Land Use Control; LaCroix; Fall 2013

PRELIMINARY STUFF
Class about....
Real estate development
Property rights
Regulatory power (scope & limitations)
Environmental effects of development
Agricultural land preservation
Patterns
Nationwide similarities concepts that are the same everywhere
We do learn the basic zoning issues
Most state laws are based on model statutes by the US in 1920s
We will spend a fair amount of time on constitutional parameters
Important supreme court cases on land use rights, property rights affecting land
use law
The law tends to be local but there are insights that are useful nationwide
Highly political but there are legal limits on local discretion
Cleveland
Urban focus city focusing on places where it thinks development is likely to
occur
Urban agriculture other side nothing there, how do we turn it into value for
Cleveland?
Local food movement, veggie farm
New ways to use city land
Do we take out streets to farm on? What about the water lines?
For instance shaker heights is trying to get more people to live/work in
shaker saying shaker welcomes home based business
Except that shaker was zoned for pretty much all living because they
wanted you to live there and work somewhere else
We used to be worried about growth management we arent anymore
We are concerned about controlling sprawl
Land Use Ethics (what is land use law used for?)
Order
Reform
Responsibility
Opportunity
Land Use Decision Making
Geographic
Temporal
Biological
Decision making mechanism?
Market or government?
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 Popular vote or expert decision makers?

Courts or regulation?
* land use decisions include a lot of underlying values people use law to achieve goals
choosing the mechanism to achieve the goal is an important part of what we dO
GENERAL CLASS NOTES
Threads: takings and limits on local authority
Look at judicial posting on blackboard
How to answer exam questions
Blackboard posting by Amar about what to write for exam answers
Write down what you are thinking bc she wont know what we thought
about
Helping client
Think through what to do
What else do you need to know?
Need to research?

SETTING THE STAGE

THE LAW OF NUISANCE

Private nuisance: Rest (2d): A significant non-trespassory invasion of

anothers interest in the private use and enjoyment of land.
Such invasion, to be actionable, must be interntional and unreasonable; or
unintentional and otherwise actionable as negligent, reckless, or
ultrahazardous conduct
A nuisance must be unreasonable. Bove v. Donner Hanna
Bove bought a house across the street was built a coke oven she hates
this. Claims its a nuisance because it makes her ill and the house is a mess
Ask, her concerns: healthy environment, value of her property, property
rights
Ask, Ds concerns: economic value of industry, employment-municipal
economy
Ask, Citys concerns: orderly development
Ask, States concerns: transportation system
Court says this is not a nuisance
Because: (1) it is up to date (no negligence, etc), (2) built under
contract with the federal government (reasonableness, utility, broader
social purpose served), (3) land was clearly destined for industrial use
when she moved there railroad tracks, river nearby
Reasonableness factors:
P character of harm to P
Social value of Ps use
Suitability of Ps use of land for area
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D social value of Ds use of land

Ability to avoid harm to P
Suitability of Ds use of land for the area
Zoning Role in Nuisance
This was zoned for industry
How could different facts have made this different?
If they could have eliminated smoke, etc., with new technology, maybe this
would have been a nuisance
Zoning is significant but now a days it is just part of the calculation

LAND USE REGULATORY TOOLS: PLANNING (AS THE CRITICAL TOOL

FOR FRAMING LAND USE CONTROLS)
Intro

Slightly controversial used to be no formal planning. Planning is after

thought of zoning.
THE PLANNING PROCESS
1. Gather information
2. Identify objectives (where do we want to go?) and more specific goals (general
or more concrete)
3. Prepare detailed prescriptions, with a timetable
4. At some point or various points, seek public input
THE STANDARD CITY PLANNING ENABLING ACT
Plans with maps, plats, charts...
Developed by an independent commission - gives the power to plan to this
commission
This is a non-political expert process
Showing the location of streets, parks, public buildings, and other infrastructure
Includes a zoning plan for building uses
Types of Plans
Land use blueprint
Vision
Land use guide
Land use guide with additional elements (housing, transportation)
Plans for particular areas or to solve specific problems
Why have a plan?
Public notice
Community wide focus (special interests)
Health/safety/welfare
Governmental coordination
Public/private coordination
Nuisance
Rational basis
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THE CENTRALITY OF PLANNING

Ordinances such as rezoning ordinances must comply with comprehensive
plan of the city. Udell v. Haas
Held: rezoning was discriminatory and that it was not done in accordance
with the comprehensive plan of village of lake success
Must employ the experts in order for zoning to be effective
TYPES OF PLANS
THE COMPREHENSIVE, GENERAL OR MASTER PLAN
Elements: capital improvements program, future land use, traffic
circulation, sewer and solid waste, conservation, recreation and open
space, housing, and coastal management
THE SPECIFIC PLAN
The granting of a development agreement between a private
landowner and local government during the planning stages of a
development project, before buildings and other structures have been
designed and approved, is not in violation of the Development
Agreement Statute and is not a contracting away the local
governments police power. Santa Margarita Area Residents
Together v. County of San Luis Obispo
City or county is allowed to freeze zoning and other land use
regulations in order to guarantee that a developer will not be
affected by changes during development
AREA PLANS
Sub planning areas and a host of other types of plans needed to flesh
out uniquely detailed policies and programs that can be covered only
sparingly in the general plan
Day to day actions
REGULATING PLAN
Comparable to an area plan or specific plan
Precedes development
Public process
CONSISTENCY WITH COMPREHENSIVE PLANNING
Historically, consistency has not been required
Some states require a plan and do require consistency with the plan
Florida says...consistency means land uses, densities or intensities, capacity or
size, timing and other aspects of development permitted by such order or
regulation..
Courts and legislators increasingly demand that planning be done prior to, and
apart from, the enactment of zoning regulations
Nassau County v. Willis
Comprehensive Plan adopted - plan says wetlands needs to be protected
Property all given land use designation
Legislative standard for consistency says exact compliance
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TC order quashing county orindance is reverses reinstate it and approve

