Land Use Outline

Land Use Outlines ZONING 1. Standard State Zoning Enabling legislation Enabling Act a. Zoning should be in accordance w/ a comprehensive plan b. Should be for purpose of promoting health, safety, morals, or general welfare. c. Grant of police power delegated by state local government i. Majority: states delegate police power to local authority. ii. Other states do not delegate all of power to local; retain some power to ensure that local gov’t is abiding by a state or regional plan. d. CA* requires that each planning agency prepare & each legislative body adopt a comprehensive, long-term general plan i. What does the general plan do? ii. Provides a double check against public officials and arbitrary decisions iii. Lets property owners know what they can do with their property e. Notes -i. Make sure a comprehensive plan is in place b/c it prevents arbitrary decision-making ii. Make sure that decision is consistent with the plan iii. If city decides to make a change that’s going to be inconsistent w/ plan Amend plan! 2. Zoning Districts a. Three Main Categories: residential, commercial, industrial b. Local Zoning ordinance has two parts: Text and Map i. Map – amended when a parcel is rezoned 1. When drawn uses follow a density pattern so that residential does not abut industrial. ii. Text – contains zoning regulations, definition, etc. c. Use and Use Districts i. In CA a plan is required and zoning must be consistent with the plan. ii. Rule: Once a zoning ordinance is enacted it is presumed valid and can only be overcome if shown that it was unreasonable, arbitrary or capricious. 1. Manalapan – Case where city banned Home Depot stores by enacting an ordiance banning outdoor lumber sales and building materials. Court said that the city had an interest in banning such stores so the ordinance was valid. iii. Broad discretion given to general welfare 1. i.e. No hotels but we will allow apartments. iv. Use Districts: each district lists: (modern: most use districts are non-cumulative) 1. Permitted uses 2. Accessory uses (to a permitted use) a. Ex: parking, day care, garages, 3. Temporary uses a. Ex: Christmas tree lot 4. Parking & loading requirements 5. Bulk regulations (area, setbacks, etc.) 6. Special or conditional uses a. Ex: hospitals, schools, churches 7. Use-intensity pattern v. vi. vii. viii. 8. Buffer zones may be used to gradually separate severe type of uses Overlay zones --Height & area stds overlay various use districts Buffer zones -- Idea that zoning extremes should be separated by natural features, or surface infrastructure, or by intervening medium intensity zones Performance zoning -- Establishes criteria to measure a land use’s spillover effect 1. Ex: dust, noise & sound Bonus and incentive zoning 1. Offers developers economic incentives by relaxing zoning restrictions in exchange for the develop of desired projects or amenities w/I projects 2. Most common incentive offered is increased FAR 3. Amount of the bonus is calculated to = or slightly to exceed in value the cost that the developer incurs in providing the amenity 4. Gov’t may not reap a cash premium b/c one of its agencies bestows a zoning benefit upon a developer (zoning benefits are not cash items) ix. 3. Zoning Administration a. Generally: Big distinction with changes to zoning or uses is whether they are a legislative act or administrative. If they are legislative they have a presumption of validity. If they are administrative they are considered quasi-judicial they have higher scrutiny i. Legislative Actions 1. Accorded a presumption of validity & subject to limited review (v. deferential) 2. Abuse of discretion std: May only be attacked upon constitutional grounds if it’s arbitrary & capricious 3. INCLUDE: a. Initial zoning b. Re-zoning (zoning amendment) c. Conditional/Contract zoning d. Development Agreements e. Exercise of eminent domain 4. But if we are talking about a specific problem, probably would be administrative ii. Administrative/Judicial Actions (Quasi-judicial)- closer scrutiny 1. When you want to scrutinize, call it this 2. Need substantial evidence supporting that rational decision 3. Burden is on person seeking change 4. Must show: a. In conformance with the general plan b. There’s a public need for change, & c. Need will be best met by change 5. INCLUDE: a. Special/Conditional Use Permits b. Variances c. Historic Preservation ordinances b. Zoning Amendment i. Most common but most radical. ii. Prposes a change to the zoning. This would need to be reflect on the zoning map. iii. Afforded a presumption of validity because it is a legislative proceeding. 1. to attack you would need to show that it was arbitrary or capricious iv. Spot Zoning – way to attack zonimg amendment by arguing that the zoning is only for a single piece of property. – usually invalid 1. Bartan v. Zoning Commission of Bridgport – D had 5 parcels of property that were in an redidentail area that he wanted changed to commercial so that he could put store on it. He got a zoning amendment. P, the neighbors challenged by saying it was a spot zone. Ct upheld zone because it was for general welfare because there was no other store in the area. 2. c. Floating Zones (Quasi judicial decision) i. Generally: Floats until appropriate development comes along and then it attaches and no longer floats. ii. Process: 1. A zone is created as a text amendment providing for certain uses 2. At a later date a specific tract is rezoned for the prior unmapped use iii. To show that change is in accordance with comprehensive