibited all off-site advertising displays. speech than noncomm. 1981) . Reaches too far into realm of protected speech. protects comm. Too much burden on owner w/o corresponding benefit? Retroactive? 5. has found in prior cases that 1-5 years ok. speech only if concerns lawful activity and not misleading. Could affect freedom of expression 2. D. 1981) . speech valid only if it: B. speech . Fewer distractions 4. violated 1st Am. Metromedia v. gives more protection to comm. but not facially unreasonable d. on its face. Possibility that ord. accords less protection to commercial speech than to other constitutionally guaranteed expression. Metromedia v.city could reasonably conclude that comm. Problems w/regs. to accomplish the given obj.S.promotes safety and welfare of public (proper objectives) A.P.ord. Gov’t reasons: A. and D. on-site commercial ok.C. Valid reg. w/exceptions.P. 1st Am. Reasonably relates to traffic safety B. High degree of subjectivity 3. 1. Certainty b. speech (onsite advertising) over another (offsite advertising). Ps (case-by-case basis) 5. A restriction on otherwise protected comm. Certain features of ord. (above). seeks to implement subst. Fall 2009 2.exemptions discriminate on basis of signs’ messages. D. Aesthetic appeal alone can justify ord. says ok . enterprises located elsewhere. Aesthetic purposes B.reversed CA S. Amortization period calculated using balancing approach (public benefits vs..: 1. but not latter. 4-part test for determining validity of gov’t restriction on commercial speech: A. Commercial vs. directly advances that interest. 1st Am. of commercial speech: Only (C) at issue here . San Diego (U. may impede an advertiser from communicating message to public not sufficient to invalidate ord. 3. Interferes w/ commerce (billboard regulations) c. enterprise has stronger interest in identifying place of bus. Invalid reg. of noncommercial speech: ord. 2.city has chosen to value one type of comm. enough economic impact to make it legitimate (modern trend) 4. Promotes property values/encourages investment 3. of police power . 1st Am. private loss). Facial challenge to the amortization provisions (too short) 2. 19 . Legit exercise of police power? Substantive due process? 4.

Fall 2009 A. Content-based b/c: 1) ord. speech? Then problem becomes prohibiting too much protected speech. has exceptions (residential identification. Content-based: prohibition applies to all inflatable signs except for grand opening signs. would be struck down b/c limits availability of balloons or 20 . narrowly drawn to achieve that goal/to prevent no more than the exact source of “evil” it seeks to remedy (NO) 4. Time. speech invalid . to serve a compelling state interest (NO). commercial signs in properly zoned districts. Highest level of scrutiny. must show reg. nec. got rid of exceptions. But if going to allow onsite comm.ord. safety. 3 types of forums (character of property): A. Ord. and prop. and B. b/w effect on health/safety b/w different types of inflatable signs. reg. any restriction on public issue picketing subject to strict scrutiny 2. 2. and sidewalks) .Land Use Ball. 1994) . church signs. Exceptions permitting various kinds of onsite noncomm. 1st Am.gov’t’s ability to restrict very limited B. Ct. parks. speech. Various temporary (non-inflatable) signs permitted w/out permit. No practical substitute. Even if got rid of exception for grand opening balloons. Restricts too little speech impermissibly underinclusive. Gilleo (U.: speech re: public issues afforded widest room for discussion. which would be contentbased A. place and manner analysis: content-neutral . speech as well. gov’t interest B. speech). 1. Not a subst. extremely affordable & convenient. and 2) violation of ord. Exemptions from otherwise legitimate reg. reas. alt. 1. values.: aesthetic (to attract economic develop’t).: A. no diff. & reaches people in a diff. yet one is allowed and one is prohibited. balloon signs or other inflatable signs except grand opening signs.S. Still problem of overinclusiveness.no subst. Ladue v.goes after an effective means of communication.Ord. also overbroad . Note: What if mun. traditional public forum (public streets. No compelling interest for distinctions. way. gov’t interest . Invalid . but too much . problem solved. based on purp.essentially content-based reg. prohibits signs. found both underinclusive and overinclusive. must allow onsite noncomm. thereby prohibiting ALL non-comm. prohibited all portable signs.dangerous to foreclose an entire medium of expression. If remove exemptions. over noncomm. alternative means of communication. type of comm. favors comm.unconstitutional and overbroad. non-public forum 3. f. Metromedia: exemptions from otherwise permissible reg. This part. in traditional forum. e.prohibits too much speech. NJ v. To enforce content-based reg. speech. not that you’re regulating too little. gov’t interest and no suff. City may not distinguish b/w relative value of different categories of noncomm. Same harm for both categories. A.reducing clutter no more compelling than precedent cases where found no subst. 4. means of comm. speech (though may do so for comm. and ‘for sale” signs). . identifies speaker more so than posting a flyer on a telephone pole. Ok to ban all offsite advertising. No suff. Purp. B. for which sign is displayed 3. not targeted toward particular types of speech. Exemptions problematic: underinclusive. public forum created by gov’t designation C. of a medium of speech may diminish credibility of gov’ts rationale for restricting speech in first place (cf. of speech may = content discrimination). on-site advertising for gasoline drilling. DeAngelo (NJ 2009) .

If leg. Administrative or quasi-judicial bodies involved in different types of mechanisms: a. habitable area therein. must meet 3 conditions to prove unnec. i.owner wanted to get variance to have two single-family residences on lot. may have a situation where variance first goes to Bd. density (extent of lot coverage). hardship standard and won’t help getting variance i. Land will yield no reasonable return w/out variance .. lawyers. area variance: diff. may then appeal to leg. concludes that not sufficient ev. ZONING CHANGES/FLEXIBILITY DEVICES & THE RIGHTS OF NEIGHBORS . body.made up of gov’t officials that work for mun. Variances a. 1.depending on jd. restrictions on bulk. Planning Commission . instead of being a group of people named. Will also hold hearings in anticipation of a rezoning and make recommendations to leg.. Area variance authorizes deviations from restrictions which relate to a permitted use.. not met here. body. can go to leg. B. Bd. hardship. of Adj. but ct. very often involved in issues related to special uses or conditional uses. II. min. Same works in reverse -. Depending on jd. in area zoned for only single-family residences. Will often make a recommendation to Planning Commission re: rezoning. A. Actions by Administrative Bodies i. left no ample alt.prop..e. body to have ability to hear appeals on denial or granting of variances or special uses. Use variance vs. then can go to ct. b/w this and Planning Commission: this is a branch of local gov’t -. not general conditions of neighborhood C. Ct. To obtain a use variance. must demonstrate that an unnec. Note: Very common for leg. Note: where owner has been contributing cause for resulting hardship.only evidence was owner’s opinion. Diff. body affirms. body re: whether a particular rezoning proposal should be adopted. If denied by leg. or setbacks) 2.if Bd. Plight of owner due to unique circumstances. of Adjustment/Zoning Appeals . to establish unnec. grants variance and neighbors don’t like it. and how regulatory system set up. Fall 2009 inflatable signs as a means of communication.consist of appointed members (real estate agents. wants actual figures. Smith (Mo 1986) . d. prohibits B. can go to ct.Land Use Ball. also hear appeals on denial of zoning permits b. body. permits use ord. hardship . Divided land in such a way to make it difficult to conform w/existing zoning laws ii. Use will not alter essential character of locality D. c. must show actual proof (dollars and cents) ii.). hardship would result from denial of variance: A. Must show loss of all beneficial economic use of prop. In proper circumstances. size. Test for prohibition of entire medium of expression: will be upheld only if narrowly drawn to accomplish a compelling state interest. third parties (neighbors) A. Matthew v. rather than limitations on the use itself (i. Zoning/Land Use Dept.responsible for variances (issuing or denial). owner’s + gov’t vs. channels for communication. Use variance permits a use other than one prescribed by zoning ordinance in particular district. will not help to meet unnec. height. Develops property in violation of existing zoning laws 21 . . etc. but usually more involved in hearing special use applications.if don’t allow reas. return. might be a taking under Penn Central. Sometimes hear variances. ii. and is denied. standard applied A. use variances permitted.