the planned unit development
Rezoning must be consistent with the elements of an incomplete plan that are
present. Haines v. Phoenix
Planning commission denied request of development to build 500 ft
building ones for 250 ft. group appealed, city gave permission to build.
Court doesnt like the argument that they dont have a full comprehensive
plan so they dont have to comply with what they do have.
Standard of review dictated by statute: consistency with general plan.
Looks at whether a rational decision maker could have reached this
decision based on the material
Consistent means...
basic harmony
in accordance with the comprehensive plan
substantially consistent or designed to effectuate plan elements
compatible with and furthers the objectives, policies, land uses, and
densities or instensie in the plan

ZONING
THE STANDARD ZONING ENABLING ACT
State is the source of power state creates municipalities > State confers
powers on those municipalities. Standard concept is that state can only do what
they are authorized to do
Essential point - the concept of the zoning enabling law is very important for
a particular municipality you have to zone in accordance with the blueprint
given to you by the state
SZEA Section 1 Grant of Power for the purpose of promoting health, safety,
morals, or the general welfare of the community
SZEA Section 2 - DISTRICTS - local body may divide the municipality into
districts...all such regulations shall be uniform for each class or kind of buildings
throughout each district
SZEA Section 3 PURPOSES - regulations shall be made in accordance with a
comprehensive plan...conserving the value of buildings and encouraging the
most appropriate use of land throughout such municipality
Who does the zoning?
Usually a commission is appointed to do the zoning
Enacting it is a legislative act it is adopted by the legislative body of the
municipality
EUCLID - Zoning is valid under rational basis review. Town can use police power to
prevent nuisances. Village of Euclid v. Ambler Realty (U.S. 1926)
Facts: Town has a new zoning scheme. They imposed USE, AREA & HEIGHT
restrictions on all areas within the muni. They were trying to minimize external
effect of building on the rest of muni. Done cumulatively, so that there are 6
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zones and while U-1 (1st zone) is the most restrictive, allowing for single family
homes, the zones progressively allow for more uses.
P says that zoning itself is unconstitutional that it deprives them of all DP
rights. Says village does not have traditional public purpose to justify zoning.
Due process only power the village has under the 5th Amendment police
power is to protect the health and welfare of its people. Note always want
to find basis for challenge. Here we have SDP issue.
D says that nuisance is a public purpose, and this supports cities police power
dictating where industries can go. Factories not being built in U-1 is a form of
nuisance control. They use the nuisance argument b/c this was accepted
precedent.
A challenge to the legislative act of adopting a zoning map and ordinance
STANDARD court applies the fairly debatable standard. Look for a
rational relationship to a legitimate purpose.
HOLDING : Ct. finds for D-village and says zoning is valid under rational
basis review. Town is allowed to use police power to prevent nuisances, and
this ordinance does prevent nuisances, so it is valid.
Cumulative zoning works because while there is a reason to prevent
factories in a U-1, there is likewise no argument for allowing single family
homes in a U-6 district. Cannot say that homes pose as a nuisance to the
factories. From perspective of muni officials, their objective was to make
sure the ordinance was not voided, they wanted to be able to justify their
law and say it fits within the nuisance rationale, in order to do so they had
to allow single family homes anywhere because they arent nuisances
allowed their scheme to appear to follow a cohesive nuisance theory.
Rational Basis Review - Courts give legislatures the presumption of
validity, and look to see if there is a rational basis for the regulation by
considering the purpose and character of the regulation.
Regulation assumed valid until it is determined to be arbitrary and
capricious.
Municipality only needs to support reasons with substantial evidence.
After Euclid Zoning is presumptively constitutional
Even if it diminished the value of your land
Zoning can also be arbitrary and unreasonable under certain circumstances. Nectow v.
City of Cambridge
Here the same court as that in Euclid overturns an ordinance. In this particular
situation, the ordinance would sever off a small piece of land from a large tract
currently used for industrial purposes. The courts reasoning is that the sliver of
land is too small for any independent development; its proper zoning therefore
does nothing for the public good. In other words, the use would be arbitrary
and unreasonable.
No conceivable rational basis for this line
he wins, the line moves over 100 feet, people are still next to industry but his
property gets to be all industrial
* Substantive Due Process * - rationally related to a legitimate public purpose
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INTERGOVERNMENTAL CONFLICTS
Battle between local and regional authorities
Why local?
People care feel effects of land use, access to local officials, city has
to provide infrastructure, local knowledge, tradition
Whats wrong with local decisions?
Competition, inefficient infrastructure, sprawl/blight
Conflicts between jurisdictions
Superior sovereign always wins
Governmental functions are immune; proprietary functions are not
Eminent domain if you can take it, you dont have to follow local zoning
Balancing test balance the interests
Legislative intent: did the legislature intend this activity to be exempt?
The power to regulate land, as part of the inherent police power, is vested in the
state
In general, cities have only those powers delegated to them by the state
Dillons Rule: localities may only exercise those powers which are expressly
granted by the state legislature
BASE ZONING: USES, FLEXIBILITY AND DESIGN
Purposes of Zoning
Promoting health, safety, morals, or the general welfare of the community
To lessen congestion, secure safety from fire, panic, other dangers,
promote health and general welfare, to provide adequate light and air, to
prevent overcrowding....ETCCCC
AESTHETICS: Reid v. Architectural Board of Review of City of
Cleveland Heights
Reid wants to build a rather unusual house on North Park Blvd., D says
no
Constitutional question: was the public welfare broad enough to include
this type of review? Court says it does with conditions
Court tries to use non aesthetic explanations: character
Do these factors hint at other valid public welfare concerns?
They link the looks to property value and community character
which goes beyond just the way it looks which often does not
provide enough of a reason
* aesthetics are within the zoning power
one issue when dealing with them are you standards clear
enough?
Use Districts and Area Requirements
There is a public purpose for distinguishing motels from boarding and
rooming houses, it is reasonable to bar them from districts. Pierro v.
Baxendale
Property owner wants to build a motel, area is zoned for residences