plan, show: 1. Public need for change & 2. Need will be best served by changing the classification d. Special Use, Conditional Use and Exceptions i. Special use permit applications heard by an administrative board, commission, or hearing officer ii. Ordinances that establish criteria for acceptance of a conditional use must specify sufficient reasons why such a use may be denied 1. Gorham – P wanted to make his single family home into a multiple family home. He did not want to change outside. Applied for a special use permit. Denied. Ct said that because city was concerned about property values they could deny permit. iii. Typical Special/Conditional Uses 1. Ex: church, school, daycare center, liquor outlets, dog kennels, gun club, drive in theater, halfway house e. Variances i. Special/conditional use is set up in advance and expressly permitted in the ordinance, whereas a variance, is asking for something not permitted ii. An applicant only entitled to that degree of variance that will relieve the particular hardship iii. Conditions can be attached to variances, but must relate to the land & be rx iv. Two Types 1. Use Variance – trying to change use of land (i.e. business use in residential district) a. Unnecessary Hardship Test i. Land cannot yield rx return if used as zoned ii. Plight of owner due to unique circumstances and not to general conditions of neighborhood iii. Cannot be self-created iv. Variance will not alter the essential character of the locality 2. Area Variance -- Zoning ordinance shall be granted only when , because of special circumstances applicable to the property, including size, shape, topography, location or sourodings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical classification. a. Variances are granted for the hardships created by the land not by personal hardships. b. This is a legislative finding so the standard of review would be whether there was substantial evidence to support rational decision f. Non-Conforming Uses i. Generally: This happens where a new zoning ordinance goes in and creates uses that are no longer permitted but were on that land first. 1. Provision permitting the continuance of a non-conforming use is ordinarily included in zoning ordinances b/c of the hardship and doubtful constitutionality of compelling the immediate discontinuance of nonconforming uses 2. Zoning ordinance may not operate to immediately suppress or remove from a particular district an otherwise lawful business or use already established therein ii. How do you stop a use then? 1. Immeadiate Stopping a. Police power allows this but will likely result in takings cliam – you can just say the use has to stop which is not considered a taking 2. Ammortization period 3. Gradual elimination is logical and rx method 4. Retroactive b/c it affects people who are already owning the property 5. Majority: uphold amortization as constitutional 6. Minority: unconstitutional unless it’s to eliminate a nuisance 7. Emphasis will be on what is the proper amortization period? 8. Factors will include: type of business, availability of other locations, amount of capital invested and return, length of leases involved, etc. 9. Use v. Nonconforming structure a. Use not so bad b. Nonconforming will have to be torn down  City of Los Angeles v. Gage -- City trying to remove plumbing business through amortization (5 yrs). Gage must find a substitute site, reinstall trade fixtures, advertise new location, etc. Noise & traffic volume related to business was too much for a residential area. Elimination of existing uses w/I a rx time does not amount to a taking of property nor does it necessarily restrict the use of property so that it cannot be used for any rx purpose 10. Government can use eminent domain which would require due compensation. a. Usually an amortization period is given for the use to be stopped. 11. Abandonment Provision – if there is an abandonment of the use fater the rezone, the property and use will be governed by the new ordinance. a. A change in use will also result in abandonment (i.e. book store changes into adult book store) iii. No structural alternation can be made to a NCU. Argument is that you are supposed to not be there for a long time. You should spend it on the place where you are going to move to. iv. Destruction provision: some say that you can rebuild a NCS but not an NCU g. Vested Rights i. Generally: If a property owner has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the gov’t, he acquires a vested right to complete construction in accordance w/ terms of the permit (protects developer’s investment expectation) 1. Two Theories: a. Common Law Vested Right -- owner acquired property rights which cannot be taken away by gov’t regulation b. Estoppel Theory -- inequitable to allow gov’t to repudiate its prior conduct ii. CA*- a developer’s rights have not vested until a valid building permit has issued! In addition, developer must have exhibited substantial reliance to its detriment on the final approval 1. AVCO v. South Coast Regional Commission -- Facts: AVCO argues that it had vested rights to build property. The coastal commission created a zoning requirement that was to be effective 2/1. P argued that they did not have to comply and there rights were vested because they had already invested and subdivided the land. P did not get a building permit Issue: Can rights vest if you do not have a permit but have begun the necessary steps and invested in reliance on getting that permit? Decision/Analysis: A builder may not require a vested right