You are on page 1of 63

Land Use Master Outline History of Zoning 1.

In the old days you brought an nuisance action for relief a. Builder would put restrictions in the deed prohibition certain uses b. Problems arose in protecting 1 family housing 2. NYC had the 1st zoning ordinance 1960 3. Zoning ordinance a. set of regulations covering the whole city 4. Comprehensive Plan a. Plan used to enact zoning measures 5. Balancing Property rights and public interest a. Government restrictions/ regulations 6. Limitations on government authority a. Doctrine of substantive due process b. Must follow procedural requirement i. Advertise let people know their property may be affected ii. Give notice to people where the zoning is to take place c. Localities must avoid discrimination on equal parcels ( equal Protection) d. Police Power i. Use the police power of the state to restrict property for the general good of the people ii. The power comes from the state e. Cant take property without just compensation ( Takings clause 5th amendment) 7. As of right uses and their accessory uses a. Accessory uses - Swimming pool/ garage / basketball hoop 8. Non Conforming Uses a. Does not conform to the Zoning 1

i. Commercial use in residential zoning 9. Variances a. Application to the zoning board of appeals to vary/ change the ordinance a 10. Special Use Permits a. hospital/ nursning homes and day care centers 11.If Zoning board of appeals turns you down then you got to legislature

Goldmen v Crothwater ( 1925)The property owner sought a permit to conduct a clothing repair business on his property, which was in a residential district. Permit was not issued and the Pl brought suit Historical View - you can do what you want with your property as long as it dont cause a nuisance State Ex Rel Carter v Harper Facts A business owner filed suit against a building inspector seeking to compel the issuance of a building permit for the expansion of the owner's dairy and milk plant. Milk plant was in a residential district- Statue was valid and the property was no taken with out due process of law Police power - the power of the municipality to protect public safety they do this by passing laws and restrictions that restrict people. You will not be aloud to make you expand the nonconforming use Euclid and Enabling Legislation Village of Euclid v. Ambler Realty Co Facts: City of Euclid enacted a zoning measure to separate uses, Lot sizes, and height restrictions within the city. The Pl owned a Strip of land of 68 acres, which was surrounded by residential neighborhoods. If the property was zoned commercially he would be able to get 10 k an acre and if it was residential he would get 2.5 k an acre. Because of the zoning measure the Pl was not able to put the property to commercial use. Accordingly he lost a substantial amount of money due to the zoning restriction. Appellee claims these are unconstitutional and in violation of the Fourteenth Amendment because it deprives Appellee of liberty and property without due process of law and denies it the equal protection of the law and it offends against certain provisions of the Constitution of the state of Ohio.Rule: Before a zoning ordinance can be declared unconstitutional, it must be said that its provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare since they did a facial attack the ordinance was constitutional (all that the ordinance is doing is channeling cleavlands expansion) they should have did an as applied attack Notes 2 Facial Attack looked at the ordinace on its face to see if it was unconstitutional is unconstitutional As Applied attack - ordinance as applied to this particular piece of property

1. Ordinance is unreasonable and unconstitutional if zoned residential add no value as applied to your particular piece of property ( As Applied Attack ( Nectow)) Map Zoning is called Euclidian Zoneing Use Districts - how you may use your property Height Districts - how high the building can go Area districts - how big you land would have to be to do something on it Zoning and Rezoning and Conformance with the comprehensive plan Standards of the Zoning enabling act ( model zoning act) o o o Grant of power to restrict for general welfare of the public May divide are in to districts Must be made in accordance with the comprehensive plan

Local Municipalities will enforce Zoning mEasures (Process)

This is accomplished by Zoning enabiling Acts ( ZEA).These acts establish the criteria That the local Municipality must follow regarding all Zoning Measures. All 50 States have enacted some for of a Zoning enabilig Act. All of these acts contain the following:

1. The Acceptable purpose of zoning- Zoning regulations must be Part of the Comprehensive plan for that city or county 2. Establishes the enactment procedures for Zoning statues, and creates a process procedures for these

3. Requires the Local Municipality to create a Zoning commission or board, to make zoning policy 4. Mandated the creation of a Board of adjustment, or a Committee of Appeal, or the Municipalilty council, to review the zoing commissions decisions 5. Establishes a framework to enforce the policies established by the local Board The True Importance of the Zoning enabiling act is the Mandated comprehensive plan for the local municipality. The Comprehensive plan is prepared by surveys, studies and public meetings that encourage the Zoning board to adhere to the comprehensive plan. Town law 3

261 grant of power appropriations for certain expenses incurred under this article For the purpose of promoting the health, safety, morals, or the general welfare of the community, the town board is hereby empowered by local law or ordinance to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes; provided that such regulations shall apply to and affect only such part of a town as is outside the limits of any incorporated village or city; provided further, that all charges and expenses incurred under this article for zoning and planning shall be a charge upon the taxable property of that part of the town outside of any incorporated village or city

262 Districts For any or all of said purposes the town board may divide that part of the town which is outside the limits of any incorporated village or city into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this act; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings, throughout such district but the regulations in one district may differ from those in other districts.

264 Adoption of Zoning Regualtion In Order to adapt a zoning regulation the town board shall have a 1. Public hearing 2. Service of written notice on to surrounding properties Comprehensive Plan Plan which dictates public policy in terms of transportation, utilities, land use, recreation, and housing. Policies of the municipal agencies with reference to Landuse The Comprehensive plan is prepared by surveys, studies and public meetings that encourage the Zoning board to adhere to the comprehensive plan. maps - designating zoning

272-a Town Comprehensive 1. Legislative findings and intent 2. Definitions 3. Content of the plan

4. Perforation 5. Referrals Spot Zoning The arbitrary and unreasonable devotion of a small area within zoning district to a use which is incosistant with the use to which the rest of the district is restricted Spot picked out in the middle of property zoned for other purposes - this against the Comprehensive plan If it is enacted in benefit of the owner then spot zoning If enacted in benefit of the community Not Spot zoning o Zoning board will decide at hearing

Bartman v Zoning Commision Facts - A landowner requested a change in zoning that would have allowed him to construct a building that housing five separate businesses in a residential area. Apart from the landowner, no other residents appeared at the hearing to support the application; however plaintiff residents at the hearing opposed it. Lazer Rule - Spot Zoning - Did it benefit for the property owner who got the zone change, or was it the for the benefit of the public. Zoning Committee has broad discretion Here the Change was for the benefit of the public -The commission granted the landowner's application because there was a need for the shopping center within the community and it was the commission's policy to encourage decentralization of Note s Floating Zone - No Zone on the map but it is floating in the Air New zoning provision - multiple family aloud in single family district - ( Floating Zone) You may have floating zones you think they may be useful for the municipality

Enterprise partners v County of Perkins Facts Application to make pig Farms - Perkins County Ordinances were enacted to regulate livestock confinement facilities by regulating odor and flies emanating from the facilities and to prevent the escape of animal waste onto land within the county. Rule Zoning regulations shall be consistant with the comprehensive plan. Rule - When you are attacking zoning ordinance sometimes the municipalities try something new- and you look to the Zoning Enabling legliglislation to see if they have the power to do it. Here they did not The State has the police power - you must look to see if the state delegated its power to the county Osiceki v Town of Huntington ( Lazer Refused the Case) Piece of property was on a commercial road d that was zoned residential. Pl Challanged the ordinance in the it did not conform with the comprehensive plan Held that it wasnt - You dont have to slavishly follow the comprehensive plan --> but there was no reason to for the towns actions to be against the compressive plan.

Zoning Administration and Conditional Zoning 1. General Provisions a. Title, Scope, Authority, Purpose 2. Definitions a. Defines the Words in the Chapter that have substantive importance b. 198-2

3. Zoning Districts and Maps a. Single family, residential, multifamily, commercial, light industrial b. 198-13 - R80 Residence districts ( 2 acre zone) 4. Special Use Permit a. Because of its characteristics or uniqueness a zoning board will want one in its area i. Ex: Hospital , Nursery home ii. You Must Apply and get approval 5. Planning Board a. Authorizes the municipal legislature to create a Planning Board or Commission b. general review of applications for Subdivisions, site plan approval, or special use permits c. Gives Notice of hearings 6. Zoning board of appeals a. Hears appeals from the board and reviews certain land use approvals and issues variances 7. Amendments a. Sets forth the procedure for amending the land use chapter or law b. 198-126 Zoning Charter and map amendments i. May amend only after hearing and notice c. 198- 129 hearing and Notice i. if within 500 feet then you get notice by mail ii. Sign on each frontage of the property 6

Contract Zoning you cant bargain away your police power (illegal) Conditional Zoning -allow you to do something based on conditions imposed ( Legal) Church v Town of Islip Facts Property owners brought a declaratory judgment suit against the town to have declared unconstitutional and void a 1954 zoning change from Residential to commercial Issue whether the rezoning was illegal as "contract zoning" because the town board, as a condition for rezoning, required the owners to execute and record restrictive covenants.Holding No A legislative act is the strongest presumption of Validity -> there was nothing arbritary about the town board action Giger v City of Omaha Property owner has *4 acres and want to put different business on it . he will give the city of Omaha 30 acres for a park. Neighbors bring a law suit in that they are bargaining away their police power - Conditional Zoning is Upheld. Uniformity is disregarded with an excuse Montgomery County v National Capitol Realty Corp facts- A property owner sought Rezoning from commercial office building to general commercial . the planning staff recommended disproval of the application, the planning board approved the application after the applicant submitted a set of covenants conditions and restrictions. Issue whether the covenants constituted a form of impermissible conditional zoning. Holding yes This was found to be spot zoning Rezoning and Variance ( Very Important) Variances Apply to change or vary a zoning ordinance Area Variance change area or Use Variance change use of the property o IF it is going to damage value of neighbors property or character of the neighborhood

Then it wont be aloud


267. Zoning board of appeals. 1. Definitions. As used in this section: (a) (b) "Use variance" shall mean the authorization by the zoning board of appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations. "Area variance" shall mean the authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulation

Must have a valid zoning board of appeals consisting of three or five members as shall be determined by such local law or ordinance and shall designate the chairperson thereof. 7

In order to get to the zoning board of appeals 1. 2. you make an application for a permit when it is not permitted then you appeal to the zoning board of appeals

267-b. Permitted action by board of appeals. 1. The board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, interpretation or determination appealed from and shall make such order, requirement, decision, interpretation or determination as in its opinion. Use variances. (a) (b) The board of appeals, has the power to grant a use variance No such use variance shall be granted by a board of appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship

To Prove unnecessary hardship (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; (2) that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; (3) that the requested use variance, if granted, will not alter the essential character of the neighborhood; and (4) that the alleged hardship has not been self-created. The board of appeals, in the granting of use variances, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proven by the applicant, and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.

(c)

Area variances. (a) (b) The zoning board of appeals shall have the power, upon an appeal from a decision or determination of the administrative official charged with the enforcement of such ordinance or local law, to grant area variances as defined herein. In making its determination, the zoning board of appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; 8

(c)

(4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self- created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance. The board of appeals, in the granting of area variances, shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.