unless variance granted. knowing land will not be economically viable unless variance granted E. values of county. pop. but may play a role in analysis. lost.use may be a factor for consideration in the area variance determination. treat unnec. not decision of ct. not unreasonable in finding that proposed use would have a significant and detrimental effect on neighbors. Ct. just less strict. Bd. Neighbors filed decl. Oppressive and arbitrary argument: D claims met burden to show unnec. but doesn’t mean that use is irrelevant in analysis. More relaxed standard . Not opp. Walworth County (Wisc 2009) . incorrectly applied use variance standard instead of area variance standard. since conditional permit had been granted and was therefore settled.). Applied for conditional use permit (CUP). To obtain an area variance. must evaluate hardship in light of purp. i. 4.Owner wanted to convert upper level of garage into SFR. Ct. though first element will be different. Purchases prop. i. C. so outside of Bd. offensive. On app. review decision itself. Note: personal hardships (i.denied. Fall 2009 iii. unless variance is granted . for variance to Bd. A.’s jd. Also argues Bd. c. B. D appeals. voted to grant variance. zoning committee approved but conditioned that P obtain variance for setback req’t. Problem: CUP not equivalent to use variance. but didn’t meet 20-ft. However. Maybe there can be a few more area variances granted before run into problem for element 2. not very explicit as to what is req’d . claims shouldn’t have looked at use at all.. “Slightly less rigorous” standard than unnec. of ord. activities. B. Conditional use is a permitted use in a specified zoning district that may be granted under special circumstances if use not harmful. judgmt. says owner exaggerates scope of precedent . must demonstrate a practical difficulty A. prohibited from granting use variances. had no jd. Note: Some cts.’s decision opp. Not necessarily that elements different. Zoning comm. It may not overwhelm the other considerations. and to stabilize/protect natural beauty and prop. of Adj. to hear application for variance. hardship. hardship in absence of variance.need not rise to that level. held own proceedings re: variance (did not refer matter to Bd. return on prop. agency decision. density and dist. Use variance vs.. D argues variance should’ve been granted b/c Bd. lot coverage. and arb. D submitted app. reversed/remanded b/c zoning comm. or arb. hardship falls on prop.can’t require owners to show no reasonable use of prop. 3. area variance: A. or otherwise adverse to environment. Driehaus v.. Burden of showing unnec.elements might be similar. agrees that “no reasonable use” standard should not apply to area variances. . Here: to reg. Use variances can undermine Euclidean efforts to segregate diff. May mean you don’t need to show there is no reas. weighed both sides: found Bd.e. hardship and practical difficulty as interchangeable b. 2. and D failed to establish unnec. hardship. and location and size of all structures w/in area. so Bd. hardship analysis 3. 1. owner B. and can be more relaxed with element 3. Can limit incidence of use variances in following ways: 22 . Presumption of validity when reviewing admin. Variance allows nonconformities that are otherwise prohibited by ord. Ct.Land Use Ball. setback req’t for residences. poor health) not taken into consideration in unnec.

Southland Corp. to be used in a manner expressly authorized by ord. So. Fairfax County v. affect on neighborhoods d. Note: neighbors’ challenges to grant of variances succeed more often than challenges to grant of special exceptions. 5. 1982) . variant of “promote the general welfare”). limited discretion. which permits particular prop. rational basis (is it legally consistent w/regs. Ords. 2. and facts have substantial support in ev. 3.exempt from special exceptions 23 . give BZA discretion to grant special exception as long as meets req’ts of reg.C.Flexibility devices designed to meet problem where certain uses. Note: Unlike variance. Cts. to an admin. 1995) .when the run. D. body. to be used in manner forbidden by ord. can interpret statutes modeled after Standard Enabling Zoning Act (SZEA) to bar award of use variances on theory that use variance is rezoning and power to amend ord.. special use/exception/conditional use provision permits prop. Cts. many local gov’ts make it difficult for applicant to prove compliance w/ord. body’s discretion. A. Ps challenge findings . BZA (D. 1. they run far B. require that if leg. Leg.’ greater solicitude for special exceptions threatens to deprive local gov’ts of discretion. auth. shouldn’t be permitted to be located as a matter of right in every area included in zone b/c of hazards inherent in use itself or special problems which proposed location may present. (Va. by varying terms of ord. ct. b.BZA decision will be upheld if: A. this method may be rejected) 4. Req’d precision varies by ct. already a lot of group homes in area. although generally compatible w/basic use classification of particular zone. deference . a. Gladden v.e. to impose tougher criteria for award of use variances (undue hardship) than for area variances (practical difficulties) (Matthew). Due process 2. Zoning regs. decision accompanied by facts sufficient to enable a decision. Use allowed. have amended enabling acts to either eliminate or toughen standards for use variances iii.C. can construe relevant statutes and ords. Issues when considering special uses/exceptions: 1. Improper delegation: If legislature gives too much discretion to the zoning bd. presume variances should be granted rarely (Matthew). Fall 2009 1.Land Use Ball. home will have neg..Landowner’s objection to special use regime: other commercial uses permitted by right .claims not adequately supported/addressed/explained A. Here. some cities have adopted zoning ordinances that prohibit grant of use variances. may say giving leg. and thus take away leverage to exact tribute from landowners. Use “as of right” 2. body delegates power to grant/deny special exceptions to admin. Special Exceptions/Special Uses/Conditional Uses . state legs. body c. no ev. decision follows as a matter of law from those facts. 2.? arbitrary/capricious?) B. but only if… 3. (If state enabling act confers auth. Favoritism 3.. 3. w/in discretion of governing body. must provide standards to guide admin. Use prohibited (req’s variance) 4. met both req’ts. Thus. but presume special exceptions are too frequently denied. rate of abscondence not an issue . of this type may be challenged as providing inadequate guidance.. Cts. 3 kinds of uses: 1. to grant them.neighbors upset b/c think youth rehabilitation home will have adverse effects on the neighborhood. has not been delegated to BZA. req’ts by adopting vague standards for special exceptions (i. leg.

