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Land Use Law – Outline
I. Introduction A. Changes – pressure on land, social / economic disparities B. Themes – relation btw urban, suburbs, rural; institutional competence; private vs. collective C. Why? – market failure; Calder-Hicks efficiency D. Who? – local govt., power from state – does muni have authority? – public choice vs. civil repub. E. How? – Plan implemented through zoning – consistency in small # of states II. Zoning: Authority and Constraints A. Authority – NYC inspired SZEA – Euclid test = arbitrary & unreasonable – modern changes: complicated, dynamic, negotiated, ecosystem, social justice – enforcement: injunctive relief, penalties, damages B. Constitutional Limits 1. Substantive Due Process a. Federal – ordinance invalid if irrational (Nectow), DP only requires hearing (Coniston) – WEAK b. State – sub. relation to legit. state interest – Twigg factors vs. fairly debatable (Cormier) 2. Takings a. Theories – utility (efficiency), fairness, protect against process failures b. Penn Central – extent of econ. impact, investment-backed expectations, character of govt. action c. Exceptions: permanent, physical = taking (Loretto); taking if extinguishes all value (Lucas) d. Space/Time: passage of title (Palazzolo), temp reg. not taking (Tahoe Sierra) e. Remedies: ripeness: need final decision (Williamson) – no right to have fed claims in fed court 3. First Amendment – religion: RLUIPA upheld; speech: SOB’s protected, balance interests C. Constraints on Zoning 1. Variances – burden: use = unnecessary hardship, area = practical difficulties 2. Spot zoning – factors: consistency w/ Plan, impact, size of area – triggers higher review (Griswold) 3. Contract & conditional – ↓ contract (Allred), ↑ conditional use (Chrismon) – bilateral is bad 4. Consistency – maj. = basic harmony – need: specificity, review w/ teeth, difficult amendments 5. Heightened jud. review – minority – rezoning is Q-J = heightened scrutiny 6. Ballot box – rezoning can be ratified by people (City of Eastlake), site plan can’t be (Buckeye) III. Discriminatory Land Use Policies and Responses A. Excl. & segr. – Davis, AH I (disc. impact, background, procedures), prima facie disparate impact (AH II) B. Environmental Justice & Inclusionary Zoning 1. Reg. Obligations – one: rational basis for regional welfare (Dumont); alt: heightened review (Del Mar) 2. Environ. & LULUs – one: prima facie, then shift to muni (Beaver); alt: muni’s can contract (Hudachek) 3. Low-Income a. Courts – provide opp. for fair share (ML I); # of units needed, aff. steps, builder’s rem. (ML II) b. NJ – FHA created COAH – voluntary participation – reg. contrib. agreements c. Others – top down (statewide goals + consistency); reg. govt.; bottom up; court-enforced obligation IV. Urban Growth Management A. Exactions – essential nexus btw leg. purpose & condition (Nollan); rough proportionality (Dolan) B. Sprawl 1. Perspectives – should we reg. size / form / shape? – size: eco, Tiebout (< avg. cost for desired services) 2. Moratoria – reasonable reg. accom. (Livermore) – Quotas – Petaluma look inside; stat. support (Barnstead) 3. Phasing – upheld, but strained (Golden) – Boundaries – Portland example V. Government as Landowner A. Const. constraints – fed level (not much limits on management) – acquisition = compensation + public use B. Public use = public purpose, even if use isn’t govt. or general public (Kelo) VI. Preserving Land Resources A. Farmland – indirect; direct: zoning, subsidies, TDRs – sliding scale for dwellings ok (Shrewsbury) – tax issue B. Biodiversity – ESA (§ 9 “take”, § 10 ITP) – Natomas HCP – amend. to HCP = admin. action (Dean)
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I. Introduction A. Land Resource & Demographic Changes 1. Continuing pressure on the land, as population increases – 50% increase over next 50 years 2. Social and economic disparities will be a major factor 3. Distribution a. Moving toward South and West b. Moving toward Metropolitan statistical areas (MSA) (central city of 50,000 or more + suburbs) B. Major Themes 1. Relationship between central city, suburbs, and rural areas 2. Institutional competence 3. Relationship between private property rights and collective good C. Why Regulate Land Use? 1. We presume that property owners can do what they wish with their own property 2. For the most part, landowners produce efficient results – except for negative externalities 3. Calder-Hicks efficiency – measure = aggregate gain or loss 4. Example: E’s land – not practical for neighbors to pay E not to build (coordination, free riders) 5. Major justification for regulation = market failure 6. Does govt. action produce better result? – still transaction costs involved in influencing govt. decisions 7. Private arrangements do deal with land use (discrete neighborhoods, contracts, informal practices) 8. Zoning is not the only public control option: nuisance law; imminent domain 9. Will zoning lead to efficient allocations of land use? a. Yes: - if information available, majority acts for common good, and no special interests b. Example: Reverse E – can govt. decision allow E’s single-family homes? c. Models of govt. action i. Philosopher king – yes – has the information & a pure heart ii. Majoritarian – no – land stays open space – value of interest unrelated to weight of vote iii. Influence – depends – govt. driven by special interests – maybe E is developer 10. What is a MSA? – whether outlying area sends at least 25% of employed workers into central city 11. Achieving efficiency depends in part upon how govt. decisions are made 12. Information (or lack thereof) – hard to value uses; try Hedonic studies, but usually fall to intuition 13. Should efficiency be the goal? a. Preferences are building block of economic analysis – measured in willingness to pay b. Do consumer wants adequately measure what makes us happy / satisfied? c. Are consumer preferences expressive of our highest and best selves? d. Even if willingness to pay relates to collective welfare, might want to qualify based on other things D. Who Regulates Land Use? 1. Local govt. – general purpose OR special district – gets regulation power from state 2. Zoning power comes from: zoning enabling act OR home rule statute OR constitutional provisions 3. Home rule (45 states) – gives municipal authority to municipality – adopt a charter 4. Does municipality have authority to adopt particular regulation or take action? a. If citing enabling act – action must be consistent with law b. If citing home rule – consistent with charter, compatible with home rule, and not preempted 5. Historical establishment of zoning authority a. Standard Zoning Enabling Act b. Reasons for uniformity in zoning (through 1950s) i. SZEA ii. Dillon’s Rule – grants of authority to municipalities should be construed narrowly c. Lack of uniformity – beginning in 1960s i. More states moved away from SZEA – states wanted flexible and varied tools ii. Many courts threw out Dillon’s Rule 6. Two theories
