Robert Kohutek

Land Use Law

CMP/REDEV 6260001 Spring 2014
Study Topics for the FINAL Exam

1. Law
1.1. What is law? Law refers to the principles and norms of a community, as
articulated by an authoritative source, that regulate behavior, the compliance
with which is ensured by binding sanctions.
1.2. What is the practice of law?
1.2.1. The practice of law is the application of legal principles to a complex set of
facts for another, with a reasonable expectation that they might act in
response.
1.2.2. The preparation of legal documents, their interpretation, the giving of
legal advice, or the application of legal principles to problems of any
complexity..."
1.2.3. To practice law, representing another person, you must be certified by a
state bar.
1.2.4. The preparation of legal documents, their interpretation, the giving of
legal advice, or the application of legal principles to problems of any
complexity.

2. Types of Governmental Power (related to planning & development)
2.1. Police Power
2.1.1. Definition: The capacity of a state to regulate behaviors and enforce order
within its territory for the promotion of the health, safety, and welfare of the
public.
2.1.1.1. The inherent capacity of a sovereign states to regulate behavior and
enforce order within its territory for the betterment of the health, safety,
morals, and general welfare of their residents.
2.1.2. Limits:
2.1.2.1. Substantive due process
2.1.2.2. Reasonable relationship
2.1.2.3. Legitimate governmental purpose - Health, Safety, Welfare
2.1.2.4. Not arbitrary and capricious
2.2. Eminent Domain
2.2.1. Definition: The power of the government to take private property and
convert it into public use.
2.2.2. Limits:
2.2.2.1. 5
th
Amendment requires just compensation and public use or
purpose.
2.2.2.2. 14
th
Amendment requires due process (substantive and procedural)
2.2.2.3. Must be a well-considered plan behind the public purpose. General
Plan for redevelopment of a commercial center on dilapidated lands.
2.2.2.4. Must satisfy public use doctrines. Must be a means and ends.
Plausible public purpose and a reasonable means to achieve the
purpose. Rational process to implement.

3. Nuisance
3.1. Definitions
3.1.1. Private Nuisance: A private nuisance is a civil wrong; it is the
unreasonable, unwarranted, or unlawful use of one's property in a manner
that substantially interferes with the [quiet] enjoyment or use of another
individual's property, without an actual "Trespass" or physical invasion to
the land.
3.1.2. Public Nuisance: A public nuisance is a criminal wrong; it is an act or
omission that obstructs, damages, or inconveniences the rights of the
community. Specifically, it is a significant and unreasonable interference
with health, safety, and welfare, or interference with a "public right."
3.2. Elements of nuisance (factors that are considered)
3.2.1. Balancing: Courts seek to balance the rights of individuals to use their
land by establishing that landowners may not do so in a way injurious to the
rights of others.
3.2.1.1. Is the land use reasonable?
3.2.1.1.1. Suitability of the Use: Suitability of the activity to the
character of the place
3.2.1.1.2. Social Utility: Value to society of the alleged nuisance
3.2.1.1.3. Gravity of the Harm: The hardship placed upon the
defendant
3.2.1.1.3.1. Cost of Avoidance
3.2.1.1.3.2. Cost to Cure
3.3. Nuisance and zoning (relationship between the two)
3.3.1. Compliance with all appurtenant ordinances does not constitute
reasonable use, nor does it bar plaintiffs from pursuing Nuisance claims.
Private Nuisance actions allow individual lot owners to prove to the court
that a permitted use affects a nuisance in the particular circumstances of the
plaintiff's land. Plaintiff cannot be barred from PRIVATE nuisance claims
just because another's property complies with ordinances. Although
compliance with zoning ordinance does immunize a defendant from PUBLIC
nuisance claims.

4. Prescriptive (Implied) Easements
4.1. Definition: Prescriptive easements are an easement upon another's real
property acquired by continued use without permission of the owner for a
specified period provided by state law to establish the easement. In a sense, they
are similar to adverse possession.
4.2. Elements (factors):
4.2.1. Established use period of time
4.2.2. Notorious (done out in the open)
4.2.3. Failure to enforce

5. Restrictive Covenants
5.1. Definition: a mutual contractual agreement that restrict the usage of property
for the benefit of the owners of a specified development. The relationship
between the restricted and the benefitted may become quite complex, especially
over time with the successive sale of properties. The contract must define both
the benefitted parties and proscriptions.
5.1.1. Servitudes are private rules that limit the use of privately held land for the
benefits of the owners of designated parcels of land, and only those owners.
5.2. Elements required for an enforceable restrictive covenant
5.2.1. The grantor and grantee must intend that covenant run with the land;
5.2.2. The covenant must "touch" the land with which it runs: and
5.2.3. There must be "privity of estate" between the claimant/enforcer and the
promisor/burdened party.
5.2.4. Consistent with the public welfare (policy)
5.3. Restrictive covenants and zoning/land use permitting
5.3.1. Houston is an example of a land use permitting city through restrictive
covenants. City council is zoning example
5.4. Termination (Rescission): When a restricted covenant is lifted or nullified
5.4.1. Criteria:
5.4.1.1. When the purpose of the restriction has come to an end
5.4.1.2. Whether the parties would suffer damage by the removal of the
covenant

6. Planning & Zoning
6.1. Vertical Consistency the connection between planning & zoning
6.1.1. General Plan: Policy with a map
6.1.2. Zoning: Regulations with a map
6.1.3. Permit: Entitlement to land-use
6.2. Permitting
6.2.1. As of right uses: Uses that are customarily found in association with
principal uses, but are incidental and subordinate to them. The uses that are
allowed without special permission. Example: Shed, unattached garage, RV
pad.
6.2.2. Conditional Use: Specific uses allowed based on meeting certain criteria.
6.3. Variances
6.3.1. Definition: a variance allows property owners to prove that relief from the
Zoning ordinance is needed, but such relief will not be detrimental to the
integrity of the ordinance or the character of the surrounding neighborhood.
Variances provide relief from unnecessary hardships that arise because of
special conditions applicable to the affected parcel. They provide a safety
valve that responds to unique circumstances, avoids as applied legal
challenges by property owners, and preserves the spirit of the ordinance as
drafted by the legislature.
6.3.2. Elements
6.3.2.1. Unnecessary Hardship Test:
6.3.2.1.1. Hardship caused by a unique physical characteristic: (A) An
unnecessary hardship exists (B) which is not created by the variance
seeker, and (C) which is caused by unique physical circumstances of
the property.
6.3.2.2. Practical Difficulties Test:
6.3.2.2.1. A variance is needed to enable the party's reasonable use of
the property.
6.3.2.2.2. The variance will not alter the essential character of the
district, or substantially/permanently impair the use or
development of the adjacent property such that it is detrimental to
the public's welfare.
6.3.2.2.3. The variance will afford the least intrusive solution.
6.4. Nonconforming Uses
6.4.1. Definition: A use of land that was in existence when a Zoning restriction
was adopted, but is now prohibited by that restriction. Zoning changes or
enactments that makes an existing use nonconforming. Also, Grand
parented in uses that were legal when they were created and have been in
continual use. Allowed to continue unless theyve been discontinued,
dramatically altered, or have been designated to be phased out over time, are
a nuisance, lost or destroyed.
6.4.2. Establishment (What does it take to create one)
6.4.2.1. Was the use established before zoning?
6.4.2.2. Extent of nonconforming use?
6.4.2.3. Has there been a termination of the use?
6.4.2.4. Is the nonconforming use subject to termination because of
nuisance law?
6.4.3. Discontinuance/abandonment: A property owner's right to continue
a nonconforming use may be lost by abandonment. Originally, this required
a voluntary, completed act of abandonment by the owner. The mere failure
to continue the nonconforming use was not sufficient to establish
abandonment. Although these rules still exist in some jurisdictions, modern
zoning laws frequently stipulate that any discontinuance of the
nonconforming use for a specified period constitutes abandonment. Courts
hold that such provisions are sufficient to establish the owner's intent to
abandon the nonconforming use as a matter of law.
6.4.3.1. Intent to abandon Walked away
6.4.3.2. Failed to act or some act that implies lack of interest
6.4.4. Expansion: Local laws often prohibit the enlargement, alteration, or
extension of a nonconforming use. To allow the expansion of nonconforming
uses, which the zoning law wishes to eliminate over time, would defeat that
underlying policy. Normally, the law allows the owners of nonconforming
land uses to perform property repairs, conduct normal maintenance, and
complete internal alterations that do not increase the degree of, or create any
new, noncompliance with the locality's zoning regulations.
6.4.5. Amortization: Ordinance that phases out certain non-conforming uses
over a designated time period.
6.4.5.1. Factors of a reasonable amortization period:
6.4.5.1.1. Information relating to the structure located on the property
;
6.4.5.1.2. Nature of the use;
6.4.5.1.3. Location of the property in relation to surrounding uses;
6.4.5.1.4. Description of the character of and uses in the surrounding
neighborhood;
6.4.5.1.5. Cost of the property and improvements to the property ;
6.4.5.1.6. Benefit to the public by requiring the termination of the
non-conforming use;
6.4.5.1.7. Burden on the property owner by requiring the termination
of the non-conforming use;
6.4.5.1.8. The length of time the use has been in existence and the
length of time the use has been nonconforming.
6.4.5.2. Must balance public gain of discontinuance with private loss
suffered by property owners
6.4.5.3. Some courts have questioned:
6.4.5.3.1. Is there useful life left?
6.4.5.3.2. Has the owner recouped original investment?
6.4.5.3.3. Is property fully depreciated for income taxes?
6.4.5.3.4. Is the amortization a legislative action?
6.4.5.3.5. No violation of disparate treatment of equal protection
6.5. Accessory Uses
6.5.1. Elements
6.5.1.1. Incidental/reasonably related
6.5.1.2. subordinateproportionally smaller
6.5.1.3. Customary/reasonably relate
6.6. Home Occupations
6.6.1. Elements
6.6.1.1. Not more than 25% of home used for home business
6.6.1.2. Home business must be secondary to residential use

7. The Subdivision of Land
7.1. Definition
7.1.1. Subdivision control: The regulation of the division of raw land into
building lots.
7.1.2. Subdivision regulations are land-use controls that govern the division of
land into two or more lots, parcels, or sites for building.
7.2. Purposes of subdivision regulation:
7.2.1. Subdivision regulations ensure the orderly growth and development of
communities. Subdivision control and zoning control are preventive
measures intended to avert community blight and deterioration by requiring
that new development proceed in defined ways and according to prescribed
standards.
7.3. Exactions/Dedications
7.3.1. What are they? Exactions and dedication are essentially the forced
transfer of property, because the developer seeks something from the
government.
7.3.1.1. A condition for development is imposed on a parcel of land) City
(unfairly) requires developer to give up something in return for
approval
7.3.2. What standards must exactions/dedications meet to be constitutional?
7.3.2.1. Must meet demands of substantive due process and equal
protection
7.3.2.2. Must have a Rational Nexus (Association) between impact and
exaction.

8. Vested Rights
8.1. What is it?
8.1.1. Limits the authority of municipalities in certain cases to impose significant
new regulations on existing investments in land, such as completed
structures, projects under construction, or projects already approved.
8.1.2. Vesting statutes are laws that create criteria for determining when a
landowner has achieved or acquired a right to develop his or her property in
a particular manner, which cannot be abolished or restricted by regulatory
provisions subsequently enacted. This is called a vested right because it is a
right that has become fixed ("vested ") and cannot be eliminated or
amended.
8.1.3. Common criteria:
8.1.3.1. Substantial expenditure or liabilities
8.1.3.2. Substantial construction with the intention of continuing
8.1.3.3. Official government statement (Work and expenditures done in
good faith reliance on the preliminary or final plan approval, issuance
of a permit)
8.2. Utahs vesting rule
8.2.1. In Utah, a landowner is said to be vested when their application is
complete.
8.2.2. Exceptions:
8.2.2.1. Compelling countervailing (offset the effect of (something) public
interest
8.2.2.2. If the zoning change is already in process

9. Developer Agreements
9.1. What are they?
9.1.1. A statutorily authorized, negotiated agreement between a local
government and a private developer that establishes the respective rights
and obligations of each party with respect to certain planning issues or
problems related to a specific proposed development or redevelopment
project.
9.1.2. A bilateral contract between developer and municipality whereby
municipality agrees to guarantee to the developer the right to develop the
project for a defined number of years regardless of future changes to zoning
law or subdivision regulations in exchange for certain negotiated public
amenities or a fee in lieu therefor that the municipality might not otherwise
legally be able to require the developer to contribute. Both sides benefit.
9.2. What are the limits on their use?
9.2.1. In order to prove a violation of the Contracts Clause, a plaintiff must first
prove that there is an enforceable contract that the government has impaired
in some manner. If there is no enforceable contract, there is no violation of
the Contracts Clause.

10. Constitutional Limits on Land Use Regulation
10.1. Substantive Due Process: Requires that land use regulations serve a
legitimate purpose.
10.1.1. Elements/requirements
10.1.1.1. Reasonable Relationship
10.1.1.2. Legitimate Governmental Interest
10.1.1.3. Not arbitrary or capricious
10.2. Procedural Due Process
10.2.1. How to distinguish between legislative and administrative actions
10.2.1.1. Two key hallmarks of legislative power.
10.2.1.1.1. legislative power generally involves the statement of laws of
general applicability.
10.2.1.1.2. legislative power generally . . . is based on the weighing of
broad, competing policy considerations.
10.2.1.2. 1) Geographic reach how big of an area does it cover? (Slider scale
larger to smaller the smaller an area, administrative)
10.2.1.3. 2) The number of people that are impacted the
10.2.1.4. 3) referendum/knowledge issues can appear on a legislative ballot
but not an administrative ballot (example: Trax line to Draper
administrative not legislative)
10.2.1.5. 4) applying the law; not making law
10.2.2. The differences that that distinction makes in approval processes
10.2.2.1. A hearing (an opportunity to be heard by the decision maker)
10.2.2.2. Substantial evidence shown/proven
10.2.2.3. A recent decision made
10.2.3. Process to go through for administrative procedural due process
10.2.3.1. Notice needs to be given to affected
10.2.3.2. Hearing
10.2.3.3. Impartial decision maker.
10.2.3.4. Evidence not opinion fact based
10.2.3.5. Show reasonable result, applying criteria to subjective evidence.
Should be recorded.
10.2.4. Minimal standards for due process clause in 5th and 14th require. Just the
constitutional. LUDMA has specific procedural steps for county and city
governments to follow. Referendum. Marakis case. Ballot measures for land
use issues. Only legislative issues on ballot not administrative issues. IE vote
on a zoning of a new commercial center.