City defines residence expressly doesnt allow hotels and motels but
allows rooming houses and boarding houses. Town says no then
almost immediately passes a zoning ordinance prohibiting motels
P is saying there is no reasonable basis to distinguish between a motel
and a rooming house. Court says ordinance is not unreasonable.
Restricting the sale of furniture within PC district to sales by large
department stores is rationally related to objective of city ordinance that
relates to economic viability of the PC district. Hernandez v. City of
Hanford
Ordinance: dept stores and sale of home furnishings permitted uses furniture stores o the sale of furniture not listed as approved use
Generally prohibits the sale of furniture in the PC district - but creats a
limited exception permitting a large dept store within the pc district.
Police power overall, were protecting a bunch of other valid interests
protecting and preserving the economic viability of the citys
downtown distrct...
attracting to, and retaining within, the citys PC district the type
of large department stores the city views as essential to
eeconomic viability
Accessory Uses and Home Occupations
Household pets are accessory use, and thus subject to regulation. Graff v.
Zoning Board of Appeals of the Town of Killingworth
Permissive zoning = if it is not explicitly allowed, you cant do it
Accessory use definition is not unconstitutionally vague.
no list of such uses
we just know that an accessory use is any use which is
attendant, subordinate and customarily incidental to the principal
use on the same lot
Accessory structures are defined as anything constructed or erected, the
use of which requires a fixed location on the ground
Height and Bulk Limitations
Pretty standard, part of the zoning power
Building cap in zoning change is valid because it does not alter any
mandatory definitions. No prohibition on classifications within a district as
long as they are reasonable and similarly situated property within the
district receives the same treatment. Rumson Estates Inc v. Mayor and
Council of the Borough
Density = number of people per unit of land
Intensity = size of buildings
Floor/area ratio restricts how big the building can be based on the size
of the lot which it is located
Conditional Uses
Conditional Use: a specific exception to zoning regulations from a list of
acceptable exceptions for a particular parcel of land in a district of a
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particular zoning character (also: special exception, special use, special

permit)
The use is beneficial to the public, & compatible with other uses in the
zone, but it might have significant effects that merit review and
possible imposition of conditions before it can be allowed
SZEA Sec. 7 board of adjustment
Board of adjustment...may in appropriate cases and subject to
appropriate conditions and safeguards, make special exceptions to the
terms of the ordinance in harmony with its general purpose and intent
and in accordance with general or specific rules therein contained
Procedure
You want a conditional use, you must submit a proper request
You are guided by the ordinance or local law that tells you whats a
conditional use? What procedures to follow? Language about the
standards
Applicant goes to hearing
Decision maker decides based on the application, whatever came up at
the hearing, the standards
Maybe imposes some conditions
Criteria
Certain criteria determines whether to grant the special exception.
Peoples Counsel for Baltimore County v. Loyola College in
Maryland
The purpose of this criteria is to give notice to the applicant this is
what you have to show
Although the burden is on the applicant, the neighbors can come
in and show specific problems using this criteria
Must show hearing officer it meets standards
The court does not independently evaluate the facts
Substantial evidence test could a reasonable decision maker on
these facts reach this decision?
Do the reasonable facts comply with the standards
They do not have to show that this is the best spot in the county /better than any other spot
But must NOT: be detrimental to the health,, safety or general welfare
of the locality involved
Grant with conditions
a board may impose conditions on a use permit, in order to address any
adverse effects of the use of the land

ZONING AMENDMENTS
Standard: whether the restriction is arbitrary or whether it bears a reasonable
relationship to the exercise of the state's police power.
Change the map OR change the text of the zoning ordinance
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EX: You want to build a 2 family house in a single family zone