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a. Public Choice – economics applied to politics i. Self-interested ii. Ends subjective / private – look at personal preferences iii. No ends better than others iv. Cost-benefit analysis v. Validates selfishness b. Civil Republicanism i. Civic minded, virtue – sometimes at expense of individual rights / preferences ii. Ends objective / public – go beyond our selfish wants iii. Relative merit among ends iv. Pleasure? – look to aspirations – what we want the community to be like v. Encourages restraint c. Libertarians – maximize personal autonomy d. Criticism – celebrate diversity and unassimilated different-ness E. How Land Use is Regulated: Basics of Planning and Zoning 1. What is a plan? a. Part of larger document – “comprehensive plan” b. Basic components: inventory and assessment, goals and objectives, implementation strategy 2. Planning v. Zoning a. Land Use Plan Map i. Existing and proposed use districts mapped onto city ii. Not a legally binding document – for planning only b. Zoning Map i. Many more categories – particular descriptions in zoning ordinance ii. Ordinances have separate existence from the plan 3. Trends in land use law a. SZEA – requires zoning to be in accordance with comprehensive plan (§ 3) b. Courts – zoning is within comp plan, if it is reasonable, not arbitrary (comp plan doesn’t have to exist) c. Recently, legislatures began requiring that planning be done before zoning ordinance d. Why might state care that local govt. have plan? – growth, externalities, possible problems e. Small minority of states – zoning must be consistent with plan – zoning inconsistent can be invalidated 4. Scope – initially, more imaginative (50 years) – now, smaller horizon (25 years, revising every 5 years) 5. Players: planners (exec dept, report to exec), Planning Commission (advisory body), legislative body holds hearings & acts on advised Plan 6. Process in planner’s mind: goals & objectives, evaluate strategies, select, implement, evaluate 7. Obstacles to rational land use planning a. Lack of future information – people walk where they want i. Rahenkamp – any fixed plan is inevitably wrong – won’t predict what it claims to ii. Hayek – could leave it all to markets b. Incentives i. Might be systematic bias of planners (concentration, open space, against sprawl) ii. Plan might not be in public interest iii. Political process could weed this out – but it’s hard for local govt. to do II. Zoning: Authority and Constraints A. Authority to Zone (Legislative Power) 1. Zoning Before Euclid and the Euclid Decision a. Evolution of zoning i. City planning goes back to Aristotle’s time ii. Comprehensive zoning relatively new (a) NYC zoning ordinance (1916) – protect residences from skyscrapers, protect 5th Ave shops (b) SZEA inspired by NYC
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(c) Questionable whether zoning will hold up in court b. Euclid, p. 76 i. Facts (a) Ambler owned 68-acre tract in Euclid (b) 1922, Euclid adopted zoning ordinance, dividing tract into 3 use districts (U-2, U-3, and U-6) (c) Zoning is cumulative – assumption: protecting houses from industries ii. DC – ruled for Ambler (a) Zoning ordinance took property without compensation, violating 5th A (b) Ordinance not supported by valid public purpose (DP) – exclude poor people & aesthetics iii. SC – zoning ok, under substantive DP (a) Ambler pressed strong property rights view, impeding path of development (b) Majority of Justices voted (5-4) to strike down ordinance (c) Euclid’s counsel urged Taft to allow additional argument & amicus brief – swayed Sutherland (d) Zoning is constitutional, if not arbitrary or unreasonable – health, safety, morals, welfare (e) Analogy to nuisance law – enough justification for this ordinance on its face to sustain it (f) An “as applied” challenge might be successful, depending upon facts c. Euclid & judicial review i. Flexible, contextual approach – guided by nuisance law – look at context of regulations (a) Why nuisance law? – root principle = don’t use property to harm another – extend to modernity ii. Deference to advisers and local leg. Choice iii. Appropriation of some value accepted – ordinance seen as way of preserving property value d. Test for zoning ordinance: i. Does ordinance substantially advance a legitimate public purpose (health, safety, morals, welfare)? ii. Are means by which ordinance addresses these ends reasonable? e. Degree of scrutiny i. Ordinance must have substantial relation to quarter – suggests close scrutiny ii. But another formulation = “clearly arbitrary and unreasonable” – indicates two different standards f. What if Euclid left out U-6 districts altogether? i. Court might say there is less relation to health & safety, more protectionist & exclusive ii. Could be permissible to push U-6 to edges of locality iii. Court rejected idea that Euclid should consider adjacent localities – own political entity iv. Could convert analysis into means analysis – don’t need to go this far for the ends v. General public interest = interest of broader area g. Seeds of criticism i. Parochialism – municipalities throw off externalities – court is trying to prevent that ii. Exclusion – by income or race – but Euclid’s ordinance was facially neutral iii. Aestheticism – in most jurisdictions, this is ok, but not VA iv. Anti-Competitiveness – $ taken from some, given to others – arbitrarily re-allocates advantages h. Euclid and takings law i. DC saw this as a takings case ii. SC – regulation may constitute a taking iii. DP argument – ordinance is invalid iv. Takings argument – assumes regulation is valid, then determines whether compensation needed 2. Modern Zoning Ordinances a. Five big changes in practice / process (from early to modern) i. Complication – go further and more extensive ii. Dynamic rather than static – zoning responds to market demand (a) Traditional devices: variance, zoning change (b) Modern: cluster zoning (area, density, frontage) & PUD (use) – each area becomes a district iii. Zoning is subject of negotiation – undeveloped land gets restrictions, in hopes of concessions later iv. Evolution in way we think about harms avoided by zoning – natural, historical values – ecosystem
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v. Social justice – early zoning benefited homeowners – modern: public housing, integrate groups b. Enforcement i. Methods: injunctive relief, civil penalties, do nothing, damages (to govt. or neighbors), criminal prosecution (Multari) B. Constitutional Limits on Zoning (Rights of Developers and Landowners) 1. Substantive Due Process a. Federal Constitutional Law i. Different from takings: (a) Takings cases are about fairness (b) Sub DP – reasonableness, as efficiency or rationality, of zoning (c) Theoretical discussions of fairness / justice use efficiency ii. Zoning ordinance can be invalidated, if it is irrational iii. Nectow, p. 96 (a) Tract of land divided in half by zoning line – invalidated by SC (b) Court defers to special master – can’t see any public benefit that counterbalances effects (c) Arguments in favor of line: residential buffer zone, residential use of partial tract, pushing residential uses out iv. Plan comes into play during sub DP – can help show reasonableness v. Coniston, (7th Cir.) p. 99 (a) Site plan for development denied – landowner waived takings claim, focused on DP (b) Court – rejection ok (c) Only check is democratic process – no reasons required – decision to deny plan is legislative (d) Landowner got a hearing – that is all DP requires (e) Could be EP problem if a person is singled out vi. Only most egregious conduct is arbitrary (Buckeye Community Hope Foundation, p. 102) vii. Zoning must be “truly irrational” (8th Cir.), such as zoning based on last names viii. Court might refuse claim of sub DP for rezoning or special use (no right to these) ix. Legislative – rational relationship between policy & legitimate govt. objective x. Administrative – determine if decision maker paid attention & acted rationally on evidence xi. Three issues (a) Some people still go to federal court with sub DP claims (1) Federal court might be more receptive to complaints of landowners (but not evidenced) (2) To bring as applied challenge, landowner must seek variance or other specific decision (3) For takings claim, must seek compensation – if denied, go to state court (4) If state court denies compensation, federal claims may be barred (5) Might ditch takings claim and go straight for federal sub DP (b) Big shift from Nectow to Coniston (1) Institutional appropriateness – courts don’t run zoning (2) Large case load (3) Interfering with local/state political process (4) Federalism concerns (5) Courts have moved away from sub DP for economic rights (c) Federal courts are defeating sub DP claims (1) On the merits (Coniston) – limited view of “rationality” (2) More specific Const. challenge available (takings, 1st A), must use that (3) No property deprived b. State Constitutional Law i. Most states have clauses like 5th or 14th – interpreted to provide sub DP ii. Standard of review: substantial relation to legitimate state interest (Euclid, Nectow) iii. Eight factors to consider: (Twigg, p. 104 – court orders rezoning) (a) Existing uses and zoning of neighbors – “of paramount importance”