Legislative Action Administrative Action
Definition Law-making Law applying
Geographic Scope Broad Narrow
Process Electoral Procedural
Referendum Yes No
Due process Minimally factual Substantial evidence

10.3. Delegation of Authority (Ultra Vires)
10.3.1. What is it? Local governments can exercise only those powers Delegated
to them by the state legislature. Land use regulations cannot exceed the
scope of local authority.
10.4. Takings:
10.4.1. Physical Takings
10.4.1.1. When the government physically invades or takes property.
10.4.1.2. Requires just compensation per the 5th amendment
10.4.2. Regulatory Takings
10.4.2.1. Wipe Outs (No economic use)
10.4.2.2. Penn Central (Ad hoc takings inquiries)
10.4.2.2.1. Economic impact of the regulation
10.4.2.2.2. Interference with investment-backed expectations
10.4.2.2.3. Character of government intrusion: Physical intrusion v.
public welfare program
10.4.2.3. Exactions: Demands that a government places on a landowner to
dedicate an easement allowing public access to her property as a
condition of obtaining a development permit.
10.4.3. Public Use Doctrine: In order for eminent domain to qualify as a
solution there must be a well-considered plan logically connecting to a
legitimate governmental (public) purpose there must be a plan (cannot be
arbitrary and capricious)
10.5. Commerce Clause:
10.5.1. Discrimination against out of state commerce
10.5.1.1. Facial discrimination discrimination based on physical
characteristics (against out of state (favoring in state) location, etc.)
10.5.1.2. Discriminatory intent-
10.5.1.3. Discriminatory effect - if discrimination is established, the
burden shifts to the state or local government to show that the local
benefits of the statute outweigh its discriminatory effects
10.6. Incidental burdens test - differential treatment of in-state and out-of-
state economic interests that benefits and burdens
10.7. Equal Protection - opportunity, differential treatment, rational basis,
HSW
10.7.1. Rational Basis test - Under the rational basis test, the courts will
uphold a law if it is rationally related to a legitimate government purpose.
10.7.1.1. The challenger of the constitutionality of the statute has the burden
of proving that there is no conceivable legitimate purpose or that the
law is not rationally related to it.
10.7.2. Compelling Interest test - A standard of Judicial Review for a
challenged policy in which the court presumes the policy to be invalid unless
the government can demonstrate a compelling interest to justify the policy.

11. Concurrency
11.1. Definition - what is it Concurrent tiered systems that shift impact
burdens to those areas demanding the additional public facilities. It is
essentially matching growth with facilities and services.
11.1.1. Growth phasing - how fast?
11.1.2. Growth controls/caps - how much?
11.1.3. Growth management - where?
11.2. Policies make public services/facilities requirement to meet needs of
impact of new development in growth area.
11.3. Must be tied to a well-developed plan
11.4. Types of concurrency policies UGB's, USA's, PFA's?
11.4.1. UGBs: Urban Growth Boundaries (UGBs) separate areas where urban
growth is allowed to occur from areas where it is not allowed. Greenbelts.
11.4.2. USAs: Urban Service Areas (USAs), which bound the expansion of public
services like water and roads rather than limiting development of housing
units. It is not regulatory, but rather a demarcation of the availability of
urban services.
11.4.3. EZs: Enterprise Zones (EZs), areas where taxes are lower and regulations
are relaxed to encourage economic development.
11.4.4. PFAs: Priority Funding Areas (PFAs), are areas designated by local
governments and reviewed by the state and serve as target areas for
spending by state agencies. These zones are given priority funding for urban
scale infrastructure (roads, utilities, sewers, drainage, transit), to encourage
development within a specified region. Developers who develop outside of
PFA's would be responsible for providing the infrastructure needs of their
development as the state/county/city will not give them priority.
11.5. Why are these policies generally considered constitutional? Because it is a
defective means to a legitimate end (publics HSW)

12. Performance Planning/Zoning
12.1. Definition: what is it - zoning that is outcome focused, looking at end or
outcome/result, not the means to achieve it.
12.2. How does it work - the legislature establishes goals statewide through
planning & zoning

13. Transfer of Development Rights (TDR)
13.1. Definition: what is it - the process by which development rights are
transferred from one lot, parcel, or area of land in a sending district to another
lot, parcel, or area of land in one or more receiving districts
13.2. Advantages/disadvantages
o Helps protect protected areas
o Where transferred to current household lack of demand
o Can have a credit on the transfer of development rights credit can then
be applied to property in the receiving district as a density bonus.

14. Transit-Oriented Development (TOD) Zoning
14.1. What is the purpose of TOD
14.1.1. The purpose of a TOD is to create density, a walkable area/city
(residential and commercial), and creates reduced energy consumption.
14.2. How do TOD zoning ordinances achieve that purpose?
14.2.1. TOD reduces the scale of development from vehicular to human
14.2.2. It provides more attractive building, landscape, and streetscape
design

15. Tax Increment Financing - bond to incentivize new development with increase in
tax base
15.1. What is it and how does it work

16. Green Buildings - Using 3rd Party Standards (e.g., LEED)
*inappropriate delegation of power on both sides (legislative and administrative)

17. Non-delegation issues
17.1. Legislative - changes in the law affecting a large amount of land and
people.
17.2. Administrative changes in a law affecting a small geography requires
procedural due process; a city councilmember inspects the property and chooses
their authority to say the building does not meet codes/specs
17.3. Timing issues - occupancy permitting vs. certification of compliance with
standards can be in compliance with green standards but still not receive
occupancy permits (because the city adopts its own green building standards)

18. Fair Housing Act (FHA)
18.1. Protects against housing discrimination based on what characteristics?
18.1.1. Race, gender, family status, religion, and ethnicity
18.2. When there is a claim of discrimination, what must a plaintiff show?
18.2.1. Discrimination/differential treatment based on their
status/classification in a discriminatory effect/intent
18.3. What must the government show in response?
18.3.1. A compelling public interest with no effective alternative for
achieving their goal

19. Moratoria
19.1. Definition - A suspension of activity or an authorized period of delay or
waiting. They suspend the rights of property owners to obtain permits; Allows
time for smart growth management for land use planning.
19.2. Limitations
19.2.1. is usually set to a specific amount of time
19.2.2. there must be hard evidence to document necessity of moratorium
19.2.3. prevent regulators from making hasty decisions on which could
disadvantage landowners as well as the public
Rules of Land Use Law

Rational Basis test - Under the rational basis test, the courts will uphold a law if it is rationally
related to a legitimate government purpose.

Compelling Interest test - A standard of Judicial Review for challenged policy in which the court
presumes the policy to be invalid unless the government can demonstrate a compelling interest to
justify the policy.

NUISANCE

Balancing Reasonable Use Doctrine:
Suitability of the Use: Suitability of the activity to the character of the place
Social Utility: Value to society of the alleged nuisance
Gravity of the Harm: The hardship placed upon the defendant
Cost of Avoidance
Cost to Cure

[W]here a nuisance has been found and where there has been any substantial damage shown by
the complaining, an injunction will be granted.

The police power of the state cannot be exercised arbitrarily, "There must be progress, and if in
its march private interests are in the way, they must yield to the good of the community. "The
health and comfort of the community," can outweigh the private interest of a property owner.

Plaintiff cannot be barred from PRIVATE nuisance claims just because another's property
complies with ordinances. Although compliance with Zoning ordinance does immunize a
defendant from PUBLIC nuisance claims.

RESTRICTIVE COVENANTS, SERVITUDES, & EASEMENTS

Restrictive covenants can trump contextual arguments, and context is limited to only the
benefitted parties.

When the purpose for which the restriction was imposed has come to an end, and where the use
of the tract of land for whose benefit it was established has so utterly changed that no party to the
bill could be heard to enforce it in equity or would suffer any damage by its violation, a proper
case is made out of equitable relief.

Enforceable restrictive covenants:
1. Run with the land
2. Touch the land with which it runs: and
3. "Privity of estate"
4. Consistent with the public welfare (policy)

Covenants of a subdivision will be upheld provided that such communities do not unreasonably
withhold their consent or refuse plans in an arbitrary and capricious manner, and are made in
good faith.


LAND USE PLANS & THE PLANNING PROCESS

Procedural Due Process: If a person is denied life, liberty, or property, she is entitled to adequate
notice, a public hearing, an impartial judge, examination of the evidence, results reasoned upon
principle and evidence, and that it be publically recorded

Procedural due process requires that before a local government can adopt a master plan, it must
provide public notice and a period of public comment.

City land use maps and plans do not operate as legally controlling zoning law, but rather serve to
guide and advise the various governing bodies responsible for making Zoning decisions.

Although a city should strive to only issue building permits that are consistent with statutorily
required general plans, it is only obligated to issue permits consistent with current ordinances. To
revoke or suspend issuing permits until all inconsistencies with the general plan are resolved
would result in significant hardship and halt economic progress.

THE BASICS OF ZONING

Zoning and Police Powers:
1) Effectively promote health, safety, and welfare
2) Substantively show a method tied to the protection of Public health, safety, and welfare.
3) Not be arbitrary and capricious

Any exercise of the [police] power which interferes with some right protected by the
Constitution must bear some substantial relation to the public health, morals, safety, comfort, or
welfare. (Substantive due process)

Zoning as a general matter is consistent with the state's police powers because it promotes,
through rigorous method, the health, safety, and welfare of the public so long as it is not arbitrary
and capricious. (Substantive due process)

Consistency doctrine (Vertical Consistency): Cities and counties must adopt a general plan for
the future development, configuration, and character of a city and county, and require that future
land use decisions be made in harmony with that general plan.

Spot zoning, the arbitrary and unreasonable devotion of a small area within a zoning district for
the sole benefit of the owner, is invalid if not in accordance with the comprehensive plan and is
merely for private gain. (Vertical Consistency and Substantive Due Process)

Spot zoning can be justified only when it is done in furtherance of a general plan properly
adopted for and designed to serve the best interests of the community as a whole. (A city must
only demonstrate a rationale that promotes the publics HSW). (Vertical Consistency and
Substantive Due Process)

A municipality may not arbitrarily decide when a comprehensive plan is to be followed.
Municipalities must always articulate a rationale when exercising their discretion in determining
whether to continue following their master plans, especially in specific instances. (Vertical
Consistency and Substantive Due Process)

Delegated authority may not be sold to unaccountable parties (Non-delegation).

A municipality may condition amendments to its zoning ordinance upon the implementation of a
set restrictive covenants agreed upon by a property owner, so long as the municipality can
demonstrate a non-arbitrary rational basis.

Test for variances:
1) Unnecessary hardship (not self-generated, unique physical circumstances of the property)
2) Reasonable use
3) Not alter essential character of the district
4) Least intrusive solution

An administrative decision to pursue a city's comprehensive development plan cannot trump a
legislatively defined special use outlined in a zoning ordinance. Administrative enforcement of a
comprehensive plan cannot circumvent the process to amend the zoning ordinance. (Special use
permit)

A nonconforming use is terminated if expanded or prolonged.

Discontinuance requires more than mere cessation; it involves abandonment and the owner's
expressed intent.

A non-conforming use may not be re-built.

SUBDIVISION CONTROL & INFRASTRUCTURE

If public necessity demands part of a property owners property, it can be taken only by
condemnation and payment of its value. A property owner has no corresponding right to have his
plat of subdivision so made admitted to the records.

A municipality has the right to reject subdivision applications that do not meet dedication
requirements.

A municipality does not have the inherent right to zone. A local government's authority to plan
and zone and to impose conditions on a developer, is a delegation of police power. (Ultra vires)

Before a municipality is authorized to impose an impact fee, the public service must be rationally
related to the powers granted to a municipality, and the service must be one that traditionally has
been provided or lawfully forecast pursuant to statutes governing municipal planning.

Impact Fee Criteria
Service must be rationally related to delegated authority
Service must be traditionally provided, or
Service must be lawfully forecast by planning

If a property owner has performed substantial work and incurred substantial liabilities in good
faith reliance upon a permit issued by the government, he acquires a vested right to complete
construction in accordance with the terms of the permit. Once a landowner has secured a vested
right the government may not, by virtue of a change in the zoning laws, prohibit construction
authorized by the permit upon which he relied. (Vested Right)

In order to prove a violation of the Contracts Clause, a plaintiff must first prove that there is an
enforceable contract that the government has impaired in some manner. If there is no enforceable
contract, there is no violation of the Contracts Clause.


FEDERAL CONSTITUTIONAL LIMITS TO LAND USE REGULATION

The constitutional right to challenge a taking runs with the land, not the owner. The right to
challenge a taking is transferable from owner to owner

If a state's legislation to abate a legitimate public nuisance results in a loss of some property
value, it is not a taking. (Nobody has a right to be a nuisance).

While property may be regulated to a certain extent, if regulation goes too far it will be
recognized as a taking.

When a regulation that declares 'off-limits' all economically productive or beneficial uses of land
goes beyond what the relevant background principles would dictate, compensation must be paid
to sustain it. (PER SE REGULATORY TAKING)

Ad Hoc Taking: 1) Economic Impact, 2) Investment-backed Expectation, 3) Character of the
regulation

Government may place conditions on land-use permits so long as there is an essential nexus
between those conditions and the harms likely to result from that use. (Exaction)

There must be a rough proportionality (balancing) between the burdens on the public that would
result from granting the permit and the benefit to the public from the conveyance of land.
(Exaction)

If an "essential nexus" is found to exist between a "legitimate state interest" and the conditions of
a permit, then the extent of the conditions must be "roughly proportional" to the projected
impact.