unless he has been issued a building permit. The builder must comply with the laws even if getting the permit was ministerial. In CA you have to have a building permit and substantial improvements on site. If rights are vested they will not allow you to rezone and prohibit construction. iii. Estoppel Theory 1. Elements: a. Property owner relies on governmental action i. Cannot be a past act. Must be a permit or something like that. b. Makes a substantial change or improvement c. In good faith d. Balance the public and private interest i. Following factors are considered: 1. Existing uses and zoning of nearby properties 2. Extent to which the desired nonconformity will diminish property values 3. Extent to which destruction of P’s property value promotes the public health, safety, morals, or general welfare 4. Relative gain to the public compared to hardship imposed on property owner; 5. Suitability of the property for zoned purposes 6. Length of time the property has been vacant under present zoning h. Development Agreements i. Generally: After AVCO, developers lobbied for something to secure their interests. Basically allows for specific plans. 1. developers want the agreement early and city wants to give it late. 2. Must have at least some type of detailed plan for an area. ii. Rule: Development agreement has to be enacted by a formal resolution by the city council and is subject to referendum. iii. CA Development Agreements Statute 1. Development agreements shall specify duration, permitted uses, density or intensity of use, max height & size of proposed buildings, and provisions for reservation or dedication of land for public purposes 2. Provides for public hearing on an application for a development agreement by planning agency and by the legislative body, as well as notice provided 3. Development agreement is a legislative act, which shall be approved by ordinance and is subject to referendum. 4. Development agreement won’t be approved unless consistent w/ gen plan & any applicable specific plan 5. Development agreement not applicable to any development project located in an area which has a local coastal program SUBDIVISIONS 1. Generally:This is about the process to directly develop the land. In CA there are subdivision sales and subdivision development of land. 2. Subdivision of Land a. History: Originally subdivision map acts or recording documents were to ease and to organize the property. They involved no approval. Then they developed to make sure that fraud was not involved like trying to do a side of a mountain. So then it became an issue for governments to regulate so that it can be done. So it became important for towns and cities to look at. This went until 1928 when the enabling acts were passed. The cities then realized that it was just as important to provide infrastructure. After WWII it became important to look onsite to make sure that properties had the infrastructure. Generally there are tow categories. There is onsite and off site. Roads are within the subdivision are onsite. Roads outside are off-site. This is important because it determines who would need to make the improvements and who has the control to do so. i. The next phase placed more importance on off-site facilities. They wanted parks, better roads, school facilities, etc. this developed in the 1970’s. b. CA Map Act -- This is the process to get a subdivision approval in CA. i. Subdivision: division by a subdivider of any unit or units of improved or unimproved land or any portion thereof for the purposes of sale, lease, or financing. ii. Steps in the process 1. Pre app Period – this is where you meet with city staff and tell them what they have in mind prior to filing the application. It is kind of like a ―what do you think my chances are‖ section. 2. Parcel Map – if you create four parcels it is a parcel map. If it is 5 parcels it is a track map. Most cities have the same requirements for parcel and track maps. The concept is that usually a parcel is easy to obtain approval. With a parcel map, the local board can approve either a tentative map or just a final map. The enabling act gives local power to decide what they want to require. A small rural farm town might only want a final parcel map where a busting O.C. community would want a tentative and final map. 3. Tentative Map – this is important because it si all the information. It is a map that is drawn out showing the subdivision. This is the key document. That to the governmental agency shows what is going on. Gives slope, topographical features, cuts, streets, etc. 4. CEQA Study -- Whatever you file you need to do a SEQUA study. 5. Conditions meeting – meeting where you go over the exactions and conditions. They will apply these conditions to your project. The conditions are requirements for your development and your final map. What frequently happens is that you do not agree with 10 conditions. Then you will have to go to the public hearing. 6. Public Hearing – concerns surroding and existing property owners. What they may do at the hearing is that the owner will say that he disagrees with 10 conditions and ask the planning commission agrees. This is an adjudicatory hearing so you have to have findings. a. Deemed Approved Provision – in CA they have a CA Streamlining Act. 7. Appeal – after approval there is time for an appeal. Let’s say tentative map becomes final. When that happens, city has there list of complete conditions. There is one bite at the apple meaning the city cannot go and attach new conditions to the building permit. 