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(b) Extent to which property values diminished by zoning (c) Extent to which zoning promotes general welfare (d) Relative gain to the public, compared to individual hardship (e) Suitability of subject property for zoned purposes (f) Length of time property has been vacant as zoned (g) Care community has taken to plan its land use (h) Community need for proposed use iv. Experts can be used to illuminate factors v. Down-zoning of property ok, if decision is “fairly debatable” (Cormier, p. 107) (a) Five factors cited by zoning body: (1) Introduce urban development into rural area (2) Other areas for commercial and urban uses (3) Area lacks urban service (4) Advisory Group recommended against it (5) No good freeway visibility vi. Most courts are between Twigg and Cormier vii. Look for a single reasonable basis (Sprenger, p. 112 – Court upheld down-zoning where protection of downtown area not only reason AND ok to determine where business can expand) viii. Motive (a) Can apply sub DP analysis to claims of improper purpose / motive (b) Look at anti-competitive component’s extent of impact on decision (1) Any anti-competitive purpose = invalid (2) Any accompanying legitimate motive = valid (3) “But for” analysis of a-c component 2. Takings Clause a. Original Understanding and Modern Theories i. Heart of land use law – boundary of what a private person can claim against collective ii. Three theories: (a) Utility – advance efficiency (b) Fairness (c) Protect against process failures iii. Michelman – utility and fairness merge (a) Utility – enacted & enforced only when efficiency gains > demoralization + settlement (1) Demoralization – psychological costs to owner – could stimulate underinvestment in land (2) Settlement – cost of negotiating compensation arrangement with owner (b) Fairness (1) Justice is fairness – fairness is rules made behind “veil of ignorance” (2) Two factors: group size (esp. for small group), extent of impact (esp. if burden high) iv. Three concerns: efficiency, fairness, autonomy v. Epstein – efficiency 1 (a) Provide right incentives for govt. to make decisions that maximize welfare (b) Whenever govt. imposes costs through regulation, it must compensate (c) Force govt. to consider costs of decisions (d) Taken to extreme – property owners should pay when values are enhanced by regulation vi. Blume – efficiency 2 (a) Should create insurance for loss of property value due to regulation (b) Would prevent risk averse landowners from under-investing in property (c) Focuses on incentives for investors (d) But if loss is insured, people might over-invest vii. Political process – definition of political process failure varies (a) Equal protection – singling out small group or individual
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(b) Internalization – what standards would voters impose if costs fell on themselves? (c) Level of govt. – large govt. less prone to majority tyranny (d) Physical invasions – disputed viii. Theories show there shouldn’t be a big difference between physical taking vs. regulation ix. Initially, doctrine assumed only physical takings would require compensation (a) Madison – mostly concerned about actual takings (b) Can characterize regulations as servitude (c) Physical taking = occupation x. Mugler & Hadacheck – dealt with regulations effectively prohibiting nuisances – not a taking xi. Pennsylvania Coal – first regulatory taking – if regulation goes too far, it is a taking b. Penn Central and Ad Hoc Balancing (p. 158) i. Owners denied permission to build atop Grand Central, under Landmarks law ii. Did denial of application amount to a taking? (no) (a) Extent of economic impact (1) Look at: economic rate of return, FMV, uses that remain (2) Applied: can still use as Terminal, getting reasonable return, can sell TDRs (3) Why relevant to takings question, not compensation?: pragmatic, magnitude, fairness (b) Distinct investment-backed expectations (1) Look at: initial investment, investments in particular pursuit that is interfered with (2) Rationale: efficiency / insurance, fairness (3) If purchased after regulation, can court ever find RIBE? (4) If purchased before regulation, isn’t landowner on notice about zoning power? (c) Character of govt. action (1) Look at: purpose of regulation (how important is it?) iii. If so, are TDRs “just compensation”? (a) Penn Central still has value, since it has TDRs – maybe no taking at all (b) If considered in taking equation, might be enough to preclude taking; otherwise, might be taking iv. Parcel as a whole – denominator problem – if you can consider only a part, pushes toward taking v. Agins – regulation might be challenged on DP grounds (no substantial relationship to legitimate state purpose) – creates confusion as to whether claim is DP or takings – SC repudiated this vi. Hard cases to win – 50/50 chance – depends largely upon court & judge c. Categorical Exceptions: Loretto and Lucas i. Permanent, physical occupation = taking (Loretto, p. 167) (a) Facts – cable line required on landlord’s building (b) Occupation does not have to be total OR substantial (c) Right to exclude! (d) Shoehorning by lawyers (1) Tried to squeeze claims into physical occupations (ex: rent control) (2) Court decisively said govt. must require landowner to submit to physical occupation (Yee) ii. Regulation = taking if it extinguishes all value, unless owner didn’t have right at all (Lucas, p. 169) (a) Facts – Beachfront Mgmt Act prevented owner from building on undeveloped lots (b) Vested rights doctrine: (1) Gives landowner benefit of zoning in effect when building permit submitted (2) Must be some sort of outlay (3) Different sources: DP, takings (RIBE violated) (c) SC SC – not a taking – Beachfront Act protects against public harm (d) US SC – reversed & remanded – are there principles that would’ve prohibited construction? (e) Rationale: (1) When all value is gone, less likely adjusting benefits & burdens (Michelman) (2) Scalia distinguishes earlier cases (Muggler Hadacheck) – anything can be harm OR benefit (3) But then Scalia talks about harm, and basis exception on preventing harm