A state may not evade its duty to compensate by leaving a property owner with a token interest.


Takings clause challenges to regulations have to be based on the severity of the burden that the
regulation imposes upon property rights, not the effectiveness of the regulation in furthering the
governmental interest.
(1) A PHYSICAL TAKING: Where government requires an owner to suffer a permanent
physical invasion of her property, it must provide just compensation (Loretto v. Teleprompter
Manhattan CATV corp.).
(2) TOTAL REGULATORY TAKING: Regulations that completely deprive an owner of all
economically beneficial use of her property, government must provide just compensation, except
where the intended use is constrained by nuisance and property law (Lucas v. South Carolina
Coastal Commission).
(3) ECONOMIC IMPACT AND CHARACTER OF GOVERNMENT ACTION TAKING: The
economic impact of the Regulation on the claimant and the extent to which the Regulation has
interfered with distinct investment-backed expectations. And, the character of the governmental
action (whether it is a direct physical invasion or an incidental property interest of a government
program to promote the public good). (Penn Central Transp. Co. v. NYC)
(4) LAND-USE EXTACTION CRITERIA: Government may not condition the approval of a
land use permit on the owners relinquishment of a portion of his property unless there is a nexus
and rough proportionality between the governments demand and the effects of the proposed
land use. If an "essential nexus" is found to exist between a "legitimate state interest" and the
conditions of a permit, then the extent of the conditions must be "roughly proportional" to the
projected impact.


Doctrine of Custom: First arose in medieval England where, by immemorial custom, citizens
would acquire the right to use land in specific localities. Sir William Blackstone identified seven
requirements for every custom:
(1) The land has been used in this manner so long "that the memory of man runneth not to the
contrary";
(2) without interruption;
(3) peaceably;
(4) the public use has been appropriate to the land and the usages of the community;
(5) the boundary is certain;
(6) the custom is obligatory, i.e., it is not left up to individual landowners as to whether they will
recognize the public's right to access; and
(7) the custom is not repugnant or inconsistent with other customs or laws.

Permit Application Procedures (Procedural Due Process)

"Quasi-Judicial" decisions require:
1. Public Notice: applicants and other impacted parties
2. Public Hearing: A public meeting to
3. Impartial Decision maker: adjudicators who are not bias
4. Presentation and contesting of evidence (not opinion)
5. Reasoned result: a. Substantial evidence b. Application of the law to the evidence
6. Record Created

A ballot initiative should be deemed an appropriate legislative act where it proposes a law of
general applicability. Laws that prescribe rules of conduct for the general population are squarely
within the ambit of generally applicable rules, and ballot initiatives proposing such laws are per
se legislative.
o A site specific zoning decision is legislative if it is made by a city council that possess
only legislative authority. A site specific zoning decision is also legislative if it involves
the adoption of a new zoning classification.
o Entering into a contract with a specific entity or exercising an option is an administrative
act, while enacting a broad zoning ordinance is legislative. Similarly, action on a variance
or a conditional use application is executive.

Legislative Action Administrative Action
Definition Law-making Law applying
Geographic Scope Broad Narrow
Process Electoral Procedural
Referendum Yes No
Due process Minimally factual Substantial evidence


Concurrency

Zoning ordinance, allowing subdivision development only by special permit upon showing that
adequate municipal facilities and services were available or would be provided by the developer,
constituted a rational attempt to provide for sequential and orderly residential development in
conjunction with the needs of the community and its ability to supply public facilities

If the present system of delegated zoning power does not effectively serve the state interest in
furthering the general welfare of the region or entire state, it is the state legislature's and not the
federal courts' role to intervene and adjust the system... The federal court is not a super zoning
board and should not be called on to mark the point at which legitimate local interests in
promoting the welfare of the community are outweighed by legitimate regional interests."

Equal protection (14th amendment)
o Equal Opportunity (not equal outcomes)
o Differential treatment
Occasionally permissible when there is a rational basis tied to HSW
(Interstate) Commerce Clause
o The Dormant Commerce Clause: Even when Congress has not exercised its
authority to regulate interstate commerce, states are prohibited from enacting any
legislation inhibit interstate commerce.
Prohibits direct discrimination
Prohibits undue/disproportionate impact on commerce

Performance Planning and Zoning

When government establishes a standard, government must then adhere to it.

Transferring Development Rights

Business and Economic Development

If a covenant is contrary to public policy, it may not be enforced

It is enough to find that the proposed taking is reasonably necessary or convenient for the
furtherance of a proper purpose.

Interstate Commerce Clause
o No discrimination against out of state businesses
Facial (obvious violations, no out of state businesses need apply)
Purpose (if the inherent purpose is to discriminate)
Effect (if the end result is discrimination)
Incidental Burdens Test
o Balances the burden on interstate commerce with benefits to the local community
Equal Protection Clause
o Differential treatment between two groups of people, for all relevant purposes, are
equal.
o Based on a distinction

When the legislatures purpose is legitimate and its means are not irrational, our cases make
clear that empirical debate over the wisdom of takingsno less than debates over the wisdom of
other kinds of socioeconomic legislationare not to be carried out in the federal courts.
01.07.2014
What is law?
- Collective values
- Rules - Majoritarian rule - authoritative source
- Binding/sanctions
- Law is an abstraction
- regulate behaviour

Example: Case Title block
Smith v. Jones (Plaintiff v. Defendant)
Supreme Court at Utah (jurisdictional court)
647 P.3d 1249 (citation)
Ellin, N. Justice (Judge)
Precedent (binding? or advisory?)

Components of a Case Brief
Statement of Facts
o Parties
Plaintiff
Defendant
o Legal Facts
o Procedural Facts
Cause of Action
Plaintiff Relief
Defense
Procedural History
o Lower Court Decision
o Damages
o Cause of Appeal
Issues
o Substantive Issues
Disputed Point of Law
Pertinent Facts
o Procedural Issues
Judgement
Holding
Applied principle/rule/law
Reasoning
Alternate Opinions
o Concurring
o Dissenting

Jurisdictional Federalism:
I. Federal Court
District Court
Circuit Court of Appeal (panel and en banc)
U.S. Supreme Court
II. State Court
District (trial) Court
Appeals
State supreme court

How to brief a case
Important: Legal principles
Unimportant: Facts

01.09.2014
Law: The principles and norms of a community, as articulated by an authoritative
source, that regulates behavior, the compliance with which is ensured by binding
sanctions. (THE FIRST QUESTION ON THE MIDTERM)

Injunction: A court order that requires one of the parties to do, or stop doing, a
particular action/behavior
Mandamus: A subcategory of an injunction typically issued to a government body

Consent Decree: It is the legal vehicle for a settlement; a contract between the
adversarial parties which is approved by the court.

Local Governments (general purpose): Associated with a chartered subdivision of
the state that has physical and legal jurisdiction. Municipalities are incorporated
cities, towns, townships, and villages. Counties, Parishes, and Boroughs are also
general purpose local governments.

Jurisdiction: Power to govern. A local government's power is limited to geography
and subject matter. Both are defined by a state's legislature.

________________

Practice of Law: The preparation of legal documents, their interpretation, the giving
of legal advice, or the application of legal principles to problems of any complexity..."

Unauthorized practice of law: when a person who is not licensed to practice law
does the above. City planner can get into a lot of trouble with this.

01.16.2014
Real Property: Real estate is the quintessential real property. They are a bundle of
abstract rights that are socially enforced (government). Social utility

Rights associated with Real Property:
Use - quiet enjoyment
Benefit
Exclude
Transfer
Alienation - separation of individuals rights from a bundle

01.21.14
Sic utere tuo ut alienum non laedas (versus) salus populi suprema lex est
- So use your own as not to injure another's property
- The health of the people should be the supreme law

Nuisance
Definition - Unreasonable interference with another's right to the quiet/use of
their property.
Factors - Suitability of the action, character of the place, Social utility, gravity
of the harm,
o Suitability of Use: Compared in context to the character of the area
o Social Utility: the activity that maximize value to society
o Gravity of the harm: the hardship to the defendant
Cost of avoidance:
Cost to cure:
Public Nuisance: an unreasonable inference with the public's health, safety,
and welfare.
Police power: an inherent authority of government sovereignty that allows
the government to regulate the promotion of the public's health, safety, and
welfare.
Substantive due Process:
o Arbitrary and unreasonable: regulation is considered arbitrary and
unreasonable if it does the use of police power does not promote the
health, safety and welfare of the public. The term arbitrary describes
a course of action or a decision that is not based on reason or judgment
but on personal will or discretion without regard to rules or standards.
An arbitrary decision is one made without regard for the facts and
circumstances presented, and it connotes a disregard of the evidence.
o Fifth Amendment: No person shall... be deprived of life, liberty or
property without due process of law.
o Fourteenth Amendment: Nor shall any state deprive any person of
life, liberty, or property without due process of law.

01.23.14
EASEMENT
- Definition: The conveyance of a partial right of exclusive use of property at some
earlier point in the chain of title. In essence, it is a limited use trespass waiver.
Easements fundamentally deal with exclusive possession. By contract the owner of
a property holds a concurrent property interest with another party.

- Runs with the land: a property right, i.e. easement, that is tied to the land itself and
is independent of subsequent sales of the property.

Implied Easement (Prescribed Easement):
- Established use period of time
- Notorious (done out in the open)
- Failure to enforce
- (Similar to adverse possession)

Common Law Foundations Nuisance, Covenants & Easements

01.16.2014
The Law of Nuisance
The two types of nuisance are private nuisance and public nuisance. A private
nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one's
property in a manner that substantially interferes with the enjoyment or use of another
individual's property, without an actual "Trespass" or physical invasion to the land. A
public nuisance is a criminal wrong; it is an act or omission that obstructs, damages,
or inconveniences the rights of the community.

Euclid, OH adopted zoning laws. Supreme Court noted the similarity between
judicial policies observable in the common law of Nuisance and zoning. The context
surrounding a particular land use matters in determining whether the use is a nuisance
or is reasonably restricted by land use laws.

Clark v. Wambold
S.Ct. Wisconsin, 1917
165 Wis. 70, 160 N.W. 1039
I. Statement of Facts:
A. Parties:
Defendant: Pig farmer and feed mill owner
Plaintiff: Summer home owner
B. Relevant Facts:
The plaintiff purchased property from defendant in 1905 to build a summer
home on a shores of Eagle Lake. The defendant has operated a feed mill on
his property for years prior to the plaintiff's purchase, and has operated an
ancillary pig farm as a means to dispose of feed processing byproducts and
supplement income. The breeding pens are near the feed mill and the
plaintiff's property.
C. Procedural Facts:
Cause of action: The odor emanating from the pens are perceived to be a
nuisance to the summer home owner.
Plaintiff remedy: Seeks to enjoin (stop) the defendant from maintaining pigs
and pig pens immediately adjacent to his property.
Defense: The pigs were raised in a reasonable locale under reasonable
conditions.
II. Issues:
A. Substantive Issues:
Point of Law in Dispute: The use of one's property in a manner that deprives
another of the quiet enjoyment of their property is a nuisance. Also at issue
is "the rule of first possession" versus social utility. (Essentially, first come,
first serve versus the needs of the many supercede the needs of the few).
This is a matter of context/relativity of property, not first come, first serve.
Key Facts: The smell of pigs prevented the plaintiff from enjoying his Lake
front property.
B. Procedural Issues:
Claimed a preponderance of evidence, i.e. the original assessment of the odor
and sanitation of the pig pens were not accurate.
III. Judgment:
Affirmed the trial court's decision, and again ruled in favor of the defendant.
IV. Holding:
No action for nuisance because the pig yard is kept in conditions as clean and
sanitary as can be reasonably attained. Real property rights cannot be dealt
with in the abstract because their context, or the connection to circumstances,
matters. In the abstract a pure property right grants the owner possession,
use, and disposition of an asset (Usus, abusus, fructus). This is to say that the
owner of an asset has the right to use and benefit from an asset while
excluding others from using or benefitting from that asset. Additionally, an
owner has the right to transfer right to that asset to another in full or in part.
Nonetheless, an asset owner may impinge upon the property rights of another,
while in the use of that asset, if reasonable precautions have not been taken.
In this instance, the defendant took reasonable precautions by raising pigs on a
farm outside the city and provided for their care above a reasonable standard.
(If anything, the plaintiff's expectation are unreasonable).
V. Rule of Law/Legal Principle:
"One man's enjoyment of property cannot always be the controlling factor, but
must be considered in connection with the reasonable and lawful use of other
property by his neighbor."
A material/substantive interference in the enjoyment of one's propety. "It
becomes one of those minor discomforts of life, which must be borne in
deference to the principle that one man's enjoyment of property cannot always
be the controlling factor, but must be considered in connection with the
reasonable and lawful use of other property by his neighbors."