You can either ask to have just your property zoned for 2 family
Or you can have the map amended to allow 2 family everywhere
OR you want to build a Laundromat in a commercial zoned area but that
is a light industry use
In this case, amending the code to allow Laundromats in commercial
zones would be easier than having the whole zone changed to light
industry
Most of the time, disputes are about amendments to the map
Rezoning to heavy industrial allowed, with some conditions - Plains Grains
Ltd. Pship v. Bd of County Comrs of Cascade County
SME seeks a zone change from Agricultural (A-2) to Heavy Indsutrial (I-2) to
allow for the proposed natural gas fired power plant. Surrounding farmers
and Environmental info center oppose. They want the tax benefits.
* Could SME have obtained special use permit?
Ordinance allowed commercial wind farms/electrical generation
facilities as a special use. Procedure apply to the board for a
conditional use permit
Zoning amendment VS use permit
Amendment you go to legislative body, permit you go to quasi-judicial
The concept is in a legislative hearing you are discussing as a policy
matter, is this a good idea?
Zoning amendment changes the map, use permit doesnt change the map
SPOT ZONING
Spot Zoning: the application of zoning to a specific parcel of land within a
larger zoned area when the rezoning is usually at odds with a citys master
plan and current zoning restrictions.
From a functional or policy perspective, issues?
Randomness bunch of little spots/messy
It looks like maybe its a special deal
Generally not consistent with the comprehensive plan
Inconsistent with our notions of what zoning is all about
Incompatible uses next to eachother
LEGALLY SZEA interest in a comprehensive plan
Equal protection
The Courts Spot Zoning Test
(1) Whether the requested use would differ significantly from prevailing
uses in area
(2) Whether the area of the rezoning request is rather small in terms
of landowners benefited
(3) Whether the request is in the nature of special legislation to benefit
one or a few at the expense of many
Big Issue: Is a zoning amendment really judicial or legislative?
Legislative:
general application (open class)
prospective

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 public policy
Quasi-judicial:
applies to particular people
retrospective (case by case)
standards
Why does it matter whether its judicial or legislative?
It affects the standard of review
Legislative tests: arbitrary and capricious, we are deferential to
legislative judgments fairly debatable
Judicial tests: apply the particular facts and circumstances is the
action supported by the facts? Could a reasonable decision maker
come to this judgment with these facts?
It affects the burden of proof
Legislative: no burdens of proof
Quasi-judicial: somebody has the burden of proof - The person
seeking change
Formality of the process, Impartiality of decision makers?
Legislative: you can go talk to your city councilman about it
[Minority View] that Zoning Amendment is judicial Fasano v. Board of
County Commissioners of Washington County should be case by
case exercise of judicial authority
Why ever zone for mobile homes?
We need affordable housing
We arent sure where it should go
We could zone areas for mobile homes to operate of right but then
we lose site specific control
INITIATIVES AND REFERENDA
Initiative: legislation drafted by the citizens, voted on by the citizens as a
whole
Referenda: occurs after a local elected body has legislated. The
referendum asks the voters whether to repeal the action
Trial Court approves referenda, saying it gives back to the people a
power theyve given to the government. Eastlake v. Forest city
Enterprises
The city charter required all zoning changes to be submitted to
the voters for a referendum, with 55 percent approval needed.
Voters disapproved rezoning a parcel to allow multifamily housing
to be built. They say its unconstitutional delegation of powers to
the people
SCOTUS was asked: whether the city violated equal protection, due
process and fair housing act by allowing the referendum to happen.
They said no. it was citizens opinions stated during the process. City of
Cuyahoga Falls v. Buckeye Community Hope Foundation
Application for site-plan approval, an administrative chore, the
neighbors didnt want this particular multi family housing project,
but the city approved it because it satisfied the administrative

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standard for a site plan review. After referendum to reject the

site plan. OH SC said Referendum invalid as a matter of law. As a
matter of the state constitution, referenda are only available for
legislative decisions, not administrative.

SUBDIVISION REGULATION, OFFICIAL MAP,

INFRASTRUCTURE FINANCE AND CONSUMER
PROTECTION
PLANNED UNIT DEVELOPMENT
Planned Unit Development: a type of building development & also a
regulatory process. As a building development, it is a designed grouping of both
varied and compatible land uses (such as housing, recreation, commercial
center, etc) within one contained development or subdivision.
Board of Commissioners can approve a greater or lesser density, provided it
does not negatively impact public health, safety and welfare of county. Evans
v. Teton County
Teton Springs wanted to built a residential resort. The neighbors dont want
this
Standard of review: The court must affirm the board of commissioners
unless the findings:
Violated the constitution or statutory provisions
Exceeded its statutory authority
Were made upon unlawful procedure
Were not supported by substantial evidence on the record
Were arbitrary, capricious or an abuse of discretion
Court says it is inconsistent with the County Comprehensive Plan, but it
doesnt matter
PUD Idea Use Permit Setting
Use Permit standards require open space, limit density, environmental
standards, and say approve if not inconsistent with the public health,
safety and welfare.
Plan endorses walkable community
Planning Commission wants...
Bike paths?
Low income housing?
More access roads to avoid bottlenecks?
Sidewalks?
Zoning amendment is different
NEW URBANISM
Traditional Neighborhood Development (TND)
Three patterns of development:
1. Traditional neighborhood development
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2. Transit oriented development