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(f) Denominator – rule might can apply to less than 100% diminution, if property divided into parts (g) Scope (1) No compensation required if use prohibited by CL nuisance or state property law (2) Kennedy & Stevens – nuisance is too narrow & rigid – legislature is progressive (3) Statutes like Beachfront Act undercut possibility of escaping takings challenge (4) Court suggests that background principles come from CL, not positive law (5) Some courts say if law was enacted prior to purchase, that precludes taking success d. Dimensions of Space and Time: Palazzolo; Tahoe-Sierra Preservation Council i. Mere passage of title does not make regulation become background principle (Palazzolo, p. 180) (a) Facts – P became sole owner after wetland protection Act – beach club plans rejected (b) Effect of pre-existing regulation on P’s claim (1) RI SC – determinative – statute became background principle or look at RIBE (2) US SC – can pursue takings challenge – we don’t say when state law becomes background (c) Rationale: persistent unconstitutionality (unfair); limiting state power (unreasonable) (d) Should prior ordinance have some weight in RIBE? (1) O’Connor – yes – windfalls to sharp dealers (2) Scalia – no – windfalls to govt. ii. Under parcel as a whole, temp. regulation denying economic use != taking (Tahoe Sierra, p. 185) (a) Facts – two different moratoriums imposed, to allow zoning development (32 months total) (b) Not a per se taking (c) Rationale: protect political process, defer to legislature, don’t distort process, cheaper (d) Might still be Penn Central taking (e) Rejects dividing parcels along temporal dimension (f) Dissent – this is Lucas – no distinction between temporary and permanent (g) Leaseholder could claim taking, if his entire interest is wiped out (h) Conceptual severance (construe one strand as the whole interest) could come in here iii. Substantial relationship test does not belong in takings world (Lingle, p. 193) (a) Addresses the wrong thing – effectiveness/reasonableness of regulation, not burden/distribution (b) Underlying validity of regulation is prior to, and distinct from, takings issue (c) Takings claims are distinct from DP and other const. claims e. Remedies i. Background Rules (a) If govt. takes property, must pay full and fair value (b) If regulation effects a taking, author can: apply it & pay compensation OR rescind it (c) If taking is found, govt. must pay compensation for period of enforcement (1) (First English – church on flood plain, washed away – County prohibited from building) (2) First English & Tahoe-Sierra – temporary vs. prospectively permanent ii. Ripeness (a) Takings claim can be brought in: federal court (42 U.S.C. § 1983), state court (b) If responsible agency is federal, claim must be brought under Tucker Act, in Fed. Ct. of Claims (c) Must seek final decision that regulation applies to land & prevents use (Williamson, p. 234) (1) Facts – owner sought cluster development, prelim plat approved – ordinance changed, sued (2) Owner must apply for development approval AND a variance, if approval was rejected (3) Do whatever is not futile (certain refusal) (4) Might even have to seek rezoning (5) Might require resubmission of plans, if original plans too “grandiose” (MacDonald, p. 240) (6) TDRs – no obligation to sell them (Suitum) (7) Rationale: must know extent of burden, locality might abuse process, control is dynamic (8) Takings – state must deny compensation through its official process iii. Res judicata & issue preclusion (a) No right to have federal claims heard in federal court (San Remo, p. 245)
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(b) Federal claims can be reserved in state court, but issue preclusion – factual issues central 3. The First Amendment a. Freedom of Religion i. Becoming more acute issue: mega churches ii. Issues: location in residential settings, citing & ancillary activities, landmarks, home worship iii. Location in residential settings (a) Pre-Smith (1) If law substantially burdens free exercise, needs compelling interest, least restrictive means (2) Not much protection: religious beliefs narrowed (central), deferred to community for c.i. (b) Post-Smith (1) Free exercise doesn’t apply to laws of generally applicability (2) Three exceptions, require compelling interest (i) Individual accommodations allowed, cannot deny religious reasons (ii) Intentional discrimination against religion (iii) Hybrid claims iv. Congress passed Religious Freedom Restoration Act – to overrule Smith v. Boerne v. Flores – struck down RFRA – Congress exceed remedial powers, changed const. rights vi. Congress passed Religious Land Use and Institutionalized Persons Act (a) § 2 – general rule on provisions affecting citing of religious buildings (b) Scope – more tailored to specific circumstances (c) § 2(b) – intentional discrimination (exception ii from Smith) vii. RLUIPA upheld, limited enough to be remedial – Congress broadened “exercise” to include land (a) (Congregation of Kol Ami, p. 210 – synagogue denied expansion/rebuilding permit, but won) b. Freedom of Speech i. Different from religion – public support much stronger for protecting religious use ii. SOB’s are different from other entertainment, because of activities they attract (a) Young v. American Mini Theaters: ↓ property values, ↑ crime, encourage moving away iii. Theories on location: concentration (easier police presence, ideal for parents), dispersal iv. Premise – SOB’s engage in non-obscene speech, so they get protection v. Motive test – what was purpose of leg. – if focus is 2nd effects, content neutral (a) (Renton, p. 220 – concentration ordinance) (b) Standard of review: if neutral, intermediate; if content based, strict scrutiny (c) Neutral ok, if substantial govt. interest & doesn’t unreasonably limit alt. avenues (d) Ordinance serves substantial govt. interest – no findings required – City can rely on other cities vi. Must balance competing interest – Const. requirements vs. deference to municipal affairs (a) (Alameda, p. 222 – ordinance dispersed SOB’s – Alameda had videos & viewing rooms) (b) SC upheld ordinance (c) Kennedy (Concurring) – as long as municipality’s view is reasonable, it is ok (d) Souter (Dissenting) – content correlated ordinance = intermediate scrutiny – this is not neutral vii. Available alternatives – must be sites available for commercial use – but not necessarily available economically (distinguished in Topanga, p. 229) viii. Cannot prohibit all “live entertainment” (Schad, p. 230) ix. Sign ordinance invalid if it is over-inclusive, foreclosing expression (Ladue, p. 484) C. Constraints on Zoning Changes (Rights of Neighbors) 1. Intro a. Looking at ability of “neighbors” to contest changes (environmental, local community) b. Central tension: locality’s desire for flexibility vs. concerns of abuse of discretion 2. Variances a. Basics: done through admin. body, request goes to Board (notice to neighbors and public) b. Two different burdens, depending on variance type: i. Use = unnecessary hardship
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ii. Area = practical difficulties c. (Matthew, p. 286 – 2 houses on 1.5 lots – use variance – remanded for evidence) d. Unnecessary hardship i. No reasonable return (a) Like Lucas test (is this just a takings test?!) (b) Goes to ripeness – owner must seek variance before claiming a taking (c) Strict standards can be applied liberally, allowing variance (d) More relaxed standard would create piecemeal zoning (e) Maybe lax standard ok, if only look at unforeseen changes ii. Plight of owner unique, due to land itself (a) Self-created hardship defeats variance (some states) (b) New owner should be able to get variance, if prior owner could have iii. Won’t alter essential character of locality (a) Some states give priority to certain uses (b) Generally, benefits of proposed use shouldn’t be taken into account e. Practical difficulties (Marriott Corp., p. 291) i. Reasonable return ii. Variance is substantial iii. Substantially alter essential character of neighborhood iv. Adversely affect delivery of govt. services v. Took with notice vi. Other method of resolution vii. Spirit and intent of zoning f. Board of Zoning Appeals – low profile body, not in public eye g. Patterns