Boomer v. Atlantic Cement Company
Ct. Appeals, NY 1970.
26 N.Y. 219,309 N.Y.S.2d 312, 257 N.E.2d 870.
Bergan, J.
I. Statement of Facts:
A. Parties:
Defendant/appellee: Large cement company
Plaintiff/appellant: Neighboring land owners
B. Relevant Facts:
A cement company near Albany, NY employing 300 people within the region
produces copious amounts of pollutants that settle on/coat neighboring
property. The defendant had received temporary damages, but seeks to enjoin
the pollution.
C. Procedural Facts:
1. Cause of action: Atlantic Cement Company's pollution is a nuisance because
it impinges neighboring land owners' ability to enjoy their property (not to
mention that it also endangers their health).
2. Remedy: Boomer, i.e. landowners, seek to enjoin (halt) Atlantic Cement
from further polluting.
3. Defense: The factory is property, and its shareholders/owners should be
allowed to benefit from their $45,000,000 investment. Furthermore, the
company had paid the damages awarded by the court. Incidentally, the
region's economy significantly benefits from the employment and tax revenues
it provides.
D. Procedural History:
Prior Decision: Trial court ruled that the Atlantic Cement's pollution is a
nuisance and this decision was Affirmed at the appellate division. Despite
the standing rule for a substantive nuisance, the defendant was ordered to pay
temporary damages instead of being enjoined until it resolves the pollution.
Damages: Landowners (Boomer) awarded temporary damages, but an
injunction was denied because of the "large disparity in economic
consequence of the nuisance and the of the injunction."
Cause for appeal: Landowners believed that the temporary damages were
not commensurate with the ongoing pollution, and the ruling was inconsistent
with the standing rule.
II. Issues:
A. Substantive Issues:
Point of Law in Dispute: "...[W]here a nuisance has been found and where
there has been any substantial damage shown by the complaining, an
injunction will be granted." At issue is also the question of whether the court
should resolve the litigation between the two parties as equitably as possible,
or whether it should promote the general public welfare in achieving a broad
public objective, i.e. reducing pollution. (The court's constitutional mandate
is to resolve the conflict between the parties immediately before it. It is the
providence of the legislature to formulate broad statutes to pursue the public
welfare). Does the right to benefit from property grant the right to be
nuisance? Can permanent damages be substituted for an injunction?
Key Facts: Pollution is a public issue. Payment of damages does not fully
resolve the issue because the plaintiff is not made whole. Because the
defendant will continue to pollute, landowners will necessarily need to return
to court--at great expense.
B. Procedural Issues:
The appellant claims that they were wrongly denied an injunction. Precedent
asserted that when there is a nuisance and the plaintiff has been substantially
damaged, the defendant ought to be enjoined.
III. Judgement:
The denial of an injunction and temporary damages were reversed, and a
temporary injunction was issued until the defendant could pay permanent
damages.
IV. Holding:
The Court held that Atlantic Cement's pollution is a nuisance, but an
injunction may not permanently deprive a party of the use and benefit of its
property. Granting an injunction unless the defendant fully compensates the
plaintiff for the privation of their property redresses the plaintiff's grievances
V. Principles:
[W]here a nuisance has been found and where there has been any substantial
damage shown by the complaining, an injunction will be granted.
Property entitles an owner to enjoy the use, benefit, disposition, and
transference of an asset.
Permanent damages are an efficient remedy when an injunction will
permanently deprive an owner of his/her property rights.
VI. Reasoning:
Closing the plant is an inefficient and undesirable outcome;
Atlantic Cement is unlikely to technologically resolve a problem that is
inherent to the entire cement industry within any court mandated term;
Permanent damages efficiently resolves the nuisance imposed 'servitude on
land' theory.


01.21.14
The Law of Nuisance Part B.

Part B: Public and Private Nuisance
PRIVATE NUISANCE is a nontrepassory invasion of another's interest in the private
use and enjoyment of land. A landowner is only subject to a nuisance action for a
land use that is "unreasonable." Reasonableness depends on four considerations:
1. Suitability of the action
2. The character of the place
3. The value to society of the Nuisance (and the social value of the plaintiff's
land use)
4. The hardship placed on the defendant of the injunction/damages award
PUBLIC NUISANCE: Land use that significantly interfere with public health,
safety, comfort, or convenience, i.e. the unreasonable interferences with a "right
common to the general public." An unreasonable use occurs when:
The plaintiff produces evidence of significant interference
The conduct is proscribed by law, ordinance, or administrative regulation.

Part C: Zoning and the Law of Nuisance
Although comprehensive zoning laws were relatively new in the 1920, laws
proscribing law use were not. Before widespread adoption of Zoning ordinances in
the 1920's, such ordinances were challenged as "takings" without just compensation,
i.e. a violation of the Fifth Amendment, which states, "Nor shall private property be
taken for public use without just compensation." Despite zoning ordinances largely
displacing public nuisance suits, the question of reasonableness remains as a critical
measure of the constitutionality of land use laws. The court has said, that before
police power legislation of this type--zoning--can be declared unconstitutional, it must
be found that it is "clearly arbitrary and unreasonable, having no substantial
relationship to the public health, safety, morals, or general welfare."

HADACHECK v. SEBASTIAN
SCOTUS, 1915
239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348.
Justice McKenna

Statement of Facts:
o Parties:
Plaintiff: Brickyard/brick kiln operator
Defendant: L.A. Chief of Police
o Legally Relevant Facts:
Hadacheck had been convicted of a misdemeanor for violating a L.A. city
ordinance that proscribed establishing a brick factory within city limits. He
was taken into custody and his business was essentially shut down.
Hadacheck had purchased the land and started his business long before L.A.
annexed the area and instituted the ordinance banning brick-making.
o Procedural Facts:
Cause of Action:
Hadacheck filed a habeas corpus petition with the Wisc. S.Ct. A writ of habeas
corpus directs a person, usually a prison warden, to produce the prisoner and
justify the prisoner's detention. If the prisoner argues successfully that the
incarceration is in violation of a constitutional right, the court may order the
prisoner's release
The court then issued a writ of error. Its object is to review and correct an
error of the law committed in the proceedings, which is not amendable, or
cured at common law, or by some of the statutes of amendment or jeofail. A
writ of error is in the nature of a suit or action, when it is to restore the party
who obtains it to the possession of any thing which is withheld from him, not
when its operation is entirely defensive.
Plaintiff Remedy:
Hadacheck wants a rule that defines per se Nuisance ex ante and are clear and
obvious.
Defense:
The city'senactment of the Zoning ordinance, banning brick-making, was done
in good faith and is not arbitrary or unreasonable.
Procedural History
o Lower court decision:
4. The California S.Ct. decided that the business could be regulated, and that
value of the investments prior to regulation did not preclude its regulation.
Furthermore the length of time in the area was not a valid complaint.
Because the area had become largely residential, and the residents considered
brick-making is a nuisance, the court rejected arguments that the ordinance
imposed an arbitrary invasion of private rights design to discriminate against
Hadacheck or injury him personally.
o Damages/Injunction: Hadacheck was sent to jail and his business enjoined
o Cause for appeal: Hadacheck felt the ordinance violated his 5th
ammendment right by taking his property without just compensation.
Issues:
o Substantive Issues:
Are Zoning ordinances a legitimate form of regulation?
Was L.A.'s ordinance discriminatory?
Does (re)zoning constitute a taking?
o Procedural Issues:
Judgement:
Affirmed the lower court's ruling.
Holding
Zoning is a legitimate form of regulation and an appropriate exercise of police
powers.
L.A.'s Zoning ordinance did not discriminate
Hadacheck's argument ultimately hinged on the location of the clay, and not
the making of the bricks. Hadacheck could continue to extract the clay, as the
ordinance does not proscribe that use of his property, but he would need to
manufacture the bricks elsewhere.
Rule of law/principle
The police power of the state cannot be exercised arbitrarily.
When applied uniformly, zoning is a legitimate exercise of police power.
"There must be progress, and if in its march private interests are in the way,
they must yield to the good of the community."
"The health and comfort of the community," can outweigh the private interest
of a property owner.
Reasoning
If a city were not allowed to enforce zoning ordinances, its progress/growth
would be hindered. "The logical result of petitioner's contention would seem
to be that a city could not be formed or enlarged against the resistance of an
occupant of the ground and that if it grows at all it can only grow as the
environment of the occupations that are usually banished to the purlieus."


Part D: The Effects of Zoning on the Law of Nuisance
In Maykut v. Plasko, the court held that although a defendant's actions were permitted
by zoning law, zoning ordinance not justify an activity that otherwise interferes with
the use and enjoyment of a particular neighbor's property.
Legislatures enact Zoning laws to create standards for generally harmonious
land usage that are consistent with the character of zone/district. Private Nuisance
actions allow individual lot owners to prove to the court that a permitted use affects a
nuisance in the particular circumstances of the plaintiff's land.

PRAH v. MARETTI
S.St. Wisconsin, 1982
108 Wis.2d 223, 321 N.W.2d 182.
Justice Abrahamson

Statement of Facts:
o Parties:
Plaintiff: Owner of a solar heated house
Defendant: Builder of a sunlight blocking house
o Legally Relevant Facts:
o The plaintiff made a sizable investment in building a solar collecting home.
The defendant plans to build a house whose height and location would
necessarily limit the plaintiff's ability to collect solar energy. The plaintiff
did not optimize the placement of his house on the property, and the
defendant added grading after complying with all other requisite ordinances.
o Procedural Facts:
Cause of Action: The plaintiff claims "unrestricted use of the sun and
its solar power."
Plaintiff Remedy: Enjoin construction on the defendant's property, and
damages
Defense: The planned home meets all Zoning criteria, and
Procedural History
o Lower court decision
The lower court concluded that Prah complaint had no grantable relief and in
summary judgment ruled in the favor of the defendant. It basically said that
Prah did not own the right to sunlight.
o Damages/Injunction: none
o Cause for Appeal: Prah claimed that the trial court didn't try to apply any
established legal principles.
Issues
o Substantive Issues
Point of Law in Dispute
Do landowners have the right to use their property as they wish, so long
as they do not physically damage their neighbors?
Do property owners have a right to sunlight?
Is growth and progress still in the public interest?
Key Facts
o Procedural Issues: The plaintiff claims that they were summarily barred
from pursuing a nuisance claim.
Judgement: Reversed the circuit court's judgment
Holding: Plaintiff cannot be barred from PRIVATE nuisance claims just because
another's property complies with ordinances. Although compliance with Zoning
ordinance does immunize a defendant from PUBLIC nuisance claims.
Rule of Law:
Compliance with all appurtenant ordinances does not constitute reasonable use,
nor does it bar plaintiff's from pursuing Nuisance claims
Reasoning
Polices become obsolete as social values change, and the court must acknowledge
the priorities of property rights in context with contemporary values. More
importantly is the opportunity to dis/prove reasonable use of property in court.


01.23.14
Servitudes, Easements, Covenants, and Alternative Forms of Land Use Control
Land Use Regulations: Public rules that limit private land use for the benefit of the
community.
Servitudes: Private rules that limit the use of privately held land for the benefits of
the owners of designated parcels of land, and only those owners.

West Alameda Heights Homeowners Association v. Board of County Commissioners
of Jefferson County
Supreme Court of Colorado, 1969
169 Colo. 491, 458 P.2d 253
Justice Day

1. Statement of Facts
1.1. Parties
1.1.1. Plaintiff: West Alameda HOA
1.1.2. Defendant: Jefferson County Commissioners
1.2. Legal Facts
1.3. Procedural Facts
1.3.1. Cause of Action: Defendant filed to re-zone property, but proposed
property would violate restrictive covenants.
1.3.2. Plaintiff Relief: HOA wanted to enjoin construction of shopping
facilities
1.3.3. Defense: commercial development had changed the character of
contextual surrounding area and suggested that residential use was no
longer a suitable activity
2. Procedural History
2.1. Lower Court Decision
o The trial court had invalidated the residential use covenants. It reasoned that
the character of the area had changed and not suitable for residential use.
Consequently, any covenant enforcement would be inequitable.
2.2. Damages: none
2.3. Cause of Appeal:
3. Issues
3.1. Substantive Issues
3.1.1. Disputed Point of Law: substantial change in contextual character
trump restrictive covenants?
3.1.2. Pertinent Facts
3.2. Procedural Issues
4. Judgment: Reversed
5. Holding: Restrictive covenants can trump contextual arguments. Context is
limited to only the benefitted parties. (If the parties benefitted by the restrictions
agree that
6. Applied principle/rule/law
When the purpose for which the restriction was imposed has come to an end, and
where the use of the tract of land for whose benefit it was established has so
utterly changed that no party to the bill could be heard to enforce it in equity or
would suffer any damage by its violation, a proper case is made out of equitable
relief.

Test 1:
Has the purpose of the restrictions come to an end?
Test 2:
Would either party be damaged by the removal of the covenant?

7. Reasoning
8. Alternate Opinions
8.1. Concurring
8.2. Dissenting

Neponsit Property Owners Association v. Emigrant Industrial Savings Bank
Court of Appeal of New York, 1938
278 N.Y. 248, 15 N.E.2d 793, 118 A.L.R. 973.
J. Lehman

Statement of Facts
o Parties
Plaintiff: Neponsit Property Owner's Association-- the HOA
Defendant: Emigrant Industrial Savings Bank
o Legal Facts

o Procedural Facts
Cause of Action
Plaintiff Relief
Defense
Procedural History
o Lower Court Decision
o Damages
o Cause of Appeal
Issues
o Substantive Issues
Disputed Point of Law:
Who has the right to enforce a restrictive covenant?
Do only covenants, which compel the covenanter to submit to some
restriction on the use of his property, touch or concern the land, and
that the burden of a covenant which requires the covenanter to do an
affirmative act, even on his own land, for the benefit of a
"dominant" estate, does not run with his land.
Pertinent Facts
o Procedural Issues
Judgement: Affirmed Rules in favor of Emigrant Industrial Savings Bank
Holding: The HOA was formed as an instrument to advance the common
interest of the residents, and although it has never held title to any of the property
in question, it has a right to enforce the covenant. "Only blind adherence to an
ancient formula devised to meet entirely different conditions could constrain the
court to hold that a corporation formed as a medium for the enjoyment of common
rights of property owners owns no property which would benefit by enforcement
of common rights and has no cause of action in equity to enforce the covenant
upon which such common rights depend.
Applied principle/rule/law
o Essentials of a Real Covenant
It must appear that grantor and grantee intended that the covenant should
run with the land.
It must appear that the covenant is one "touching" or "concerning" the
land with which it runs;
It must appear that there is "private of estate" between the promised or
party claiming the benefit of the covenant and the right to enforce it, and
the promised or party rests under the burden of the covenant. (Privity of
estate is a "mutual or successive relation to the same right in property",
such as the relationship between a landlord and tenant. That is, privity of
estate refers to the legal relationship two parties bear when their estates
constitute one estate in law. A tenant generally cannot transfer the
tenancy or privity of estate between himself and his landlord, without the
landlord's consent. An assignee who comes into privity of estate is liable
only while he continues to be the legal assigneewhile in possession
under the assignment. Privity of estate historically traces the land of
plaintiff and defendant back to a common owner who imposed the
restriction on the lands use. This is referred to as vertical privity).
Reasoning: Regardless of formula, in substance there is privity of estate between
the plaintiff and defendant, hence there is chain of property rights.
Alternate Opinions
o Concurring
o Dissenting

