L = LANDOWNER MPC (ADD CLASS NOTES RE: MPC FROM 9/14) 1. Public Notice a. (??) (§ 107) 2. Powers & Duties of (??) a. (??) (§ 209.1) 3. Comprehensive Plan a. comprehensive plan is required (??) i. writing requirement: 1. doesn’t have to be written out, but it should be a. if it’s not written, it should be a rational scheme (i.e. – planning principles of selecting certain land for a specific use) as to the present and future use of property 2. usually must be written for counties, but not municipalities b. counties also need comprehensive plan (§ 301.4) c. (??) (Article 3) 4. Official Map a. municipalities have authority to: i. provide for non-existing streets ii. widen existing streets b. pursuant to this authority, municipality can: i. prevent building permits from issuing in areas where streets will be built ii. take building down with no reimbursement, if buildings are put in where streets are to be built c. government’s ability to use are lapses 1 year after builder announces intention to build d. (??) (Article 4) 5. Subdivision & Land Development a. response to validity of fees charged by municipality for building permits (??) b. impact fees = (??) c. distribute the burden of new buildings, facilities, etc. (??) d. capital transportation fee (??) i. only fee municipality can put on developer e. (??) (Article 5) 6. Zoning a. forcing zoning ordinance on municipality (??) (§ 616.1) b. certain remedies are available to municipality / individuals when ordinance is violated c. municipalities have to provide for reasonable range of housing types i. (??) (§ 617.2) 7. Planned Residential Development (PRD) a. has to be part of zoning ordinance b. (??) (Article 7) 8. Joint Municipal Zoning a. municipalities have authority to join together under one zoning ordinance b. (??) (Article 8) 9. ZHB (ZHB) & Administrative Requirements a. mediation option (??) (§ 908.1) b. ZHB has jurisdiction to hear matters brought before them (??) (§ 909.1) c. (??) (Article 9) 10. Appeals to Court a. ways to go about appealing b. what happens to approvals Ls received ahead of time c. (??) (Article 10) 11. Joint Municipal Planning Commissions a. joint municipal planning commissions are authorized b. (??) (Article 11) NUISANCES 1. Public vs. Private Nuisances a. Public Nuisances i. public nuisance = involves general health, safety, welfare 1. invokes police power of the state 2. municipality must be party to action a. brings suit on behalf of community b. Private Nuisances i. private nuisance = affects only a few individuals c. “Coming to the Nuisance” i. rule: 1. if L chooses to live by the nuisance, they cannot sue for injunction (Bove) a. first-in-time argument won’t always prevail i. it doesn’t make sense to allow someone who gets to an area first to decide how land will be used ii. compensated injunction: 1. compromise form of relief – usually for public nuisances a. where L “comes to” a public nuisance: (Spur Industries) i. he can get injunction to stop nuisance ii. but, he has to pay for the damages involved in stopping the nuisance 2. Ways of Regulating Land Other Than Zoning a. Covenants i. runs with land = everyone holding the deed is bound 1. does not run with land = specific only to one L ii. used 3 ways: 1. (1) filing declaration a. binds all future owners of property as to how land can be used 2. (2) deed of sale (??) 3. (3) subdivision a. to get out / modify, must obtain consent of every other owner REGULATORY TAKINGS & ZONING OVERVIEW 1. Regulatory Takings a. Definition i. regulatory taking = permits regulations as long as they don’t deprive L of entire ues of his property b. Exigency Required i. government can only exercise eminent domain if there is exigency (PA Coal) 1. where parties agree to a risk, there is no exigency – cannot use eminent domain (PA Coal) 2. Zoning – Overview a. Definition i. zoning = dividing property into different districts, with varying purposes / regulations b. Zoning is Constitutional i. zoning is a valid use of the police power to control land use (Euclid) 1. does not constitute a taking c. Must Further Comprehensive Plan i. all zoning must be done in furtherance of comprehensive plan (Kuehne) d. Municipality Must Provide for Every Type of Legitimate Use i. it is unconstitutional for a municipality to fail to provide for a legitimate use within its boundaries e. What to Look at in Deciding Whether Zoning Ordinance is Valid i. enabling legislation ii. constitutional provision (both state and national constitutions) f. Expenditures Based on Zoning i. L will not have any vested rights based on his expenditures pursuant to present zoning unless: (Stone) 1. specific statute affords vested rights in the particular circumstances g. State Zoning Enabling Legislation i. usually, state’s zoning enabling legislation allows municipalities broad discretion 1. municipality can do what it wants, as long as it doesn’t conflict with state law ii. PA: 1. Article 6 requires public hearing, where public is allowed to voice concerns over zoning plans SPOT ZONING 1. Definition a. spot zoning = singling out of a single lot or small area for different treatment than similar surrounding areas (creates an “island”) i. could be to the benefit or detriment of L ii. downzoning vs. upzoning: (part of spot zoning or just regular zoning??) 