i. Most variance requests granted (50-90%) ii. Rate of judicial reversal is quite high iii. Two schools: concerned (admin. bodies being lax), not concerned (the process is working) h. VA – variances only ok if application of zoning ordinance would be a taking i. Might want some level of variances – displays proper fit of zoning ordinances (author Steele) 3. Shifting Focus… a. Courts are more favorable when neighbors bring cases about govt. altering ordinance in favor of owner b. Two approaches: i. Give lip service to deference, but temper if warning flags ii. Adopt fiction that rezonings are administrative or quasi-judicial in certain cases c. Political process i. Smaller – everyone the same – land use is big issue – zoning changes for development likely rejected ii. Larger – diversity – majority less likely to prevail – zoning changes favor development 4. Spot Zoning a. Three factors: (Griswold, p. 309 – car sales, challenged by competitor – sub DP analysis – rezoning ok) i. Consistency with Plan (a) Evidence doesn’t compel finding that auto sales is inconsistent ii. Impact on landowner & community (a) Community – cost/benefit – infill (encourage development in already-developed areas) (b) Landowner – right a wrong done to Rossi Sr. iii. Size of rezoned area (a) Helps signal when there is a concern (b) But size is relative b. Rezoning upheld if intent is broader than simply helping an individual (Griswold) c. Not all spot zoning is illegal – spot zoning just triggers more intensive review d. Might throw out “spot zoning,” looking at three factors instead:
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i. Reasonably related to police power purpose ii. Enacted in furtherance of Plan iii. Applied without unreasonable discrimination e. Spot zoning can be invoked by owner when property is down-zoned, but neighbor’s aren’t f. Piecemeal rezoning might need to be justified by change or mistake (some jurisdictions) g. Basis – substantive DP, check on discrimination (EP), or lack of permissible statutory purpose h. Slops – less likely to find illegal spot zoning when rezoning extends existing perimeter 5. Contract and Conditional Zoning a. Definition – municipality imposes limits/conditions on use & owner receives ability to use land in ways that would not be expected otherwise b. Courts struck down contract zoning early on – municipality should legislate i. (Allred, p. 319 – city rezoned property to R-10, but limited use to luxury apts – struck down) c. Why is this bad? i. Legislature is abdicating its proper role, is artificially narrowing deliberations ii. Violates spirit of procedural DP – hearings are held after deal is made d. Why might it be good? – existing zoning limited – easier to strike a deal, than to create new zone types e. Courts might distinguish and allow “conditional use zoning” i. (Chrismon, p. 322 – ag chemicals – conditional use rezoning & permit issued together – ok) ii. Unilateral contracting – municipality doesn’t make a promise, retains authority iii. Illegal contract zoning – bilateral – municipality abandons role as decision-maker iv. Nothing wrong with landowner making offers to municipality f. Allred & Chrismon i. Allred – one general district to another ii. Chrismon – general district to conditional use iii. Factors: better deal-making, good faith, open, good deal for the community g. State courts have varied – even most receptive state courts focus on above factors (openness, deliberation, arm’s length, in good faith, public interest) h. Some states give statutory authority to these (ex: Maine) – can include impact fees/exactions i. VA – leg. authorizes conditional zoning only when voluntary by owner – protects developers j. Enforcement – if govt. foresees breach, could rezone – could revoke zoning & declare breach of zone k. Cluster zoning & PUD – same negotiated character, authorized in most jurisdictions l. Developers cannot buy themselves out of regulations (Municipal Art Society, p. 332) 6. Consistency with Comprehensive Plans a. Plan = general framing of community’s vision; ordinance = implementation of Plan b. History i. SZEA § 3 – zoning must be “in accordance with” the Plan ii. State courts reasoned that ordinances were Plans – “in accordance with” folds into sub DP iii. Plan analogized to a const. – controls zoning, priority over conflicting ordinances (Baker, p. 336) iv. States legislated consistency doctrines (Oregon first, 11 followed) v. Majority of states – Plans not required, or are advisory only c. Basic harmony required with Plan, when state mandates “consistent with” i. (Haines, p. 337 – 250’, rezoned for 500’ – ok, since Plan has broader purposes: open space, etc.) d. When courts are rigorous about consistency, govt. moves toward vague Plans e. Rationale – cut down on ad hoc, arbitrary decision-making f. Need – some specificity in Plan, review must have some bite, Plan must be difficult to amend g. Municipality can restrict development more rigorously than the Plan (Marracci, p. 339) – majority i. Plan is out there for flexible future ii. Leg. is best to decide if now is proper time for certain uses iii. Plan becomes a ceiling, not a floor h. Referendum measure invalid, because not consistent with Plan, and not amendment to Plan (Lesher) 7. Heightened Judicial Review of Rezoning
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a. Rejected by MOST jurisdictions b. Rezoning is considered quasi-judicial, not legislative – use heightened scrutiny i. (Owner sought medium-density rezoning , leg. body rejected w/out findings – Snyder, p. 341) ii. (Higher court rejected presumption of entitlement to rezoning – burden shift to govt. – p. 346) c. Euclid – no evidence required – just look for any rational basis d. Origin i. Mostly from consistency states ii. Legislatures adopted requirements of consistency iii. Judges decided that more should be required from local govt. iv. Two options: (a) Heightened scrutiny of consistency (Haines, Lesher) (b) Heightened scrutiny of quasi-judicial decisions (Snyder) e. Criteria (fact-based) Leg Q-J i. Nature of rezoning Formulation Application ii. Scope Comprehensive Piecemeal f. Problems implementing i. Potentially broad sweep – most land is zoned, so anything is piecemeal ii. Line-drawing problems – how small is piecemeal? iii. Internal inconsistency – if original zoning is legislative, why isn’t all zoning? g. Theoretical justifications i. At its heart, this says local legislatures can’t be trusted (factions) ii. Why not apply Q-J doctrine to all zoning? iii. Why not apply Q-J only to smaller localities? iv. Might say that process works it out – no clear winners on either side (over or under development) v. Is there anything wrong with decisions dominated by small groups? (a) Local govt. determines preferences & provides services at appropriate tax level – stay or exit (b) Must make sure process works openly & people have real exit option h. Piecemeal Plan changes – always legislative – Plan is inherently formulation of the policy 8. Ballot Box Zoning a. Arguments: i. Pro (a) Broad participation (b) Reduce corruption / increase accountability (c) Educate population (d) Increase likelihood of efficiency (e) Confirms ultimate source of power ii. Con (a) Don’t capture intensity of voter preference but can be measured through special interests (b) Probably narrow participation, whereas all legislators participate (c) Less knowledgeable voters (d) Inconsistent with comprehensive Plan but can engage on comprehensive level (e) Not efficient procedure (f) More prone to special interest but legislatures can be “captured” (g) No procedural protections but elective process can suffice (h) Majority domination / fairness but can still have tyranny of the majority b. Improvements (p. 409) i. Helps citizens engage at a comprehensive knowledge ii. Limit influence of money iii. Increase voter knowledge c. Terms – both called “plebiscites” i. Initiative – collect signatures, present bill to leg. body, can enact or not