RHUE v. CHEYENNE HOMES, INC.
S.Ct. of Colorado, English Banc, 1969.
168 Colo. 6, P.2d 361.
Justice Pringle

Statement of Facts
o Parties
Plaintiff: Spanish style home owner/mover
Defendant: Residential developer and Plat owner
o Legal Facts
Rhue wants to move his house to a new neighborhood. Cheyenne
Homes says that it is inconsistent with the neighborhood their building
o Procedural Facts
Cause of Action
Plaintiff Relief
Defense
Procedural History
o Lower Court Decision
o Damages
o Cause of Appeal
Issues
o Substantive Issues
Disputed Point of Law: If a restrictive covenant does not specify
specific standards to guide a committee, are their related restrictions
enforceable?
Pertinent Facts
o Procedural Issues
Judgement
Holding:
Applied principle/rule/law:
o When the standard of a restriction are vague, the governing committee may in
good faith, i.e. not arbitrarily, infer assessment criteria from the builder's
intent and the actual construction.
o Covenants of a subdivision will be upheld provided that such communities do
not unreasonably withhold their consent or refuse plans in an arbitrary and
capricious manner, and are made in good faith.
Reasoning
Alternate Opinions
o Concurring
o Dissenting




01.28.14
Restrictive Covenants
- Definition: they are a mutual contractual agreement that restrict the usage of
property for the benefit of the owners of a specified development. The relationship
between the restricted and the benefitted may become quite complex, especially over
time with the successive sale of properties. The contract must define both the
benefitted parties and
- Critieria:
1) Grantor and grantee intend that the covenant runs with the land, not the
owners.
2) It must "touch" or "concern" the particular land at issue
3) There must be "privity of estate" (unbroken chain of title of both parties)
between covenant beneficiary and covenant enforcer.
- What Difference does Zoning make: restrictive covenants trump zoning.
Recission:
- Definition: When a restricted covenant is lifted or nullified
- Criteria:
1. When the purpose of the restriction has come to an end
2. Whether the parties would suffer damage by the removal of the covenant

01.30.14
Plan (General, Comprehensive): Policy with a Map
- Definition: A document specifying the intended future use of land within specified
geography--usually, but not necessarily, concurrent with municipality boundaries and
jurisdictions. It is future goal oriented, long-term, and adaptable. They do not
require any factual basis.

Zoning Ordinance: Regulations with a Map
Definition: Regulations tied to a specific geography at the present time. Zoning
Ordinances are adaptable, but are as malleable as plans. Zoning Ordinances must be
predominantly tied to a comprehensive/general plan to demonstrate a policy objective.

Utah 's LUDMA General Plan requirements
- Transportation
- Land use
- Moderate income housing

Legislation v. Administration/quasi-judicial action
Legislation is (general plan, zoning ordinances)
- general broad geographic scope
- affects a broad population
- creating law

Administrative action (permitting)
- specific geography
- specific population
- application or implementation of law

LAND USE PLANS & THE PLANNING PROCESS

The Content and Effect of the Master Plan

United States Department of Commerce, A Standard City Planning Enabling Act

Creative Displays, INC. v. City of Florence
S.Ct. Kentucky, 1980
602 S.W.2d 682
Justice Stephens

1. Statement of Facts
1.1. Parties
1.1.1. Plaintiff: Creative Display
1.1.2. Defendant: City and County in Kentucky
1.2. Legal Facts
1.2.1. Boone County Planning and Zoning Commission adopted the pre-existing plans of
Florence and Boone County without undergoing due process requirements.
1.3. Procedural Facts
1.3.1. Cause of Action
1.3.2. Plaintiff Relief
1.3.3. Defense
2. Procedural History
2.1. Lower Court Decision
2.2. Damages
2.3. Cause of Appeal
3. Issues
3.1. Substantive Issues
3.1.1. Disputed Point of Law
3.1.1.1. Have City X and County Y properly enacted planning and Zoning ordinances
with the law.
3.1.1.2. Are the aggregate of all city plans within a county adequate formulation of a
county comprehensive plan.
3.1.2. Pertinent Facts
3.2. Procedural Issues
4. Judgement: Court of Appeal decision is reversed
5. Holding:
5.1. A county plan must encompass the whole County and not just the principle population
centers (cities).
5.2. More importantly, the adoption of a master plan constitutes rule making, and is therefore
subject to due process requirement of notice and comment and applicable open access
meeting laws.
6. Applied principle/rule/law
6.1. Due process requires that before a local government can adopt a master plan, it must
provide public notice and a period of Public comment.
7. Reasoning
8. Alternate Opinions
8.1. Concurring
8.2. Dissenting

BONE v. CITY OF LEWISTON
S.Ct. of Idaho, 1984.
107 Idaho 844, 693 P.2d 1046.
Justice Bistline

1. Statement of Facts
1.1. Parties
1.1.1. Plaintiff: Bone, sought Rezoning of land to limited commercial use
1.1.2. Defendant: Lewiston city council who listened to planning commission
1.2. Legal Facts
1.2.1. Bone, sought Rezoning of land to limited commercial use but the Lewiston city
council denied his petition upon the recommendation of the planning commission.
The commission claimed that 1) the Rezoning sought was not compatible with
low-density residential uses of the surrounding properties, and 2) Lewiston already
had an overabundance of unused commercial property. The Council agreed
without adopting any finding of fact or conclusions of law.
1.3. Procedural Facts
1.3.1. Cause of Action
1.3.2. Plaintiff Relief: be allowed to rezone property
1.3.3. Defense
2. Procedural History
2.1. Lower Court Decision
2.2. Damages
2.3. Cause of Appeal
3. Issues
3.1. Substantive Issues
3.1.1. Disputed Point of Law
3.1.1.1. Vertical consistency: Should plans be driving goals and current Zoning
ordinances (ignores reality of planning objectives)
3.1.1.2. Is a property owner entitled to have his/her property zoned in conformance
with the city's land use map?
3.1.1.3. Are comprehensive plans and land use maps tantamount to a Zoning
ordinance?
3.1.2. Pertinent Facts
3.2. Procedural Issues
4. Judgement: Reversed, remanded to district court and city council for the adoption of findings
of facts and conclusions of law.
5. Holding
5.1. City land use maps and plans do not obligate a legislature (city council) to rezone any
particular property, especially when the language is conditional.
5.2. However, a city cannot ignore it's comprehensive plan, and must make a factual inquiry
into whether the requested Zoning ordinance or ammendment reflects the goals of the
comprehensive plan in light of the present factual circumstances.
6. Applied principle/rule/law
6.1. City land use maps and plans do not operate as legally controlling Zoning law, but rather
serve to guide and advise the various governing bodies responsible for making Zoning
decisions
7. Reasoning
8. Alternate Opinions
8.1. Concurring
8.2. Dissenting

ELYSIAN HEIGHTS RESIDENTS ASSOCIATION, INC. v. CITY OF LOS ANGELES
California Ct. of Appeal, 2nd district, 1986.
182 Cal.App.3d 21, 227 Cal.Rptr. 226.
Acting presiding Justice Compton

1. Statement of Facts
1.1. Parties
1.1.1. Plaintiff: HOA
1.1.2. Defendant: Los Angeles
1.2. Legal Facts
1.2.1. The HOA sought the revocation of a building permit because the project violated
height requirement of the district plan
1.3. Procedural Facts
1.3.1. Cause of Action
1.3.2. Plaintiff Relief
1.3.3. Defense
2. Procedural History
2.1. Lower Court Decision
2.2. Damages
2.3. Cause of Appeal
3. Issues
3.1. Substantive Issues
3.1.1. Disputed Point of Law:
3.1.1.1. Must an issued building permit be consistent with a municipality's general
plan to be valid?
3.1.2. Pertinent Facts
3.2. Procedural Issues
4. Judgement
5. Holding
5.1. Although a city should strive to only issue building permits that are consistent with
statutorily required general plans, it is only obligated to issue permits consistent with
current ordinances. To revoke or suspend issuing permits until all inconsistencies with
the general plan are resolved would result in significant hardship and halt economic
progress.
5.2. If the state legislature had intended for all inconsistent building permits to be revoked, it
had the power to do so but chose to remain silent on that point.
6. Applied principle/rule/law
6.1. Consistency doctrine (Vertical Consistency)
6.1.1. Cities and counties must adopt a general plan for the future development,
configuration, and character of a city and county, and require that future land use
decisions be made in harmony with that general plan.
6.2. Standard Zoning Enabling Act
6.2.1. Only selected areas within a municipality were regulated by zoning
6.2.2. Zoning was done by means of an interim ordinance that was enacted by legally
questionable practices;
6.2.3. the Zoning failed to control one or more of the factors it was intended to regulate.
7. Reasoning
8. Alternate Opinions
8.1. Concurring
8.2. Dissenting




02.04.14
The Basics of Zoning
Review of Planning

Zoning 101
Definition:
1. Legislative law (enacted by city council or County commission)
2. Land use law:
3. Regulates: use, building envelope, density
3.1.Use: parking, aethetics, signage, access, preservation, noise, light,
shading, etc.
3.1.1. Most use require specific permits
3.2.Building envelope: the 3d space constraints in which structures may
be built
3.3.Density: housing, Sq footing, floor ratio
----> ALWAYS READ THE DEFINITION SECTION OF ZONING CODE (it will
save you grief)

Land Use Law and Practices
1. Balancing Property Rights and the Public Interest: Limiting doctrines (pg 111)
"non-delgation"
"the right to travel"
"commerce clause"
2. Zoning Practices
As-of-right Uses and their Accessory Uses
Nonconforming Uses
Variances
Special Use permits
Rezoning
3. Local Boards

Authority to zone

Goldman v. Crowther
Goldman violated a use Zoning ordinance for a home sewing business (home
occupations). The court of appeals agrees that Goldman has not altered the building

Ordinances must:
1) promote health, safety, and welfare
2) substantively show a method tied to the protection of Public health, safety, and
welfare.
3) not be arbitrary and capricious

--When a use does not imperial the public 's health, safety, and welfare, despite the


alleged promotion of such, the broken ordinance may be shown to be arbitrary and
capricious.

Village of Euclid v. Ambler Realty Co.
Ohio city has pyramidal Zoning ordinances that effectively restricts the industrial
development of Ambler Realty Co.'s land. Across the street is a suburban
neighborhood estates. The city has conducted studies and hearing to substantiate it's
claim that its ordinance maintain the health, safety, and welfare of its residents.
Ambler over-reached by seeking to teardown the entire ordinance structure, instead of
seeking The court rules in favor of Euclid.
-- Zoning as a general matter is consistent with the state's police powers because it
promotes, through rigorous method, the health, safety, and welfare of the public so
long as it is not arbitrary and capricious.

02.06.14
Authority to Zone
- Euclid told us that zoning is embedded in the inherent police powers of the state to
regulate the health, safety, and welfare of the public
- Zoning impacts at least two sticks in the bundle of property rights: 1) Use 2)
Develop
--> Portions of usage restrictions mutually benefit "neighbors"
--> Portions of usage are "as-of-right" which do not need permitting
--> Portions of usage are "conditional use" which the community may be permit
--> Portions of usage are simply not allowed and may not be permitted

Limitations on Authority to Zone
- Substantive due process: Land use must serve a legitimate public purpose
1. Effectively promote HSW
2. HSW
3. Not arbitrary and capricious
- Procedural due process: Follows fair process and statutes
- Equal protection: Discrimination
- Scope of Delegate Authority (ultra vires):
- Takings: Just Compensation
- Vested Right (estoppel)
- Preemption: The state's authority supercedes local authority
- Freedom of Speech
- "non-delgavertical
- "the right to travel"
- "commerce clause"

Bartram v. Zoning Commission
Nimbys against spot zoning for drugstore. However, planning commission
demonstrated promotion of HSW and not capricious



OSIEKI v. Town of Huntington
The commission denied rezoning because it believes that planning and ordinances are
not absolutely tied together. The court says Huntington has not demonstrated
vertical consistency and it's commission's decision lacks HSW rational (arbitrary &
capricious).

Rezoning/vertical consistency/substantial due process

Church v. Town of Islip
Town conditions rezoning on particular "upgrades." Neighbors believe this to be an
inappropriate delegation of authority. It deals with issues of due process and equal
protection

Variances
Definition: Petition for relief from an ordinance that would otherwise inhibit the use
or development of a property.

Larsen v. Zoning BOA of Pittsburgh
Four tests:
1) unnecessary hardship
2) variance is needed to enable reasonable use
3) variance alters essential character
4) variance affords least intrusive solution
Issue: Boards of adjustment are hesitant to turndown applications, even when an
application clearly violates standards

C.U.P.s:
Nonconforming Uses:



The Basics of Zoning

1. The Advent of Zoning
1.1. Background
Most states stipulate that zoning is valid only if it is in accordance with
comprehensive land use plans. The courts will not sustain ad hoc,
arbitrary, capricious, and unfair regulations.
In the early 20th century Zoning was, "seen either as a protection of the
suburban American home against the encroachment of urban blight and
danger, or as the unrestrained caprice of village councils claiming
unlimited control over private property in derogation of the Constitution."
Euclid v. Ambler Realty determined that public guidance of private
development was within the police power of states.
New York City, 1916, first comprehensive Zoning ordinance
Standard State Zoning Enabling Act (1922) U.S. Dept. of Commerce
published a model statue for zoning.
Standard City Planning Enabling Act (1928) U.S. Dept. of
Commerce--published to promote the adoption of a local comprehensive
land use plan as a document separate and distinct from zoning.
Because Zoning often preceded planning in most states, States face
challenges of prescribing their meaningful integration
1.2. Land Use Law and Practice
1.2.1. Balancing Property Rights and Public Interest: Limiting Doctrines
Doctrine of Substantive Due Process: Requires that land use regulations
serve a legitimate purpose.
Procedural Due Process: The administrative process by which regulations
are adopted and enforced must follow the procedural requirements of state
statutes and meet fairness requirements.
Equal Protection: Localities must avoid improperly discriminating among
similar parcels or against types of land users in violation of equal protection
guarantees.
Ultra Vires--Delegated Authority: Local governments can exercise only
those powers Delegated to them by the state legislature. Land use
regulations cannot exceed the scope of local authority.
Takings & Just Compensation: Land use regulations must not effect a taking
of private property for a public purpose without just compensation in violation
of the taking provisions of the state and federal constitutions.
Doctrine of Vested Rights: Limits the authority of municipalities in certain
cases to impose significant new regulations on existing investments in land,
such as completed structures, projects under construction, or projects already
approved.
Preemption: Local land use regulations are not permitted to control matters
whose regulation has been preempted by the state legislature.