4. Distinction county relies on: traffic per square foot 3. presumed valid unless reasonableness challenged. or 3) unreasonable inequality in treatment of similarly situated lands (for benefit of some prop. BZA may factor in other considerations (objections) to determine whether exception should be granted. 22 other categories of commercial enterprises that also must apply for a special use permit 2. then must prove reasonableness. 2) whether will adversely affect use and value of other prop. etc. Bd. 2) lack of conformity to a comprehensive plan. will be considered subst.term is at best but a description of a process of singling-out a particular piece of prop. to negate existence of req’ts. Problem: must be careful . Ev. Exercise of right of power to grant/deny special exceptions/special use permits belongs to leg. makes distinction b/w those criteria that include objective standards and those that do not: 1.. Ct. BZA may deny. not obligated to give more weight to Ps than to remonstrators’ ev. If meet all req’ts undeniably (BZA determines meets req’ts). even if evidence introduced to prove that req’ts met. If /when cts declare such zoning invalid. 3) whether will be consistent w/character of district. P has burden of proving req’ts met. req’ts for granting of special exceptions: 1) whether injurious to public safety. Danger signals (spot zoning) 2. Ct. may use discretion f.? Is rezoning consistent with Master Plan? 24 . will invalidate if prejudice. Crooked Creek Conservation & Gun Club v. 3. in question can change zoning laws. Where an admin. then can be as underinclusive or overinclusive as it wants -doesn’t matter if other commercial enterprises that are similar are not included in special exception req’t. i. does not in and of itself invalidate req’t 4. Strengthening of Judicial Review. owners and to detriment of others). or to advance interests of community? What is the mun. Actions by Legislative Bodies . As long as meets rat’l basis test. 5. If P fails to meet burden. e. arbitrary. or improper motives. Spot Zoning . they must base this declaration on one or more of three grounds: 1) lack of connection to a police power purp. Standard of review for admin. 1 & 3 are subjective .only elected officials of mun. decisions: whether lacks reasonably sound evidentiary basis. Suspicious of rezoning inconsistent w/comprehensive plan 3.. Smaller establishments (“quick service food stores”) unfairly singled out. argument (apply rational basis review). BZA (Ind. too much discretion (improper delegation issue).inherently gives discretion to BZA to determine whether req’ts met 2.P. or quasi-judicial body attempts to rezone. Leg.. E. health. 1997) . in immediate area. even where remonstrators don’t present ev.can’t give Bd. A. Ask: is the primary motivation to help the private ind. reason enough to strike down law. Spot Zoning. 1. Rezoning. if it’s more than a scintilla and less than a preponderance. 1. cts still defer to local leg. Fall 2009 process.Land Use Ball. then special exception grant is mandatory. Claim brought by neighbor who feels he is being treated unfairly. unless: 1. and Comprehensive Plans a.. body acting adjudicatively B. after in creating the zoning ord.ord. for treatment/use classification that differs from that accorded neighboring props.

’s reasoning to rezone prop.must be subst. iii. Fall 2009 2. Land Use Law (MLUL) gives broad power to mun. but req’s that all provisions of change in ord. said not allowed. request for rezoning granted. Holding: no spot zoning. A. Role of leg.P applied to build drug store. would increase traffic.): i. abided by procedural req’ts of statute. B. Claim brought by owner who feels he’s being treated unfairly. pollution. iv. Some cts. Even though mun. argued surrounding parcels in area largely developed already. said permitted use in zone. Note: case-by-case analysis. etc. Other factors to consider for spot zoning: A. burden on P to show S. if not. zoning amendment ok. 3 questions to ask to determine whether spot zoning (must have reasonable relationship to legitimate gov’t purp. Other ways it could’ve been done: special use variance. Neighbors asked twnshp council to rezone parcel. violation (no rat’l basis)..)) ii.. 25 . etc. Size of rezoning? Legitimate. Consistent w/comprehensive plan? Yes. D. Treat factors such as size of parcel or consistency w/comprehensive plan as triggers. presumption of legitimacy. is wise. then: B. Arbitrariness . more likely to protect stable residential areas than areas of mixed uses or in transition. criteria flexible and provide guidelines for judicial balancing of interests B.After auto garage grandfathered in as nonconforming use. If so. if have an affirmative vote from majority of governing bd. to adopt/amend zoning ord. to decide whether statute/ord.owner being unfairly and improperly singled out for imposition of burden not imposed on neighboring properties (vs. separate inquiry into 2 steps: A. inconsistent w/M. consistent w/master plan. could’ve allowed auto-services anywhere w/in zone. Neighborhood character: whether surrounding lands devoted to uses compatible w/new uses rezoning would permit. Cost/benefit analysis: does this benefit owner to detriment of others? Not primary motivation. not cts. Spots vs. Mun. Homer (Ak 1996) . but there are also detriments. noise.standards for sufficiency of mun. C. but Planning Bd. C. amend Master Plan.Land Use Ball. South Brunswick (NJ 2008) . primary motivation for doing it in this way was to allow car dealerships to do so only in a very limited part of zone. If landowner’s benefit incidental to comm. ii. and Zoning Bd. May adopt ord. Procedural irregularities b. Engage in cost/benefit analysis to determine whether spot zoning justified. Riya Finnegan v. 4. more likely to find spot zoning where newly implanted zone entirely surrounded by other zones than where rezoning “slopped over” by extending perimeter of existing zone to include rezoned area. 3. Griswold v. Cts. A. 1. stopped using for a year. that alone grounds for striking provision down (though still must determine whether rezoning substantially inconsistent (not just any inconsistency . There are benefits. Not primarily about helping particular owner. P brought suit alleging spot zoning..P. slops: cts. neighbors challenged. in a way inconsistent w/Master Plan (not arbitrary): i.D. benefit to owner that is not being given to neighboring properties (spot zoning)).P. must be subst. Inverse Spot Zoning . and set forth reasons for inconsistency in resolution iii.’s benefit. not enough to shield it from making arbitrary rezoning decisions. so must keep it to the 13 parcels.