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ii. Referendum – reviews acts that leg. body has already undertaken d. (Rezoning required to be ratified by voters, not improper delegation – power comes from people – City of Eastlake, p. 403) e. (Referendum not appropriate for site plan approval, since this is administrative – Buckeye, p. 401) i. Affordable housing plan – non profit developer ii. EP claim (racial animus) – requires evidence of intent, not just effect iii. DP claim (terms of admin vs. leg.) – power comes from people, no matter what form f. Criticisms i. Don’t adhere to process, especially hearings ii. Voters lack sufficient knowledge to address issues iii. Some states with Q-J doctrine say referendum not valid when Q-J applies III. Discriminatory Land Use Policies and Responses A. Exclusionary Zoning and Residential Segregation 1. Hands-off posture changes when disadvantaged groups are minorities 2. History a. Early 1900s, residential segregation became fact of life b. By 1920, clear color line became apparent (often established by law) c. Buchanan (1917) – SC invalidated segregation ordinance d. Land use controls maintained segregation e. Other factors: private covenants, public housing placement, lending practices, broker steering, etc f. Primary causes aren’t natural – intentionally put into place by law or compulsive practice g. Continuation – product of private & public discrimination, economics, personal preference 3. Facially neutral ordinances with discriminatory impact? a. 1970s – some lower courts – discriminatory effect violates EP b. Davis (1976) – discriminatory effect, by itself, not sufficient 4. Factors: (non-profit housing org; zoning change denied – Arlington Heights I, p. 698) a. Discriminatory impact b. Historical background c. Abnormal procedures / variation from policy i. (AH – officials focused on zoning, surrounding area zoned single-family, held extra hearings) d. Smoking guns 5. Seems almost impossible to make out discriminatory land use case 6. Fair Housing Act a. Title VIII of Civil Rights Act of 1968 b. “unlawful to make unavailable or deny dwelling to any person because of race, color, religion, or national origin” c. Is proof of intent required to make out violation of FHA? 7. But disparate impact suit allowed (AH II, p. 705) a. Struggles with language “because of” – could require intent or could be foreseeable effect b. Allows prima facie case to be made based on discriminatory effects c. But waters muddied: i. Strength of P’s showing of discriminatory effect ii. D’s interest in taking action complained of iii. Does P seek affirmative action from D, or simply to restrain from interfering? d. No compelling interest required – D just needs legitimate, bona fide, govt. interest B. Environmental Justice and Inclusionary Zoning 1. Regional Obligations and Spillover Effects a. Early assumptions: i. All costs & benefits within single jurisdiction ii. Local govt. is best to make land use decisions b. This works, until land use effects spillover
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c. Cures: i. Regional planning body ii. Duty to consider extra-jurisdictional costs/benefits iii. State preemption iv. Local decision, subject to higher approval v. Cause of action to challenge decisions vi. Nothing – repeat players will work it out d. Courts can’t create new institutional review processes – but they can adjust their own review i. Duties to account for costs/benefits ii. Additional process protections outside jurisdiction e. One view – give as much consideration to neighbors as own citizens – duty to hear and consider – rational basis for regional welfare i. (Shopping center approved by city – rejected due to neighboring muni – Dumont, p. 733) f. Other view – heightened standard of review g. City of Del Mar, p. 735 i. F – huge development in San Diego, close to Del Mar ii. Del Mar loses under either test: (a) Ordinance must reasonably relate to people to whom it significantly affects (Livermore) (b) Once P shows significant spillovers, burden shifts to D (alt. test considered, FN 4) iii. San Diego is taking on fair share of region’s growth h. Should local govt. actions have presumption of validity? – might be just like 2 parties in court 2. Environmental Justice and Siting LULUs a. LULU – land use that nobody in immediate area wants, yet everyone in region does want b. Most problematic when benefits outweigh costs c. Need a procedural or institutional way to overcome this d. Options: i. One (a) Public education (b) Public participation (c) –Assume local veto ii. Two (a) Compensation & incentives (damages, etc) (b) Reverse auction (proponent would ask for bids) (c) Negotiation (d) Voluntary (e) –Assume local veto with compensation iii. Three (a) DAD (decide, announce, defend) (b) Preemption (c) Override (d) YMBY (yes in my backyard) (e) –Assume central decision authority e. Best way? i. Can’t assume local jurisdictions are monolithic ii. Should be concerned about neighborhood effects iii. Reverse auction – puts LULUs in poorer jurisdictions iv. Neighborhood problem – more extreme for LULUs v. Line-drawing problem – range of effects don’t equal size of municipalities vi. Can’t adjust political grid for every problem – must develop other methods f. P must make out prima facie case of unreasonableness, then burden shifts to muni – show prohibition legitimate w/in sub DP
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i. (City prohibited gas stations – not ok – Beaver Gasoline, p. 747) ii. If use is universally understood to be harmful, prohibition not suspicious g. Ok for muni to contract together to site LULUs, rejecting Beaver (Hudachek, p. 749) 3. Obligations to Allow or Provide Low and Moderate Income Housing a. Environmental justice – tries to frame environmental issues in terms of social justice b. Minorities typically suffer greater environmental burdens c. Concern – higher level will site LULU to create adverse effect on lower, minority level d. Two explanations: LULUs purposefully sited OR minorities came to the nuisance (economics) e. Should we always avoid siting near minorities? (Been – never, unless no other place) f. Could we site & then pay compensation? (Goshutes – reverse auction for nuclear waste) i. Historical disadvantage ii. No conditions of freedom iii. Govt. might have pushed minorities into this g. Minorities can sue, due to LULU siting i. 14th A, discriminatory intent ii. Civil Rights Act (VI) – no discrimination under program receiving federal assistance (works for adverse environmental impact) h. Main 3 categories – waste, institutions, affordable housing i. Economic segregation exacerbates other problems (Schill) – but there are counter-arguments j. Fed courts not receptive to these claims k. Motivations behind exclusion i. Tax base issue – poor people drive down house prices, but require same services ii. Racism or classicism iii. Environment – tension: social justice vs. environmental interests l. Maybe economic stratification is good i. Muni comes up with bundle of services & tax rate – exit option – creates inter-local competition ii. Argument: will produce homogeneity as municipalities try to attract the same groups iii. Assumptions: no spillovers, consumer residents have real options iv. Consequences: wealthier families demand higher services, won’t subsidize low-income m. ML I, p. 763 – Ordinance invalid to extent doesn’t provide realistic opportunity for fair