Freedom of Speech: Local regulations must not abridge freedoms of speech,
expression and the exercise of religion protected by the state and federal
constitutions.
1.2.2. Zoning Practices
1.2.2.1. As-of-Right Uses and their Accessory Uses: Uses that are
customarily found in association with principal uses, but are
incidental and subordinate to them. Example: Shed, unattached
garage, RV pad.
1.2.2.2. Nonconforming Uses: A use of land that was in existence
when a Zoning restriction was adopted, but is now prohibited by
that restriction.
1.2.2.3. Variances: Use variances allow property owners to use their
buildings and parcels for purposes otherwise prohibited by Zoning
law.
1.2.2.4. Special Use Permits: A specified land use that is generally
harmonious with As-of-Right uses, and conclusively demonstrate no
ill impacts on neighboring properties.
1.2.2.5. Rezoning: Process which makes a proposed activity an
As-of-Right use under that amendment, or revokes a particular use
in the interest of the public's health, safety, welfare.
1.2.3. Local Boards
There are numerous bodies involved in governing land use.
Applications are submitted to a Zoning administrator who then must
ascertain its compliance with local Zoning ordinances. If denied, an
application can be appealed to the board of appeals. However, there
are numerous other venues for the approval of a Nonconforming use,
which may require prescribed time periods, honor requirements,
public hearings, and recorded deliberations.
1.3. Early Cases
1.3.1. GOLDMAN v. CROWTHER
1.3.1.1. Background: Goldman violated a Baltimore City ordinance
by starting a tayloring/sewing shop in his basement to repair old
clothes. The inspector of building denied His papply because
residential Zoning prohibited it.
1.3.1.2. Issue: It is whether the power to hold, use and enjoy property
can be restricted or taken away by the state under the guise of the
police power for purely aesthetic reasons or for any such elastic and
indeterminate object as the general prosperity without
compensation?
1.3.1.3. Holding: The city's ZO is void because the city cannot
provide substantial evidence that Goldman sewing business
impinged upon the public's health, safety, and welfare and also
because the "only apparent purpose [of the city's Zoning ordinances]
was to prevent the encroachment of business establishments of any


kind upon residential territory..."
1.3.1.4. Principles applied: "Any exercise of the [police] power
which interferes with some right protected by the Constitution must
bear some substantial relation to the public health, morals, safety,
comfort, or welfare."
ZO cannot deprive property owners of protected rights
ZO formulation must take HSW into consideration to justify
the deprivation of property.
Enforcement of ZO restrictions must be based upon
consideration of public HSW

1.3.2. VILLAGE OF EUCLID v. AMBLER REALTY CO.
1.3.2.1. Background: Euclid, OH, is a municipality with a 6-tiered
pyramidal set of land use ordinances. With single-family
residences at the apex and heavy industrial use at the bottom, land
use is increasingly restricted in higher echelons, but allowances
aggregate in descending echelons, i.e. the bottom tier includes all
permissible uses of higher tiers. Ambler seeks to enjoin the
enforcement of the ordinances because it claims that the layered
restrictions confiscate/destroy a great part of the land's value, and
their enforcement precludes prospective buyer from developing it
for industrial, commercial, and residential uses.
1.3.2.2. Issues:
Do ZOs deprive land owners of liberty and property without
due process of law and deny them equal protection of the law?
"Is the ordinance invalid, in that it violates the constitutional
protection 'to the right of property in the appellee by attempted
regulations under the guise of the police power, which are
unreasonable and confiscatory?"
Can cities create residential districts that exclude all other
uses?
1.3.2.3. Holding: Ambler over reached by attacking the whole of
Euclid's power to regulate land use. Euclid has painstakingly
considered the public HSW interest through expert research before
formulating its ordinance.
"But where the equitable remedy of injunction is sought, not
upon the ground of a present infringement of a present
infringement or denial of a specific right, or of a particular
injury in process of actual execution, but upon the broad
ground that the mere existence and threatened enforcement
of the ordinance, by materially and adversely affecting values
and curtailing the opportunities of the market, constitute a
present and irreparable injury, the court will not scrutinize its
provisions, sentence by sentence, to ascertain by a process of


piecemeal dissection whether there may be provisions of
minor character, or relating to matter of administration, or not
shown to contribute to the injury complained of, which, if
attacked separately, might not withstand the test of
constitutionality. In respect of such provisions, of which
specific complaint is not made, it cannot be said that the
landowner has suffered or is threatened with an injury which
entitles him to challenge their constitutionality."
1.3.2.4. Principles Applied
ZO must be Formulated to promote HSW
Application of ZO must be tied to HSW
ZO cannot be arbitrary and capricious

2. Zoning, Rezoning, and Conformance with the Comprehensive Plan
2.1. Background
Attempts to adopt or amend zoning that do not follow prescribed procedures
are described as being jurisdictional defective or ultra vires (exceeding
delegated authority)
2.1.1. A Standard State Zoning Enabling Act
2.1.1.1. Section 1. Grant of Power: Authority to regulate land use,
building envelop, and density
2.1.1.2. Section 2. Districts: Authority to divide the municipality into
zones by desired character
2.1.1.3. Section 3. Purpose in View: Plan to promote the public HSW
with reasonable consideration to the character of the district and it
suitability for particular uses.
2.2. The "In Conformance with" Requirement
Cassel v. Mayor and City Council of Baltimore: "Spot zoning, the arbitrary
and unreasonable devotion of a small area within a zoning district to a use
which is inconsistent with the use to which the rest of the district is restricted,
has appeared in many cities in America as a result of pressure put on
councilmen to pass amendments to zoning ordinances solely for the benefit of
private interest... It is therefore, universally held that a 'spot zoning'
ordinance, which singles out a parcel of land within the limits of a use and
marks it off with a separate district for the benefit of the owner, thereby
permitting a use of that parcel inconsistent with the use permitted in the rest
of the district, is invalid if not in accordance with the comprehensive plan and
is merely for private gain.
Penning v. Owens: An inconsistent zoning of a small area must be carefully
scrutinized and can only be sustained only when the circumstances are such
as to warrant the action taken.
Keller v. City of Council Bluffs: "The spirit of a zoning ordinance is not
violated nor is it inconsistent with a comprehensive zoning ordinance to grant
a just and reasonable exception by amendment based upon the character and


use of property not similar to other property in the district, but [which] is now
and was distinguishable before the adoption of the comprehensive zoning
ordinance... "Spot zoning" when construed to mean reclassification of one or
more like tracts or similar lots for a use prohibited by the original zoning
ordinance and out of harmony therewith is illegal. When done under certain
other conditions and circumstances in accordance with a comprehensive
zoning plan, such actions will not be declared void. It depends upon the
circumstances of each case."

2.2.1. BARTRAM v. ZONING COMMISSION
2.2.1.1. Background: A developer, Rome, submitted plans to the
planning commission to build a strip mall (drugstore, hardware
store, grocery store, bakery, and beauty parlor) in a residentially
zoned neighborhood. Residents signed a petition against it. The
local planning commission approved the plan citing 1) no shopping
within a mile of it; 2) only one house would be impacted; 3) other
restrictions were in place to alleviate concerns for congestion and
liquor sales. The trial court, however, concluded their action to be
an instance of "spot zoning." Fundamentally, the neighbors felt that
this might be spot zoning or favoritism because the property owner
was the only one to benefit.
A comprehensive plan means a general plan to control and
direct the use and development of property in a municipality,
or a large part of it, by dividing it into districts according to the
present and potential use of the properties.
Action by a zoning authority which gives to a single lot or a
small area privileges which are not extended to other land in
the vicinity is in general against sound public policy and
obnoxious to the law.
2.2.1.2. Issues: Is it spot zoning if limited rezoning in a small area
achieves the overall goals of the comprehensive plan?
2.2.1.3. Holding: The planning commission's discretion did not
violate its statutory authority by granting spot zoning privileges
because it demonstatrate a rationale promoting the general public
welfare, health, and safety of Bridgeport, CT.
2.2.1.4. Principles Applied:
2.2.1.4.1. When opposition to "spot zoning" is based on the fear that
other like changes may be made rather than upon the effect of
the particular one in question, limited "spot zoning" is
amenable.
2.2.1.4.2. Spot Zoning can be justified only when it is done in
furtherance of a general plan properly adopted for and
designed to serve the best interests of the community as a
whole.


2.2.1.4.3. Where the value of the property of an individual is seriously
affected by a zoning regulation especially applicable to it, this
fact imposes an obligation carefully to consider the question
whether the regulation does in fact tend to serve the public
welfare and the recognized purpose of zoning.

2.2.2. OSIECKI v. TOWN OF HUNTINGTON
2.2.2.1. Background: 1 acre of Osieki's 5.5 acres of property had been
zoned by Huntington for low-density residential use, while adjacent
property had been zoned for commercial office buildings. Town
law provides that zoning ordinances must be made in accordance
with a comprehensive plan. Town law also give the planning board
the authority to prepare a master plan for the entire area of the town.
Both the planning dept. and board had recently recommended that
the land be commercially developed. Nevertheless the town
maintained that it is not obliged to slavish servitude to the master
plan and that it was free to determine that the master plan should
not be followed with regard to Osieki's property. Osieki filed suit
because:
The 1 acre residential zoning was inconsistent with the town's
comprehensive zoning plan.
the Zoning was a violation of equal protection of the law in
relation to the other commercially zone property adjacent to it.
2.2.2.2. Issues: Is a town free to determine that the master plan should
be followed without articulating a reason for that determination?
2.2.2.3. Holding: A town may not arbitrarily decide when a
comprehensive plan is to be followed, especially without a rationale
for doing so.
2.2.2.4. Principles Applied:
2.2.2.4.1. Municipalities must always articulate a rationale when
exercising their discretion in determining whether to continue
following their master plans, especially in specific instances.
2.2.2.4.2. Comprehensive plans were designed to avoid the ad hoc
and arbitrary application of zoning power.

3. Zoning Administration and Flexibility
In some states, localities are required to show that circumstances have changed
which necessitate the amendment of their zoning ordinance.
3.1. Organization of a typical Zoning ordinance
3.1.1. Article I: General Provisions
3.1.1.1. Title
3.1.1.2. Scope
3.1.1.3. Statutory Authority
3.1.1.4. Purpose


3.1.2. Article II: Definitions
3.1.2.1. Definitions
3.1.2.2. Word Usage
3.1.3. Article III: Zoning Districts and Map
3.1.3.1. Districts Enumerated
3.1.3.2. Zoning Map
3.1.4. Article IV: District Regulations
3.1.4.1. Application of Regulations
3.1.4.2. General Regulations
3.1.4.3. Schedule of Permitted Uses (Schedule A): lists the types of land
uses permitted in particular districts. Where a use is not listed, it is
prohibited.
3.1.4.4. Schedule of Area and Bulk Requirements (Schedule B): defines
the area and bulk requirements for each of the enumerated districts,
ie lot area, building envelop, density.
3.1.4.5. Off-street Parking and Loading Regulations
3.1.5. Article V: Supplementary Regulations--Land Activities
3.1.5.1. Accessory Uses and Structures
3.1.5.2. Cemeteries
3.1.5.3. Communications Antenna or Tower; Satellite Dishes
3.1.5.4. Home Occupations
3.1.5.5. Hotel or Motel
3.1.5.6. Mobile Homes
3.1.5.7. Places of Worship
3.1.5.8. Planned Unit Development
3.1.5.9. Prohibitions
3.1.6. Article VI: Special Use Permits
3.1.6.1. Purpose
3.1.6.2. Submission of Application
3.1.6.3. General Standards
3.1.7. Article VII: Planning Board/Commission
3.1.7.1. Establishment
3.1.7.2. Powers and Duties
3.1.7.3. Procedure
3.1.7.4. Public Notice and Hearing
3.1.8. Article VIII: Zoning Board of Appeals
3.1.8.1. Establishment
3.1.8.2. Powers and Duties
3.1.8.3. Procedure
3.1.8.4. Public Notice and Hearing
3.1.9. Article IX: Administration and Enforcement
3.1.9.1. Zoning Administrator
3.1.9.2. Building Permits
3.1.9.3. Certificates of Occupancy


3.1.9.4. Penalties for Offenses
3.1.9.5. Schedule of Fees
3.1.10. Article X: Amendments
3.1.10.1. Amendment Procedure
3.2. Amendment of Ordinance
3.2.1. CHURCH v. TOWN OF ISLIP
3.2.1.1. Background: Neighbors of a property in Islip filed suit
alleging that an amendment to the Zoning ordinance did not
conform to the comprehensive plan and arbitrarily singled out a
tract for business zoning. They claimed that it was illegal "contact
zoning" because the town board consented to rezoning on the
condition that certain improvements be met before the business
opens.
3.2.1.2. Issues: Can a town board, as a condition for rezoning, require
property owners to execute and record a restrictive covenant on the
land? Is the board extorting the property owner?
3.2.1.3. Holding: A municipality may condition amendments to its
Zoning ordinance upon the implementation of a set restrictive
covenants agreed to by a property owner, so long as the
municipality can demonstrate an actual need.
3.2.1.4. Principles Applied:
3.2.1.4.1. A legislature may not bargain way or sell its powers (the
town board did not unlawfully delegate its powers to others in
this case).
3.2.1.4.2. A town board must first demonstrate a rationale
(non-arbitrary) for amending the Zoning ordinance. (The
town demonstrated pressure from population growth)

3.3. Administrative Treatment
Most states require municipal governments to establish a zoning board of
appeals when it adopts a zoning ordinance (board of standards or board of
adjustments). When the decisions of a board of appeals is appealed to a
court, the court may certify the record of the board of appeals and usually
does not conduct a de novo trial on the fact. Court typically defer to the
discretion of the board unless the appellant can prove that the decision was
arbitrary or unreasonable, or does not conform to applicable standards.
Variance: a variance allows property owners to prove that relief from the
Zoning ordinance is needed, but such relief will not be detrimental to the
integrity of the ordinance or the character of the surrounding neighborhood.
Variances provide relief from unnecessary hardships that arise because of
special conditions applicable to the affected parcel. They provide a safety
valve that responds to unique circumstances, avoids as applied legal
challenges by property owners, and preserves the spirit of the ordinance as
drafted by the legislature.