Larson v Zoning Board of Adjustment of city of Pittsburg Facts - The owners of a house with a very steep setback yard sloping toward the ohio river sought and received a variance to add a 20 by 20 foot deck off the river of the house to provide their 2 year old child with an outside play area. Varience Denied Hardship cant be self created They initially used up all the space they were allowed to build on they should have planned before about the deck Sasso v Osgood ( Big Case Very Important ) Facts the owner of a waterfront parcel of land containing a boat house sought a variance to allow him to demolish the existing structure and build a larger bout house. Neighbors objected the application on the ground that the proposed boat house would obstruct their access to light air and view. And that the foundations of their boat houses and septic systems would be damaged. Varience Granted Holding - did not have to conform to particulates test Used Town Law 267-b (3) (b) Test Reasoning granting area variances to an was not arbitrary and capricious notwithstanding that the applicant's difficulty was self-created because the parcel was of substandard lot size when the applicant purchased it. First, it determined that no undesirable change would be produced in the character of the neighborhood, which serves primarily as a site for boathouses and commercial marinas, and that the addition of applicant's proposed boat-house will not result in a significant increase in boat traffic or noise. The Zoning Board's conclusion that the variance will have minimal impact on nearby properties is supported by evidence that applicant's boat-house will comply with all setback and height restrictions imposed by local ordinances. Further, the Zoning Board concluded that no alternatives other than the grant of area variances existed, because the applicant's lot is of substandard size, and no improvement to the property could be made without the requested lot size and width variances. The Zoning Board then acknowledged that the variances sought were substantial, but that there was no available adjacent land for the applicant to purchase so that he could meet the zoning requirements, and granting the variances would merely permit the applicant to use his property for a permitted use equal to all other neighboring lots. 9

The Zoning Board's conclusion that granting the variances would lead to no adverse effect or impact on the neighborhood other than the previously discussed effect on petitioners, the owners of the adjacent lots, is also supported by the record. While the Zoning Board's conclusion that the applicant's difficulty was not self-created is not supported by the record, the statute expressly states that the fact that the applicant's difficulty was self-created does not necessarily preclude the granting of the area variance (Town Law 267-b [3] [b] [5]) and, under all the circumstances presented, the Board did not act arbitrarily in granting a variance notwithstanding the applicant's self-created difficulty.

Bill Jacket VERY IMPORTANT If youre looking to find out the intent of the legislature before the governor signs a bill to law and ask for statements from other officials Before the legislature enacts law they put the stamens of intent together ( bil jacket)

Janssen v Holland Charter v Zoning board of appeals Facts - In September 1996, appellees Henry A. and Doris J. Pyle and Baker Brokerage & Development, Inc., filed an application with the Holland Charter Township [*199] Board requesting that certain parcels of property consisting of approximately 115 acres be rezoned from the A-Agricultural Zoning District to the R-1 Single Family Residential Issue - Nothing in any zoning ordinances that limits the size- Have to prove it was unique and the ct did not prove it was unique. Notes 1. denied a variance to build a tennis ct Failed to meet self created hardship standard 2. Permitting zoning is changing the plan a. NY says you can but you have to show tough proof 3. To many use variences being granted ruing the zoning plan Special Use Permits (Will Be on the Final Exam) Variance Deals with a use that is not permitted Special Use - is permitted after it meets certain requirements permitted but you have to met the standards F

Definition "special use permit" shall mean an authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with such zoning ordinance or local law and will not adversely affect the neighborhood if such requirements are met.

198- 66 Conditional Uses Supplementary regulations 10

Special Use permits are issued by the zoning board of appeals Use may be permitted by the zoning board of appeals after a public hearing it must: 1. Be properly located in regard to transportation, water supply, waste disposal, fire protection and other facilities 2. Will not create undue traffic congestion or traffic hazard 3. Cant adversely affect the value of property, character of the neighborhood, or the pattern of development 4. Will encourage appropriate use of the land consistent with the needs of the town 5. Will not impair the public, health or safety and will be reasonably necessary for the public health or general welfare or interest

Examples 1. Churches 2. Cemeteries 3. Commercial use of amusement and recreation 4. Marina 5. Public utilities 6. Hospitals 7. Nursing homes All of these things are things that are normal and they are permitted but you have to meet the requirements You must get approval from the zoning board of appeals 274-b. Approval of special use permits. 1. Definition Above 2. Approval Town Board approves of special use permit 3. If looking for a Varience Applications are made to the zoning board of appeals 4. Conditions may be imposed and must be met 5. Conditions may be waived 6. Public hearing must be held with notice given

11

City of Chicago Heights v Living Word outreach full gospel Facts - A church applied for a special use permit to put a church in a commercial area and was denied. The city found that granting a special use permit for a noncommercial use would be at odds with the comprehensive development plan adopted for the proposed location. Holding Special Use permit should have been granted Churches are permitted in the city of Chicago heights as a special and the 5 standard were met . Non Conforming Uses ( Article Xv) 198-102-07 198-102 - Continuation of existing uses Use that existed legally and became illegal ( Non conforming) at the time of the zoning change o o o If before Zoning enactment Ok (permitted non conforming use) If after the enactment Not Ok you may not alter or increase or expand the non conforming use

198-103 - Structural Alterations o you may not alter or increase or expand the non conforming use

198-104 Change of use change of use - you can always change to conforming use but if you want to change to less intensive non conform in use you have to apply

198-105 - Cesasation of use You can abandon a non conforming use ( NY 1 Year or substantially all activity has been discontinued ) o o 198-106 If more than 50% of the non conforming use is damaged you cannot reconstruct it o 198-107 107 extension or remodeling - you may redesign up 25% provided exceptions old gas station (safety valve) Construction must be completed within 1 year of the date of damage if you abandon it you will use the lose it Issue becomes whether they intended to abandon

12

State v Perry Facts- Defendant was the president of an ice cream company. The industrial use by the ice cream company became a nonconforming use when the property was rezoned from an industrial zone to a commercial neighborhood zone. Eight years after the property was rezoned, defendant brought a large trailer to the plant's premises. The trailer was kept at a freezing temperature and used to store materials for the production of ice cream. The trailer was roadworthy and could be moved within a matter of minutes, but its temporary registration with the commissioner of motor vehicles had expired. Trailer was a non conforming use it amounted to an expansion it was hooked up to the plant Notes 1. Asphalt plant expanded and added 3rd concrete mixers Neighbors argued that it was nuisance this was a movable object it was not an expansion 2. Non conforming restaurant to disco expansion

State ex Rel Morehouse v Hunt (Abandonment) Facts - A building which could accommodate 20-25 students was used as a fraternity house before the district was zoned as single family residence. The fraternity deeded the fraternity to the mortgagee. And then it was leased to the dean of the law school who lived there with his family and subleased some other rooms. After the dean moved out the owner sought a non conforming use permit to use the house as a fraternity again. Rule That mere cessation of a nonconforming use under the terms of a zoning ordinance does not destroy the right to continue it or prevent resumption of it They did not intend to abandon the non conforming use. Toys r us v Silva Facts Issue - Whether substantial rather than complete disconnection of the active nonconforming activity forfeits the nonconforming use and whether good faith of the owner is relevant to that determination . Holding - Substantial discontinuation rather than complete discontinuation forfeits the non conforming use. And intent is not relevant Moffatt v Forrest City(Reconstruction Case) Meat market burned down - Owner says the non conforming part was the meat market and it was not damaged Ordinance does not distinguish parts of the building it is one building and more than 60 % was damaged Notes 1. The general rule is discontinuance of fire does not amount to abandonment

2. Where there is no ordinance that fixes a time we get into the question of intent to abandon Amortization Some Zoning ordinances require certain non conforming uses to amortorized over a specific period at the end of which they must be terminated o The reason they shut you down is because you have an investment and this would be a violation of a fundamental right 13

Amoritization gives you a time limit to recoup you money If it is a nuisance then you may enjoin the use in a nuisance action

Avr inc v City of St Luis Park Facts - Ready Mix aConcreate plant was given an 2 year amortization period to cease its non conforming use. Held that the amortization period was reasonable. Avr got their money out we are not taking anything away from them - was a leglislative act Hard to over throw In determining the length of a reasonable amortization period, the zoning administrator was to consider, at a minimum, the following factors: Information relating to the structure located on the property; b. Nature of the use; c. Location of the property in relation to surrounding uses;

[*413] d. Description of the character of and uses in the surrounding neighborhood; use; e. Cost of the property and improvements to the property; f. Benefit to the public by requiring the termination of the non-conforming

g. Burden on the property owner by requiring the termination [**5] of the non-conforming use; h. The length of time the use has been in existence and the length of time the use has been non-conforming. Legislative act can be overturned of it is a taking (Unconstitutional) or it goes beyond the legislation Hard to overthrow

Administrative act to overthrow it has to be arbitrary or capricious

Depreciation Each year a property value depreciates because of wear and tear If you set aside money for these repairs you will not get taxed on it and have an income tax deduction Only applies to commercial

Accessory Uses; Home Occupations Accessory Use ( 198-2 Definitions 198:2) 14

A use which is clearly incidental to or customarily found in connection with or subordinate to the principal use to the premises and which is conducted on the same o Ex Garrage / parking

Home Occupation (198-2 definition 198:23) Any occupation or activity which is clearly accessory and incidental to the use of the premises for dwelling purposes These categories are permitted you dont have to get for permission so long as you o o dont have advertising other than an identification sign And no more than 2 people outside the family shall be employed

Generally includes post graduate occupations o o o o Excludes: Realtors and brokers No barber shop or beauty salons resturants

Cant use more than 50% of the main floor area Cant have animal Cliniques

Parks v Board of adjustments of the city of Killeen Facts The Baxters live in the house and they also conduct a music school there. They teach as many as one hundred-ten student hours each week. Several students are taught different music instruments simultaneously. The Baxters earn in excess of $ 20,000 annually from operation of the music school. "customary home occupation" is not in terms of profitability or volume of business. they met the requirements of a home occupation Green tree v Good Shepherd Episcopal church Facts- Board managers of a condominium in Manhattan known as green tree sought to temporarily enjoin Defendants from operating a homeless shelter adjacent to the condimiminum. Was classified as an accessory use under the ordinance and was not operating as a hotel or motel under the definition Dobo v Zoning bd of adjustment of city of Wilmington The owner of a property purchased a sawmill and used the sawmill to mill lumber on his residential property. Saw is Huge Issue whether the use of the sawmill on the Dobo property is a permitted use during the construction of the accessory structure on the property"Holding - Yes it does not violate the zoning ordinance All of the evidence presented shows that petitioners used the Wood-Mizer saw for non-commercial and non-industrial purposes, as well as for the construction of a permitted accessory use 15

Notes 1. Is a skate board ramp an accessory use Held that it was an accessory use a. If customarily used Yes b. If first time no i. Pool , hoop, tennis Ok ii. Piggen coop Ok iii. Antena for wireless mobile Not accessory use ( Commercial Use) 2. Other accessory uses a. Vending machine in apt Yes b. Groceries sold by a gas station Yes c. Radio broadcasting tower by a radio operator No d. Grocery puts a gas pump not an accessory use Town of Sullivan Island v Byrum Facts1983 A fire damaged the Byrums' residence. The Byrums decided to renovate the house and use part of it as a Bed & Breakfast. As a result, the repair work went far beyond the fire damage, including the development of six separate bedrooms and baths. whether the bed and breakfast operation violates the zoning ordinance in that it is not clearly incediential and secondary to the residential use of the propperty and that it changed the character of the residence --. Yes ( Was not a permitted home occupation Violated the ordinance in that it took up more than 25% of the house Not a non conforming use because it always violated the 25% requirement Estoppel Ct rejected estoppel town objected to the 25% from the start