made use impermissible. Many jds recognize an “inconsistency w/comprehensive plan” claim 4. ct. Ok if unilateral. Applied for and granted 26 . Planning first. c. Contract Zoning . shall be made in accordance w/comprehensive plan. Test: consistency = “basic harmony. 1986) . may zone w/out a plan . B. P has burden of proof to show inconsistency. or in rezoning ords. May hear testimony from citizens. and didn’t condition grant on acquiescence from P. specifically req’ing gov’ts to engage in planning. Examples: NJ . Inquiry: whether in view of purposes of zoning act the action represents sound judgment based on policy of statute to advance public welfare or whether arbitrary and unreasonable and furthers purely priv. iv. neighbors complained. bodies. and 3) planning bd. Inverse spot zoning analysis . or contribute funds for road improvements or for other purposes. Haines v. says leg. a. of Adj. or through statutorily-authorized enactment of a zoning ord. Spot zoning and Inverse Spot Zoning are judicially-created doctrines. owner dedicate land. New ord. can’t rely on info from neighbors. inconsistent w/M. no more is req’d by statute. Policy: if all it took were neighbors complaining. May rezone last undeveloped parcel if changed as part of reexamination of M. passed by local leg. 1.test: whether zoning change made w/purp. is to the Constitution as zoning ord. circumventing Bd. b/c more flexible & subject to change than a Const. Presumption of legitimacy which is consistent w/rat’l basis. About 3/4 of states adopt that or similar lang. Guilford County (N. and governing body acted w/out expert planners = inverse spot zoning. i. or effect of establishing/furthering M. acting adjudicatively). otherwise. 2) neighbors were impetus for change and new zone doesn’t further M. (amended more easily). City must provide experts. in covenants b/w developer and neighborhood assoc. Phoenix (Ariz. decisions will be made based on which neighbors complain the loudest. though. undertake construction. A.P. Zoning W/out or in Conflict w/Planning . About 1/2 of jds require creation of comprehensive/master plan as a distinct document 3.“Shall be consistent” 6.. 5.P.“Substantially consistent”. not bilateral. but at same time city must have actually thought about that so that the goal is reflected in the plan ii. iii. Fall 2009 iv.P. Instead. in zoning enabling acts.owner of 2 tracts of land. ii. and arbitrary and capricious. interests. rejects rat’l basis review (any conceivable rat’l basis) as well as higher standard req’ing gov’t to make written findings and articulate reasons. operated a grain storage facility and facility for sale of fertilizer. calculated to achieve statutory objectives or if designed merely to relieve a lot or lots from the burden of a general reg./master plan.” Ct. created standard by statute: review consists of viewing evidence before city council and determining if council could’ve decided that despite deviation from letter of plan there was consistency. essentially a special exception/variance.Land Use Ball. If latter. (leg.adverse affects on community structure might be addressed by specifying that a prop. v.plan may be revealed in end product (not in ord. but must be grounded in facts. is to comp.P permitted to build beyond height restriction. compromises might be incorporated in express or implied agreements b/w developer and local gov’t.. but permitted to continue as pre-existing nonconforming complying use. Moved some operations of grain storage to other tract. zoning second 2.SZEA states that zoning regs. Arizona . Where local gov’t has not adopted a plan. Fact that: 1) zoning changed and now more difficult for owner to develop in accordance w/new zoning designation.C. But 1/2 of states have passed leg. Chrismon v. Possible analogy: statute/reg.P. Different. itself). 1998) . developers would race to develop to avoid being the last parcel.

Ct. c. prospective. what are the possible forms of judicial review available? a. Appropriate means of harmonizing priv.Planning and Zoning Commission approved rezoning. Differences: i. unilateral vs.gov’t body.). thus benefiting public. See Haines. Here. vs. K zoning claim (improper bargain b/w mun. etc. K zoning . which includes not merely promise of owner to subject prop. d. needs. limit its discretion going forward? Problematic when gov’t reaches priv. e.) vs. did mun. quasi-judicial: A. and condit’l use permit. must ask what gov’t was doing. See Chrismon. abandons duty to exercise ind. and owner? Did mun. bilateral ii. not leg. Comprehensive zoning plans don’t allow much flexibility. No balancing at all. See Griswold/Riya Finnegan. secures owner’s agreement to limit use of prop. at least for Ks now styled as “condit’l zoning. and maintained decision-making auth. Ok so long as: 1) reasonable.: Council enters into agreement w/owner. Spot zoning/inverse spot zoning claim (more of a balancing test . See Snyder.benefits/detriments to comm. interests in land.transaction wherein both landowner who’s seeking certain zoning action and zoning auth. agreement w/priv. Fall 2009 rezoning and condit’l use permit. itself undertake reciprocal obligations in context of a bilateral contract. iii. and 3) in public interest. binding itself contractually w/landowner iii. w/out committing its own auth. of County Commissioners (Fla. C.“basic harmony” not strict consistency (more liberal standard) (not much balancing involved)). found rezoning here quasi-judicial. i.). but not every agreement will be impermissible.. Bd. Snyder v. Conditional use zoning vs. Formulation of general rule/policy affecting broad class of individuals/situations (leg. Problem: zoning auth. application of general policy to specific. See Euclid. to particular use or to subject tract to certain restrictions as a precondition to any rezoning.When gov’t rezones/refuses to rezone and someone doesn’t like decision and brings gov’t to court. but County officials ultimately deny rezoning w/out giving any reasons for its decision. limit its discretion. Heightened scrutiny. 1. 1993) . were there enough procedural safeguards to protect against gov’t acting at behest of particular owner. Retrospective. harm to owner? Primary motivation? Issues of motivation/intent important consideration). Condit’l use zoning . and not to alter zoning change for specified period of time. b. maintains decision-making auth. Inconsistency w/comp. B. determining what law shall be in future (leg. f. zoning auth. to deed restrictions. B. 27 . determining rights/duties of parties under existing law and w/relation to existing facts (judicial) vs. vs. Most recent decisions abandon prohibition on K zoning. K zoning A. in nature. owner. why was it doing it. b. Arbitrary and capricious/fairly debateable. but council also binds itself to enact the zoning am.” Some states have adopted statutes that appear to legitimize K or condit’l zoning. judgment in zoning decisions. 1. i. 2) not arbitrary or unduly discriminatory. prop. condit’l use zoning increase flexibility to meet evolving comm. Issues: did rezoning constitute K zoning? Holding: No. ii. Ex. unilateral. Judicial Review . Ps sought to invalidate rezoning am. identifiable party (quasijudicial). Legislative vs.Land Use Ball. plan (limited to state interests in document .