8. Life of Tentative Map – if life of tentative map expires, you cannot file final map. Final maps are different because they do not have a lot of information. This is what goes to county recorder. It is a ministerial approval as long as everything that is done that is needed. a. When you final you must: 1) pay your impact fees. This can be 1020K per unit. 2) you are required to enter into a subdivision improvement agreement meaning that you will put in storm drain, lights, etc. 3) 9. Once approved it is filled with the county recorder. They work closely with title companies. When it is recorded you can sell it or convey properties the next day. iii. Approval Process 1. Sketch Plat: rough design map a. Allows for communication, notice, etc 2. Preliminary Plat/ Tentative Map: detailed design map reviewed for compliance with regulations a. May require public hearing b. Usually has a life between 24-36 months. If you are late you cannot file your final map. 3. Final Plat: vested right to approval based on preliminary plat approval? a. In CA, want to go by legislation iv. Youngblood v. Board of Supervisors -- Facts: 3P got tentative map approved for 2 acres. Zoning was changed to 1 acres. The final map was later filed by 3P and was approved. The neighbors, P, thought this was wrong because the final map did not comply with new ordinances. The court held that the map just had to comply with zoning requirements at the time the tentative map is filed. It costs a lot of money so it would be unduly injurious to the developer if otherwise. Approval of the final map is ministerial. 3. On Site Improvements a. Borus v. Smith – P had a piece of property that he wanted to subdivide. There was no street. Statute said you will not get a permit issued unless there is a street that has been created & improved. City said that he had to build street. Is statute a valid exercise of police power or must town pay compensation? H: It is rx: promote public safety (need access for emergency vehicles to get to these homes) b. Can’t deprive owner of reasonable use of his property c. Where an area is unique aesthetically, it is not unreasonable for a city to conlucde that it will not allow a subdivision to preserve the general welfare. d. Ensuring Completion i. Planning commission has the authority to require the subdiivder to install all of the required public improvements before a subdivision plat is finally approved and recorded. 1. The subdivision can be approved sometimes before improvements are made if some type of security is put forth. 2. This can be in the form of a performance bond or a payment bond or a maintenance bond. 4. Official Map a. Generally: Different from general plan. This shows future roadways and corridors. Show growth of layout of city. Plots future and existing streets. i. Palm Beach County v. Wright -- Facts: the county had maps that didedictaed areas for roads and the question was were these outlines a taking. It listed to set backs and where you could build adjacent to these roads. P was a land owner who was affected by these roads. He argued that it was a taking. It was not a taking because it was only saying what was in the future. For their to be a taking, there has to be a denial of use. ii. If you know where a street is going to go and you build on it anyway, you do not have a takings claim. This is why building permits are required. b. If compliance with the official map regulations will not leave the landowner a reasonable use, then either the city must condemn and pay compensation or a variance must be granted to the landowner. 5. Financing Capitol Facilities Generated by New Development a. Impact Fees i. They are basically to pay for off sites or a share of something. Maybe a developer would pay for an off ramp that was down the street or the areas would pay it as a group. b. Linkage fees i. There is no direct impact or connection but somehow their project is link to an impact in the community. The most popular one is affordable housing. So project approval is contingent upon giving some to affordable housing. c. Community Facility district or melorouse district i. Defined areas where there is imposed a special task for a specified period of time. You need a vote. This happens before the building goes on. ii. Rather than developer front those funds why don’t we have d. Assessment District i. Generally needs more than one parcel and you have to include the area of benefit in the assessment. Within that you have to spread the assessment based on benefit. This is different the meloruse because that is a tax. Assessment has to be tied to benefit. Cannot pay more than fair share of what its being done. ii. This is not a tax it is a continuous payment by homeowners. 