Toussaint v Town of harpswell FactsIn March 1995 Jane Waddle applied for a building permit to construct an addition to her home in Harpswell. On her application she described the project as "extending the mudroom and adding a garage with indoor-outdoor kennels for our dogs." Summer resident opposed the ordinance- regular residents did not mind the dog kennel Although it may not have been expressly permitted in the ordinance it was customary and incidental and held o be a valid home occupation There are other kennels in surrounding communities on residential properties All of the facts that there is plenty of other noise anyway Local folks are in favor it is not a nuisance and therefore a customary use Notes 1. Zoning laws are in derogation of the common law

16

a. Should base on strict language of the law 2. 7 foot anchor Not an advertisement 3. Engineer not a home occupation Not in NY Subdivisions (From test Summarizes 276,277, 274(a) 1. Sub divisions a. Definition i. Developers buy a large tract of land and they subdivide it into separate lots . b. Future Services i. Schools and recreational facilities c. Safety Considerations i. Need to be able to get police, fire, etc.. in and out of the land d. Health Considerations i. Pollution, Flood, sewers, etc.. e. Fiscal Considerations i. How much is it going to cost to build a school / police department / firehouse once you build one of these things.. must be taken into consideration ii. You want the investment to be a good investment you dont want foreclosure and the neighborhood to suffer f. Process i. Builder will have architect make a plan 1. Maximum yield 2. And must get approved by the planning Board \ ii. Planning Commission / Planning Board( NY) 1. Establish and overlooks plats Control plan divisions 2. Planning director / engineers/ drafts men iii. Local Ordinance 17

1. Will provide for what the subdivision will allow iv. Planning Board Preliminary plan review 1. Regulations must be on the Plat 2. Streets must connect 3. Streets must be safe 4. Area must satisfy zoning requirements 5. Layout must be sound 6. Must have land for parks - and the children of the community 7. Utilities 8. Street names cant be the same safety concerns 9. Storm water a. Recharge basin - takes the water off the streets pipes the water into the recharge basin and it gets purified 10. Curved streets -- long street will encourage speeding ( Dangerous) 11. Sidewalks 12. Curve radius Not too narrow not too big( Speeding) 13. Salvation of trees v. Sub divider can fight the rejections or revise his plan. vi. Once they give a new plan then they have a hearing for a preliminary approval ( Very Important) 1. Must give notice to neighborhood vii. Once we have preliminary approval then there is a Final Hearing If Plat is approved the municipality will protect its self by having the builder put up a performance bond where if he does not conform to the plat the municipality is protected Bonding company will generally want collateral - have builder sign on the bond Ridgefield land co v Detroit plat did not conform to the general plan. It was submitted to the city plan commission on several occasions, and finally was conditionally approved as follows: Plaintiff must put: A 10 foot building line on Pembroke avenue to conform with property platted to the west. "And Seventeen feet is to be dedicated for Livernois avenue in addition to the regular 33-foot dedication." this was not a 18

taking they were not taking anything just imposing conditions for the health and general welfare of the community --. If you want subdivision approval then you must conform Note 2 p. 297 Interstate land sales and full disclosure Act Federal Govern adapted this Act Required Any developer must register must register with the department of housing and give buyer approved plats If not there sale would be viod, must give refund

Scams to purchase lots thousands of undeveloped lots sold assuring them that plats were approved municipalities did not approve and people lost a lot of money

Vested Rights The vested rights doctrine is the rule of zoning law by which "an owner/developer is entitled to proceed in accordance with the prior zoning provision 'where there has been a substantial change of position, expenditures or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance.' A right will be vested when there is a zoning change and you have incured a substantial expense in reliance of the non zoning change If you right has vested then you will not have to conform if your right has not vested You will have to conform

Dawe v City Of ScottsDale Facts - Plat provided 120 lots with a maximum of 10,000 square feet for each lot. No attempt was made to improve the property and it remained vacant and unimproved from the date the subdivision Scottsdale Zoning was then changed permitted a minimum of 35,000 square feet per lot in the annexed area. Issue whether the pl had a vested right because they recoreded the plat No If you didnt spend any money you dont have a vested right should have started Building then he would have had a vested right nad that he made an investment and taking it away would be unconstitutional Notes 1. If the landowner has changed his position then some courts might find a vested right

2. NY 4million spent and vested right granted another case 6 millin spent and denied 3. 6 foot footing placed and denied not a vested right

19

4. Generally if you get the foundation In it would be enough City of Corpus Christi v Unitatian church of Corpus Christi Facts The Unitarian Church of Corpus Christi as the owner of certain property, applied to the City of Corpus Christi for a building permit to improve its property for church purposes. The Church was told by a city department employee that the church property would have to be platted prior to the issuance of the permit. Under the statue the church was not a subdivision so they cannot impose subdivision requirements on them Meets and Bounds 1. Meets and bounds conveyance - Designed to defeat subdivisions (Illegal sales) a. Dont want to file a subdivision so he looks for buyer and sells them by meets and bounds descriptions rather than lot descriptions and they dont have to file or subdivide anything i. Municipalities can arrange not to give you a building permit Cluster Zoning 1. Municipality wants to take part of a persons property ( property and forest) 2. And allows you to put the same amount of lots on the property buy you cant build on the preserved piece of land they want a. you may will save money on the streets

278 - Subdivision Review Approval of Cluster D "Cluster development" ( Defintion) shall mean a subdivision plat or plats, in which the applicable zoning ordinance or local law is modified to provide an alternative permitted method for the layout, configuration and design of lots, buildings and structures, roads, utility lines and other infrastructure, parks, andlandscaping in order to preserve the natural and scenic qualities ofopen lands.

Authorization; purpose. The purpose of a cluster development shall be to enable and encourage flexibility of design and development of land in such a manner as to preserve the natural and scenic qualities of open lands. Conditions. A cluster development shall result in a permitted number of building lots or dwelling units which shall in no case exceed the number which could be permitted, in the planning board's judgment, if the landwere subdivided into lots conforming to the minimum lot size and density

20

Chrinko v South Brunswick planning bd A Municipality took 20-30% of builders land. ( over 200 acres) and cluster zoned the rest of the property the ordinences were found to be valid ordinance reasonably advances the legislative purposes of securing open spaces, preventing overcrowding and undue concentration of population, and promoting the general welfare. Nor is it an objection that uniformity of regulation is required within a zoning district. --. Such a legislative technique accomplishes uniformity because the option is open to all developers within a zoning district, and escapes the vice that it is compulsory. There was no enabilin leglistation that alloud this in this case and it was still alloud Would not happen in NY without enabling legislation

Planned Unit Development . A PUD is a designed grouping of varied and compatible land uses, such as housing, recreation, commercial centers, and industrial parks, all within one contained development or subdivision.

Orinda Homeowners Committee v Biard of Supervisors The plan called for development of "residential clusters" as well as single family residential lots. The maximum density of the clusters would be eight units per acre. Approximately 345 dwelling units would be constructed, of which about 236 would [***3] be located in clusters Permitted as planned unit development Exactions Similar to use conditions requires land, expenditure or money from the developer Statutory law can require subdividers to require the developers to designate land for recreation and provide facilities for people in the development

1. Municipality can make you install public improvements 2. Dedication of subdivision and widening streets 3. Imposition of restrictive covenants a. Fencing b. Trees 4. Dedication of lands Parks ok in NY a. Police or fire station or school In NY No 5. Payment of fees in lue of such dedication Ok 6. K to pay money to do these things Ok

21

See if the enabling statue allows it. ( Notes)

1. NY Municipalities are limited In their powers they are limited to what the statues says a. State enabliling act must allow it ( Strict Compliance ) b. Other States Municipalities have more power 2. Ayres v City Council - Want a lot of property dedicated to them (p.323) a. LA Home Rule power i. Ct concluded - since LA has extensive home rule power it can impose the requirements regarding exactions ( Did not have to follow the ZEA) 3. Other states do not enforce home rule a. They require ( strict compliance with the ( ZEA) Surety Bond How does a municipality guarantee that streets ect.. will be done b. After final approval - p. 325 i. Install improvements before final approval Not going to happen ii. Furnish escrow to cover improvement Also not going to happen iii. Furnish a surety Bond guaranteeing installation of improvements Most Likely 1. Surety ins co will demand collateral Exaction Cases and related hypos from Notes 4. Requiring 15 in sewer pipe instead of 10? Valid requirement( Utah) ( Can go both way ) 5. Width of street builder says 26 feet and city says 33 feet ( depends) 6. Installing sewer and water mains when required Valid 7. Wants money back for insalation gets into financial trouble and want his money back No 8. If the city imposes a excessive charger then it becomes a tax (Revenue raising device) Will not be permitted 22

181 inc. Salem County Planning Bd Facts - Plaintiff is the owner of a tract of land in Woodstown, Salem County. Plaintiff/ Owner applied to the Salem County Planning Board for site plan approval. The site plan review committee recommended approval subject, among other things, to the dedication of 8.25' along its border on Elm Street to be used for a proposed widening of Elm Street from 49.5' to 66' pursuant to the official map. The time of such widening is indefinite.Issue whether the required dedication constituted unconstitutional taking of private property for public use without just compensation. Yes Rule there must be sufficient rational nexus between the proposed use and the widenening of elm street - There was no immediate plan to widen elm street Ct Said there has to be a reasonable relationship ( Nexus) between the demand and the need o Notes 1. In many case even though it may unfair they do it anyways because they dont want to be held up for other reasons Divian Builders inc v planning bd of wayne Facts - Divan's proposal contemplated the construction of 31 single family dwellings in a residential zone of the Township. Because a substantial portion of the building site was covered by a pond, the developer's plan called for its draining and the construction of a conduit which would pipe the water from its upstream source through the development and into an existing drainage facility on the downstream border of the site.- Issue - issue whether the municipality can impose this conditiong- No Was not Fair to have them pay for the whole thing - Costs were not Aportioned Properly Options 1. Municipality can pay for the whole thing ( pay with our taxes ) not likely 2. Munipality can declare it a local improvement and everybody locally pays for it more likely 3. Work done at the expense of the developer a. Put up a bond and get part of the money back from the people who get a benefit from it There has to connection between what you are creating and what they are demanding

Non Traditional Exactions Pioneer Trust and savings bank v Village of mount prospect Facts - Plaintiff Brought action to compel the \ the village of Mount Prospect to approve a plat of subdivision which complied with all the provisions of the official plan of the municipality except that requiring a dedication of land for public use. He was required to dedicated 6.7 acres of land sought to for the use of an elementary school and for the use of the Mount Prospect Park District as an elementary school site and a secondary use as a playground Issue whether the state of law is such that a mandatory dedication of the land without cost to the public may be 23

sustained in the regulation of proposed subdivisionHolding - No You Can you take the land for parks and schools But here the Cts says that the facts that other developers came in and used up all the school facilities this builder should not be the burden of the new Development Narrow view of statue

Jordan Case 5k development fee substitute for the building of parks and schools he paid and then tried to get it back. Held he can not get this money back The enbiling statue gave the municipality the power to do this Held to be constitutional Notes 1. Some cases require the enabling act to expressly state schools Broad view of statue