1. downzoning = making the regulations more strict than they had been previously a. taking something from the L i. discriminates against L b. some states (not PA) say that when there is downzoning, the burden is on the municipality to prove that the change is reasonable i. (i.e. – presumption of constitutionality doesn’t exist) 2. upzoning = making the regulations less strict than they had been previously a. giving something to the L that he did not have before i. discriminates in favor of L 2. Why It’s A Problem a. equality problem – regulations should apply uniformly to all Ls within same district 3. Rule Against Spot Zoning a. zoning is invalid when: (Kuehne) i. it furthers the interests of the individual seeking to have his property rezoned as opposed to the general welfare of the community as a whole b. all zoning must be done in furtherance of comprehensive plan (Kuehne) 4. Factors in Deciding Whether Spot Zoning Exists (Knight, Mulac) a. (1) topography b. (2) characteristics of tract – including: i. location of tract ii. size of tract c. (3) general welfare of community – including affect on: i. health ii. safety iii. morals d. (4) relationship of rezoning to comprehensive plan 5. Rezoning a. ability of municipality to rezone: i. there is nothing L can do if: 1. he has no permit, and 2. municipality rezones land before L puts it to intended use, and 3. rezoning is part of comprehensive plan, and 4. rezoning does not constitute spot zoning ii. he should have acquired permit when he purchased the property iii. even if L put money into developing property for intended use, he is out of luck b. L’s option upon rezoning that is not in accord with his intended use: i. apply for variance 1. if he wants to continue his intended use, it will be non-conforming a. he needs variance to allow non-conforming use (??) c. if L wants rezoning: i. only relevant criterion is whether rezoning benefits community as a whole ii. must submit plan that is specific and detailed as to the use he will make of the land CONDITIONAL ZONING (EXACTMENTS) 1. Definition a. “conditional zoning” = municipality will grant rezoning only if certain conditions (which it imposes) are met 2. Contract vs. Conditional Zoning a. contract zoning = parties bargain for conditions to rezoning i. vs. conditional zoning – where no bargaining occurs b. bilateral vs. unilateral contract: i. contract zoning – bilateral contract 1. both sides give something up in bargaining process ii. conditional zoning – unilateral contract 1. only one side (L) gives something up 2. can be argued this is unconstitutional: a. arguably violates equal protection 3. Whether Conditional Zoning is Valid a. states differ i. some states hold conditional zoning valid (Collard) 1. conditions are not necessarily required to be reasonable (Collard) a. note: L who does accept a rezoning subject to conditions should require a reasonableness clause ii. most (like PA) say it is not valid 1. justifications – allowing rezoning subject to conditions: a. treats one L different from others b. would not be in accordance with comprehensive plan 4. Racing Doctrine (does this go here?? – should it be its own category??) a. “racing” = can apply to either L or municipality i. as applied to L: 1. when L rushes to start his intended use when he knows there is a pending ordinance change that would prohibit that use a. injunction will be granted against intended use when such racing occurs ii. as applied to municipality: 1. when municipality races to pass statute intending to restrict certain L from using his property according to his intended use a. what result?? b. 3 requirements must be met before L attains vested right and need not conform with ordinance as changed: i. (1) L obtained valid building permit under old zoning ordinance ii. (2) L got the permit in good faith (i.e. – without racing) iii. (3) L spent money / incurred liabilities in good faith in reliance on permit PENDING ORDINANCE DOCTRINE 1. Definition of “Pending” a. “pending” – 3 components: i. (1) new legislation is repugnant to some use ii. (2) proposal is open to public inspection iii. (3) proposal is advertised to be discussed at public meeting 2. Pending Ordinance Doctrine (POD) a. municipality may deny application for zoning relief if: i. at the time of the application, a zoning ordinance was pending that would prohibit the use of the land sought by the application b. municipality must act with “reasonable dispatch” i. if it doesn’t, it will lose its right to invoke pending ordinance doctrine 3. Who Can Invoke POD a. only a municipality i. objectors cannot invoke it 4. When Municipality Can Invoke POD a. can only be invoked as a defense i. i.e. – cannot be invoked to grant permission for a use which is included in pending change 5. How Municipality Can Invoke POD a. official action must be taken b. all invocations must be done on uniform basis i. i.e. – no discrimination in how it’s invoked EXCLUSIONARY ZONING 1. Municipality Must Provide for Every Type of Legitimate Use a. it is unconstitutional for a municipality to fail to provide for a legitimate use within its boundaries 2. 2 Types of Exclusionary Zoning a. (1) de facto – exclusion as a matter of fact (practical, real life effect) b. (2) de jure – exclusion by law i. 2 kinds: 1. (a) express prohibition of certain housing types 2. (b) failure to have provision allowing for certain kind of housing 3. Exclusionary Devices a. minimum lot sizes (Kohn) b. controlling size of houses c. subdivision ordinances that require things like planting trees or fences that might be so expensive as to discourage development d. prohibiting mobile homes e. prohibiting multi-family housing (Girsch) f. providing for low income housing on bad building land (i.e. – problem with “fair share”) 4. Providing for Low-Income Housing a. Realistic Opportunity Must be Given for Low-Income Housing i. municipalities have to provide for: (Mt. Laurel I) 1. (1) realistic opportunity for 2. (2) fair share a. municipality must be “developing community” in