in terms of whether we apply strict scrutiny. = del.. Cusack tells us that there does not necessarily have to be guidance. Roberge (S.latter (waiver) ok. S. provided no guidance to neighbors improper delegation of legislative power 2.C. Cusack Co. Note: no standards provided in Cusack. judicial. are executive. 3 questions to ask: a. is there sufficient guidance/standards provided to neighbors as to when they should make these decisions and how (using what criteria)? See Eubank. or is it a waiver? b.. permitted maj.ord. of lot owners? b. is the use one that can be categorized as a noxious or nuisance-like use? If so. body makes an individualized decision and not coming up w/general policy but applying that policy to a specific case that stricter scrutiny applies to show a legitimate state interest C. Heightened scrutiny where quasi-judicial in nature. on identifiable parties/interests. 1912) . they can impose a setback req’t. Actions by Neighbors i. Seattle Title Trust Co. Owner’s prop.e. can’t delegate power to make laws to any other body. presumptively entitled to use land how he wants). of public are leg. allowing neighbors to waive prohibition against particular use. Initial burden on landowner to show meet procedural req’ts and consistent w/comp. rezoning actions having limited number of persons/prop.ord. Stratton (Ill. City of Richmond (S. ct. to maj. 4. Leg. only giving them ability to waive right to insist upon enforcement c. but former (restriction imposed by neighbors) not ok. City of Chicago (S. Only when the leg. b/c essentially a waiver 3. Then burden back to landowner to prove taking. allowing an activity that is otherwise prohibited . Whether neighbors are prohibiting an activity that’s otherwise allowed under the ordinance vs. 28 . v. rights that are being directly affected by decision not to rezone and owner’s prop. Neighbor = not heightened scrutiny C. rights are not similarly negatively impacted when gov’t zones in way that owner wants it done i. Eubank v.ord. Here. c. S. 1.: no billboards. unless majority consent. v. is it an imposition of a prohibition. Washington ex re. upholds permissibility of ord.C.C. Does ord. Initial zoning enactments and comprehensive rezonings or rezonings affecting large portion of pop. 2. Owner = heightened scrutiny ii. plan (i. ii. permitted residential group homes for children or elderly if 2/3 of neighbors consented. state purp.Land Use Ball. or quasi-judicial. and where decision can be functionally viewed as policy application (not policy setting). a neighbor lawsuit. upholds ord. Seattle Trust tells us that there must be guidance if not a noxious use. held invalid b/c ord. Fall 2009 C. held invalid b/c no standards. A. Chicago v.C. 1917). Then burden on gov’t to prove maintaining existing zoning accomplishes leg. (specifically stated public necessity requires a specified. where decisions contingent on fact(s) arrived at from distinct alternatives presented at hearing. Ct. 1986) . enactment: not giving them power to enforce ord. Makes a difference when talking about an owner lawsuit vs.C. c. owners. of neighbors to waive prohibition if consented a. B. However. more restrictive use). Execution vs. but Seattle Trust distinguished b/c use in Cusack was a noxious use or nuisance-like use as opposed to a use that was not noxious.ord. 1928) .: if 2/3 of neighbors want to.

Village of Belle Terre v. Governing bodies have leg. a. not judiciary. underinclusive (allows related individuals to live in large numbers in small areas and create noise. related persons vs. power. ii..P.statute allowing 40% of owners of neighboring land to protest rezoning ord.C. Assoc. rationally related to legitimate gov’t interest. and ineffectuate it. analysis: Belle Terre more restrictive ord. so that it came back to leg. Here. III. b. more direct ord. Family defined as one or more related persons or no more than 2 unrelated persons. 3. A. c.Land Use Ball. challenged ord. 1st step: identify classes of similarly situated persons singled out for differential treatment. P argues could be achieved by narrower. says statute unconstitutional.C. Boraas (U. or Iowa Constitutions. violation. c. unlawful delegation of leg. Const.ord. Problem: No standard.C. Veto rather than a waiver. needs to provide guidance.ord. Difficult for Ps to win as a practical matter. S. 1. need a review provision. restricting residences to “single-family dwellings” (i. analysis: state const. Essentially gives neighbors veto power over legislative ords. But as written. interest in promoting and preserving neighborhoods conducive to families. are leg. 29 . police power not limited to elimination of extreme wrongs. relies primarily on lack of guidance given to neighbors on how to make decision. excludes some. all found valid objectives in Belle Terre.Fed. Rapid City (S. 1. so neighbors decision isn’t final 2. 1997) . But discretion of the leg. S. c. restricting number of unrelated individuals permitted in “single-family” zone not unconstitutional under U. Const. Fall 2009 iii. S. Ames Rental Prop. unrelated persons. to 6 college students. any classification made by statute need only have a rational basis. d.e. Cary v. 1974) .S. Determine whether objectives rationally related to ord. a.C. Ct. Iowa Const.D. When leg. claim.P.C. allows small number of prop. plays a very limited role in these analyses (See Belle Terre/Arlington Heights) becomes very difficult to challenge these kinds of zoning decisions. Need more req’t than just a certain %.) 1.. suggests that were there a legislative bypass provided for. in question A. v. but when puts decision making in hands of neighbors. does not need to provide guidelines for decision. but not impossible. Reasons for ord.no E. body retains police powers for itself. E. WHAT IS IMPERMISSIBLE DISCRIMINATION IN LAND USE REGULATION? . found that valid . 2. Ames (Iowa 2007) . Can’t look at statute and say that in all instances in which it’s invoked it will apply to a noxious use b.S. d.. protects against neighbors being able to protest for their own gain . just can’t be irrational. said ord. says similarly situated persons must receive similar treatment under the law (E. and U. could possibly be constitutional. Owners leased prop. b. Ordered to remedy. Here.. several bases. d. A. said every line drawn by leg.S. after neighbors made their decision. Ct. U.P. owners to decide public’s best interest. If claimed dissimilar treatment does not involve a suspect class or fundamental right. a. S.S. Family defined as any number of related persons or no more than 3 unrelated persons. excluding multi-family dwellings) where “family” specifically defined is valid. “Unconventional” Households i.need provision to remove power from protestors.

and 2) didn’t meet apt. 1. land use controls. Overinclusive . unless clear pattern. and goals neither arbitrary nor capricious i. Impact alone rarely enough. litter. Opposition: 1) neighbors relied on zoning classification .prop. must involve extreme degrees of over.C. Gov’t arguments: a.here.P.invalid unless furthers a compelling state interest (E. to exclusionary zoning practices that stopped short of drawing explicitly racial classifications.or underinclusion in relation to goal. Soon became unavailable.15-member family. Several fed. but not explicitly racial. Req’s more than imagining extreme examples of groups of people who do or do not offend the goals of the ord. Relationship b/w ord. Fall 2009 litter.classification need only have a reasonable basis. Landowner arguments: a. cts. need not be narrowly tailored . if racial discrimination any motivating factor.here. etc.). Corp. sequence of events leading up to decision .-income housing not unconstitutional b/c Ps didn’t meet burden of proving racial discrimination was a motivating factor. May do little to further goals. 2. Anticipation of infrastructure iv. history . 1977) . iii. Instead. Note: both cases came out in favor of gov’t B. substantive departures E.here.) and overinclusive (prohibits unrelated residents who might live in reasonable numbers and not create noise. leg.S. (U. a. Freedom of association and/or privacy d. Disparate impact .C. invalid. attempts to create/maintain racial segregation take form of facially neutral ords. C. Where explicit racial classification. Family friendly atmosphere c. policy around & consistently applied for years. ord. Although based on stereotypes. E. must look to other evidence: A. Racial & Ethnic Minorities i.C. must prove discrimination is a motivating factor (intent). pollution). began applying E. 4. departures from normal procedure sequence .Land Use Ball. suspect . Village of Arlington Heights v.4 elderly women c. not suspicious C./admin. ii. met normal procedures (even held 2 extra hearings) D. values would decrease. Reasonable for city to conclude density will be lessened by ord. B. Discriminates on basis of socio-economic class v. reasonable. Under rat’l basis test.fact that ultimate effect worse on minorities not enough. etc. Def. that have racially disparate effect. b.P. i.P. Density: traffic (noise. 30 . no longer a viable weapon against exclusionary. Impact of action is starting point for determining intent 3. policy (not a buffer b/w S-F and community) b. D. Metropolitan Housing Dev. Need not be sole or even primary motivation. not limited to college students nor does it ban them from living in S-F zones. but city’s prerogative to fashion remedies to problems affecting residents.and mod. violation) a. not suspicious c. fire protection b. Valuing one form of family structure over all others b. of “family” flexible and expansive enough to encompass unmarried couples and groups of three unrelated persons. To be invalid under rat’l basis test.denial of rezoning application for low. historical background B. Underinclusive .