2. Protesting Check a. If your going to litigate and contest the requirement ( but dont want to looks out on costs because of delays you pay the money and on the back of the check you pay the money ( And write on the back of the check paid under protest) 3. NY Sticks to Parks only with regard to payments Denial Of Subdivision approval Coffey v Mary Land National Capital park and planning commission Facts - Wade S. Coffey, owns 15.85 acres of land on Riverdale Road in Prince George's County, located approximately 1,800 feet east of that road's intersection with the Baltimore-Washington Parkway. The land is zoned R-T (Townhouse Development). This permits a maximum development density of 8.0 to 11.9 units per acre. The master plan for that area, approved in December 1980 by the District Council for Prince George's County, restricts density to 2.7 to 3.5 dwelling units per acre. Almost immediately after adoption of the plan, in January 1981, Coffey submitted an application for approval of a preliminary plan of subdivision. The planning for the subdivision had been in progress for some time. He proposed 117 townhouse units on the tract, a density of 7.38 dwelling units per acre.Issue - Whether the master plan has to be conformed to? Holding Yes Rule Prince George's County Code 24-103 (a) (1) requires subdivision plats to conform to the master plan. Reasoning- developing some of the lots in conformity with the existing zoning will not disrupt the master plan. Concentrated use and development, however, will disrupt it. The legislative body wished to avoid this when it specified that subdivisions must comply with the master plan.--> Developer got hit hard Mary Land National Capital park and planning commission v Rosenberg Facts- The 31 acre tract of land (the property) that lies within the development known as West Lanham Hills has a the zoning classification of R-18 (Multiple Family, Medium Density, Residential), a classification with which the owner (appellee) seems content. It is said that a six acre strip has been or will be acquired to serve as the site for the Metro's Ardmore station .In June 1971 the appellee submitted to the Commission for its approval, as required by the subdivision regulations, a preliminary plan for the 24

subdivision of two parcels of the property. Application was denied Issue - whether the denial of landowner's request to approve a preliminary subdivision plan because a nearby school was already overcrowded was arbitrary and capricious Holding Yes Rule - Statue Said "The availability within a reasonable distance, and the adequacy of school, fire, police, utility, and park and recreation services."They are 4 other school districts near by and they are not at full capacity Nothing in the ordinance requires that must go to that one school Subdivision and site improvement FEES Subdivision of Land Fees (A202 Atachment 1:1) Residential Subdivision Fees Commercial an Industrial Subdivision Fees Revocation of preliminary approval fee application fee for waiver Conditional Final Review fee Expiration of conditional final review fee

Site Plan review and approval fees (202 attachemnt 1:2) Site plan review and amended sight plan review

Miscellaneous fees and charges (202 Atrachment 4:1) Radious search names addresses etc Misccellaneous services -zoning maps Signs Lot change adjustments ect

Notes p. 361 1. Texas - regulation require all developers to demonstrate a 300 year water supply. Pl attack and they lose the case because ct says you still have reasonable use of the property even if you cant subdivide it 2. Denial of subdivision because its a flood prone area denial upheld 3. Building plat denied because town couldnt build school, police and give other benefits to the people subdivision was alloud 25

Official Map Municipality can have an official map generally for street layout Shows the extensions of street Problem is you are mapping areas that are undeveloped and you end up with a street crossing through a property

Developer agreements municipality likes the idea but is sensitive to the idea that builder make promises and dont carry them out --> So developer makes an agreement that requires the developer to meet certain standards Attack on these agreements is contract zoning o Conditional Zoning bargaining away police Power

Vested Rights A landowner typically receives vested rights to develop after the government has made a decision to permit the development and where the landowner has then acted in good faith upon such approval by making some improvement to the land or by making a financial investment in reliance on the approval. Courts may require that the landowners actions result in substantial or extensive expenditures. o In NY, vested rights usually require substantial construction or substantial improvements

Avco Community v South Coastal regional Commision He spent a ton of money on grading the property act was passed not allowing him to build on the coast line he argues that he had a vested right Developer spent close to 4 million dollars . Issue - whether the developer of a subdivision may acquire a vested right to construct buildings on its land without a permit from the California Coastal Zone Commission Holding No Did not apply for any building permits He only applied for grading permits Could not give building permit - he never file exact location of the houses what they looked like

Rule - Underlying lesson If your building has not been in accordance with a building permit you cant vest the right Dont matter what you spent vested right come after you have done construction based on a building permit

Developer Agreement Bollech v Charles County Maryland Facts - Appelants also known as trustees - entered in to a development agreement with Charles county and the new berg station ownwers. In 1999 the trustees submitted an application for a plan for 26

development and was denied by the county because the amendments to the local zoning regulations prevented the county from approving the application Issue - whether the county violated the contracts clause AND breached their contract Holding- No Rule - A material failure to perform by one party prevents performance of the other parties remaining duties from becoming due, at least temporarily and discharges those duties if it has not been cured durriinng the time in which performance can occur Notes 1. Developer are always interest in when rights going to vest a. Common law Rule Ny Very Fuzzy i. Some states have adapted statues 1. Final plat approval Vested 2. NY requires a lot more than having a shovel in the ground Moratoria where there is a suspended right of property owners to obtain development approvals while the community take time to consider, draft, and adopt land use plans or rules to respond to new or changing circumstances not adequately dealt w/ by its current laws o o o As word get out that there are going to be changes in the area everyone rushed to file maps to get building permit under the old zoning There can be liability on building inspector who take a long time to give approval Proect you self by declaring a moratoria for a specific period of time Cant build / file application for a specific period of time They didnt hold up their end of the bargain there fore there was no reciprocal obligation on the county Developer can bring a breach of K claim because the developer is in breach himself

Tahoo Siera - Lake tahoo Lake sight beautiful view of the lake Commission formed to come up with a development plan where you get certain credits depending on where you are No one gets anything Supreme ct of Us Up held a moratorium that lasted for 32 months

Maryland National Capitol Park and Planning Commision v Chadwick Facts. Pursuant to ordinance and commission rule they put a 3 year reservation on the pl property. During the reservation period 27

no building or structure on the land etc etc can remove trees and grass Freezed the property for 3 years to decide whether they are going to buy it 3 year reservation Moritoria was held to be Unconstitutional Ct takes a narrow view what you have done here for you own eminent domain purposes Ct says this is not permissible in anticipation of taking property for a public purpose you cant enact a law that will freeze the price for you o Notes 1. Was Chadwick over ruled by Tahoo a. Can be argued both ways 2. Regulations that take land are usually held to be takings Droste v Board of County Commisioners of County of Pitkin Facts - The Drostes own approximately 925 acres of land lying between the City of Aspen and the Town of Snowmass Village In 2000 and 2002 the Drostes applied for approval [**5] of three separate development projects, each of which was denied.The Board of County Commissioners for Pitkin County (the "Board") adopted Ordinance which imposed a moratorium on all land use applications effective March 12, 2003. The moratorium's stated purpose was to allow the County time to conduct a comprehensive study of the area, including sensitive environmental areas and significant wildlife habitats. Moritorium held to be constitutional Case of statutory interpretations -State enabling act gave them the power Statue expressly includes allowable land use regulation Notes 1. Owners of several golf clubs in Huntington Want to build moratorium placed and it is on it Moritorium has now been in effect for 3 years 2. Lazer struck down the moratorium Roosevelt race way wanted to convert into shopping center Moratorium lasted 5 years 3. Decided on case by case basis is there a real study going on? 4. Sewer moratorium not property right in sewer 5. 2 year moratorium on all New sewer mains held to be ok ( sewer plant was over loaded) 6. Moratorium halts development for a period pending the adaption of a comprehensive plan a. Some states must be expressly stated that can impose moratoriums 28 Question is do you imply moratoriums from this act ( broad authority) Here 6 month moratorium Ok Cheating the owner of the property

b. Huntington Moratorium to block the developer and for no good reason not valid Transfer of development rights process by which development rights are transferred from one parcel or area of land in a sending district to another lot, parcel, or area of land in a designated Receiving District o Used to save the regulations that municipalities put on people because regulations would have probably been deemed unconstitutional o o Did not want to compensate them so they got them money from another source EX Pine barrens In Long Island - sitting over the water supply has hundreds of owners and they cant develop the property Municipality allows them to sell their rights to build to other properties Sending District to Receiving District

Suitum v Tahoe regional planning agency Facts - Bernadine Suitum owns land near the Nevada shore of Lake Tahoe. Respondent Tahoe Regional Planning Agency, which regulates land use in the region, determined that Suitum's property is ineligible for development but entitled to receive certain allegedly valuable "Transferable Development Rights""Individual Parcel Evaluation System" (IPES) Created Whereas any property must attain a minimum IPES score to qualify for construction, id.,Issue Main issue whether the claim is ripe for review Holding Yes 1. Penn Central a. Whether the grand central station can have a 50 story builing bullt on it they had air rights. City rejected any plan to build i. Gave Pen central TDRs - they could build additional stories on their other properties Over Lay Zoning Districts Enact a zoning ordinance to restrict the destruction or alteration of a building Mentions the boundaries within the special area - that cant be disturbed need a special building permit Put an overlay over it - restrictions in the overlay This can be used to protect large-scale critical environmental areas from development or to promote growth in area that support higher density development Ex: Preservation Of Landmarks and historical places

29

Notes 1. Franchise developers a. Business district and enacted an overlay and said in that certain area there can be no fast food store b. Alberackaue New Mexico ( 198-27.1) Huntington Station Overlay District Purpose of adapting this overlay zone is to create a business district that will accommodate neighborhood shopping, encourage job creation, and convenient day to day needs

198:80 Special Historic Overlay District 198:94 Special Agricultural Retail overlay District Uses Restricted to food flowers nursery products animal farms and childrens parties

Special Study area Glisson v Allchua County Facts - Pursuant to the provisions of its comprehensive plan, Alachua County designated the Cross Creek region as a special study area. The Cross Creek Special Study Area includes 3,100 acres lying on either side of Cross Creek, between Orange Lake and Lake Lochloosa in southeast Alachua County. Issue - whether the enactment of the regulation constitutes a taking NO Rule Has to be a no reasonable use of the property for it to be a taking ( Denial of all economically viable use of the land) Notes 1. Took an area and put overlay on it not to do anything with it ( Preserve the natural beauty) Ok Incentive zoning 261(B) Local legislatures can provide this system of zoning incentives to land developers in exchange for the developer providing Community Benefits Ex: adjustments to the density of development, height, open space, use, or other requirements of the underlying zoning law For open space, parks, affordable housing, day care or elder care, or other specific physical,, social, or cultural amenity of benefit to the residents of the community. 30 In facial chalange Only issue is whether the mere enactment constitutes a taking In this case this is a facial taking read it and it is unconstitional on its face

1. If you will build affordable housing we will let you build more housing than the zoning permits you 2. Permits bonus densities in exchange for public benefits Environmental Review Local Environmental law 1970s Environmental movement Federal statues Enacted o o Clean water act Clean Air Act

Move from federal aspect from the local aspect Local o Just v marrinette ( Wi) Environment is held by the state as a public trust therefore anyone who disturbs it can be prevented from development Stringent statue limited development of with certain amount of feet NY dont adapt the public trust doctrine

Moviematic Inustries Corp v Board of county commissioners (florida) Facts - Over ten years ago Moviematic Industries Corporation purchased 1,200 acres of undeveloped real property. The property overlies the Biscayne Aquifer which serves as a major source of the drinking water in the county. On March 19, 1974 the county commission imposed a building moratorium 1 on an area consisting of approximately 323 square miles of west Dade County, for study purposes and later changed the zoning not allowing Moviematic to build. Issue - whether the zoning change amounted to a taking No Rule Preservation of ecological balance of a particular property is a valid exercise of the police power Since they did not deprive of 100 percent of property Not a taking Environmental Impact reviews ( SEQRA) If any federal money is going to go foreword to finance a new project there must be an environmental review which studies the environmental effects of the project Subject to a hearing

NY State Environmental Quality Review Act (SEQRA) Applies to Local Development Very Important 31