3. Freestanding mixed use centers
New Urbanism includes...
Vertical and horizontal mixed use
A mix of housing types
Compact design
Pedestrian orientation
Design specifications for open spaces
Emphasis on design aspects generally
Smart growth - focuses on central city and close-in suburbs, intends to preserve
agriculture and open space, limit auto use, be more energy efficient, reduce
government costs by limiting service areas
Pinecrest Homeowners Association v. Glen A. Cloninger & Associates
Developer rezones a few times finally wants a new urban style
development decides to change the plan. Neighbors say that the city has
amended the plan but they have not amended their zoning code in
conformity with the plan say he is skipping a step
Washington Consistency Requirement: (1) a proposed projects consistency
with a local governments [lawfully adopted] development regulations...or
in the absence of applicable development regulations, the appropriate
elements of the [lawfully adopted] comprehensive plan...shall be decided
by the local government during project review
SCOTUS found that code sections guiding decisions about land use certifications
were vague and unconstitutional denied substantive due process. (he wanted
to build retail stores in commercial zone land) Anderson v. City of Issaquah
SUBDIVISION CONTROL AND VESTED RIGHTS
Classic subdivision setting: developer bought a farm at the edge of town, wants
to build houses
Subdivision: the division of a tract of land into two or more lots, but not a
subdivision if, at the time when it is made, every lot within the tract so divided
has frontage on public.
The idea of the exception for frontage on the public doesnt need the
subdivision review process
Standard steps in the subdivision process
Pre-application meetings with planning staff. Perhaps a sketch plat
Preliminary or Tentative Plat
Public Hearing
Approval, usually with conditions,
Final plat submitted showing conditions met
Approval of final plat
Record play and convey lots
It is beyond question that a landowner has no vested right in existing or
anticipated zoning.Avco Community Developers, Inc. v. South Coast
Regional Commission
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P had gotten approvals for other stuff, started construction, then new
requirements that coastal zone hast o get permit from commission.
He had no vested right in existing or anticipated zoning. Neither the
existence of a particular zoning nor work undertaken pursuant to
governmental approvals preparatory to construction of buildings can form
the basis of a vested right to build a structure which does not comply with
the laws applicable at the time a building permit is issued.
Common Law: Vested Rights Rule
Substantial expenditures
Incurred in good faith reliance
On a validly issued
Building permit (or other final discretionary approval)
late vesting rule developers rights have not vested until a valid
building permit has issued
rule of law argument you have to comply with the law if it
changes while you are building
Estoppel: Requirements
A specific governmental action that induces a
Good faith belief that development is allowed
Substantial expenditures
And a balancing of public and private interests indicates that estoppel
in appropriate
The applicable regulations for the subdivision are the general plan and zoning at
the time of the tentative map approval. Youngblood v. Board of Supervisors
of San Diego County
County approves preliminary plat, one acre lots, then amends the plan to
require one house per two acres. Neighbors objecting to final plat approval
on ground that it is inconsistent with the plan when it was approved. The
Supreme Court upheld the Superior Courts decision to approve the Boards
ministerial duty to approve the final map. The Board acted rationally in
approving the final map. Vested right to final plat approval
Vested rights statutes might say:
Vesting occurs upon submission of a complete subdivision preliminary plat
Subdivision exempt from zoning changes for a period of time after recorded
Subdivision protected from zoning changes after final plat and
expenditures on infrastructure
Development agreement can confer vested rights
Deemed approval here?
Preliminary plats of any proposed subdivision and dedication shall be
approved, disapproved, or returned to the applicant for modification or
correction within ninety days from date of filing thereof unless the
applicant consents to an extension of such time period

DEVELOPMENT AGREEMENTS

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Development agreement: a contract between a municipality and a property

owner/developer, through which the municipality agrees to freeze the existing
zoning regulations in exchange for public benefits.
Development Agreement Statutes
Worried that developers wont invest without vested rights give them
some statutory rights. Municipality has more control over certain
conditions.
Fees dont freeze.
Protections to public: public hearing and approval by referendum
All conditions subject to zoning & consistent with plan
Cancelable only by mutual consent
Granting of a development agreement between private landowner and govt
during planning stages of development project (before buildings have been
designed and approved) does not violate the statute and does not contract
away the local governments police power. Santa Margarita Area Residents
Together v. County of San Luis Obispo
The statute permits local government to make commitments to
developers at the time the developer makes a substantial investment in
a project, as was the case here. Additionally, since the agreement
focuses on the planning stage of the project, it meets the statutes goal
of increasing the publics role in the final development and control over
the inclusion of public facilities and benefits in the project. Developer
likes this bc they get some sense of cooperation w/ government, as well
as the regulatory freeze

EXACTIONS: REASONABLY RELATED, UNIQUELY ATTRIBUTABLE, RATIONAL

NEXUS AND ROUGH PROPORTIONALITY THE STATE CONSTITUTIONAL
QUADRUPLETS
Exactions include:
on subdivision approval: dedication of land, on site development of
dedicated land, in lieu fee
on building permit approval: impact fee
more recent idea: linkage fee
Nexus (Nollan)
Nollan requires a reasonable connection between the effects of a project on
the public interest and the police power-based condition the government
imposes on the permit to counter those effects. Nollan v. California
Coastal Commission
Nollan wants to rebuild their house but city puts condition on their
rebuild saying that they need to make an easement for public access to
the beach
The Coastal Commission cites: (1) protecting the publics ability to see
the beach (2) Assisting the public to overcome a psychological barrier
to using the beach (3) Preventing congestion on the public beaches (4)
Advancing a public goal of continuous public access along the beach
This requirement constitutes a taking need just compensation
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Nexus between...requirement (here, easement) and...adverse