Town supervisor wrote letter w/strong racial undertones. 2007) . upheld in Belle Terre) b.limit buildings’ use to S-F residences or explicitly forbidding group homes ii. liable B. P must prove: 1.P. Reasons town gave may justify revocation or suspension. require special use permit c. Dist.P got special use permit to operate dance club for teens at rec. 1985) .D. 2. asked P to discontinue dances. racial animus of minority can taint ultimate outcome. right in arbitrary or irrational manner: includes a planning dispute tainted w/racial animus OR fundamental procedural irregularity 1. that this element met. spent $2. burden on D. 2.’s objected to racial composition of clientele. unless countered. E. Cleburne Living Center (U.P.Land Use Ball. Fundamental procedural irregularity: A. Even if allowed to amend. P never req’d to show that majority of public body acted w/racial animus to hold mun. P had valid prop. to take actions it took. Once P has shown minority of public body acted w/racial animus. ultra vires. acted improperly to go to trial. acting on leg. grounds. amended permit to prevent P from holding dances. P given no opp. W/out auth. made comments that a reasonable jury could find racially charged.S. Racial animus: A. B.may only issue a new one after initial permit revoked B. req’ts of Code (must provide notice and a hearing before suspending/revoking special use permit). Ps established. So here. D must prove that majority of Bd. i. acted permissibly. Henrietta (2d Cir. Ds infringed on prop. P claims facially and as applied invalid. center.city denied special use permit for operation of group home for mentally retarded. (not allowed) C. to go bankrupt. and sufficiently arbitrary to amount to S. strict definition of “family” . and 2. Cine Sk8 v. interest: 1. violation D. P claims amendment caused P and P’s corp. Invalid as applied.3 million in renovations.cap on number of unrelated people in a dwelling unit (S. claim. anyone at hearing that made comments C. D. C. Exclusionary techniques: a. Did not exceed occupancy limits. right in arbitrary or irrational manner. Am.3 million. Not a suspect or quasi-suspect classification 31 .C. here failed to comply w/proc. proc. town bd. burden on gov’t to prove maj. Ds infringed on that prop. issue of fact remains F. interest in special use permit as it was originally granted. but not am. only a few litigants have been able to prove discriminatory intent. Individuals with Disabilities i. based actions on legitimate grounds despite minority. City of Cleburne v. After overcrowding incident. supervisor said he didn’t want “these people” in his town. S. Fall 2009 d. At Town Hall meeting. don’t permit Bd. to cross-exam. C. Bd. Relied on valid permit. enough ev. rendered improvements valueless. anyway that maj. ct. After this case. incorrect when found nothing to show decision tainted by racial animus b/c one member did not infect entire Bd. voted unanimously to adopt amendment. Valid prop. P spent $2. but req’d assistance for crowd control. Even where maj. restrictive covenants . i. P claims permit amended b/c Bd. iii. at very least. to amend special use permits .D. A. 3 members of 5-member Bd. Town zoning regs. a.

tourist housing. M-F) and low density areas (SFR only .no tourist dwellings permitted). W/selective-enforcement claims as here. Presumable that if turnover rate of greater than twice per year. P owns housing in both medium density (allows SFR. judiciary need not interfere where leg. impact. Treasure Island (11th Cir.one zone allows tourists. Impact does not equal disparate impact.. disparate impact (no). Concerns re: avoiding concentration of people .P. gov’t interests in a way that other permitted uses would not A. 2008) . Group not powerless. one does not. Gives leg. Disparate impact claim: 1. available to inds. Whether imposes undue financial burden on town (not met here). Invalid as applied: may city require permit for this facility when other care and mult. ev. against ppl w/disabilities B. c. Disparate treatment claim: 1. not enough unless you have a comparison group that is similarly situated but treated differently c. undifferentiated fears is allowing portion of comm. simply showing that a few houses are affected doesn’t establish disp. theory of disc. Mere neg. TFR. or 2. accomm.congestion in streets same as for all uses 2. violation C. response and public support 4. looks at 2 things: 1. Difference of group irrelevant unless facility would threaten leg. City trying to maintain stability of neighborhood . evidenced by leg. even if ev. failure to reasonably accommodate (diff. Schwarz v. Claims: disparate treatment (no). A. claim: How do you determine reas. Would make it difficult to know where to draw line b/w quasi-suspect classes and not quasi-suspect classes b. attitudes of surrounding owners alone not a permissible basis for treating group homes differently than other permitted uses B. Fact that lawmakers address problems of disabled belies claims of antipathy or prejudice. dwelling facilities freely permitted? 1. Fall 2009 1. Req’ing permit for this use grounded on irrational prejudice against mentally disabled iii.would have to show that allowing these homes severely impacts setting you want to create. that neighbors and city officials are biased against recovering substance abusers irrelevant absent some indication that recoverers treated differently than non-recoverers. Analysis would be diff. for leg.. a. Fear of over-crowding w/in home same as for all potential uses E. Halfway house in zoned area that doesn’t allow tourists. If M-F unit prop. Immutably different class . accomm. Even if D motivated by discrimination. Whether req’s a fundamental alteration A. Trying to figure out if impermissible motivations went into decision. Halfway house had turnover rate of greater than twice per year. d. P failed to present relevant comparative ev. evenhanded application of the law is the end of the matter. w/disabilities. Minimum standard of scrutiny (rat’l basis review) offers sufficient protection. acting appropriately 3.C. Denying permit based on vague. 32 . Concerns re: flood and liability issues no different for group home than for other permitted uses D. High density areas allowed for tourist dwellings. not judiciary 2. not available to others)(remanded) b. to validate an otherwise invalid E. to decide. tourist (turnover) restriction does not apply. need only be rationally related to legitimate gov’t purp.states’ interest in dealing w/them and providing for them is legitimate. if D claimed that city enacted occupancy-turnover rule in order to disc..? Ct. Reas. freedom and flexibility it needs while still offering protection.Land Use Ball. of improper motivation.