1. Applicant fills out EAF environmental assessment form 2. Based on the form the agency will make a decision on whether you pass a. If Property 25+ acres Type 1 action Need environmental review b. If Less than 25 acres agency will make the decision 1. Decision that you need a review is called a positive declaration (POS DEC) o you have to do a environmental review

IF the Agency says No o Negative Declaration ( Neg Dec) good news for the developer --. You dont need a review

3. If Positive Decleration Must submit Environmental Impact statement (EIS) i. 1st draft EIS 1. Hearing held on draft ii. 2nd Final EIS 4. Preliminary approval would take take a long time a. So 45 day requirement for hearing and approval if you dont meet then approved Sun Beach Realestate development corp v Anderson ( NY) 45 Days begins after approval) is filed East Hampton planning board argues that until the environmental review book is filed the application for preliminary approval application is not complete. - And that 45 days begins to run after the review is filed These reviews take a long time SEQRA purpose is not to stop development it is to alleviate as much as possible the environmental concerns that arise from the development Notes 1. Most state have same requirements as NY Since the legislature left the open space with no time requirements for environmental review saving the environment is more important than the 45 day requirement

2. Environment is broadly defined air water woods and wildlife as well as changing neighborhood patterns a. We go much further neighborhood, traffic , community welfare 32

b. Judicial decisions broadened the lang of the statue Conservation easements and land trusts a voluntary agreement between a private landowner and a municipal agency or qualified not-for-profit corporation to restrict the development, management, or use of the land. Agency want to preserve farms so they buy conservation easements from the farmers land to keep them and new owners from d eveloping the land

Land trust various Conservation companies buy properties to keep them out of the hands of the owners Flood Plain legislation Flood plain regulations came into effect Where there are properties at the bottom of hills vey susceptible to floods You can buy flood insurance from the government o Note 4 Denial where there is a 100 year flood plain o o Wetlands State enacted state wide legislation where wetlands were mapped Distinction is between wetland and upland o o Upland can build Wetland cant build Conststruction must protect against the strongest flood that can happen within the next 100 years No land to compensate for hundred year flood Government want tough regulation so these buildings dont get built

Flood plain insurance only goes to communities that engage in flood plain restrictions

Local agency would have to enact wetland regulation If they didnt the state would ( Department of environmental conservation)

Steep Slope / Ridgeline hilltop protection

33

Steep slopes that cant be built on If you build on a steep slope you cause many problems o o Create mudslides Destroy water transmission in roosts

Sellon v city of Manitou Springs Zoning Change because of Sttp Slopes held as constitution relates to public health safety and welfare of the public (198 296) The Steep Slopes Conservation Law Signs Up until the 1950 no one thought that you could regulate based on the aesthetics Now we can regulate based on aesthetics o Signs o Generally ugly Distract people It is the legislature intent to protect scenic landscapes and vegetation features of steeply sloped lands Development on these lands disrupts vegetation and wildlife and may cause flooding and erosion

Municipalities tend to regulate But then we deal with 1st amendment regulations

Article XIV Signs And advertizing Devices 198-91- Legislative Intent Assure capability of signs Create a more attractive and business environment Conserve property values Protect public investment in streets 198- 93- Prohibited signs

34

Flashing signs and movable copy signs Bill board and and sandwitch signs Visual image signs Signs with commercial messages Metro Media Inc v City of Sandiego ( Important) Facts - City of San Diego enacted an ordinance banning all off-site billboards while allowing on-site advertising If Billboard is on your property You Can Advertize ( ONSIGHT YES ) If Billboard if Off your Property then You Can Not Advertize (OFFSIGHT NO ) Advertisements Distract Drivers and cause traffic Problems o There is no evidence of it, but the court says all the courts say so, so well go with it and we will buy the distinction between onsite and offsite but we will not buy the distinction between commercial and non-commercial v. We don't see how you can prohibit all non-commercial speech while permitting commercial speech and political messages vi. In this case the non-commercial speech is being given less 1st amendment rights then the commercial speech 1) Not going to uphold a distinction between commercial advertising and non-commercial advertising and holds it to be unconstitutional vii. Dissent: 1) No evidence that signs distract traffic - no evidence offered to that effect

Notes: Tax payers for Vincent Case - LA could not put up any signs on public Property political signs on the highway supreme ct upheld the LA ordinance o o o it was directed at traffic it was content neutral there was other ways that the pl could get the message out Dissent - no evidence that signs affected traffic

35

You can restrict free speech as long as it is neutral or has some purpose o o Look at time/ place and manner Bann on all signs for traffic reasons

Notes ( Sign cases are very important) p. 1019

1. What regulations are appropriate in dealing with commercial speech a. Commercial speech less protection than non commercial i. Restriction must implement an important government interest ( traffic) ii. The restriction directly advances the interest iii. It goes further than it is necessary to accomplish the government wants to achieve 2. Metro media cities may ban off sight signs and onsite signs 3. You cant ban a sign based on content a. Sign banned with 500 feet of embassy i. Banned based on content that said government was bad judgment made based on content was not permissible 4. IF you had American flag it would be ok but other flag not ok this was Banned a. Not content neutral 5. Example of time manner and place a. Fausin - signs on overpass are frowned upon because they might affect safety b. Constitutional time manner and place regulation c. All of the cases say it but non have really studied it 6. Residential Signs a. City of Ladue i. Enacted restriction - prohibiting any residential signs ii. Puts sing on piece of paper on his door - protesting the golf war

36

iii. Violation place - court holds the ordinance was un constitution iv. Rule - being able to deliver a message from your home is very important and the statue was unconstitutional 7. NY Porno graphic signs ct upheld pornographic sign a. Even though prono was never defined people kow what it is 8. Election ( Political signs ) a. Very difficult to regulate ( signs on pole) i. Hard to enforce ( dont know who ) ii. Also at the core of the 1st amendment iii. Most cases strike down these types of case iv. Effort is to permit free speech in elections situations v. Ban of political signs is a ban on free speech 9. Local Sign ordinance a. Size restriction b. Lamar adv case i. City considers the many thins restrictions must be definite State v Diamond Motors In 1957 the City and County of Honolulu enacted Ordinance No. 1557The ordinance is comprehensive in nature and provides for the regulation and control of outdoor signs, the location, erection, maintenance and use of signs, and penalties for the violation thereof. It prohibits, among other things, the erection and the maintenance in [*34] industrial districts of ground signs exceeding 75 square feet in area or exceeding 16 feet in height from the ground. i. Hawaii accepts beauty as a accept beauty as a proper community objective, attainable through the use of the police power. ii. Hawaii Can Restrict and regulate based on aesthetics alone Major and city council of Baltimore v. manoschwartz Statue prohibits signs projecting more than 12 inches "from the primary surface of the building to which it is attached . . . ." and 1 (e) (4) which prohibits roof top signs.Issue - Issue whether a zoning ordinance that only has the sole purpose of achieving an astheticaly pleasing result is valid? Holding No Ct says he problem with regulating beauty is that it is a matter of taste Majority Rule You may not regulate based on aesthesis alone 37

Exception Aesthetics can be considered preserve something that looks beautiful and that the public accepts as beautiful

NY Huntington - Does not have an ordinance dealing with what architecture should look like Notes 1. People who are in favor of signs will look and ordinance and find one portion if it to be broad and unconstitional and try to know down the entire ordinance a. Ct prevents this by saying that have no standing to do it if they are affected by the ordinance 2. Federal highway beautification act a. Bill board can be put up within 660 feet of highway 3. 463,000 moved as of 1977 4. 265,000 still up State Ex Rel Stoyanoff v Berkley )(Missouri) ( Pyramid house) Builder wanted to build a house in a wealthy neighborhood that looks like a pyramid Since the aesthetics of the Prymid house would have an adverse effect on the values of nearby properties can regulate based on asthetics People v Stover NY (Clothesline Case) The defendants, Mr. and Mrs. Stover, residents of the City of Rye since 1940, live in a 2 1/2-story 1-family dwelling 1961, therefore, six lines, from which there hung tattered clothing, old uniforms, underwear, rags and scarecrows, were strung across the Stovers' yard In August of 1961, the city enacted an ordinance prohibiting the erection and maintenance of clotheslines or other devices for hanging clothes or other fabrics in a front or side yard abutting a street (General Ordinances, 4-3.7). Rule - whether such a statute or ordinance should be voided should depend upon whether the restriction was "an arbitrary and irrational method of achieving an attractive, efficiently functioning, prosperous community -- and not upon whether the objectives were primarily Aesthetic Considerations alone can be enough to regulate you dont have to look for values being negatively affected. o o Theory of Stover dont mean that all aesthetic regulations are free from attack Appelate division - No such thing reversed stover and said this was going to far

a. Generally aesthetics should be accepted Parking Regulations 198- 43 - general requirements and procedures If you build anything to increase the size you have to provide off street parking

38

198-47- Table of Minimum Spaces required One 2 family - one parking space for each dwelling Hotel/ Nursing home - one per 3 beds Resturants one per 50 square feet

Historical Land Marks Until the 1960 not really any protection for landmarks Federal Legislation established a national policy but using the legislation cts have not been successful Local Legislation is very important

Opinion of the justices to the state ( Case) o o o Old Nantucket historical preservation No building shall be demolished or altered without such a permit Senate asked for an opinion to whether they can do this enactment and the ct says Yes , maintaining this historic area is a proper police power Notes 1. Historic district commission - refused to issue permit ( ct of Mass said denial of the permit was unconstitutional because the act its self did not give them the power to not allow new construction

South of Second associates v George town Facts Georgetown is an area rich in the culture and history of early Colorado.In 1966, the National Park Service of the U.S. Department of the Interior designated the Georgetown/Silver Plume area as a registered National Historic Landmark District. In 1970, the Board of Selectmen of Georgetown enacted Ordinance No. 205 and soon there after ordinance No 206 Protection sights of historical and architectural significance Held not to be vague its ok because the other cts have said it is ok Notes 1. The developer sues for damages for delay of the permit and there was probably some kind of a settlement

39

2. Can the board control development out of the district Illinois - can they put a restaurant adjacent to the 4 block district ct said no there was interest in preserving around the district 3. Beacon had the power regulate the placement of news racks Kent Council for historic Preservation v Roomey Preceding to get injunction to stop the demolition of an old building ( great grand rapids area) taking into consideration the historic preservation Under the federal act there is very little effective intervention ( not required)

Pen Central v. City Of NY ( Very Important ) In controversy is the constitutionality of regulation which would not allow the owners of grand central station to build an office building above grand central station because it is a land mark. Issue - whether the regulation amounts to a taking in that deprives the plaintiffs of property without due process of law? Holding the court held that it did not. Rule Must deny all economically viable use of the land Reasoning Notes 1. Someone wanted to use their TDR but were not allowed to public apposed There was still reasonable return able to be acquired They Received TDRs Restriction for the public good and there will be a return so there is no taking in the case

2. Lutheran Church case a. Beautiful church on Lexington avenue denied a permit to expand the building i. Ct of appeals ruled for the church church was a charity based establishment and could not be maintained ii. Argued whats the difference both for the public benefit 3. Landmark provision designated the interior of a theater Ct said there was no authority to do this 4. Act which said you could not interfere with religious we will deal with this later a. If t interferes with relgion the government will have to take a more liberal approach in allowing zoning ( RLUPA ) 5. Bartholoweles church building is so beautiful church was not allowed to make any changes Huntington Zoning ( Landmarks ) 40

198-40 A town board may designate any parcel of land as a landmark if: o 198-41(a) No Work shall be commenced an not town shall grant a permit to erect, construct, reconstruct, repair, restore renovate rehabilitate, or alter a structure designated as a landmark Posesses special historic or aesthetic character