6. Exactions a. 3 tests i. Specifically and Uniquely Attributable Test 1. Test: Whether exaction substantially advances legitimate state interests. a. If it is an ad hoc imposition then you have heightened scrutiny. If you give up a property right (like the right to exclude) you have heightened scurinity. If you do not give up property right, then it is a due process challenge. ii. Reasonable relationship Test 1. Generally: Very loose. iii. The Rational Nexus Test 1. Nollan v. California -- Facts: P had an old shack on beach front property in Ventura. They applied to the Coastal Commission (D) to tear down the shack and build a home. The commission approved their request on the condition that they provided a public easement going in front of their property running along the beach. D felt that the new house would block people’s view of the ocean that would add to a ―wall‖ of structures that would prevent people from seeing the ocean. P filed a petition with the Ct. saying that it was a taking and violated their rights. Ct. ruled in favor of P; D appealed. App. CT. ruled in favor of D. P appealed to S.C. Issue: Is a condition placed upon a building permit that is not connected to the state interest a taking? Decision/Analysis: Land use regulation does not effect a taking if it substantially advances legitimate state interests and does not deny the owner all economically viable means. Legitimate state interests are very broad. Additionally the court concluded that because people could walk freely upon the land, the P was deprived of its use. However, if the issuance of a condition permit services the same function as a refusal to such a permit, the condition is not a taking. Was the condition in this case connected with the concerns of the D? Adding an unrelated restriction would be taking. Unless the permit condition serves the same government function as the development ban, the building restriction is not a valid regulation. Not a taking if it substantially advances legitimate state interest & does not deny an owner economically viable use of his land 2. A condition attached to a permit is not a taking if it advances legitimate state interests. 3. Notes: a. Ask if they were to deny the permit, would the same interests be served. b. There has to be a nexus between what they want and what they are asking for. c. The only way to get to Pen Central is if they deny the permit totally. 4. Dolan c. City of Tigard -- Facts: City enacted plan to put in 1) bike path, 2) required open space on all commercial property; 3) Flood control plan. P asked for a permit to build. They placed these restrictions on him except that they required him to give the property. Decision/Analysis: the key in this property that unlike Nolan the restrictions were close to the nexus but the exaction were to harsh. They still tried to take his property away. They were trying to get more than their goals allowed for. They adopted a ―rough proportionality test‖ – which says that the required dedication is related both in nature and extent to the impact of the proposed development. a. This developed the second part of the test. They said that there was a nexus between what they were trying to do and what they wanted, however they went to far in taking the property instead of allowing them to keep it. 5. Two Part Test a. Step 1: Is there a nexus between the required exaction and the interest they are trying to protect? Step 2: Whether the degree of the exactions demanded by the city's permit conditions bears the required relationship to the projected impact of petitioner's proposed development? i. Are the burdens imposed proportionate to the reasons for regulating? 1. City has burden to make individualized determination of relationship b/t burden created by development & what they are asking for 2. Requires documentation 3. Link b/t public purpose achieved & nature & extent of conditions imposed 4. Ad hoc exactions disfavored 6. Nolan/Dolan test applies to monetary exactions a. So if city conditions permit on monetary sum, apply test. i. If the fee is from a legislative act that is placed on all permits you need a nexus but less judicial scrutiny and less precesion in relationship. ii. Enhirch v. City of Culver -- Facts: Tennis facility that was loosing money. P was trying to decide to close. He went to city to ask to rezone to high density residential and office. City wanted the recreational area. They came up with an ad hoc fee for the rezoning. The city also had an art and public places ordinance. Do Nolan and Dolan apply to fees? In CA they said yes to ad hoc fees and no to legislative fee. If you are going to do an ad hoc fee you have heightened scrutiny. If you are going to do a legislative fee that applies to everyone we will not require same nexus but there should be some type of study that is reasonable. 1. Under either a fee that is for everybody or an ad hoc fee, the government agency must show the amount of the fee is rough in proportionality to the level of impact. iii. Mitigation fee act – one of the key aspects is that you can pay fee under protest. In many states where you want to challenge an exaction you have to challenge it before you build it. So in CA in other states you can pay under protest, build the development and then challenge through the court for lack of nexus. TAKINGS 1. Public Use a. Generally: 5th amendment only allows the taking of property for public use upon the payment of just compensation. One person’s property may not be taken and given to another with a public purpose. i. The public use test is very broad. b. Rule: the public use requirement is met is the legislative body rationally believed that the action would accomplish the objective. i. Does not matter if that is was actually happened. ii. Only must be rationally related to a conceivable public purpose. 1. Hawaii Housing Authority Case -- Facts: Hawaii real estate was owned by a small number of people. The government though this was bad because it was inflating prices. Normal people were only allowed to lease the land. The D passed an act where they could condemn a piece of property pay for it and sell it to the tenants. The land owners were arguing that this was not for public use but giving it to public entities. Issue: was this a taking for public use. Decision/Analysis: Hawaii had a comprehensive plan that was for a public purpose. Just because it was not given to the public does not mean that it was not made for public purposes. The test for the provision is as long as there is a plan that the legislature decided upon that they could rationally believed could have promoted the objective. 