D’s real complaint is rule prevents him from living in house of his choosing. must take into account all factors. not essential components of med. P lives in house w/wife. Econ. complying w/law re: residencies for sex offenders. interest sign. Remedy for taking is comp. has job in area.. a. b. impact: P’s prop. alt. D. D argues K-ed for house at time when legally permitted to reside there. impact on familial relationship to be unconstitutional 2. D not legally permitted to reside there when he bought it . of residency. to handicapped. stability..E. low turnover. Willard (Iowa 2008) . unless relationship b/w classification and purp. alt. Not a taking. b. interest in home sign. says if child-care facility comes w/in 1000 ft. finds taking under a Penn Central analysis.Land Use Ball. Lingle . Employment restriction: 1. claim. reduced traffic/noise.E. Can still work in place w/in 1000 ft. not fund.C. not a fundamental right req’ing strict scrutiny c. Sex Offenders i. Ord. Risk of repeatedly happening precludes possibility of having any RIBE for any prop. Rat’l basis review (min. alt. Georgia Dept. No provision in statute to except someone in this position 3. D. b/c MF units permitted w/in that zone do not have to comply w/tourist (turnover) restriction. 33 . accomm. Prop. etc.state merely agreed to postpone enforcement of statute (injunction in effect at time he purchased house). D tries to trigger strict scrutiny by claiming severely impairs ability to make home with family 1. density dist.Taking claim. may be fund. Under statute..need not eliminate prop... Does it undermine an essential goal of activity/program in question? Would if mun.need only be rat’lly related to leg. Residential restriction: 1. prob. just have to do it from home. not “essential. Possible that 3rd parties might purposely locate somewhere to force him out of community (effectively places police power in hands of 3rd parties). a.. If routinely waive rule. 2. 2. of school. Iowa v. of it so weak that rule arbitrary and capricious ii. as a home.U. Presumed const. gov’t interest 1. Functionally equivalent to gov’t physically ousting him from his home (not typical regulatory takings case). Ct. forced to permit group homes (tourist dwellings) in low density dist. that only allows SFR use. A. (1/2 owner). 2007) . treatment. could get same money for selling house on his own and just complying w/statute. But for med. 4. 1st step: ID classes of similarly situated persons treated diff. if it may be nec. C. So why takings claim? Maybe hope that if gov’t has to give away enough money as comp.. scrutiny) . wouldn’t constitute fund. nowhere a sex offender can live w/out risk of ejection. he purchases as a home. Burden on challenging party to negate every reasonable basis that might support disparate treatment 2. will amend statute. If use incompatible w/surrounding uses. of Corrections (Ga. increased peace/quiet. Can be a taking if so onerous that effect tantamount to a taking (Penn Central ad hoc analysis). if not. Mann v.P. utterly impairs use of prop. Fall 2009 B. B. D doesn’t ID classes of similarly situated ppl singled out for diff. to afford equal opp. but statute doesn’t req. density dist. offender must move/leave job to remain compliant. him to quit or relocate business 3. to recovering addicts.’s B. D charged w/violation of law restricting sex offenders from living w/in 2000 ft. P must prove halfway houses nec. But D only req’d to make reas. prob. Must have a direct and subst.” C.

Can’t wait for a political consensus to catch up. taxes to pay for gov’t costs and for education. by its land use regs. Presumptively invalid . a. and Planned Unit Development (PUD) areas placed restrictions on children. safety. 2. w/out min req’ts re: lot/building size 3. If not suspect. 1975) . Mobile homes may not be prohibited unless solid proof that mun. low cost housing of other types and high density zoning. the less children. aff.” c.town still afflicted w/blatantly exclusionary ord. income housing. determined wealth not a suspect classification. Note: opinion based on state constitutional grounds. req’s such prohibition 34 .’s region and fix specific number of lower-cost housing unit’s as mun’s “fair share. f. Focuses on numbers – must precisely demarcate mun. S. large unused industrial zone. Where mun. Including: 1. zones for industry and commerce for local tax benefit purposes. Mun. D gov’t wouldn’t nec. town has tried to keep out poor (tax concerns and people concerns) 1. Nothing but determination to exclude poor. the lower the prop. NJ’s tax structure req’s R. Const. not fed. on basis of wealth proved. tax rate. Arlington Heights would require Ps to prove disc.shifts burden to mun. lot size req’t for available land. law iii. Every municipality is held to the Mount Laurel standard . and small dwellings on very small lots.not limited to developing municipalities b. should cooperate w/developer to obtain fed. law 2. Mount Laurel I (N. presumptively make realistically possible an appropriate variety and choice of housing. w/out bedroom restrictions. S. of state). Mandatory set-asides 3. can sustain heavy burden of demonstrating peculiar circumstances which dictate that it shouldn’t be req’d to do so. may exclude or limit categories of housing for fiscal reasons/purposes.C. argued in best interests of mun. even if disc. c. req’d. income housing and its regs must affirmatively afford that opportunity. Every mun. ii. must account for welfare of those outside locality in state d.J. b. Over the years.Land Use Ball.. etc. and legally permissible/justified.Exclusionary zoning: min. Arlington Heights probably signals that Ps would have to prove that motive of excluding poor families was a but-for cause of adoption of policy b. Fall 2009 E. D conceded discriminated against poor. Obligations must be met unless mun. 1. presumptively it cannot foreclose the opportunity of the classes of ppl that want/need low/mod. must zone to permit adequate housing w/in means of employees involved in such uses. 1. reg. and req’d amenities.C. system unlawfully excluded low and mod.’s fair share of present and prospective regional need. deregulation (getting out of way of market) insufficient. must. Mount Laurel II (N. a. Poor People i. Affirmative action toward inclusionary zoning req’d . Must permit M-F housing. e. so would only apply rat’l basis review under fed.J. intent under fed.” “Good faith” attempt insufficient must actually represent “fair share. residential districts S-F detached dwellings only.elimination of bad ords. No mun. at least to extent of mun. subsidies 4. Claim: land use reg. aimed at upper-middle class. Ps face two main obstacles: a. also a state consideration (gen.E. Lower-income density bonuses 2. welfare. not enough. held that wealth not necessarily a suspect classification. have to show a compelling interest to justify it. 1983) . Not just a local consideration.