Housing and Urban Development Population will increase and many homes will be needed in the next 40 years We need to get more people back into the cities o When a property was leased under the old common law lessee was reliable for repair and the owner was off the hook

Javins v First National Realty Corp Facts - tenant did not pay the LL rent because there was 1500 violations. In the old days LL was not liable for repair. Issue was there a breach of Implied warranty of Habibibility? Yes Notes 1. Put rents into escrow and deal deal with the matter Ct finds that we should read into to every lease the implied warranty of habitability NY also has an Implied warranty of habitability

Moore v City of Detroit Facts Ord. 556-H was enacted in Detroit in an effort to abate nuisances in the city of Detroit. In essence abandoned lands were creating a nuisance and the city was taking the properties fixing and selling the properties. Issue whether the Ordinance amounted to a taking NO Notice was given and city was trying to salvage a serious deteriorating city Built into the ordinance are ample notice and opportunity provisions which protect the right of the property owner to terminate the nuisance abatement contract at any point. Given the nature of the intrusion, the purpose sought to be accomplished and the ease with which a property owner may terminate a nuisance abatement contract, we cannot say that Ord. 556-H constitutes an unreasonable [***10] exercise of the city's police powers.g

Kelo v City of New London Kelo v City Of New London City of New London, Connecticut wanted to take The private property of 6 property owners of a deteriorating community. The city wanted to develop the property for the use of a Park, Hotel, apartments and etc . The six owners refused and filed for an 41

injunction claiming private property was being taken for private Rule the court here strated that the narrow view use by the public as the proper definition of public use, steadily eroded over time. Instead it embraced the broader and more natural interpretation of public use as public purpose. Ct relies on a series of precedent o Burmans - governmental project in D to take over a whole blighted area burmans interest was a department store that was not blighted held it was ok o Midkiff 72 owners owned almost all private land in Hawaii - Hawaii enacted a statue and took the land and sold it to people who occupied it Ok o Rucklehouse involved pesticide patents took the patents Changed public use to public Purpose

Where there is a exigency ( Problem) you may take the property Burman ok area was blighted Midkiff ok there was also a problem ( no one owned property except ownwers

NY Follows Public Purpose Notes Pole town Case took a whole working class area churches everything ( Upheld) Michigan supreme ct went the other way when there was a taking to expand the airport ( Hatcheck) o Hath cock - can take it in extreme case where ( 779- 1-3) Kelo won the case and never went foreward with the project Market value is the market value at the time of the taking

Intergovernmental Conflict Whether a state agency must conform its land use to local zoning regulations. Balance of Interest Test NY 1. the nature and scope of the instrumentality seeking immunity, 2. 3. the kind of function or land use involved, the extent of the public interest to be served thereby, 42

4. 5.

the effect local land use regulation would have upon the enterprise concerned the impact upon legitimate local interests

Other Jurisdicts May Use Superior Sovernity Test 1. Determine if the institutional use is governmental or proprietary in nature a. If Gov- then Ok b. If Prop Not OK Brown v Kansa Forestry , Fish and game commission Facts - The agency involved here is the state forestry, fish and game commission. In 1975 it purchased two lots in the middle of a twenty-three lot subdivision near Manhattan, Kansas, which had been zoned for single family residences. The commission intended to use the land for a public parking lot, complete with toilet facilities, for the convenience of its patrons using a fishing and recreation facility on the adjacent Big Blue River.This violated both Riley county zoning regulations and certain restrictive covenants governing the subdivision. Held State agency must conform to the zoning restrictions Rule Balance of Interest test the nature and scope of the instrumentality seeking immunity, (2) the kind of function or land use involved, (3) the extent of the public interest to be served thereby, (4) the effect local land use regulation would have upon the enterprise concerned and (5) the impact upon legitimate local interests

The instrumentality seeking immunity is a state agency, and its judgment is entitled to considerable deference. (2) The general function being performed promoting recreation is one of recognized public utility but hardly on a level of importance with public education. The specific use, providing parking space near but not in a recreation area, is of a more marginal public interest. (3) While there is public interest in the proposed use in that some people will find this parking lot more convenient than other available lots, the segment of the population affected is relatively small. (4) Regulation, if rezoning is refused, would have the effect of requiring the parking lot to be located in some area other than a residential subdivision. Such a move might make the lot less convenient, but would probably not substantially impair the usefulness of the recreation area. (5) The proposed use would, prima facie at least, have a substantial adverse impact on the surrounding householders and on the existing land use plan. ( Very Important)

Notes 1. Same ct did not apply he balance of interest test - for the university of Kansas medical center 43

2. Ten years later where a prison was involved the ct applied the balancing test and came out that the balancing test was in favor of the state 3. State ct cant bar the federal government - postal service was not subject to zoning fed gov can do what they want

Local v Local City of Bridgetown v City of St Louis St. Louis proposed to add a runway and terminals to Lambert Airport. The proposed W-1W plan would extend the runway into an area of Bridgeton that is not zoned for an airport. The new runway is needed to allow for simultaneous landing of aircraft during inclement weather National interest is more important than the local interest Applied Balance of interest test ii. The importance of expanding Lambert Airport pursuant to the W-1W plan outweighed Bridgeton's interest in enforcing its zoning ordinances as to St. Louis. iii. Lambert Airport's current inadequate capacity which might endanger its status as a hub airport. iv. Lambert Airport's inability to accommodate traffic during inclement weather. v. the savings to passengers because of reduced delays. vi. important access to Jefferson City, the State capitol, and its location benefits the St. Louis region concentrated westward of St. Louis City. Delay or impediment to Lambert Airport's expansion would be detrimental to the economic development of the State of Missouri. vii. Additionally, there was credible testimony that airports generate significant regional economic growth in terms of jobs and commercial activity, including in those communities in close proximity to the Airport. viii. The trial court also heard evidence of Bridgeton's interest in maintaining their community. The acquisition for the expansion would require over 18 % of Bridgeton's total land area including more than 1,900 residential parcels, 6 schools, at least 2 parks, 6 churches and 75 businesses. After considering all of the evidence, the court found the expansion would benefit not only citizens of St. Louis, but citizens in Bridgeton, the entire metropolitan area, and the State of Missouri. City Of New Rochelle v Town of Mamaroneck NY When it became clear that New Rochelle intended to proceed with building an IKEA. , Mamaroneck's Town Board passed an ordinance, known as the Local Impact Review Law (Local Law), which requires that its Town Board review the impact of certain major development projects in an area outside of, but adjacent to, Mamaroneck. The Law provides that a permit must be granted upon a showing that the impact of the development on the Town will be mitigated.FN2

1. New Rochelle has standing 2. New Rochelle's claims were not ripe for review 44

3. Ordinance did not violate the Commerce Clause 4. Ordinance did not violate Dueprocess or equal protects clause a. Municapilities may not invoke the protections of the 14th amendment against its own state 1. Cant make a claim against the state based on the due process New Class Begins (Exclusionary zoning) Exclusionary Zoning Zoning to keep people out - whether it is to keep lower income people out, racial reasons, or simply to make the community very exclusive Either by statute or constitution or state constitution At what point to this restrictions impinge upon the constitutional rights of people

Zoning that Only permits single family residences State Ex Rel Chiavola v village of Oakwood ( Excusory zoning buy limiting to single family residents. Oakwood, is a small bedroom community located in Clay County, and is a suburb of Kansas City. Oakwood consists of 80 single family dwellings on 80 platted lots.Ordinance No. 10 was adopted in 1955, shortly after residents of a housing subdivision were incorporated as a village under 80.020 RSMo 1986. The ordinance limited the use of the 80 lots comprising Oakwood to single-family residential use with a lot size of 30,000 square feet. - Land owner wanted variance to build comerical. Rule The legislative body of Oakwood is permitted to use zoning to promote health, safety, morals, and general welfare of its residents. the objectives were to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; and to avoid undue concentration of population.

Notes 1. Single use zoning has been updeld in courts NY 2. One way to keep out people and obnoxious uses is by single family zoning as a sole use 3. You can also limit permissible zoning in single family use to large lots National Land And investment Co v Kohn Sweet Briar an acre residential development track was worth 260,000 dollar when the lot minimum was one acre- Now the minimimum for the residential are for which sweet briar is part has been changed to 4 acres The most optimist value of sweet briar is now 175,000. Ordinance held to be unconstitutional Not Done to promote health, safety, morals, and general welfare of its residents.

45

Notes

Ct reasoned that 4 acre minimum was not reasonable or necessary to prevent fro pollution there were no sewage disposal or pollution problems Ct reasoned that Zoning is a means by a governmental body can plan for the future it may not be used as means to deny the future Not Done for the Public Welfare purely a matter of private desire

1. Pa 1 acre requirement was reasonable 2. PA is rather Unique and these decisions are rather unique do not reflect NY and the country 3. Maryland upheld 5 acre residential zoning Ybarra v Town of Los Alto hills 2 Mexican Americans and the confederation de la raza unida, anunincorporated association of Mexican American organizations bothqualify for federally assisted lowincome housing. appellants obtained an option to buy certain lots inlos altos. They paid a nominal amount for the option and agreed topay 14k an acre if the option were exercised. The option could onlybe exercised if the land was rezoned for multifamily dwellings and If the FHA approved low-income housing for that land Appellants s asses that the zoning ordinance prevents them fromconstructing a housing project and that it violates supremecy, dueprocess, and equal protection clauses of the US constitution NO Racial argument - racial discrimination against Mexican Americans The court says every municipality need not provide housing for the poor within its boarders - if there is housing nearby for the poor then you get rational basis review and the municipality will be able to show some connection between the welfare and the way the zoningstands in the community Zoning that excludes Nontraditional Families Tradition definition House hold related by blood marriage or adaption

Huntington Definition of Family Family One, two, or 3 persons occupying a single dwelling unit; or ( No Blood Required) Or 4 or more Persons occupying a single dwelling unit and living together as a traditional family or the functional equivalent of a traditional family ( No Blood required)

46

In NY - when your dealing with any of these issues and they continue to arise you have both McMinn and Ferraioli

IF IT LOOKSLIKE A FAMILY IT IS A FAMILY REGARDLESS OF WHETHER THERE IS BLOOD,MARRIAGE, ETC. ANY THING ELSE IS A VIOLATION OF THE CONSTITUTION

Village of Belle Terre v. Boras NY Facts Belle Terre is on the north shore of Long Island and has about220 homes with 700 people. Its it less then 1 square mile and isrestricted to 1 family dwellings excluding lodging houses, boardinghouses, fraternity houses, or multiple dwelling houses. Appellees (Dickmans) are owners of a house in the village which they leased for 18 months to Truman. Later Bruce Boraas became aco-lessee. Then Anne Parish moved into the house along with 3 others.The 6 of them are students at Stony Brook and none of them arerelated by blood, adoption or marriage- Ordinance upheld , The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people. McCinn v. Town of Oyster BayMcMinn bought the house in 1973, it is in a residential district. Leased it in 1976 to 4 unrelated kids between 22 and 25 who grew up in the area and wanted to remain near their familes. Shortly after they moved in. the McMinn's were charged with violating thezoning ordinance.--> Commenced action for a declaration thats the portion of the ordinance restricting single family housing to any number of persons related by blood, marriage or adoption or to 2 persons not so related but both of whom are 62 older violates the due process clause of the state constitution and human rights laws. Held to be unconstitutional No limit on the number of Related people that can live In a single family dwelling to rational interest

Definition employed here is both fatally over inclusive inprohibiting, for example a young unmarried couple form occupying a 4bedroom house who do not threaten the purposes of the ordinance and the under inclusive in foaling to prohibit occupancy of a 2 bedroom home by 10 or 12 persons who are related in only the most distant manner and who might well be expected t present serious overcrowding and traffic problems

City of White Plains v. Ferraioli NY ( Group Homes) Abbott house, a private agency licensed by the state to care forneglected and abandoned children leases the house in a R-2, single family zone. In 971, legislation was enacted permitting so called authorized agencies like the abbot house to establish group homes under strict state regulation and inspection where 7 to 12 foster children might live in a simulated atmosphere. Issue: Whether the group home consisting of a married couple and their children, together with 10 foster children qualifies as a singlefamily unit under the ordinance Holding The group home, set up in theory, size, appearance, and structure to resemble a family unit, fits within the definition of family, fo the purposes of the zoning ordinance. In NY - when your dealing with any of these issues and they continue to arise you have both McMinn and Ferraioli

IF IT LOOKSLIKE A FAMILY IT IS A FAMILY REGARDLESS OF WHETHER THERE IS BLOOD,MARRIAGE, ETC. ANY THING ELSE IS A VIOLATION OF THE CONSTITUTION.