share of lowincome housing i. ML zoned major portion industrial – most of remainder in 4 residential districts ii. Purpose – keep property taxes down by keeping poor families out iii. Court – state sub DP goes further than fed – look at welfare of state & accommodate low-income n. Backpedaling: Oakwood (“least cost housing” is ok), Paskak (limited to developing communities) o. ML II, p. 773 – affirmed ML I, and cleaned up confusion i. Locality with area designated for growth under state plan, subject to fair share ii. Won’t apply to lands designated for open space or conservation iii. Must determine # of units needed immediately & for foreseeable future iv. May also have to take affirmative steps when housing doesn’t materialize (a) State & federal subsidies (b) Provide incentives to developers to provide affordable housing (density bonuses, exactions) v. No right to live in individual place – but muni must provide opportunity for housing to be built vi. Builder’s remedies (a) Available when developer proposes development w/ appropriate % of affordable housing (b) Can challenge constitutionality of zoning ordinance (c) If succeed, awarded right to construct project (as long as not contrary to sound land use plans) p. Changes dynamics: i. Builders could win approval w/out litigation & w/out invalidating ordinance ii. Gives developers additional leverage for approval iii. Increases pressure for sprawl
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iv. Much of housing focused on moderate-income, not interest in low-income urban core q. FHA of 1985 (NJ) i. Council on Affordable Housing (COAH) ii. Defines housing regions & regional needs iii. Reviews & certifies local implementation iv. Voluntary participation (either be under ML or COAH) v. If COAH certifies, ordinance can’t be set aside by courts, except with clear & convincing evidence vi. Regional contribution agreements (a) One muni can transfer up to 50% of fair share; at least $20k per unit (b) Must be approved by COAH vii. Good idea? (a) Keep suburbs rich & urban centers poor – but some money must go into urban (b) Sending money into urban core – might mitigate sprawl & strengthen cities viii. Worked: substantial amounts of affordable housing available – rates are favorable r. Other approaches i. Top down (Oregon) (a) Statewide goal of affordable housing (b) Local plans must have adequate #’s at ok price levels (c) Plans must be reviewed by state agency to determine compliance (d) Zoning must be consistent w/ Plan ii. Regional govt. (Portland) (a) Metro govt. would include all jurisdictions w/in area (b) Elected officials rep. people & decide about affordable housing allocation (c) Decisions binding iii. Bottom up (California) (a) Local jurisdictions must include “housing element” in Plans – address share of housing need (b) Plan must be implemented in ordinance (c) No review by state agency iv. New York (a) Court enforced obligation to consider regional needs (b) Strike down ordinance, if enacted with exclusionary intent or lack of regard for region s. Two dimensions for analysis: institutional (leg. vs. court), intrusiveness in locality IV. Urban Growth Management A. Financing and Managing Development Through Exactions 1. Exaction – govt. obtains property, money, or land as condition for development (Been also has def.) 2. Bargain takes place between developer & town 3. Example: parks a. Town asks for park set aside for development b. Benefits: maintain amenities, keep property values up, internalize costs of development c. If town asks for too much park set aside: i. Transfer of wealth from newcomers to citizens ii. No process control 4. Concern: locality will use power to extort conditions from landowners 5. Must be essential nexus between legitimate purpose that would justify denial of permit & permit condition – Nollan, p. 638) a. If exaction attached as condition, would denial be justified in advancing legitimate state interest? i. Sub DP inquiry – substantially advancing legitimate state interest (right from Euclid) b. If it would be justified, does condition further same purpose that denial would further? c. Held: no essential nexus here i. Purpose = visual access to beach ii. Condition = lateral easement across shore
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iii. Remedy – no compensation, but invalidation 6. Must be appropriate relationship of rough proportionality between conditions & relevant impacts – Dolan, p. 643) a. F – D wanted to double store, including paved parking; condition – dedicate open space + bike path b. Not clear why public greenway is needed; city hasn’t shown bike path will help 7. Economists generally happy, to extent courts don’t screw it up too much B. Managing Urban Sprawl 1. Perspectives on Growth Management a. Focus on: size of population w/in jurisdiction AND configuration of growth b. Tools: growth phasing, caps, urban growth boundaries, Euclidean devices, incentives c. Two threshold questions: i. Is population w/in jurisdiction something we should try to regulate at all? ii. Is form or shape of development something to regulate? d. Is there a right size for a jurisdiction? i. Ecological argument – there is a best level for sustainable operation of system ii. Tiebout – optimal size is when lowest average cost of services desired can be provided (a) Problems: imperfect competition, each new resident brings marginal costs e. Sprawl – auto-orientation, cookie-cutter, sterility, dispersal, isolation, urban blending f. Costs (Burchell) – higher per unit infrastructure, environ. impacts, increased travel, energy costs g. Solution – more compact, infill, preserve open space, extend infrastructure, provide affordable housing h. New urbanism – pedestrians, integration of uses, broad sidewalks, 5-minute walk anywhere – block ↑ i. Causes of sprawl i. Preferences ii. Market failure iii. Govt. (political) failure iv. Growth controls 2. Moratoria and Quotas a. Moratoria – whether ordinance is reasonable accommodation of competing regional interests – Livermore, p. 797 i. Ordinance prohibited issuance of residential permits until under-capacities solved ii. Public interest determined by population significantly affected by ordinance iii. Interests to accommodate: outsiders v. insiders, environmentalists v. egalitarian humanists iv. Probable effect & duration of restriction v. Dissent (Mosk) – absolute prohibition invalid; regulation limiting density invalid, unless fair share b. Other attacks: i. Prohibited by state law ii. Limited to specific periods or circumstances by state law iii. Are they really zoning laws? iv. FL – must follow hearing & notice requirements v. Const. issues – takings, DP vi. State Plan consistency issues c. Quota – ordinance that regulates rate of growth or limits growth that can occur d. Fed court upheld quota when local effects ok, but regional effects negative – Petaluma, p. 804 i. Livermore – looks at all people affected ii. This case – doesn’t look much outside of local jurisdiction iii. If apply Livermore, this case should come out opposite (categorical imperative) e. If imposed growth rate has no statistically sound basis, could be invalidated i. (Barnstead, p. 807 – subdivision denied, since it would exceed 3% growth rate – not supportable) 3. Growth Phasing and Growth Boundaries a. Growth phasing ordinance upheld – Golden, p. 808 i. City limited development based on infrastructure to support it, phased growth controls