2. Oakland v. Oakland Raiders – purchase of a professional football team fell within eminent domain. 3. Kelo Case -- This case is different than the case above because where as Hawaii served a public purpose that dealt with social issues this case is saying the public purpose is economic. So it is saying if it benefits the area economically then it is a public purpose. The argument is that this severely broadens then power of the scope of public purpose. The court declined to do a heightened standard because society is so complex. We are not going to be tied down to state legislatures. c. Process: i. Is the act reasonable ii. Is it for public purposes iii. Does the act seem to meet these purposes iv. Was there just compensation d. Rules: i. If there is a taking there must be just compensation ii. You cannot take property from A and give it to B if B is a private party and it is not for a public purpose. iii. In order to overcome the police power presumption is to show that there is no possible public purpose being utilized. e. Inverse Condemnation i. Generally: this is a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency. 1. This is in contract to a condemnation proceeding where the government is condemning and trying to pay the land owner. 2. Remedy is just compensation not injunctive relief. 2. Physical Invasions a. Generally: If the result of government action or legislation is a property right or the right to exclude, is permanently lost to the government or to a third party, a per se taking has occurred. i. Per se means the burden shifts from the property owner to the government to prove tha regulation is not a taking. 1. Loretto v. Manhattan CATV Corp. -- Facts: LL bought property that had an easement that cable wires could go across her building. Subsequently there was a law allowing cable companies to do this. P challenged this a as taking. Any physical occupation is a taking. Per se taking. a. Ask if there is a nexus – if not you owe money. ii. Not trespatory or non-invasion cases that could be a taking: 1. Airplane going over house – could be taking because you cannot use part of your property (height, noise, etc.) b. If the result of the legislation is a property right of possession or the right to exclude I temporarily restricted, no per se taking has occurred but a Penn Central evaluation is needed. 3. Regulatory Takings 1 a. Generally: if a regulation goes too far it will be recognized as a taking. b. If you take a contractual right there has been a taking. c. Rule: Regulation authorized by statute that sufficiently frustrates the rational expectations of investors in land capital can amount to a ―taking‖ even if it serves an important public purpose. i. Must look at the property as a whole; not in pieces. d. Test: For regulatory taking, courts will make an ad hoc inquiry: o 1 o o o Is there a permanent physical occupation? o Yes Taking  Exception: Exactions Nollan/Dolan State std that a regulation that goes too far is a taking (Penn Coal) Has the landowner been denied all economically viable use? o Yes Taking  Exception: State cl property/nuisance (Lucas) Has the landowner been denied some use that is less than 100% denial? o Yes Apply Penn Central factors ad hoc factual inquiry  Character of the gov’t action  Economic impact- TDRs  Extent to which it interferes with investment backed expectations i. Factors (Penn Central) 2– 1. Investment Backed expectations a. You do not have a right to your most profitable expectation. i. Courts give a reasonable return. b. You have no right to present or future zoning. c. Did property owner have any knowledge or warnings about possible regulations? 2. Nature of government act a. Did the act place a burden on property owner that should be borne by the public. 3. Economic impact of claimant e. Full Diminution in Value i. Generally: If loss do to regulation takes all reasonably foreseeable ecomically viable uses a per se taking has occurred. 1. If regulation is less than 100% of use, use Penn Central test. 2. Lucas v. South Carolina Costal Council -- P bough a couple pieces of property on the coats of South Carolina. Shortly after he bought the property the D passed an act which basically did not allow him to build anything on the property. He argued that this was a taking. He did not challenge the validity of the act, rather argued that it was a taking. Acts can be passed that are meant to attack at certain public need which affect property and do not result in a taking. If regulations of property of to far it results in a taking. Where regulation deprives land owner of all economically beneficial or productive uses of the land there has been a taking. 