order to be required to bear its fair share 3. (3) of present and prospective regional need for low/moderate income housing ii. failure to do so violates due process and equal protection b. Affirmative Measures May Be Required i. affirmative measures will be required if lower income housing is not realistically possible (Mt. Laurel II) ii. 2 inclusionary devices that ordinance may have to incorporate: 1. (1) mandatory set-aside a. requires certain % of subdivision to be set aside for low-income housing 2. (2) incentives a. (ex.) offering reward to developer for providing for additional low- income housing in his subdivision iii. builder’s remedy: 1. if municipality refuses to allow for multiple-family housing (either de jure / de facto) and builder who wants to build low-income housing is denied application: a. builder can sue to get such dwellings built c. Equal Protection Claim i. 2 requirements: (Arlington Heights) 1. (1) discriminatory effect 2. (2) discriminatory intent a. equal protection violation will not be found if: i. (1) no evidence of discriminatory intent ii. (2) municipality can argue that their de facto exclusionary zoning furthered their comprehensive plan d. PA: i. PA (unlike Mt. Laurel) thinks of zoning as controlling use of land, and not classes of people 1. therefore, zoning cannot control housing types ii. de facto exclusion is challenged as invalid use of police power 1. burden is on municipality to provide that exclusionary effects are best for the general welfare of the community iii. “fair share” principle: 1. 3 steps in determining whether PA has provided its fair share: a. (1) ask whether municipality is logical area for use/development b. (2) if it is, look at % of land available for excluded use c. (3) if land is available, look at whether zoning ordinance effects exclusion iv. PA municipalities have to provide for a reasonable range of multi-family housing 1. including mobile homes v. if L alleges exclusionary zoning: 1. L has burden of proving ordinance invalid a. has to overcome presumption that ordinance is valid PRE-EMPTION 1. Definition a. “preemption” = when one law preempts another 2. Test For Preemption a. statute must either: i. (a) state on its face that local legislation is forbidden, or ii. (b) indicate legislature’s intent that statute should not be supplemented by municipalities 3. Consequences Test (PA) a. 2-part test to determine which law / agency should be preeminent: (Ogontz) i. (1) first see if there is statement in legislation indicating legislative intent to preempt a municipal law ii. (2) if no such statement, make decision based on consequences of decision to each party 1. court will rule for the party who advocates consequences that will further zoning scheme (not frustrate the scheme) (Ogontz) 4. Total vs. Partial Preemption a. total preemption = local authorities have no authority to pass laws in certain subject area b. partial preemption = municipalities can supplement laws with legislation, as long as it is not inconsistent with law VESTED RIGHTS & ESTOPPEL 1. Vested Rights a. test for when L will have vested right: (Western Land Equities) i. L is entitled to building permit / subdivision approval if: 1. (1) his proposal meets zoning requirements in existence at time of application, and 2. (2) he proceeds with reasonable diligence and in good faith 3. (3) there is no compelling countervailing public interest a. such an interest may outweigh L’s vested right i. but it’s a very hard standard for municipality to meet ii. PA: 1. L always gets law in force at time of application with one exception: a. pending ordinance doctrine 2. L will have vested right (and municipality will be prohibited from taking back the permit) when municipality issues permit by mistake only if 5 factors are met: (Petrosky) a. (1) due diligence in attempting to comply with the law b. (2) good faith throughout proceedings c. (3) expenditure of substantial unrecoverable funds d. (4) expiration of period during which appeal of issuance of permit could have been taken e. (5) lack of enough evidence to prove that individual property rights / public welfare would be adversely affected by use of permit b. there is no vested right to a particular zoning classification 2. Estoppel a. doctrine of estoppel: i. municipality may be estopped from enforcing ordinance, even though there may be violation of ordinance by L 1. if L has valid vested right, municipality will be estopped from enforcing a zoning change that prohibits L’s proposed plan (Western Land Equities) ii. PA: 1. 3 criteria applied to determine whether municipality can be estopped: a. (1) whether municipality has failed to enforce law for long period of time / acquiesced to illegal use b. (2) good faith of property owner throughout proceedings c. (3) innocent reliance by property owner evidence by substantial expenditures TAKINGS 1. Conditional Permits a. 2-Part Test for “Taking” Re: Conditional Permit (Nollan) i. (1) condition does not substantially advance legitimate state interest, and ii. (2) denies L economically viable use of his land b. “Rational Nexus” Test: Authority to Condition A Permit i. municipalities have the authority to require L to meet certain condition(s) in order to be granted a permit ii. however, the 2-part rational nexus test must be met: 1. (1) there must be a “rational nexus” between condition and permitted use (Nollan) 2. (2) the dedication/exaction required by municipality must be made according to “rough proportionality” test (Dolan) a. municipality must make individualized determination that the required dedication was related to impact of proposed development in both: i. (a) nature ii. (b) extent b. municipality bears burden of proof iii. even if taking is found valid: 1. just compensation is required 2. Exclusionary Zoning Ordinances a. Exclusionary Zoning Ordinance is Not Per Se Taking i. merely because a zoning ordinance excludes certain uses does not mean it constitutes a per se taking (Miller) b. Test for “Taking” Re: Exclusionary Ordinances (Miller) i. taking occurs when government substantially deprived L of the use and enjoyment of his property 1. 