effect of the development. Requirement here to fix the problem?
the private development imposed a burden on public facilities or
resources, and the dedication would mitigate such impact.
Proportionality (Dolan)
Dolan v. City of Tigard
Dolan wants bigger parking lot, town says OK if you dedicate flood plain
along the creek to city & dedicate bike/walking path. Court said this
violates 5th amendment takings as absorbed by 14th amendment due
process no conclusive evidence that the path would reduce
congestion. No explanation why public greenway was necessary as
opposed to private.
There must be an "essential nexus" between a legitimate state
interest and the permit requirements (Nollan v. California Coastal
Commission), and the city failed to demonstrate that the benefits
would justify the requirements.
Nollan NEXUS: there IS a nexus
The parking lot could create more flooding wider the surface
area, bigger store could also have water running off the roof
(increase the amount and velocity of the runoff). More people
coming to the store, more need for a path
Proportionality:
Fit between the impact of the activity and what exactly you can ask for
to mitigate the impact
State variations:
Some states allow generalized statements for the connections
Some states require a very exacting correspondence
This court rough proportionality test
Rough proportionality test:
Burden on government to show a degree of connection
Not a precise mathematical calculation - but some sort of
individualized determination that the required dedication is
related both in nature and extent to the impact of the proposed
development
The task for cities after Dolan was to show the connection
Conditional acceptance of permit is same as denial/ is a taking. Koontz v. St.
Johns Water Management- Koontz has property on wetlands, wants to build
shopping center, city gives him 3 options preserve more wetlands, pay money
to preserve them elsewhere, come up with another plan. His permit is denied
b/c he wont accept conditions.
NOT OK same taking with condition accepting of permit as denial.
Extorting demands for property in land use context...impermissibly burden
the right not to have property taken without just compensation.
Cannot require person to give up right to compensation in exchange for
govt benefit that is not related
Options?
Deny the permit
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Change your condition

Insist on your condition but PAY
Impact Fee and Assessments
Impact fee: a legislatively adopted fee
Volusia County v. Aberdeen at Ormond Beach L.P - County trying to
make everyone pay fee for schools but Aberdeen has only people aged
55 and older. Not ok
Dual Rational Nexus Test
impact fees must offset needs sufficiently attributable to the
subdivision AND the fee must be sufficiently earmarked for the
substantial benefit of the subdivision resident
Impact Fee vs. Tax (general revenue) - If you ask for a fee that doesnt
solely raise money for a specific thing/person , then it looks more like a
tax and would have to meet the tax requirement
Nolan & Dollan
Nollan requires a reasonable connection between the effects of a project on
the public interest and the police power-based condition the government
imposes on the permit to counter those effects
Dolan proportionality: But some sort of individualized determination that
the required dedication is related both in nature and extent to the impact
of the proposed development

ZONING LITIGATION
Ripeness, Finality and Exhaustion of Remedies
First you must exhaust your administrative remedies (civil rights action you
do not have to exhaust remedies)
Case must also be ripe must affect you if there is no judicial review
Standing
P must be sufficiently affected that it is worth the courts time to take the
case
State court has different standing requirements than federal courts
Abutter must establish that he/she will objectively suffer an injury caused
by project that is substantial enough so there is no question that P is
injured. Kenner v. Zoning Board of Appeals of Chatham Ps file suit
bc Heibs new house would limit their ocean view. This is not enough here
didnt show actual affect on their view. Zoning laws are not about
protecting economic value of property.
P has to offer credible evidence to substantiate their particularized
claims of harm to their legal rights. Must be particularized because we
want to preserve judicial resources, otherwise, nobody could build
anything

CONSTITUTIONAL LIMITS ON LAND USE CONTROLS

Intro
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Fifth amendment: nor shall private property be taken for public use, without
just compensation.
Eminent domain: govt takes your property for public use
The govt CAN take your property, they just have to compensate you for it