Two types of Variance: Area and Use
Area Variance: Allows for a use of land in a manner which is not
allowed by the dimensional or physical requirements of the applicable
zoning regulation.
Use Variance: Permits a use of the land for a purpose which is otherwise
not allowed or is prohibited by the applicable zoning regulations.
The difference between a variance and special use permit, is that a variance
allows a property owner to use their land in a manner that is prohibited by the
ordinance, while a special use permit authorizes uses that are allowed and
encouraged by the ordinance and declared harmonious with the applicable
zoning district.
3.3.1. Variance Cases
3.3.1.1. LARSEN v. ZONING BOARD OF ADJUSTMENT OF CITY
OF PITTSBURGH
3.3.1.1.1. Background: Larsen's neighbor is sued the BoA for
granting Larsen a variance to build a 400sqft deck. The
variance would have allowed the Larsen to build a deck on a
steep slope so his 2yr-old would have a place to play.
3.3.1.1.2. Issues: When can a Board of Adjustments grant a
variance?
3.3.1.1.3. Holding:
3.3.1.1.4. Larsen only had a "mere" hardship and failed to prove that
the unique character of the land and the Zoning ordinance
caused an "unnecessary" hardship. Larsen also contributed to
the hardship with a previous addition to his house. And the
steep slope was not unique to just his property.
3.3.1.1.5. The slope did not deprive Larsen of reasonable residential
use of his property or make it all but worthless.
3.3.1.1.6. Larsen's deck would impinge on his neighbors by
obstructing their views, and would set a precedent that would
change the essential character of the neighborhood .
3.3.1.1.7. No alternative solutions were presented.
3.3.1.1.8. Principles Applied:
3.3.1.1.8.1. 4 Factors essential for a variance
(A) An unnecessary hardship exists (B) which is not
created by the variance seeker, and (C) which is caused
by unique physical circumstances of the property.
A variance is needed to enable the party's reasonable use
of the property.
The variance will not alter the essential character of the
district, or substantially/permanently impair the use or
development of the adjacent property such that it is
detrimental to the public's welfare.
The variance will afford the least intrusive solution.



3.3.2. Special Use Permit Case
3.3.2.1. CITY OF CHICAGO HEIGHTS v. LIVING WORD
OUTREACH FULL GOSPEL
3.3.2.1.1. Background: Chicago city council denied Living Word's
special use permit because its comprehensive development
plan had targeted the area for a commercial corridor.
However, the plan contradicted the special uses specifically
permitted under the Zoning ordinance.
Chicago's special use criteria:
Maintenance of a special use will not be detrimental to the
public Health, Safety, and Welfare
Special will not injury the enjoyment of a neighbor's property
or substantially diminish the value of their property
Special use will not impede the improvement of surrounding
property for permitted uses.
Adequate utilities and necessary facilities are being provided
Adequate measures of ingress and egress are designed to
minimize traffic congestion on public streets
Special use will conform to all other applicable regulations of
the district
3.3.2.1.2. Issues: Can a city council set aside the legislative intent
of a statutorily outlined special use and rely upon the
developmental goals expressed in the comprehensive plan?
3.3.2.1.3. Holding: A city must abide by its laws and ordinances.
A plan is not a law. Administrative enforcement of a
comprehensive plan cannot circumvent the process to amend
the Zoning ordinance.
3.3.2.1.4. Principles Applied:
The inclusion of a special use with a zoning ordinance is
tantamount to a legislative finding that the permitted use
is in harmony with the general zoning plan.
An administrative decision to pursue a city's
comprehensive development plan cannot trump a
legislatively defined special use outlined in a zoning
ordinance.
Administrative enforcement of a comprehensive plan
cannot circumvent the process to amend the Zoning
ordinance.

4. Nonconforming Uses
Nonconforming uses originated out of concerns that an application of zoning
regulations to pre-existing uses might be construed a confiscatory and
unconstitutional. It is assumed that by limiting their enlargement, a


Nonconforming use will eventually disappear over time. Although the courts
have begun to recognize a municipality's right to adopt reasonable measures to
eliminate them.
Nonconforming Use: Created when existing land uses, which were previously
valid, are prohibited by a new or amended zoning law.
Nonconforming use articles of the Zoning law usually prohibit or limit changes in
buildings and lot uses that are Nonconforming and provide in a variety of ways for
the termination of Nonconforming uses such as limiting their expansion,
prohibiting the reconstruction of damaged structures, disallowing the
re-establishment of Nonconforming uses after they have been discontinued for a
time, or simply terminating them after the passage of a stipulated amount of time.
4.1. Expansion or Extension
4.1.1. Local laws often prohibit the enlargement, alteration, or extension of
a nonconforming use. To allow the expansion of nonconforming uses,
which the zoning law wishes to eliminate over time, would defeat that
underlying policy. Normally, the law allows the owners of
nonconforming land uses to perform property repairs, conduct normal
maintenance, and complete internal alterations that do not increase the
degree of, or create any new, noncompliance with the locality's zoning
regulations.
4.1.2. STATE v. PERRY
4.1.2.1. Background: Ice cream manufacturer has a Nonconforming
factory. The city ordinance prohibits him from building an
addition, so he parks a trailer next to the factory with all the
accouterments of an addition. He is found to have violated the
violated the spirit of the law by prolonging the Nonconforming use.
4.1.2.2. Issues: When is a Nonconforming use permit exceeded?
4.1.2.3. Holding: One cannot prolong a Nonconforming use by
circumventing the building prohibition.
4.1.2.4. Principles Applied: Termination of a Nonconforming use is
not just matter of increasing the size of the Nonconforming use, but
also the prolonged and extended use of it.

4.2. Discontinuance
4.2.1. A property owner's right to continue a nonconforming use may be
lost by abandonment. Originally, this required a voluntary, completed act
of abandonment by the owner. The mere failure to continue the
nonconforming use was not sufficient to establish abandonment.
Although these rules still exist in some jurisdictions, modern zoning laws
frequently stipulate that any discontinuance of the nonconforming use for
a specified period constitutes abandonment. Courts hold that such
provisions are sufficient to establish the owner's intent to abandon the
nonconforming use as a matter of law.
4.2.2. STATE EX REL. MOREHOUSE v. HUNT


4.2.2.1. Background: A building used as a frat house became a
nonconforming use when the district was rezoned to residential. The
house was then used as a rooming house for 2 years. Then the dean
of the law school leased the property for 5 years. Once the owner
regained possession, he sought a nonconforming use permit for
renewed use as a fraternity house, but was denied.
4.2.2.2. Issues: Under what conditions does a nonconforming use end?
4.2.2.3. Holding: Because the owner did not intend to abandon the right
to use the residence as a frat house, and the use as a private
residence was only intended to be temporary, nonconforming use
permit should be granted.
4.2.2.4. Rule of law: Discontinuance requires more than mere
cessation; it involves abandonment and the owner's expressed
intent.

4.2.3. TOYS "R" US v. SILVA
4.2.3.1. Background:
4.2.3.2. Issues:
4.2.3.3. Holding:
4.2.3.4. Principles Applied:

4.3. Destruction
4.3.1. MOFFATT v. FORREST CITY
4.3.2. Background: Moffatt owned a meat factory that burned down.
Forrest city had re-zoned the property and had granted a temporary
nonconforming use permit, and denied Moffatt a permit to rebuild the
meat market. Court affirms injunction granted to city preventing
Moffats from rebuilding its nonconforming use meat market was found
to be damaged by a fire to the extent of 60% of its reproduction value,
under ordinance.
4.3.3. Issues: Under what conditions does a nonconforming use end?
4.3.4. Holding: Moffat cannot rebuild the meat market.
4.3.5. Rule of Law:
4.3.6. Principles Applied:

4.4. Amortization--Uses and Limitations
4.4.1. Some local zoning ordinances require certain nonconforming uses to
be amortized over a specified period at the end of which they must be
terminated. The term "amortization" is used to describe these provisions
because they allow the owner some time during which to recoup his
investment in the nonconforming use.
4.4.2. Contexts in which amortization provisions are likely to be upheld:
4.4.2.1. When the common law of nuisance would allow neighboring
property owners to enjoin the continuation of the nonconforming


use.
4.4.2.2. When the nonconforming use is somewhat noxious and the
owner has little investment in it.

4.4.3. AVR, INC. v. CITY OF ST. LOUIS PARK
4.4.4. Background: in 1974 AVR bought a ready-mix concrete plant in St.
Louis Park that was built in 1954. The City had re-zoned the area on a
number of occasions
4.4.5. Issues: Under what conditions does a nonconforming use end?
4.4.6. Holding:
4.4.7. Rule of law:
4.4.8. Principles Applied:
4.4.8.1. Factors of a reasonable amortization period:
4.4.8.1.1. Information relating to the structure located on the
property ;
4.4.8.1.2. Nature of the use;
4.4.8.1.3. Location of the property in relation to surrounding uses;
4.4.8.1.4. Description of the character of and uses in the
surrounding neighborhood;
4.4.8.1.5. Cost of the property and improvements to the property ;
4.4.8.1.6. Benefit to the public by requiring the termination of the
non-conforming use;
4.4.8.1.7. Burden on the property owner by requiring the termination
of the non-conforming use;
4.4.8.1.8. The length of time the use has been in existence and the
length of time the use has been nonconforming.

5. Accessory Uses
5.1. Accessory uses are those uses of l and found on the same lot as the principal
use and that are subordinate, incidental to, and customarily found in
connection with the principal use.

5.2. PARKS v. BOARD OF ADJUSTMENT OF THE CITY OF KILLEEN
5.2.1. Background: Baxters owned a home in a residential-zoned
neighborhood, in which they ran a music school. Parks sued to closed
down the school, arguing that the use of the property violated the zoning
ordinance for accessory uses because of its profitability and volume.
5.2.2. Issues:
5.2.3. Holding: No violation of the accessory use ordinance occurred
because the music school was still subordinate to the resident ial use of
the property. Looking to the profitability or volume of the business not
authorized.
5.2.4. Principles Applied:



5.3. GREENTREE v. GOOD SHEPHERD EPISCOPAL CHURCH
5.3.1. Background: Condo owners sued to enjoin the adjacent Church from
operating a homeless shelter three nights a week.
5.3.2. Issues:
5.3.3. Holding: Church's temporary homeless shelter is a permissibl e
accessory use of the Church protected under the ordinance and the
church's certificate.
5.3.4. Principles Applied: A church or synagogue may be used for
accessory uses beyond prayer and worship.

6. Home occupations
6.1. SALKIN, "ZONING FOR HOME OCCUPATIONS: MODERNIZING
ZONING CODES TO ACCOMMODATE GROWTH IN HOME-BASED
BUSINESSES"

6.2. TOUSSAINT v. TOWN OF HARPSWELL
6.2.1. Background: Code enforcement officer issued Waddle permit to
operate a dog kennel as a home occupation under Ord. Touissants,
summer residents of the neighborhood, sought to prohibit the kennel due
to continuous barking.
6.2.2. Issues:
6.2.3. Holding:
6.2.4. Principles Applied:


SUBDIVISION CONTROL & INFRASTRUCTURE

Chapter 4: COMMUNITY BUILDING: SUBDIVISION CONTROL AND
INFRASTRUCTURE

1. REGULATION OF THE SUBDIVISION OF LAND
1.1. THE ESSENTIAL REASONS FOR AND NATURE OF SUBDIVISION
REGULATION
Subdivision control: the regulation of the division of raw land into building lots.
Ensures the orderly growth and development of communities.
Subdivision control and zoning control are preventive measures intended to
avert community blight and deterioration by requiring that new development
proceed in defined ways and according to prescribed standards. Zoning relates
to the type of building development which can take place on the land;
subdivision control relates to the way in which the land is divided and made
ready for building development.
1.1.1. Melli, subdivision control in Wisconsin
1.1.1.1. Why have subdivision controls?
1.1.1.1.1. The Community: Community is the most important reason
for developing effective instruments of land-use control. The
community has a legitimate interest in any new subdivision for
a number of reasons:
1.1.1.1.1.1. Permanence of development: The original layout of an
area will determine its character for an indefinite period of
time.
1.1.1.1.1.2. Future services: Because services will have to be
furnished to any new area the community should have an
opportunity to consider each new subdivision in relation to
the services it is expected to provide.
1.1.1.1.1.3. Safety Considerations: Adequate police and fire
protection coverage, traffic control, thoroughfares and
intersections, parks for children to play.
1.1.1.1.1.4. Health Considerations: The governing unit will want to
be sure that the area is one which will be safe for people to
live in.
1.1.1.1.1.5. Fiscal Considerations: the community must always
keep in mind the pocket-books of its citizens and must
consider each new development in relation to tax revenues.
The cost of services furnished by the community-fire and
police protection, schools, recreation facilities, sewage
disposal, street Repair exceeds the revenues obtained fr om
them, and the cost of their services must be borne by higher
tax rates which bear heavily on those in the more desirable
areas.
1.1.1.1.1.6. Accurate Records: When land is divided into such small
parcels, the awkward and frequently inaccurate metes and
bounds description is undesirable.
1.1.1.1.2. The Home Buyer and Mortgage Lender: Protects buyer
from inadequate public services. Protects the value of a home
over time. Protects mortgage lenders initial investment.
1.1.1.1.3. The Subdivider: Protects subdividers from speculative
development by compelling them to acknowledge distance from
public services. Protects the investments of honest developers
from fly-by-night operators.