Notes

47

1. If it was left to zoning authorities you would never have a group home a. NY Immunized group homes so this couldnt happen b. They are valid 2. Mobiel homes and manufactured housing not really a problem in NY a. Yurckt v. yellow stone effort to remove mobile home unconstitutional b. Because of the general recognition that mobile homes may be necessessary we can not totally eliminate c. NY may allow mobile home Discrimination in Housing Southern Burlington County v NAACP v Township of Mt Laurel This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipalityThe township excluded these people by only allowing single family detached dwellings Issue -whether a developing municipality may make it physically and economically impossible to provide low and moderate income housing in the municipality? Holding - The Ct held that it can not Rule - that every municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. o You have to contribute you fair share of resources to meet regional need. Notes 1. For every 8 markets need 1 afordable housing 2. You can challenge all you want but you can make them build if the they are going to take a loss. Berenson v Town of Newcastle The plaintiffs have secured a declaratory judgment invalidating the zoning ordinance of the Town of New Castle to the extent that it fails to make adequate provision for multifamily housing. (At the time this action was commenced, the ordinance totally excluded multifamily residential housing from the list of permitted uses. Ct Ordered the declaring that the construction of 3,500 units of multifamily housing over the next 10 years was the most conservative estimate of what will be required of New Castle ... to supply its own needs ... [and] its share of the regional needs, and directed the town to amend its zoning ordinance, land use regulations and planning policies to accommodate the needed housing. Ct Held that Its not up to the courtts to fix the zoning 48 Universal need for housing - you have to pick up you share fair of the reigion

There was no evidence to support its view 3500 was speculative and the issue is whether the municipally is providing low and moderate income housing There is no solution to the moderate and low income housing Notes 1. Connecticut Shifting in the burden of proff is shifted to municipality that they have reason to protect with the zoning that was implied 2. Californian Burden on the municipality 3. NY Burden is on the claimant Two prong test when determining reasonable 1. Whether the town has properly provided a properly balanced plan for the community a. Give them what they need 2. Whether regional needs were considered Inclusary Zoning refers to municipal and county planning ordinances that require that a given share of new construction be affordable to people with low to moderate incomes.

Homebuilders association of northern California v City of NAPA Lack of affordable housing in NAPA - The ordinance required that 10 percent of all newly constructed units must be affordable 1. give a 10% dedication of land, or the construction of affordable units on another site. 2. As a second alternative, a residential developer may choose to satisfy the inclusionary requirement by paying an in-lieu fee. Ordinance held to be constitutional Held Creating affordable housing for low and moderate income families is a legitimate state interest. Furthermore, the inclusionary zoning ordinance will substantially advance the important governmental interest of providing affordable housing for low and moderate-income families. Rational Basis - Ct sat Nolan and Dolan were individual building permits here, this is a statue that applies to eveverone so all need is rational basis review

Check waiver provision

Building Industry association of sandiego v city of sandiego The City of San Diego enacted an inclusionary zoning ordinance in an effort to help resolve the affordable housing crisis existing in San Diego. The ordinance requires that developers either set aside a share of their projects for lower-or

49

moderate-income households, or pay an in lieu fee to the City Ordiannace was held unconstitutional because the waver provision was more of a requirement and not a waiver Napa waiver was a simple requirement her you have a simple requirement and you have to prove all four of the requirements Ct says this goes way beyond the Napa case Waiver here is really not a waiver --. It is to hard to meet there is no waiver in a practical sence and the ct declared the ordinance as unconstitutional

Incentive Zoning (261-b) Definitions "Incentives or bonuses" shall mean adjustments to the permissiblepopulation density, area, height, open space, use, or other provisionsof a zoning ordinance or local law for a specific purpose authorizedby the town board "Community benefits or amenities" shall mean open space, housingfor persons of low or moderate income, parks, elder care, day care orother specific physical, social or cultural amenities, or cash in lieu thereof, of benefit to the residents of the community authorized bythe town board. "Incentive zoning" shall mean the system by which specificincentives or bonuses are granted, pursuant to this section, oncondition that specific physical, social, or cultural benefits or amenities would inure to the community. 216( b- 3(h) If the town board determines that a suitable communitybenefit or amenity is not immediately feasible, or otherwise notpractical, the board may require, in lieu thereof, a payment to the town of a sum to be determined by the board. If cash is accepted in lieu of other community benefit or amenity, provision shall be madefor such sum to be deposited in a trust fund to be used by the townboard exclusively for specific community benefits authorized by thetown board. Notes You can get zoning for CASH 1) As a last resort the developer can pay cash and get some benefit - Lazer hasn't seen it done, but the statute permits it 2) If the in lieu of was cash - the neighbors would make quite a

50

big deal if there was a payoff - so it is unlikely that cash will suffice Racial Discrimination Age Discrimination United States v City of Black Jack Missuri The city of black jack is a predominantly white city with a concentration of black population areas in pockets of the city In 1969 the interreligious center for urban affairs obtained an option on 12 acres for the purpose of creating low and moderate income houses for the people living in the economically depressed and deteriorated area of st Louis Once the black jack are was incorporated as a city an ordinance was passed prohibiting the construction of new multifamily housing and made existing ones non conforming uses Notes 1. Under the FHA all you have to prove is that it has a racially discriminatory effect 2. Dont have to Prove Discriminary intent or Purpose 3. They were able to do this and the burden shifted to the gov to prove compelling state interest and they were unable to do so Village of Arlington Heights v. Metropolitan Housing development Corp Metropolitan Housing Development Corporation (MHDC)applied the Village of Arlington Heights, for the rezoning of a 15-acre parcel from single-family to multiple family classification MDHC townhouse units for low and moderate income tenants. Held MDHC Proof of racially discriminatory intent or purpose is required to show a violation of the equal protection clause o And they failed to do so Violation of the FHA was not considered If Violation of FHA then it would have been racially dicriminary effect would have been enough The Unites states brought an action to enjoin the enforcement of the ofdinance under title 8 of the civil rights act Cant deny housing on the basis of race The district ct held that the plaintiff failed to establish a racially discriminory purpose or effect and it dismissed the case This ct found that the ordniance did have a discriminary effect because of it ultimate effects on the blacks Strict Scrutiny was used there was no Compelling governmental state interest

51

City Of Edmonds v Oxford House In the summer of 1990, respondent Oxford House opened a group home in the City of Edmonds, Washington (City), for 10 to 12 adults recovering from alcoholism and drug addiction. The group home, called Oxford House-Edmonds, is located in a neighborhood zoned for singlefamily residences.Issue - whether Edmonds' family composition rule qualifies as a restrictio[n] regarding the maximum number of occupants permitted to occupy a dwelling within the meaning of the FHA's absolute exemption.Holding- No There is no restriction in the city of Edmonds in the city of Edmonds ordinance on number of people living in a house who are family Illustrated 2 things Fair housing exempt limitations on the number of people and makes clear that the familial definition opens the door to group homes

Regulating adult business uses 1. You cant keep them out entirely but you can regulate 2. Make it permissible in industrial districts 3. You must show that they have a secondary effect a. Crime, prostitution 4. You must have stated in your ordinance for the basis of you enactment a. Must show that you have studied or someone has studied the secondary effects

Secrets desire lingerie v inc v city of Atlanta On October 4, 1993, the City of Atlanta enacted an ordinance to regulate lingerie modeling studios. Appellants challenged the constitutionality of the ordinance, seeking declaratory and injunctive relief. Issue - whether the city relied upon relevant evidence of the undesirable secondary effects of lingerie modeling studios when it enacted the ordinance Holding- The court held it did not There is not a scintilla of evidence demonstrating that the police officers (or their superiors) alerted the city council to the problems they uncovered Have to show by evidence that it is for the public health welfare and morals Dissent says that you dont need studies because you have imperical evidence of the secondary effects that there are Voyeur Dorm v. City of Tampa Voyeur Dorm is a Florida limited liability company that maintains offices and conducts its business in Hillsborough County, Florida. Voyeur Dorm operates an internet based web site that provides a 24 hour a day internet transmission portraying the lives of the residents of 2312 West Farwell Drive, Tampa, Florida. Throughout its existence, Voyeur Dorm has employed 25 to 30 different women, most of whom entered into a contract that specifies, among other things, that they are 52

employees, on a stage and filming location, with no reasonable expectation of privacy, for entertainment purposes. Subscribers to voyeurdorm.com pay a subscription fee of $34.95 a month to watch the women employed at the premises and pay an added fee of $16.00 per month to chat with the women. Issue - whether the activities occurring at 2312 West Farwell Drive constitute a public offering of adult entertainment making it an an adult use business in a single family use district Holding - the court held that is is not Rule Section 27-523 defines adult entertainment establishments as [a]ny premises, except those businesses otherwise defined in this chapter, on which is offered to members of the public or any person, for a consideration, entertainment featuring or in any way including specified sexual activities, as defined in this section, or entertainment featuring the displaying or depicting of specified anatomical areas, as defined in this section; entertainment as used in this definition shall include, but not be limited to, books, magazines, films, newspapers, photographs, paintings, drawings, sketches or other publications or graphic media, filmed or live plays, dances or other performances either by single individuals or groups, distinguished by their display or depiction of specified anatomical areas or specified sexual activities, as defined in this section. Reasoning The residence of 2312 West Farwell Drive provides no offer[ing] [of adult entertainment] to members of the public.. The City Code cannot be applied to a location that does not, itself, offer adult entertainment to the public. What we have here is a video tape that comes from a studio someplace else Ct said that this is not a zoning iolation Notes 1. cant prohibit adult activities entirely a. NYC had this issue when NYC tried to clean up times square b. Some ordinance are overbroad Cant prohibit nudity broad sweeping definition will get struck down c. Best bet is to put them in non residential places and put them far separate apart from each other LOOK UP FHA Colony Cove Associates v. BrownOwner of a mobile home park, enacted a park rule restricting residency to senior citizens age 55 or older. The Owner then sought to evict appellants, tenants in the park, because appellants children minors born after the park's enactment of its age restriction, werenot grandfathered in as were their parents, who had resided in the park prior to the rule.