3 conditions: a. (1) interest of general public, rather than particular class of persons, required governmental action b. (2) action taken was necessary to effectuate that purpose c. (3) action was not unduly oppressive to L, considering: i. (a) economic impact of regulation ii. (b) extent to which government physically intruded upon L’s property ii. what does not necessarily constitute a taking: 1. ordinance depriving L of the most valuable use of his property EXHAUSTION OF ADMINISTRATIVE REMEDIES 1. Doctrine of Exhaustion of Administrative Remedies a. in order to pursue a claim, L must first exhaust all administrative remedies 2. When Doctrine Must Be Applied a. exhaustion is required when: i. there are both constitutional and non-constitutional issues raised b. exhaustion not required when: i. there are only constitutional issues 3. Purpose of the Doctrine a. review of such claims is the expertise of administrative agencies b. want to allow administrative agencies to: i. make factual record ii. apply its expertise iii. correct its own errors VARIANCES 1. Definition a. “variance” = departure from express terms of zoning ordinance b. how different from special exceptions / conditional uses: i. variances are not provided for by ordinance 1. special exceptions / conditional uses are provided for by ordinance 2. 4 Different Kinds of Variances a. (1) use i. want to use property in manner wholly outside the zoning ordinance 1. court grants variance based on surrounding uses (as opposed to surrounding structures) (Valley View) a. it would be unnecessary hardship for L to conform with ordinance with existing surrounding uses ii. use vs. dimensional: 1. use variance needed where: a. (a) a particular use is permitted only if area and space requirements are met, and b. (b) dimensional requirements not met b. (2) dimensional i. want to change requirements for size / area ii. use vs. dimensional: 1. does not apply if: a. a particular use is permitted only if area and space requirements are met i. if dimensional requirements not met: 1. need use variance a. (ex.) if single-home use is only permitted for 1- acre minimum, need use variance for less than 1 acre c. (3) de minimus i. so small it’s insignificant ii. usually, if under 10% deviation, it’s de minimus iii. PA: 1. not all 5 requirements (see below) for variance apply a. what does not need to be shown: i. factor (1) – unique hardship for specific property ii. factor (3) – hardship was not self-created iii. factor (2) – variance will not adversely affect public welfare 2. granting of de minimus variance is sole discretion of zoning board a. there is no “right” to a de minimus variance d. (4) hybrid i. combination of use and dimensional 3. When Variance is Granted a. non-PA: i. variance is granted if there is “unnecessary hardship” unique to the specific property 1. requirements for “unnecessary hardship”: a. (1) ** hardship must be unique to the specific property (Puritan- Greenfield) i. cannot be based on general neighborhood conditions b. (2) – depends on kind of variance: i. use variance: 1. property cannot reasonably be used consistently with zoning ordinance (Puritan-Greenfield) a. i.e. – use consistent with zoning ordinance will: i. (a) not yield reasonable return, or ii. (b) give rise to hardship amounting to virtual confiscation, or iii. (c) give L disadvantage so great as to disallow all reasonable use b. what is not considered unnecessary hardship: i. financial hardship ii. personal hardship iii. self-created hardship ii. dimensional variance: (Hertzberg [PA but not MPC], Ziervogel) – see handout on dimensional variances 1. “practical difficulties” test a. not required to show that building could not be used for any other permitted purpose (as use variance requires) i. test is much easier to meet than for use variance b. courts may (but doesn’t have to) consider practical difficulties – such as: i. economic detriment if variance is not granted ii. financial hardship in bringing building into strict compliance iii. neighborhood characteristics b. PA (MPC): i. 5 requirements: 1. (1) ** unique condition which arises from land a. not L’s personal problem 2. (2) because of land’s condition, there is no possibility that property can be developed according to strict provisions of zoning ordinance a. different standard for use vs. dimensional variances: i. use variance: 1. property cannot reasonably be used consistently with zoning ordinance (Puritan-Greenfield) ii. dimensional variance: 1. “unnecessary hardship” test a. (Hertzberg doesn’t apply to MPC, but “unnecessary hardship” test refers to Hertzberg - ??) 