3. Look for the taking away of all economic use, not value (land always has a value). ii. Exceptions: 1. If government action was to prevent public harm  no taking has occurred 2. If the activity would have been considered a nuisance under state common law, then the gov’t can stop the activity (even if deprives the owner of all economically viable use) and the gov’t action will not be a per se taking. a. Also known as background principals of state law. f. Takings Challenges i. For as applied challenges you must exhaust all available remedies 1. i.e. must seek variance. ii. Ripeness 1. You cannot file for a takings claims until you file for a development 2. Means federal court does not want to jump into a situation before they know where the governmental entity stands. There has to be a problem first before there can be an answer. iii. Post-enactment transfer of ownership is not an automatic bar to a taking claim 1. If you involuntarily inherited property – no automatic bar 2. If you voluntarily received property and were on notice – barred from takings claim. iv. Normal Permit processing delays and moratoriums are not per se takings. (Tahoe Sierra) 1. Can be is all economically beneficial or productive uses are barred under Penn Central for a unreasonable amount of tie could result in a taking. 2 Penn Central was the case where the P had the old train station they wanted to build 55 stories on top of. 2. Ask – ―was delay a normal part of the permitting process?‖ 3. Where an owner possess a full bundle or property rights, the destruction of one strand of the bundle is not a taking. v. If government improperly denies your permit, and upon review then grants you one, there has been not taking. 1. Mistake as long as it is in good faith is not a taking. If there in this case was a decision to ignore the court and still deny the permit, there will be taking (Landgate) g. Federal Court Requirement of Ripeness i. Step 1: Must make at least two good faith permit applications 1. or seek a permit and then a variance 2. Must exhaust administrative remedies ii. Step 2: Must seek just compensation under state laws (so you fail to get money in state court) 1. res judicata – cannot relitigate something in federal court. DUE PROCESS 1. USC § 1983 --- Civil Rights Actions a. Any person who is denied a federal right by someone who is acting under the color of law has a civil rights claim. This includes a city. 2. Absolute immunities – any immunity that deals with legislative acts. So if you are sued in a 1983 action as a councilmen because you enacted and ordinance that was a taking, you have immunity. 3. 4. An important distinction is what type of act is it? a. If it is a legislative act there is absolute immunity. You can sue the city but not the individual b. If it is a qualified decision on an adjudicatory act as long as they act in good faith, they are protected. i. If they ignore legal counsel then may they will face action FIRST AMENDMENT CASES 1. Single Bonafide House keeping Unit – asks if you are sharing the kitchen, bathroom, common living areas. Trying to draw distinction between apartments. The court realized that there is an important distinction between hotel, apartments and single family homes. a. You can limit occupancy b. You can’t make gender distinctions or the relationship between people. 2. Adult Businesses a. 3 basic ways to handle them i. Ban them ii. Separate them iii. Concentrate them in one zone b. Ordinances Limiting Speech – you can have these butt heir purpose cannot be to stop a constitutional right c. Content Neutral – ordinances that are justified without references to the content of the regulated speech. i. Tests 1. Strict Scrutiny a. Must be compelling government interest b. Apply if there is not a concern over secondary effects 2. Intermediate Scrutiny a. Allows some content restriction if there is a legitimate secondary interest ii. Alameda v. Los Angeles -- They were a book store that wanted to expand their business to be an arcade and an adult book store. The city wanted these types of business apart. Court held that all you need is a reasonable effort. They took the separate studies and the court thought this was reasonable and okay. iii. 3 part test 1. Is there substantial government interest 2. Least Intrusive approach 3. Reasonable alternative 3. Signs, Control, Dissemination of Information a. Generally: This area deal with signs, protected by free speech. There are two aspects -- There is commercial free speech and non commercial free speech. i. Commercial free speech is still protected by the constitution. Certain parts need to be regulated, for example putting labels on speech. ii. City of Ladue v. Gilleo -- Facts: Lady wanted to put sign in her front yard to protest the war. It was a small sign. City said that she could not do it. This was an example of noncommercial speech. The interest in promoting clutter and ascetics was not strong enough. The city could not ban for sale signs. So on one hand they allowed commercial but banned non-commercial. 1. If It is commercial you go through three step test. a. Is there substantial government interest b. Least Intrusive approach c. Reasonable alternative iii. If it is content neutral it is okay. 1. look for ordinances discriminating between commercial and non-commercial a. I.e. a ban on all off-site signs (discriminates aginst non-comm signs). b. i.e. ban on signs put in public parks – okay to get rid of clutter. c. i.e. ban on newspaper wracks – invalid because it is content oriented. iv. Centarl Hudson Test 1. Is expression protected? a. Commercial is protected, but NOT if it’s misleading or about something that is unlawful 2. Must be a Substantial gov’t interest 3. Must directly advance the interest asserted 4. Must not be more extensive than necessary to serve purpose 5. Fox: there must be rx fit b/t ends and means HOUSING (exclusionary and inclusionary) 1. Generally: must remove zoning and subdivision restriction and exaction that are not necessary to protect the health an welfare. 