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ii. Purpose – eliminate premature subdivision & urban sprawl, and provide facilities iii. City denied right to subdivide property iv. Court registers some concern: insular perspective, regional solutions better v. Court not troubled by length of time – not everyone has to wait 18 years vi. Court strains to bring w/in existing authority vii. Dissent – legislature should decide it b. Summary i. Judicial Review of Local Action (a) Review light – Petaluma (b) Deferential review – Livermore, Golden – court considers region, but doesn’t shift burden (c) Strict scrutiny – Livermore dissent – more demanding ii. Centralized Controls (a) Golden majority – shows desirability of having state leg. resolve the issue (b) Dissent – doesn’t go out of his way to find local authority c. Growth Boundaries i. Ultimate weapon in growth control arsenal ii. Portland (a) Top down system (b) Urban Growth Boundaries – designated & put into plans (c) Portland metro area has regional govt. – sets UGB for area (d) Measure 37 (referendum) (1) Compensate landowners for diminishment in value by regulations (2) Struck down by lower court – under review by OR SC (e) Increasing density w/in UGB (f) Housing prices are concern – disputed iii. Houston (a) No zoning (b) Subdivision ordinance imposes min. lot sizes & setback (c) Widespread use of private covenants (d) Not dense (e) Low quality, adjusted housing prices V. Government as Landowner A. Intro 1. Govt. ownership offers some advantages over regulation – usually limited by statute 2. Prerogatives of govt. as proprietor are broader than govt. as regulator 3. About 40% of U.S. land is owned by fed / state govt. 4. Uses: public parks, wilderness areas, commercial activities 5. Govt. manages, sells, purchases, swaps, etc B. Theoretical dispute 1. Is this level of govt. ownership good? 2. One thing to provide wilderness / parks – can’t expect private owner to provide 3. Another issue entirely when lands used for activities that would otherwise be done by private entities C. Constitutional constraints 1. Fed level – not much constraint, constitutionally, on management of govt. land 2. There are constraints on govt. acquisition of property – 5th A takings 3. Limitations: compensation + public use D. Public use = public purpose, even if use isn’t govt. or general public (Kelo, p. 824) 1. F – “distressed muni,” 90 acres on waterfront; land acquired by city, conveyed to developers; 9 holdouts 2. Program served public purpose, since area was sufficiently distressed 3. Concurrence (Kennedy) – must be rational basis 4. Dissent (O’Connor) – economic development takings are not const. – precedent requires eliminating harm
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E. Why need eminent domain? 1. Redevelopment done through the market 2. Might be market failure 3. Holdout issue – people could wait & get a windfall – this way developers get “takings discount” 4. If a project will generate lots of profit, who should get it? 5. Idiosyncratic value – holdouts aren’t necessarily strategic players 6. Some people might refuse to sell at any price 7. People might just oppose planning VI. Preserving Land Resources A. Managing Environmentally Sensitive Land 1. Farmland / Rural Landscapes a. +90% of U.S. land is rural – urbanized areas = +/- 5% b. Strategies to preserve agricultural land i. Indirect – smart growth, UGB ii. Direct (a) Zoning (1) Exclusive – limits uses to ag uses (2) Non-exclusive – large lot, area-based, conditional use, clustering, overlays (b) Public subsidies – tax breaks (income/estate, property), direct payments, acquisitions (c) Transferable development rights (TDRs) c. Sliding scale for dwellings ok (Shrewsbury, supp p. 11) i. F – PA township (80% rural), owner sought to subdivide into 67 lots ii. Zoning – varies with quality of soil, limits # of dwellings, distributes based on soil type iii. Farmland is important – Town’s Plan makes big deal iv. Legitimate state interest – protecting farmland v. Are zoning provisions reasonable means to secure farmland? vi. Are provisions unreasonably discriminatory against large property owners? (a) Sliding scale – protect working farms, but don’t unreasonably restrict smaller lots vii. Why not just cluster? – might be incompatibility of uses d. On development fringe, farmland generates higher value than use as farmland i. Creates pressure: farmers to sell, zoning to allow development ii. Exacerbated by real estate taxes – based on FMV of land e. If continuing farm use shown, owner might retain farm tax rate (Borel, supp p. 1) i. F – orchard inherited by P, zoned for future office use – owner ultimately got ag preserve ii. At issue – 5 years of taxes, levied at higher rate iii. Court – County might be coercive – raising assessment forces owners to sell f. Two ways of structuring taxes: i. Revenue and Tax Code of CA (a) Value presumptively keyed to existing zoning – but can show change in foreseeable future (b) Landowner can claim benefit of existing restriction ii. Williamson Act (a) Provides for ag reserves, upon designation by locality (b) Owner contracts with muni to limit development (c) Must be minimum contract of 10 years g. How effective are subsidies? i. People who take advantage of them might actually live AWAY from development ii. Penalties for conversion aren’t sufficient to discourage it h. Albemarle County i. Divides areas into growth & rural ii. Rural areas – development rights limited in accordance with size of parcel iii. New plan – would require clustering if creating 3 or more lots
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iv. Taxes – if for ag use, property taxed for that use – up to 5 years of back taxes recaptured if change v. Acquisition program 2. Biodiversity / Habitat a. Federal govt. restrictions: wetlands regulations (Clean Water Act), ESA, Clean Air Act b. Endangered Species Act i. Federal statute, based on commerce power ii. Applies to all species in U.S. listed as endangered / threatened iii. § 9 – unlawful to “take” a protected species (includes harm) iv. § 10 – incidental take permit (ITP) – allows taking, if conditions met: (a) Incidental outgrowth of actions (b) Undertake to minimize/mitigate impact to maximum extent practical (c) Show that activity won’t appreciably reduce likelihood of survival/recovery of species (d) Ensure adequate funding for plan v. § 7 – prohibits fed agencies from jeopardizing protected species c. States & localities have laws / regulations that protect endangered species & habitats d. Kind of land use regulation i. Control development & on what terms it occurs ii. Can be applied on piecemeal basis iii. Local govt. has incentive to be part of resolution (can be held in violation of § 9) iv. Local land use law becomes implementation tool for fed policy e. Natomas, supp p. 37 i. Natomas Basin – multi-jurisdictional ecosystem – includes two threatened species ii. Proposed flood control plan: reduce flooding, make Basin developable iii. Habitat Conservation Plan developed, based on this, City of Sacramento got ITP iv. HCP elements (a) Each developer assessed fee per acre – put toward purchase of land to offset development (b) If land couldn’t be acquired, fee could be raised (c) Lag-time – owner develops, pay fee; agency takes money & looks for land v. Issues (a) Natomas HCP (region) ITP (City) (b) Minimize / mitigate not ok not ok (c) Adequate funding ok not ok (d) No jeopardy ok not ok vi. What could City do here? (a) Go to state & ask for regional authority (b) Maybe counties aren’t getting development benefits (c) FWS could start enforcing in the counties, creating incentives to get them involved f. Local govt. amendment to HCP under ESA = administrative action (Dean, supp p. 49) i. General policies v. particular interests ii. City is implementing a fed policy – City = extension of fed govt. iii. Referendum inappropriate – this is a fed mandate iv. If muni opts into federal mandates, it is administrative arm of fed