3. (3) hardship is not self-created 4. (4) variance, if granted, will not: a. (a) alter essential character of area, or b. (b) be detrimental to public welfare 5. (5) variance, if granted, represents the minimum variance which will afford relief ii. 5 requirements do not apply to de minimus variances iii. conditions may be attached to grant of variance SPECIAL EXCEPTION / CONDITIONAL USE 1. Definition a. “special exception” = (??) i. zoning board hears applications for special exceptions b. whether grant of special exception is administrative / legislative action: i. majority of states + PA – administrative 1. minority of states – legislative c. special exception vs. variance: i. special exception: 1. not a departure from ordinance (like variance is) ii. variance: 1. departs from ordinance 2. Requirements for Granting Special Exception a. in order to grant special exception, ordinance must have: i. (1) express provision allowing special exceptions (Piscioneri) ii. (2) criteria re: granting of special exceptions 1. types of criteria: a. (a) must include well-defined, specific criteria i. must not be arbitrary or capricious (Southland) ii. however, more general criteria (such as general welfare of community) may be permissible (Archbishop O’Hara) 1. this usually would not be the case b. (b) general criteria i. general welfare of neighborhood – with regard to: 1. health, safety, welfare, morals c. (c) general policy concerns i. whether special exception would be in “harmony and spirit of ordinance” b. if 2 requirements not met: i. there might be unconstitutional delegation of legislative power 1. grants zoning board too much discretion (Piscioneri) c. in granting special exception, zoning board may: i. require reasonable conditions d. writing requirements: i. only need written findings when special exception is denied / contested 1. do not need if special exception is granted 3. Burden of Proof & Duty of Evidentiary Presentation (Bray) a. who has the burden of proof / duty of evidentiary presentation depends on the kinds of criteria: i. (1) specific criteria: 1. applicant for special exception has: a. burden of proof b. duty of evidentiary presentation ii. (2) general criteria (general welfare of neighborhood): 1. municipality / objector has: a. burden of evidentiary presentation 2. ordinance can decide who gets: a. burden of proof i. usually put on objector iii. (3) general policy (“harmony and spirit of the ordinance”): 1. municipality / objector has: a. burden of evidentiary presentation b. burden of proof 4. Uses Subject to Special Exception a. uses that are more likely to be granted special exception tend to: i. affect public more severely than ordinary use ii. be governmental / educational in nature 5. Conditional Uses a. definition: i. “conditional use” = use which the governing body determines is not adverse in and of itself to the public interest, but which is…?? b. PA: i. conditional uses and special exceptions have the same law 1. these kinds of applications are usually called conditional uses ii. there is no distinction between special exception and conditional use except: 1. which body hears the request a. special exception – heard by ZHB b. conditional use – heard by governing body iii. if criteria are met by applicant: 1. conditional use / special exception must be granted (Susquehana Twp.) REVIEW & INTERPRETATION 1. PA a. in reviewing and interpreting language of an ordinance: i. if ordinance is ambiguous, it is construed in favor of L (against municipality) 1. however, note that some cases might not follow this rule (Russian Orthodox) ii. look at plain meaning of words – found in: 1. definitions section of ordinance 2. dictionary NON-CONFORMING USES 1. Definition a. legal “non-conforming use” (NCU) = use of land / structure that lawfully existed on the date the ordinance or an amendment was enacted, but which now does not comply i. the focus is on prior use that doesn’t comport with ordinance 1. not characteristics of a building (like design, dimension, etc.) that don’t meet ordinance requirements ii. sporadic NCU is not enough to perpetuate NCU status b. note: we’re talking about legal NCUs (it’s only legal if it lawfully existed before ordinance) 2. PA a. rights (or lack thereof) re: NCUs: i. (1) continuance: 1. L has a state constitutional right to continue legal NCU a. as long as NCU isn’t changed “substantially,” NCU is being “continued” and therefore allowed (Limely) i. “substantial”: 1. what is considered “substantial” depends on impact on neighborhood b. lawful NCU establishes vested right which cannot be abrogated / destroyed unless it is: i. (a) a nuisance ii. (b) abandoned iii. (c) extinguished by eminent domain (which requires just compensation) 2. amortization (requiring that NCU has to end in certain amount of time) is per se unconstitutional (PA Northwest Distributors) ii. (2) switching from NCU to another NCU: 1. there is no right to change one NCU to another NCU unless: a. ZHB approves b. ordinance allows it iii. (3) expansion: 1. L has constitutional right to expand NCU subject to reasonable conditions by municipality a. when L cannot expand NCU: i. doing so on after-acquired property acquired after ordinance is in place ii. if L its trying to expand NCU to area not related to the NCU 2. 3 kinds of expansion (different rule for each): (Horsham Twp.) a. (a) necessary to survival of business i. can deviate from dimensional requirements unless: 1. there is compelling injury to public interest b. (b) not necessary to survival of business but needed for normal growth i. there is constitutional right to expand under natural expansion doctrine 1. as long as NCU isn’t changed “substantially,” NCU is being “continued” and therefore allowed (Limely) a. “substantial”: i. what is considered “substantial” depends on impact on neighborhood 2. but – 2 limitations: a. (i) must comply with dimensional requirements b. (ii) there are limits on % of expansion i. usually more than 25% is too much ii. doctrine of natural expansion only applies to commercial uses 1. not residential uses a. note: this does not limit doctrine from being applied to rental residential properties (this is a commercial use) c. (c) not necessary