Direct Condemnation: Eminent Domain and Public Use

Public use: originally meant use by the government, expanded to cover land
taken for public purpose (eg railroads)
City taking private property for economic development IS a valid public
use. Kelo v. City of New London
City used eminent domain to seize private property to sell to private
developers said it would create jobs and increase tax revenue. Kelo
etc said violated takings clause. The public use was economic
revitalization, they only used Ed for properties they couldnt get
otherwise. OK they were hoping to improve citys bad economy.
The fact that this benefits the private developer does not make
this invalid, not only benefitting private person.
Each separate person does not get to argue that the specif use of
their land would be wrong this is a general public use thing
cannot say my property is different
Physical Invasions
Permanent physical occupation of your land is a taking. Loretto
v. Teleprompter Manhattan Catv Corp
NY law saying cable companies could attach lines to houses. Court says
this is taking that requires compensation physical occupation of
property.
Loretto/Nollan: If governmental conduct or regulation results in a
permanent physical occupation by the govt or a third party, it is a per se
taking...
Unless it is reasonably necessary to prevent or counteract
anticipated adverse effects of proposed development
REGULATORY IMPACTS AS TAKINGS
5th amendment: no person shall...be deprived of life, liberty or property
without due process of law
also, nor shall private property be taken for public use without just
compensation
When diminution of value of a property reaches a certain point as a result of
governmental action, they must compensate for it. Pennsylvania Coal Co. v.
Mahon
K act prohibited mining that would affect homes, property owners sought
to enjoin P from mining beneath their homes, but P had contract and
property rights to this area that the K act rendered useless.
Court found that the act is a taking. Private owners only had surface rights
to their land. P could not use only valuable right it had to mine.
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Subsurface rights to a property could not be taken for the public without
just compensation.
Per se taking if the govt takes away everything all beneficial use and value
of property. 100%. Lucas v. South Carolina Coastal Council
Lucas owns two lots on the beach, later imposed requirement said he
cannot build a house on these lots as he planned. He claims he lost
economic value or beneficial use of land. Court said total taking/ denial
of all economic use of land he suffered a per se taking and is entitled to
just compensation regardless of public interest unless the government can
identify "background principles of nuisance and property law" that prohibit
the uses the owner intends under the circumstances in which the property
is presently found
Types of takings
A government may "take" property in two basic ways:
(1) (eminent domain) by physically appropriating the property, such
as for a right-of-way; or
(2) (regulatory taking) by regulating or limiting the use of property
under the government's police power authority in such a way as to
destroy one or more of the fundamental attributes of ownership (the
right to possess, exclude others, and to dispose of property), deny all
reasonable economic use of the property, or require the property owner
to provide a public benefit rather than addressing some public impact
caused by a proposed use. The government can be sued for a taking. A
suit alleging a taking is also called an "inverse condemnation" action.
Acquisition of title after the effective date of a regulation does not automatically
bar a regulatory taking claim. Palazzolo v. Rhode Island - acquiring property
after adoption of challenged regulation. Just because owners changed, the
takings claim did not disappear purchase with notice does not necessarily
prevent a takings claim.

TEST for a regulatory taking (Penn Central)

Economic effect of the regulation
Diminution in value
Value as zoned before VS the value as zoned now
Effect on investment backed expectations
What investments were made?
Were they reasonable in light of existing or probable future
regulations?
Distinct?
Did govt make any representations? Unfairly lead property owner
to expect to be able to proceed? Reliance reasonable?
Character of the regulation
If its a physical invasion, that looks more like a taking. Regulation looks
more like a taking.
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Penn Central
Law says when property is designated as a landmark there are limitations
on what the owner can do with it. The Court held that the restrictions
imposed did not prevent Penn Central from ever constructing above the
terminal in the future. New York's objection was to the nature of the
proposed construction and not to construction in general implemented to
"enhance" the Terminal. Preventing the construction of a 50-plus story
addition above the station was a reasonable restriction substantially
related to the general welfare of the city.
Williamson County case
1. A takings claim under the Just Compensation cannot be evaluated if the
commission has not made a final and definitive position regarding the
zoning regulations which are at issue. They also stated that Hamiltons claim
was immature.
2. A property owner can not claim violation of the Just Compensation clause if
the state gives a procedure for seeking reasonable compensation and it also
denies compensation.
3. Finally, the court held that takings claims are not ripe until, a State fails, to
provide adequate compensation for the taking .
They havent denied your right to just compensation if you havent
asked for it
Analyzing Regulatory Takings
What type of taking was it?
Per se Loretto automatically a taking (physical occupation)
Total or partial taking (Lucas or PC?)
What was taken?
A property right? Check background principles
If so Lucas Per Se
Penn Central 3 factors (above)
Analysis
Seek Compensation

REVITALIZING THE URBAN CORE

Tax Techniques of Redevelopment
Point of these techniques is to get something good for the public at large
Tax abatement: you dont have to pay as much taxes
you need statutory authority to do that
Tax Increment Financing
You have a piece of property/area of the city that needs redevelopment.
Tax benefit to lure people issue a bond which will be repaid through tax
increment in the end there will be a nice development
After certain amount of time they will start paying their taxes
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payments in leiu of taxes go on in are kept in TIF district for benefit of the
district to pay back the bond that they paid in the beginning

TIF requires showing of blight consider factors. Board of Education,

Pleasantdale School District no 107 v. Village of Burr Ridge
Village wants to develop TIF district within its borders. School district
bringing suit they depend on property taxes, they will lose money if TIF is
enacted. The Court found that the Villages findings of fact were insufficient
to meet the blighting factors necessary to qualify the property for a TIF
explanations were weak and marginal
The four factors that the Village relied upon in creating the TIF were
diversity of ownership, flooding, obsolete platting, tax delinquencies.