may determine whether mun. Fall 2009 d. Negative . Del Ma v. would view allowing development in center of mun.responsible for: 1.J. externalities . A. Dumont.? 35 . b/c getting too much benefit and causing too much cost to surrounding areas not receiving benefits e. noise c. etc. Affects the standard of judicial review. agency (Council on Affordable Housing (COAH)) . responded by passing Fair Housing Act of 1985 a. Negative impact may include: a. b. income housing 3. under Mt.ct. but keep benefits. satisfying obligation to provide fair share of regional need B. creating jobs. builder’s remedy will be granted.will develop at borders to spread neg. allowing develop’t . environmental degradation d.. also gave COAH jd. Dumont (NJ 1954) . 4. including enviro. San Diego). But problematic when it would affect welfare of persons living beyond local boundaries. permitting building of shopping center at edge of boundary.Land Use Ball. prohibited cts. effects to other muns. Cresskill v.. impact.one mun. deal w/this situation in a way that is diff. says must hear and consider rights of neighboring municipalities the same way residents of Dumont would be i. A. some argue this just allows rich to get away with exclusionary zoning c.If benefits (i. drop the presumption of validity (Euclid goes away)? ii. over lit.? How close to boundary lines does it need to be for this to become an issue? Could result in cluster develop’t .say they will get no benefits but will get many of the costs (traffic. income housing. high. e. Allowed municipalities to transfer to other “receiving” municipalities up to 50% of their fair share under regional contribution agreements (RCAs) 1. REGIONAL OBLIGATIONS OF MUNICIPALITIES When proposed land use would have no sign. B. Builders’ remedies awarded on case-by-case basis. and 2) it’s located and designed in accordance w/sound zoning/planning concepts. specifying criteria by which it should be allocated among municipalities w/in each region. Should cts. Limited use of builder’s remedy IV. from setting aside that determination w/out clear and convincing ev. impact on region (Cresskill v. Can result in inefficient decisions.) to mun. determining regional need for low/mod. shouldn’t fear residents will move to other suburbs as a result. Problem: may be too much develop’t being approved by particular mun. incentive for develop’t to be allowed despite neg.e. boundaries C. Spillover effects i. where P acted w/good faith and attempted to obtain relief w/out lit. iv. Neg. Neighboring municipalities complaining about fact that first mun. defining housing regions w/in state 2. N. shift burden to local gov’t to prove reasonableness. etc. gov’t planning decisions left entirely to local officials.). provided 1) proposed project includes appropriate portion of low/mod. Created admin. traffic b. Laurel decisions: A. rat’l basis. impact beyond local boundaries. noise. Develop’t of region shouldn’t depend on adventitious location of mun. Examples: 1. What does this mean re: options? Do we i. from how ct. tax benefits. b/c other suburbs will be req’d to do the same. leg. Comm. etc.

apply de novo cost/benefit analysis and strike down if inefficient from regional standpoint? v. 2 ways higher gov’t may adopt land use controls: a. relates to leg. Operating in good faith . muns. San Diego (Ca 1982) . S might preempt A’s controls . Remedies: if local gov’t has right to receive some consideration from neighboring/overlapping gov’ts. ord. Closest to #3 on list above re: possible standards B. concludes it wouldn’t have been adopted if affected outsiders had been entitled to vote in local elections? D.developer would then have to pass muster twice. regional purp. Some cts. says S. meets standard: superficially reas. are at war? iii. have standing to challenge neighboring jd.D. ii. Standard of review: should standard of review or allocation of burdens of production/persuasion vary when P is a co-equal gov’t? Should presumption of rationality usually given to local gov’t decisions apply when two muns. or to S itself.? iv.’s zoning decisions if mun. gov’t units.would’ve grown anyway. huge development at border mostly residential. Note: this is an example of a private challenge to a parochial decision (several landowners also brought suit) 2. Const. and adversely affected in its corp. ii. Action here considerably less suspect b/c ord. what remedies when rights violated? iv. surrounding areas getting some benefits (job creation. a. Neighboring mun. w/both state and mun.Land Use Ball. Possible intergovernmental solutions: may involve creation of rights b/w gov’ts or assignment of gov’tal functions to diff.) iv. Taking on some of neg. so neighboring area has to do more for S. to do less).D. affects (here: entire region). just not quite as much v. S could supplement A’s controls .e. must consider more than self-interest. invalidate policy if ct. Fall 2009 iii. hold muns. Ex. Standing: many cts. b.good when extraterritorial impacts of activity are on balance beneficial (i.huge area (S. a prison). A. has two bases of complaint: 1) environmental impact degradation (taking on lots of costs w/no benefits). inclusionary.. must be reas. Used only 36 . allowing standing may not if it would interfere w/statewide interests b. Ct. etc. refuse to grant standing on basis of such concerns. related to welfare of those whom it sign. insist gov’t have rat’l basis for believing policy reas. capacity. so not deciding that issue vi. not taking on responsibility. would still be ok. efficiency enhanced if local gov’ts unable to veto develop’t.weighing interests of own residents and residents of neighboring municipalities and incurring some of the costs internally iii. or c) confer regulatory control over activity to C. Even cts. both entitled to presumption.D.. not exclusionary (attempting to provide for fair share of housing need). b) compensate B and C from state funds. Del Ma v. can demonstrate it would be subst. Even if had to meet higher standard.) auth.D. (internalities) as well a. may be unreas. Note: this is an example of a local gov’t litigating against other local gov’ts i. i. having independent veto power. test: ord. Growth not that big of a deal . State S might: a) entitle City B and County C to enjoin that use or recover damages from A. Gov’t lacking standing in its gov’tal capacity may nevertheless have standing in its capacity as an owner of affected lands.: City A proposes use of site X. when viewed from larger perspective.. and 2) very little is affordable housing (S. directly. Also.

iii.can win under disparate impact claim (or at least shift burden to gov’t). Who bears burden? A. Environmental Justice Movement).C. it’s the same communities time and again that are ending up w/this type of develop’t that might very well benefit region but that imposes real sign. must allow use somewhere w/in mun.ord. (something that justifies a complete ban of a non-noxious use). Issue w/locally unwanted land uses (LULUs) . the nonexistence of a proper zoning purp. . Gasoline stations not inherently so noxious as to justify blanket prohibition C. garbage dump at edge of city). to establish legitimacy of prohibition by ev. 2 main legal claims: 1. b.-wide prohibition of a non-noxious activity which on its face doesn’t protect a leg. public interest. Problem: Have to go somewhere. group homes c. ii. Beaver Gasoline (Pa 1971) . Beaver Gasoline. Positive impact may include: a. All P can do is show that D banned something relatively innocuous.C. D. when it comes to placement of LULUs. high. others say no correlation. failed in establishing that.Title VI prohibits disc. Where a total mun. activity would be a virtually insurmountable burden. to take on responsibility even though benefits will go elsewhere? f. Problem: Arlington Heights .Land Use Ball. But in 2000 S. on basis of race by any org. Essentially. if not noxious. P meets burden by showing total prohibition and burden shifts to mun. c. Positive . helping meet regional needs for affordable housing b. Allegation by movement has been that.e. but no mun. Environmental Justice Movement and Other Objections to Siting of LULUs a.need to establish decision makers are taking race into account (proof of intent). cost upon mun. E. Very difficult for mun. B. sewage treatment d. that receives fed. prisons e. Title VI of Civil Rights Act: more promising (at least for a while) . justice lit. in total prohibition of otherwise leg.where should it go? What’s obligation of mun. incentive to prohibit develop’t despite benefits to region (affordable housing (Mount Laurel). Don’t have to prove intent of disc. Example: 1. showing what public interest it protects. taking place in the decisions as to where these facilities should go. Fall 2009 where activity would have net external costs (i. bus. Put the brakes on env. Ps have. prohibits gas station w/in borough. Not abandoning presumption of validity. of LULUs contained w/in those areas. 2. to win a Beaver type lit. ev. tend to be comparatively poor and composed of minorities. said Title VI does not provide for a private right of action.: alleging essentially that there is overt and intentional disc. but req’ing P to establish by aff.. for the most part. These muns.If costs to mun.P. wants to take it . Whether disparate impact or not: some researchers say strong correlation b/w racial compilation of certain areas and amt. funding.create “not in my backyard” reaction. 37 .