either for survival or normal growth i. no relief under NCU doctrine – expansion must comply with ordinance 1. however, may get relief under conventional variance iv. (4) discontinuance vs. abandonment: 1. discontinuance: a. discontinuing NCU for temporary period of time, without intention to abandon NCU altogether, is not enough to keep L from starting up his NCU again 2. abandonment: a. if L has intention to abandon NCU altogether, he can be prevented from starting up the NCU again i. burden of proof: 1. usually the municipality has to prove abandonment ii. what counts as abandonment: 1. complete removal of NCU (Tantlinger) b. note: most ordinances will say 6 months of discontinuance is abandonment, but courts say this is wrong – intent needed v. (5) in event NCU is partially / fully destroyed: 1. if 50+ % of NCU is destroyed, then L cannot rebuild it a. in this situation, L has to comply with the ordinance b. NCUs are favored more in PA than any other state c. municipalities can require that NCUs be registered 3. Amortization of NCUs a. definition: i. “amortization” = NCU has to gradually discontinue and eventually terminate within a reasonable amount of time b. constitutionality: i. facially constitutional in most states ii. unconstitutional in PA c. where permitted: i. usually only permitted on unimproved land d. rationale: i. NCUs endanger comprehensive plan ii. every zoning ordinance somehow impairs vested rights iii. distinction between ordinance restricting future use and terminating present use is merely one of degree iv. reasonable amortization period reconciles 2 concerns: 1. (a) further public gain 2. (b) lessen private loss 4. Ways to “Get Tough” on NCUs a. (1) abandonment provision – providing that: i. if L abandons (intent to abandon required), he cannot continue NCU ii. time limit imposed 1. if L abandons for certain amount of time, there is presumption that owner has abandoned a. this shifts the burden of proof (usually the municipality has to prove abandonment) b. (2) substantial destruction provision – providing that: i. if 50+ % of NCU is destroyed, then L can’t rebuild it c. (3) eminent domain – providing that: i. municipality has the power to take the land and provide compensation d. (4) amortization provision – providing that: i. NCU has to gradually discontinue and eventually terminate within a reasonable amount of time e. (5) nuisance complaints i. have neighbors file nuisance complaints SECURING JUDICIAL REVIEW & REMEDIES 1. Standing a. to have standing to challenge an ordinance, the person must be “aggrieved” (Copple) i. need special injury to be “aggrieved” 1. i.e. – need injury different from the kind the general public would experience 2. a possible future injury does not count 2. How to Challenge Rezoning (PA??) a. if someone applies for change in zoning ordinance and is denied, there is no appeal i. reason: 1. can’t appeal from legislative decision (only administrative) b. steps: i. (1) apply for permit under old ordinance ii. (2) when rejected, appeal decision to ZHB iii. (3) challenge validity of ordinance 1. i.e. – challenge rezoning as: a. spot zoning b. not in line with comprehensive plan c. if L challenges zoning as invalid as applied to his specific property (not challenging zoning as a whole), court may decide to strike a balance: (Randall) i. stop municipality from excluding L’s reasonable use of property ii. allow municipality to impose reasonable conditions 3. How to Challenge Validity of Ordinance (PA) (same or different from challenging rezoning?) a. L can challenge ordinance’s validity in 2 ways: (??) i. (1) propose curative amendment to legislative body (“builder’s remedy” ??) 1. if it refuses to adopt cure, there is appeal to courts because they are acting in quasi-judicial manner ii. (2) request curative amendment from ZHB 1. if ZHB accepts challenger’s argument, ZHB comes up with cure 2. can appeal to courts 3. if defect is common to ordinance as a whole: a. L has a right to a curative amendment 4. if defect only applies to L’s property: a. L can request variance b. if court finds a defect in the ordinance: i. if ordinance found to be de facto exclusionary (i.e. – even though the use if provided for, the requirements are so hard to meet that there is a practical exclusion): 1. they are required to cure the defect ii. municipality cannot, after curing the defect in the ordinance, then proceed to zone around the challenger in order to keep him from getting the zoning classification he wants (Casey) c. moratorium: i. puts everything on hold while zoning amendment is being granted ii. PA does not authorize moratoriums (Naylor) 4. Deemed Denial / Approval a. where body has time limitation which they don’t make: i. deemed approval results (for failure of body to act timely) b. time limitations: i. 60 days – within which hearing must be held after taking appeal to board ii. 45 days – after closing of hearing, decision must be rendered (or deemed approval) 1. reverse applies also: a. there is deemed denial if there is no decision within 45 days and challenge of validity (??) 5. Remedies a. mandamus: i. what it does: 1. requires municipality to grant permit ii. when it is available: 1. there must be clear right to relief a. this makes it hard to use 2. when public official did not have discretion to act the way he did (??) 