2. What affirmative steps did they mandate a. 1) Encouraging Subsidies i. Argument against is that you are taking money from rich to give to poor. b. 2) Providing Incentives or set asides i. Incentive Zoning ii. Mandatory set asides 3. CA housing element a. You have to project how you are going to meet your housing needs. You need to take survey of housing needs. Cannot be narrative it needs to some down to numbers. Say how many acres you have and how much it will cost. b. If you have on element of your general plan that is inadequate then your whole general plan is inadequate. Until you bring your housing element up to speed they have the threat to suspend development. 4. Inclusionary a. This is forced affordable housing. Tries to encourage private sector or rather mandates them to do it. b. Upzoning is a way to attempt to get affordable housing. You basically increase density of certain areas. For example between R1 and commercial zones place and R2. i. Sometimes the only way that you can grow when you cannot grow out is up-zoning. c. Home Builders Association of Northern CA v. City of Napa. i. This challenged a city ordinance that mandated 10% of all new housing be affordable. They argued that it was a regulatory taking. They did a facial challenge meaning that all would be takings. But the city had a waiver provision so they could not meet that burden. 1. Facial challenges are difficult to meet because you have to prove the negative. Show that in every case the same result would ensue. 2. Nolan and Luca were ―as applied‖ challenge. You are saying that as applied to me it was wrong but not wrong in itself. ii. There was a due process argument in the case. iii. An argument not addressed could be equal protection? Did they impose the same restrictions on commercial developers. iv. A taking in CA is very difficult because of Landgate (see this case) REDEVELOPMENT Eminent domain: City condemns land to enable the assembly of parcels into a useful parcel Public use: The government may take land from one private owner and give it to another. However, some courts are not allowing it. They will look at the following factors to determine if it is a public use: 1. Will title be held by public entity? 2. Will the property be used for private profit, non-profit, or public purposes? 3. Will the end use of the property provide needed public services? 4. What are the anticipated public uses or benefits? 5. What degree of control will the government retain over the use of the property? 6. What is the ratio of public to private funds to be expended for the development? 7. Who stands to gain the most—the private parties or the public? 8. Are private developers the driving force behind the redevelopment project? 9. Is there true slum or blight to be removed? Public necessity: Generally, an exercise of eminent domain power must not only be for a public use; it must also be reasonably necessary for that use. Just compensation: Severance damages: If there has been a partial taking, severance damages are available. Property owner must have: (1) Unity of title; (2) Contiguity; and (3) Unity of use. Special value: A condemnee is not entitled to the benefit of a special value that only arises by reason of the government’s assemblage of its property with other property. Excess condemnation: If it would be cheaper to condemn more land than necessary, the government may do so. EXAMPLE: A portion of a Florida bank’s property was needed to construct a road. However, if the government only condemned a portion of that land, it would have to pay business damages. So, it was cheaper for the government to condemn the entire property and avoid having to pay business damages. Though the bank was a thriving business, they were only awarded the value of their land—not their business. This was upheld. Recoupment: Condemning more land than is necessary, then selling the surplus to private individuals at a price that is now higher because of the improvement. Protective theory: Government may condemn excess land to protect the public improvement. Owner participation: Before condemning the land, the owners should be allowed to participate in the planning of the project areas. Tax abatement: Incentive used by governments to encourage private redevelopment. Government will freeze the assessed value of the project area for certain amount of time, even while the property value increases. Enterprise/empowerment zone legislation: Significant reduction in taxation and government regulation that allows entrepreneurs to generate economic activity and rescue blighted areas. Business improvement districts: Government authorizes the creation of smaller internal districts which provide services in addition to those provided by the city. Tax increment financing: Government issues bonds secured by pledge of payments in lieu of taxes attributable to the increase in assessed valuation . That money is used to fund the project. When the higher taxes are paid, the bonds are repaid. This way, the development project is largely funded by itself. Here the government and developer are working together. 1. Blight test: Generally TIFs are only allowed in blighted areas. Look for findings!!! Is the area blighted? Economic blight: The part has high vacancy rates, etc. Physical blight: The part is physically blighted Brownfields: Contaminated land. Redevelopment agencies have gotten into the business of cleaning up contaminated land. 2. But-for test: But for the adoption of the TIF redevelopment plan, the area would not reasonably be anticipated to develop. 3. Urbanized areat: In California, the redevelopment are must be predominantly urbanized—not allowed in rural areas.