HISTORIC PRESERVATION: DISTRICTS AND LANDMARKS

ASP Associates v City of Raleigh city created historic district said they
wanted to preserve history, but they really wanted to keep this cute town from
the new people. Ps own vacant lot, want to build office.
Court says this is ok standards are not too vague, consistent standard
incongruity
Transferable Development Rights
Apply for a variance
Ask to change the ordinance
Challenge the zoning
Euclid this zoning is irrational, not rationally related to a legitimate
purpose

CHANGING FROM SPRAWL TO SMART GROWTH

SPRAWL
Sprawl involves...
Low density development;
Constructed in a leap frog manner in areas without existing infrastructure
Often on prime farmland
Automobile dependent
Consisting of isolated single use (usually single family) neighborhoods
SMART GROWTH
Smart Growth involves...
Repurposing existing infrastructure
Focused, organized approach to growth overall
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By its nature, relies heavily on metropolitan, area-wide coordinated

planning
What is Smart Growth?
Mix land uses
Take advantage of compact building design
Create a range of housing opportunities and choices
Create walkable neighborhoods
Foster distinctive, attractive communities with a strong sense of place
Preserve open space, farmland, natural beauty, and critical environmental
areas
Strengthen and direct development towards existing communities
Provide a variety of transportation choices
Make development decisions predictable, fair and cost effective
Encourage community and stakeholder collaboration in development
decisions
We avoid sprawl by planning, we plan in a way that will product what we
consider smart growth
Why do we plan?
Set long term goals
Coordinate government action (zoning, infrastructure)
Foster regional cooperation
Coordinate public and private action
Resist pressures from interest groups
Provide a rational basis for land use decisions
But we cant plan everything...
planners cant be omniscient
land is privately owned and the market makes decisions
it is hard to expect planning to be done properly because it can be full of
uncertainty and politically charged
Storm Water Management is Important Because...
Volume urban development increases the volume of urban runoff,
exacerbates flooding
Contamination urban runoff contains oil, grit, fertilizers, pesticides.
Construction sites contribute silt.
A problem that includes both: combined sewer overflows

Moratorium
Gives city time to breathe makes sure problem doesnt get worse
Developer complains that this is a taking
In Bradfordville Phipps Limited Partnership v. Leon County, court
says moratorium is not a taking because its temporary
Legal issues you might think of for a client?
When has a moratorium become too long?
Planning

VESTED RIGHTS AND INTERIM DEVELOPMENT CONTROLS

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Deer Creek Developers, LLC v. Spokane County

City passed ordinance saying no building houses in certain area - developer
already had plans and claims he has a vested right
No vested right because he had not applied for a building permit
Other things he could have said?
Estoppel
Validity of zoning (Euclid)

TIMING CONTROLS AND ADEQUATE PUBLIC FACILITIES

Golden v. Planning Board of Town of Ramapo
The court upheld a growth management system that awarded points to
development proposals based on the availability of public utilities.
Town required permits for subdivision unusual to require permits for
residential buildings in residential areas. Special permit only available when
public facilities and services are deemed adequate.
The objectives of the zoning enabling legislation are as follows: secure
safety, avoid undue concentrations of people and ensure adequate
provision of transportation, water, sewerage, schools and parks
CITY-COUNTY-REGIONAL TIER SYSTEMS
Three-Tier Pattern:
Tier I, existing urban tier
Tier II (urbanizing tier) covering development over the next 20 years, based
on the Ramapo the timed and sequenced three CIP areas
Tier III a rural and agricultural, non-development tier
Tier II Patterns of Growth:
Pattern I: Concentric growth through use of compact and limited urban
service areas adjacent to Tier I urban areas
Pattern II: Linear transportation corridors
Instead of starting at the middle and working out cluster around the
transportation corridors
Pattern III: Freestanding new towns and major mixed use centers
Pick out urban area, pick where places are going to be that are going to
be denser
City of Del Mar v. City of San Diego
Point: city of SD got to decide what to do, as long as it didnt
abuse its discretion. Not courts job to second guess policy
judgment
Reminder about regionalism: in Cali, one of the few states where
individual city land use decisions have to be made with a regional
focus in mind
ENVIRONMENTAL CONSCIOUSNESS
SEQA: State Environmental Quality Acts And Global Warming
California Environmental Quality Act: Communities for a Better
Environment v. The City of Richmond and Chevron Products, Co.
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 The citys construction permit process is being used to change the

emission footprint of a refinery shouldnt that be the job for the
EPA/state? No bc of the act (not normal in other states). Court here
was upset about the mitigation proposals not specific or adequate
enough mitigation measures to comply with CEQA
EIR (Environmental Impact Report): must explain how you are going to
achieve the purpose of your project, identify the effects, and how the
effects will be mitigate, and any alternatives
Mitigation requirements: not included in NEPA, not included in most
SEPAs
NEPA: National Environmental Policy Act
all federal agencies must assess whether a major federal action is one
significantly affecting the quality of the human environment
if it is, the agency must prepare an environmental impact statement
the eis considers all environmental effects of the project, including the
effects of alternatives to the project
the eis must accompany the proposal through the review process. It does
not dictate the outcome.
SEPA state laws based on NEPA
SEPAS require consideration of all environmental effects
CEQA specifically includes greenhouse gas emissions and thus has
particular significance for local land use planning and land use decisions

Floodplains
NFIP: regulates the availability of federally-supported flood insurance in
flood prone areas
Flood insurance: available to people only in mapped flood areas whose
localities have adopted flood plain management programs that have been
approved by FEMA
Regulated development: restrictions in flood zones. Building standards
such as: anchor structures to secure in flood, construction materials that
resist flood damage, design structure to protect utilities, elevate structure
above flood line
Court grants a permanent injunction to enjoin FEMA from issuing flood
insurance for any new development in suitable habitats of listed species.
Florida Key Deer v. Brown
ESA cant have actions that threaten endangered species. There is a
very obvious affect on key deer. Flood insurance program has effect
they need reasonable prudent alternatives

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