3. when public official has discretion, but did not make a decision (??) iii. when it’s not available: 1. cannot make public official act when there’s discretion involved – unless: a. he acted in arbitrary and capricious way (??) iv. if granted: 1. municipality has to issue permit (no discretion) 6. Enforcement Provisions (PA) a. upon discovering violation of zoning ordinance, municipality sends an enforcement notice to violator specifying: i. the location of the property / name of L ii. violation 1. if municipality is not specific in telling which provision of ordinance was violated, it loses iii. dates to commence and achieve compliance iv. right to appeal within 30 days v. failure to appeal within 30 days is violation 1. municipality can get a fine 2. municipality cannot ask for fine before the 30 days are up b. any (??) property owner affected by the violation can file for an injunction to get violating L to correct violation i. must give municipality 30-day notice of intent to file ii. if violating L does not comply: 1. each day of violation can be a separate violation – unless: a. district justice determines L was in good faith i. if he was in good faith, he gets 5 more days to comply, if not, each day is separate violation SUBDIVISIONS 1. Definition a. “subdivision” (SD) = division / re-division of a parcel by any means into 2+ lots for the immediate/future purpose of: i. lease ii. transfer of ownership iii. building / lot development iv. partition by court for distribution to heirs b. “lot” = designated tract of land to be built upon as unit c. subdivision vs. land development: i. land development: 1. improvement of lots and allocation of space 2. land development is much narrower concept than SD a. includes SD ii. SD: 1. division of lots 2. SD Ordinance a. municipality’s SD ordinance may include: i. (1) designation and installation of: 1. streets, walkways, water/sewer facilities, and other improvements ii. (2) uniform setback lines iii. (3) uniform lot sizes iv. (4) public dedication of land (or money) for certain purposes 1. includes recreational facilities a. amount and location of land to be developed must have reasonable relationship with recreational facility (sounds like “nexus” test) 2. rules re: dedications: a. (a) no off-site dedications of land allowed i. municipality can only require dedication of land within the SD b. (b) there must be a relationship between dedication and converted use of property (Rohn) i. relationship must exist between dedication and either: 1. (a) benefit conferred on applicant, or 2. (b) burden imposed on public ii. if no such relationship exists: 1. there is a taking a. this would basically be shifting the burden of the cost of a public benefit on someone not responsible iii. note: sounds like “nexus” test 3. dedications are not acts of eminent domain v. (5) imposition of impact fees 1. municipality can impose impact fees on SD developer at the time of development a. however, there are many restrictions on what it can charge for i. basically, impact fees can only be used to: 1. offset transportation improvements in the area that SD developer is responsible for creating 2. impact fees – advisory committee? 3. Procedure For Getting SD Approval a. requirement: i. SD plans must be in full compliance with zoning ordinance 1. however, L can always get a variance b. 2-step procedure for getting SD approval: i. (1) preliminary SD plan approval 1. once preliminary plan is approved, developer is entitled to approval of final plan unless: a. he makes no substantial departure ii. (2) final SD plan approval 1. once final plan is approved, developer is safeguarded from changes for 5 years c. site plans: (part of flexible zoning) i. falls under “land development” requirements (not SD) ii. when required: 1. when developing a lot 2. when there will be more than one use on a single piece of property 3. when building something other than single family residences iii. site plan vs. SD plan: 1. site plan is much less complicated than SD plan 2. usually only 1 page 3. does not get recorded iv. § 708-08 4. Objections to SD Plans a. objector to preliminary SD plan has 30 days after preliminary approval to object i. if they miss the deadline, they run the risk of whether they can convince municipality SD plan should not be approved 5. SD vs. Zoning a. SD and zoning are separate and different procedures b. SD plans must be in full compliance with zoning ordinance i. however, L can always get a variance 6. vested rights (508) 7. modification / authorized departure from SD ordinance (503 & 512) a. authorized departure will be granted if not doing so will exact undue hardship FLEXIBLE ZONING 1. Floating Zones a. definition: i. “floating zone” = municipality adopts the text of a zoning district, but does not create the district on a map until developer applies to have the district placed on his property 1. only becomes part of tangible zoning ordinance when developer’s application is approved a. before approval, it was only part of the zoning ordinance in that it authorized approval b. re-zoning occurs if approved: i. application of the floating zone to a particular property results in re-zoning of that property c. benefits: i. allows for discretion and approval of a development plan d. problems: i. hard to keep with comprehensive plan ii. comprehensive plan is not meant to be revolving around exact proposals, but rather around a general policy e. PA: i. floating zones are generally not valid f. what is the rule of Rodgers? INITIATIVE & REFERENDUM 1. Definitions a. “initiative” = voter-initiated zoning proposal i. in some states, it is placed directly on the ballot following a petition b. “referendum” = process of referring a state legislative act, constitutional amendment, or public issue to the people for final approval by popular vote (kind of like a veto power given to the people) i. 2 kinds of referenda: 1. (1) mandatory 2. (2) permissive 2. Initiative and Referendum Do Not Violate