53

Appellants appeal following summary judgments granted in unlawful detainer actions brought by respondent

1. Issue - was the park rule restriction is Constitutional a. Holding Yes b. Reasoning i. The Ct reasoned that that such an age-based regulation is neither irrational nor arbitrary or otherwise vulnerable to a constitutional attack ii. They said that In light of the distinct characteristics of mobile home parks -e.g. the generally greater percentage of older residents, the smaller size of units, the more substantial potential lack of privacy and thegreater expense that might have to be incurred in rendering such apark safe for children residents ii. State statutory provisions 2. Issue 2 whether the park rule restriction violates state stautes a. Holding NO b. Reasoning i. Relevant California statutes do not preclude the establishment and enforcement of a senior citizen age qualification rule in a private mobile home park ii. Amendments to the Unruh Act which address age baseddiscrimination in housing, Civil Code sections 51.2 and 51.3, reflecta legislative intent specifically to exclude mobile home parks from the reach of the act

3. Issue 3 - whether the park rule restriction Violated the FHA 1988 a. Holding No b. Reasoning i. Although the amendement to the fairhousing act generally bars discrimination in mobile home housing against families with children under 18, it Creates an exception for housing for older persons in which discrimination on the basis of familial status is not prohibited Procedure - Lower ct found rule to be constitutional this court affirms Family has to move out because their children were not grandfathered in Constitutional rights are not violated by this provision 54

Ct does not violate the state leglislation Notes LOOK UP FAIR HOUSING ACT Notes 1. IMP fairhoung act elderly need to be close to facilities Requirement taken out because it was used by a w way to block out housing for the elderly Fair housing act has eliminated many of theses problems Religious Discrimination (RLUIPA) Religious discrimination in land use Congress enacted RLUIPA

Westchester Day School v Mamaroneck ( NY) Westchester Day School is owned by Westchester Religious Institute. For nearly 60 years Westchester Day School (plaintiff, WDS, day school, or school) has been operating an Orthodox Jewish co-educational day school with classes from pre-school to eighth grade. Believing it needed to expand, the school submitted construction plans to the Village of Mamaroneck and an application for the required special permit. When the village zoning board turned the application down, the present litigation ensued. Religious exercise under RLUIPA is defined as any exercise of religion, whether or not compelled by, or central to, a system of religious belief. i. every classroom being constructed will be used at some time for religious education Substantial Burdening would be classified as something that is oppressive and considerable in quantity). Behavior altering = substantial burden A substantial burden is a king to a significant pressure that directly coerces the school to continue teaching in inadequate facilities Religious instutions are not immune if they are given a chance to amend then it may be ok municipality must prove it acted in furtherance of a compelling governmental interest and that its action is the least restrictive means of furthering that interest Did not They were simply out to deny Notes

55

1. If its impossible to locate a religious use in the city then it will be subject to a facial attack and a violation of RLUIPA a. But if the zoning ordinance restricts religious uses to certain districts then it is not a volition of RLUIPA 2. Religious Uses Church and daycare facilities 3. Applying building codes to churches is not a violation of Rluipa 4. Putting a celluar tower for cell phones up near a church Not a violation of RLUIPA Regulator Takings 5th Amendment property shall not be taken for public use without just Compensation What is a taking? When impact of a regulation on private property rights is so burdensome that it violates the constitutional guarantee that property shall not be taken for a public use without just compensation.

Regulatory Taking: Sometimes a land use regulation can be invalidated as a regulatory taking and compensation awarded to the regulated property owner for damages caused. General Rule: Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) Holmes: while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking

Lucas v South Carolina Coastal Council Lucas bought two residential lots on a South Carolina barrier island, intending to build single-family homes such as those on the immediately adjacent parcels.. In 1988, the state legislature enacted the Beachfront Management Act, which barred Lucas from erecting any permanent habitable structures on his parcels. Held it was not a Taking Rule In Order for a taking to occur the regulation must cause a total wipeout of an viable use of the property Exception if it is a nuisance then it will not be a taking

Stevens Says 95% is not enough 1. Penn Central If you dont win under Lucas you may win under Penn Central 2. Loretto --.> Permanent physical invasion the it is a taking a. Said owners had to be subject to the cable companies 56

b. Loretto said it was a taking 3. Kim if the property is adjacent to a highway and If you excavate and it damage a lateral highway property owner lost a. City enacted an ordinance and said the cable companies can run cable on apartment house Nolan v California Coastal Commission Essential Nexus The Nollans own a beachfront lot in Ventura County, California. In order to build they were required to receive a permit from the California coastal commission The Commission staff had recommended that the permit be granted subject to the condition that they allow the public an easement to pass across a portion of their property Held Easement is unconnected to legitimate state purpose .Purpose is to promote access to the beach but easement allowed to walk on the property could still had access to the beach Rule there has to be a connection or essential nexus between what municipality or government demanding and the goal that you are perusing (Legitimate state purpose) Burden shifts and now Burden is on the government to show that it is advancing a legitimate state purpose Goal was access to the beach Restriction was allowing them to walk across you property there is no connection

Dolan v City of Tiggard Mandated Access to Property- Rule "rough proportionality" Dolan owns a plumbing and electric supply store P wanted to do some construction on their store; city approved their expansion plans on the condition that they would dedicate a section of property to be used for a 15 foot bike path and roughly 10 percent of the property for a storm drainage system Held There was essential nexus between what municipality or government demanding and the goal that you are perusing. -> Problem with traffic and flooding But not Roughly Proprtional Rule there has to be Rough Proportionality between the government is demanded and the goals the government are trying to receive Court shifts the burden to the government again

Here they were asking for to much Notes 1. The state ct have not been applying Nolan and Dolan and there arent many Nolan and dollan cases 2. The theory on both is that what the government does is to persue a legitimate state purpose

57

Penn Central Trans Co v NYC Penn Central Factors P owned Grand central Station and wanted to build 50 stories for shopping above it. GCS is designated as a landmark under the landmark preservation law. P applied for a bldg permit. D denied b/c it wasnt consistent w/ character of GCS and P sued as a taking Held it was not a Taking Penn- Central Factors 1. Economic impact of the regulation on the claimant

2. Distinct investment backed expectation a. You put up the money and relied on the zoning as it was and now your are restricted from doing what you invested b. Have to look at what was invested c. Was it likely for there to be a zone change d. Was the price affected by the fact that there was potential of a zone change 3. Character of the governmental action a. Is this a direct taking i. Physical taking - Loretto ii. Or regulatory taking 1. Taken because what you can do with it has been limited by some regulation or law b. Look at what the government is trying to do here - whats the benefit that they are trying to create and the harm they are trying avoid Balance all of these and determine if it was a taking Notes 1. How can a ct determine that a regulation interferes with investment back expectations a. Look to what they did in advance 2. If the price was discounted for the chance of a regulation then you cant say that you investment backed regulations In Penncentral They were making a reasonable return and they were just limiting the air space above Penn central can still receive a reasonable return on its investment They still have air rights and they can transfer the air rights not a taking

58

a. If it adheres in your title then you will be subject to it 3. NY Commendation case are decide by a judge not a jury Palazzo v Rhode island Wetlands law was not in effect when he bought the property he later transferred title to himself and when the wetland ordinance was in effect Old Rule If you take title while the law is in place you cant argue it was a taking Reversed New Rule - that preexisting regulations are not part of you title and if you take subject to regulation you can still challenge it as a taking Occoner Law is that it taking title subject to preexisting regulations probably is a factor to be considered regarding Reassonable investment backed expectations to determine if it was a taking Takings Analysis 2 acres of up land could builds 300K house but on wetlands could build 3million 1. Supreme ct said this is not a lucas extinction a. Have 2 acres that you can build on 2. Now we have to look at pencentrall a. In order to develop the property you would have to bring in so much fill that you would loose money on the deal i. No reasonable investment back expectation - not ii. Looses out all around Equal Protection Village of Willowbrok v Olech Olech petitioned to connect property to a municipal water supply. Petition would be granted if olech gave village a 33-foot easement and Village only required a 15-foot easement from other property owners you can bring an equal protection case when the class discriminated is only one. You are enforcing the ordinance against me and there are others that you havenet brought it on Claim of selective enforcement equal protection cases

First English Evangelical Lutheran Church v. Los Angeles County - County of LA adopted an ordinance in response to the flood . Pl was not permitted to reconstruct a church. Litigation lasted for 4 years. During the period of litigation the owner will be entitled to compensation assuming he wins Notes 1. How do we calculate the damages 59

a. the rental value of the property during the time of the litigation b. Some Cts i. take what property worth before ordinance and subtract what the property was worth after the ordinance then you are intitled to interest on that amount 2. Prior rule was attack the ordinance a. If you won the case you get a judgment declaring that the zoning ordinance was unconstitutional b. Then the municipality would replace the zoning with something else c. There was no money judgment involved just judgment Lingle v Chevron State of Hawaii enacts legislation to prevent gas prices from going up ( cap on the amount of rent they can charge for rent for the use of the station) Point is that this rental cap is going to result in the lowering of gas prices Old Rule Agins Rule says must substantially advance a legitimate state interest Held not good takings law ( Does not deal with Burden at all) Rule- if it is going to be a taking it must amount a burden on the property owner New Taking Rules 1. Loretto Physical invasion of property or 2. Lucas extinction of all eccomically viable use of the land 3. Penn Central a. Destruction of Reasonable investment backed expectation Notes 1. When you challenge it as an taking or substantive due process a. Substantive due process i. Arbitrary act that did not give somebody a fair chance ii. There is no scintilla of fairness at all Sprint Spectrum v Willoth Elected officials sad could not put cell phone towers. Act said Local boards cant discriminate between wireless carriers and Cant prohibit the personal wireless service Held Sprint was not subject to unreasonable discrimination because the actions of the boar were justified 60

1. The local body did not enact a total ban a. Board could consider aesthethics b. ONE TOWER COULD DO THE JOB Federal Preemption The Suppremecy clause of the constitution tells us that federal statues and us treaties are the supprem law of the land. Federal Law Trumps State law

1. Big satellite dishes IMP a. Municipalities banned use of big dishes b. Federal Law overruled this

2. Big fine to clean up poisoned land from previous owner a. Federal Law Preempted State law fine

b. You have a right to sue previous land owners based on fed law 3. Environmental Justice a. Want to put junk yard in poor neighborhood i. ENV just Got to be fair

Jennings v New York State office of mental Health Group home for 10 retarded people state leglisation says that these uses are immune from local zoning. Commissioner must consider if there had been to many f these uses in one location held that there were not

Takings Legislation 42 usc 1983 Any person who is injured by someone acting under color of State law that results from deprivation from constitutional rights or violations of federal laws has an action for damages in a law suit o Anyone deprived of property ( Taking ) can bring a 1983 action 61

42 USC 1988 if you win they will pay your attorney fees in an 1983 action

Valuation of Property Comes up in eminent domain cases In Determining if the compensation was just o Question is what is the fair market value of the property

Evaluating real property (How much Is the property worth) 3 Ways to Calculate 1. Comparative sales ( general standard for residential property) What did similar properties sell for recently Look at differences in properties and adjust accordingly

2. Income capitalization ( Income producing property) how much should I pay for an apartment Ask o How much income does it produce o Rent

Expenses Taxes/ employees/ insurance/ repairs/ depreciation

o o

Take income and deduct expenses Get net income What will a buyer pay to entitle him to net that return ? Income divided by the rate of return you want = value 100K and multiply by 10% = and add 2 zeros = 1 million dollars would be a reasonable amount you will pay to net a 10% return on your investment Lower the rate of return - higher the value of the business

3. Specialities

Not income producing and no comparable sales 62

Church o WHAT DO YOU PAY FOR A CHURCH Reproduction appreciation how much would it cost to reproduce the building then subtract how much the building depreciated and how much it functionally depreciated

63