Due Process a. all power derives from the people, who can then delegate it to representative instruments they create i. the people can reserve power to themselves to deal directly with matters that might otherwise be assigned to the legislature 1. however, to be subject to referendum, the issue must be one within the scope of legislative (not administrative) power ii. anything approved by people that court considers arbitrary and capricious can still (like any legislative action) be struck down 3. Kinds of Zoning Actions Subject to Initiative and Referendum a. only legislative (not administrative) zoning actions are subject to electoral review i. topic can be almost anything b. initiative and referendum cannot be used for amendments to zoning ordinance (Spillane / Smith) i. goals of comprehensive plan might be hard to achieve if piecemeal attacks on zoning ordinance were allowed ii. certain aspects of zoning statutes are incompatible with initiative / referendum process 1. would render discretionary and veto power of planning board or protesting Ls meaningless PLANNED UNIT (RESIDENTIAL) DEVELOPMENT 1. Definition a. “planned unit development” (PUD / PRD in PA) = ability to abandon cookie-cutter approach to development and utilize the required open space for a different use i. allows for clustered housing where all the open space is compiled together for use as really large open space ii. no restrictions such as fixed yard / height requirements 2. 4 Types of PRD a. (1) density transfer systems i. minimum lot sizes are smaller than those normally required by zoning ordinance ii. yard area then compiled for use as large open space b. (2) varying residential types with no increase in density i. varying residential types = multi or single family housing c. (3) varying residential types with density increases allowed d. (4) mixed-use projects i. adding other uses to a variety of housing types 3. PA a. PRD is optional (??) i. municipality does not have to provide for PRD b. 2-stage approval for PRDs: i. (1) “tentative” approval ii. (2) final approval 1. if application has not deviated from tentative approval, then final approval must be granted 2. the municipality can get into trouble for requiring developer to deviate from tentative approval (such as by imposing conditions to final approval) (Millbrae) a. since zoning consists of both classification to PRD and the components of the general plan accompanying the application: i. a change in general plan constitutes a de facto re-zoning c. public hearing required i. if no public hearing is granted within 60 days, developer is entitled to deemed approval 1. board has 45 days from hearing to make decision d. permitted uses for PRD: i. any kind of housing ii. non-residential uses that have been deemed “appropriate for inclusion” in PRD e. conditions that can be attached to a PRD (§ 709) i. developers will be deemed held to conditions, unless: 1. they object within 30 days f. only governing board (not ZHB) provides for PRD GROWTH MANAGEMENT 1. What Growth Management Does a. growth management regulates when land can be developed i. land development becomes an issue when rapid growth overwhelms public facilities and uncontrolled sprawl occurs 2. Types of Growth Management Programs a. (1) quotas on new development b. (2) adequate public facilities programs i. only allow development where adequate public facilities are available c. (3) phased growth programs i. usually based on: 1. capacity of public facilities 2. environmental issues 3. general community growth policies ii. as long as phased growth programs are not exclusionary, but rather seek efficient utilization of land, they do not violate due process (Ramapo) 1. timed growth does not impose permanent restrictions on land use d. (4) urban growth boundary programs i. regulate shape of community by drawing a line around it and limiting growth past that line 1. typically trying to eliminate sprawl e. (5) rate-of-growth programs i. establish a defined growth area 3. PA a. reasonable growth allowed: i. zoning ordinances should be designed to accommodate reasonable overall community growth b. how municipality can prohibit growth: i. argue that they don’t have to provide for unreasonable growth c. emphasis on regional comprehensive planning for growth control i. 3 types of growth areas: 1. (1) growth area a. for increase within the next 20 years 2. (2) future growth area 3. (3) rural resource a. avoiding leap-from movement AESTHETICS REGULATION 1. Aesthetics Are Proper Land Use Controls a. majority of courts (not PA) hold that aesthetics alone are proper land use controls (Parker) i. i.e. – regulations can be justified merely on improving appearance of community b. rationale: i. often is necessary for general welfare of community 1. (ex.) controlling billboards helps make roadways safer ii. enhances quality of life 2. Billboards a. non-commercial advertising speech must be treated differently than commercial speech (Metromedia) i. (ex.) political speech b. signs with viewpoint speech are more easily invalidated than signs with content speech i. viewpoint = view / opinion being expressed ii. content = subject matter being expressed 3. PA a. aesthetics alone are not proper land use control i. aesthetic land use controls must be supported with other land use considerations (White Advertising Metro) 4. Transferable Development Rights a. MPC § 603(c) b. rationale: i. get municipality out of litigation by allowing people to transfer right to a pierce of property in another location (??) PA Procedure Before ZHB (go back to) Garipay? Baker? Dateline Builders?
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