1.2. ROLE OF THE PLANNING COMMISSION:
1.2.1. Meck, Subdivision Control: A Primer for Planning Commissioners
Subdivision regulations are land-use controls that govern the division of
land into two or more lots, parcels, or sites for building. They provide
criteria for the internal design of a land development as well as the
standards by which the public improvements in the subdivision are
constructed. They protect purchasers of land by ensuring that public
improvements are available when it is time to build on the lots and by
providing a mechanism for the official recording of lots with the
appropriate governmental agency.
The state enabling legislation or municipal charter will outline the basic
steps in processing a subdivision.
1.2.1.1. Two part subdivision review:
1.2.1.1.1. Preliminary plan/plat review: In the preliminary plan stage
of review, the basic design issues for the subdivision are
resolved. The developer submits a preliminary plan or plat for
the initial planning and layout of streets and lots, and type, size,
and placement of utilities. This submission usually includes a
topographic survey of the site.
1.2.1.1.1.1. The planning commission reviews proposed
subdivisions at a public meeting or hearing, listens to the
comments of the developer, staff, and interested citizens,
and recommends to the legislative body whether to
approve, approve with conditions, or deny the preliminary
plat.
Planning Commission Preliminary Plan Checklist:
Whether the information required by the subdivision
regulations is shown on the preliminary plat.
Whether proposed streets are properly oriented and
integrated with existing streets and are of adequate width.
Whether street intersections are safe and avoid dog-legs
that create dangerous jogs.
Whether proposed lots satisfy area and other dimensional
requirements of the zoning code.
Whether lot layout is sound.
Whether sites have been dedicated or reserved for parks,
or for other public facilities such as schools.
Whether the plan shows proposed utility easements, and
whether they are of sufficient depth, located at lot edges
if possible, and split between adjoining lots.
Whether street names are consistent with the local
governments policies.
Whether block lengths are excessively long, resulting in
uninterrupted straight stretches of road that encourage
speeding.
Whether storm water detention or retention facilities
should be provided onsite or as part of a larger regional
facility located offsite.
Whether the preliminary plan reflects thoroughfares that
are proposed in the community's major thoroughfare plan.
1.2.1.1.2. Final plat review: The final plat is a precise drawing that
contains the necessary information that will fix the location of
lots and streets with reference to survey markers, such as iron
pins driven deep into the ground, and concrete monuments. This
information-measurements in tenths of a foot, and angles and
bearings-will create the legal land title record for locating the
lots. It will also be the means by which the streets and other
proposed public improvements are conveyed to and accepted by
the local government after the developer constructs them to the
government's standards. The final plat is usually accompanied
by engineering drawings and supporting technical analyses.
1.2.1.1.2.1. The final plat is reviewed at a public meeting for local
legislative approval and recommendations. Before the
developer submits the final plat for recording, he must
either construct the required improvements or post a
performance bond to ensure that the improvements will be
constructed within the prescribed period.
Planning Commission Final Plat Checklist:
Has the developer provided sidewalks throughout the
subdivision that connect with other sidewalks in the area?
Are curb radii appropriate to the function of the street?
Are street lights provided at intersections and, preferably,
spaced at regular intervals along streets?
When a lot is near a flood hazard area or an area with
storm water problems, will the buildable portion of the
lot be above the flood elevation?
Will water pressure be adequate throughout the
subdivision?
Will natural areas and stands of old, larger trees that meet
certain circumference standards be maintained?
Are street stubs provided to adjoining vacant tracts of
land to allow the future continuation of the internal street
system?

1.3. SOURCES OF GOVERNMENTAL POWER TO REGULATE
SUBDIVISIONS:
1.3.1. Ridgefield Land Co. v. Detroit
1.3.1.1. Background: Developer's plat included two streets whose widths
did not conform to the city's general plan. The city proposed
conditions, but the developer refused and sued to compel the city to
accept the plat.
1.3.1.2. Issue: Does a municipality have the authority to condition
subdivision approval with a dedication requirement? (Is
subdivision regulation a fair exchange for the privilege of recording
a plat?)
1.3.1.3. Holding: (1) The city is authorized under ordinance to reject
nonconforming plats, including for street width, and to impose
reasonable conditions. (2) Conditions imposed on the developer were
reasonable and necessary for the public safetythe city needs wider
streets to accommodate present traffic conditions.
1.3.1.4. Rule of Law: If public necessity demands parts of his lands for
highways, it can be taken only by condemnation and payment of its
value. But he has no corresponding right to have his plat of
subdivision so made admitted to the records.
1.3.1.5. Principles Applied:
1.3.1.5.1. It must be remembered that each owner has the undoubted
right to lay off his land in any manner that he pleases, or not to
subdivide it at all. He cannot be made to dedicate streets and
avenues to the public. If public necessity demands parts of his
lands for highways, it can be taken only by condemnation and
payment of its value. But he has no corresponding right to have
his plat of subdivision so made admitted to the records. In
providing for public record, congress can accompany the
privilege with conditions and limitations applicable alike to all
persons. In providing for such record in the act of 1888,
congress sought to conserve the public interest and convenience
by requiring practical conformity in all subdivisions of land into
squares, streets, and avenues, with the general plan of the city
as originally established, and this, regardless of the fact that it
might in instances practically coerce the dedication of streets to
public use which would otherwise have to be paid for.

1.4. CLUSTER ZONING AND PLANNED UNIT DEVELOPMENT:

1.5. SUBDIVISION, EXACTIONS AND IMPACT FEES:
Development exactions and impact fees have become one of the most common
techniques for local governments to obtain funding for infrastructure and other
improvements, but they have long been controversial.
Conditions frequently imposed on subdivision plan approvals:
o Installation of public improvements such as street grading, street surfacing,
sanitary and storm sewers, water mains, curb and gutter, sidewalks, street
trees and street signs.
o Dedication of subdivision streets and widening strips along existing
boundary streets.
o Imposition of restrictive covenants dictated by the local unit but promised
by the developer.
o Dedication of land for park, playground, school, police or fire station, sites.
o Payment of fees in lieu of land dedication or infrastructure requirements.
o Written findings by the local school board that school facilities will be
adequate to take care of the children from the proposed subdivision.
o A "contract" by the developer to contribute a substantial sum for school
construction, a water or sewerage or other public facility.
Ultra vires: In analyzing such issues in particular cases, a first step is to
ascertain whether the applicable enabling statute authorizes the action taken.

1.5.1. Dedications and Extractions
1.5.1.1. New Jersey Shore Builders Association v. Township of
Jackson
1.5.1.1.1. Background: A 2003 Jackson ordinance mandated that at
least 10 percent to 40 percent of any tract of land proposed for
development be set aside for open space, with at least half the
acreage suitable for recreational use. A 2006 amendment
required a recreational set-aside of 12.5 acres for every 1,000
projected residents, with a payment in lieu option for developers
who could not do so or obtained planning board approval. Egg
Harbor Township Code, which require these exactions as a
condition of development approvals for all sizable residential
developments, not simply for approvals of "planned
developments" as defined in the NJ Municipal Land Use Law.
1.5.1.1.2. Issues: Ultra vires exactions. What are the limits of a
municipality's authority to condition development approvals on
a developer's setting aside land to be used for common open
space or recreational areas and facilities, or to pay an assessment
in lieu of the set-aside?
1.5.1.1.3. Holding: Municipalities cannot condition development
approval on the requirement that developers set aside land to be
used for recreation areas or facilities, open space, or require
payments in lieu of a set aside. The Appellate Division struck
down two municipal ordinances that required such conditions,
finding that both were in contradiction of the Municipal Land
Use Law. The provision of public open space and recreational
facilities is something that the public should enjoy as a whole
and should not entirely burden a specific development project.
1.5.1.1.4. Rule of Law: Ultra vires. A municipality does not have
the inherent right to zone. A local government's authority to plan
and zone and to impose conditions on a developer, is a
delegation of police power. A municipalitys authority impose
conditions on a developer is limited to those specifically
enumerated by state statue.
1.5.1.1.5. Principles Applied:
1.5.1.1.5.1. A municipality does not have the inherent right to zone.
A local government's authority to plan and zone and to
impose conditions on a developer, is a delegation of police
power.
1.5.1.1.5.2. We conclude that the plain meaning and obvious
legislative intent was to limit the municipal authority only
to improvements the need for which arose as a direct
consequence of the particular subdivisionor development
under review.
1.5.1.1.5.3. Although preserving open space was an enumerated
purposes of the N.J.s Municipal Land Use Law, the law
limits "the manner in which municipalities may demand
that it be made available."
1.5.1.1.5.4. "Had the Legislature intended to create the broader
power that the municipalities suggest is vested in them, it
would not have limited its authorization to the [Planned
Unit Development] context as it did."
1.5.1.1.5.5. Without question, the MLUL makes recreation and open
space important considerations in land use planning.
Nevertheless, the general purposes of the MLUL do not
provide local governments with the specific authority to
require a developer to set aside common open space or
recreational areas in projects other than planned
developments without compensating the developer.
1.5.1.1.5.6. ALWAYS READ THE DEFINITION SECTION OF
LEGISLATION!

1.5.2. Impact Fees
1.5.2.1. Home Builders Association of Central Arizona v. City of
Mesa
1.5.2.1.1. Background: Mesa amended its impact fee ordinance in
2007 after retaining an outside consultant to study the costs
associated with new development. The ordinance includes a
legislative finding that each public service receiving a portion
of the impact fee, including cultural facilities, is necessary.
Mesa determined the amount of the cultural facilities impact fee
by calculating the current cost of existing cultural facilities and
dividing the cost by the number of "equivalent dwelling units"
in the city.
1.5.2.1.2. Issues: Are Mesas cultural facilities necessary public
service, and can it assess impact fees to support them?
1.5.2.1.3. Holding: Mesa may impose a cultural facilities impact fee
because the maintenance of the facilities is rationally related to
the powers that the Legislature has granted to municipalities,
and because such facilities traditionally have been provided by
Mesa to its residents.
1.5.2.1.4. Rule of Law: Before a municipality is authorized to impose
an impact fee, the public service must be rationally related to
the powers granted to a municipality, and the service must be
one that traditionally has been provided or lawfully forecast
pursuant to statutes governing municipal planning.
o Impact Fee Criteria
Service must be rationally related to delegate
authority
Service must be traditionally provided, or
Service must be lawfully forecast by planning
1.5.2.1.5. Principles Applied:
1.5.2.1.5.1. Impact fees are presumed valid as exercises by
legislative bodies of the power to regulate land use.
1.5.2.1.5.2. "the Necessary and Proper Clause makes clear that the
Constitution's grants of specific federal legislative
authority are accompanied by broad power to enact laws
that are ' convenient, or useful' or 'conducive' to the
authority's 'beneficial exercise .'"
1.5.2.1.5.2.1. A local legislature has the authority to assess an
impact fee that is rationally related to the
implementation of a constitutionally enumerated
power.
1.5.2.1.5.3. An Impact fee must bear a reasonable relationship to the
burden imposed upon the municipality to provide
additional necessary public services to the development.
1.5.2.1.5.4. Municipalities are entitled to deference concerning
whether a development fee will result in a "beneficial use."
"If the municipality can show that its plans, calculations
and predictions are not 'clearly erroneous, arbitrary, and
wholly unwarranted,' we will defer to its judgment.
1.5.2.1.5.5. A city need only demonstrate some rational basis for
setting the amount of the fee in order to avoid it being
clearly erroneous, arbitrary, and wholly unwarranted. (The
"reasonable relationship" requirement was satisfied by
comparing the current level of service provided with
incremental elements of growth).

2. DEVELOPER AGREEMENTS AND VESTED RIGHTS
2.1. VESTED RIGHTS
2.1.1. American Planning Association, Growing Smart Legislative
Guidebook: Model Statutes for Planning and the Management of Change
(Chapter 8 Excerpt):
2.1.1.1. Vesting statutes are laws that create criteria for determining when
a landowner has achieved or acquired a right to develop his or her
property in a particular manner, which cannot be abolished or
restricted by regulatory provisions subsequently enacted. This is
called a vested right because it is a right that has become fixed
("vested ") and cannot be eliminated or amended. Vesting statutes
apply to the generally applicable regulations of land use, and no
agreement is needed for the landowner to be able to assert a vested
right to develop.
2.1.1.1.1. Factors in a Vested Rights dispute
2.1.1.1.1.1. The government must have made a decision and
2.1.1.1.1.2. The landowner must have, in good faith, relied, to his or
her detriment, on that decision by making some
improvement to the land or some other commitment of
resources.
2.1.1.2. Doctrine of Estoppel:
2.1.1.2.1. Estoppel means that when someone does something with the
intent that you will rely on their action or statement, and you
indeed rely in good faith on that action or statement demonstrate
that reliance by some action to your detriment (not a mere
statement that you will rely on it), the original party is legally
bound by that action or statement.
2.1.1.2.2. Estoppel Criteria:
2.1.1.2.2.1. The landowner must demonstrate that the local official
upon whose statement or decision he or she relied was
within authority to make the statement or decision, as the
government is not bound by an official's unauthorized acts.
2.1.1.2.2.2. Substantial expenditure
2.1.1.2.2.3. Actual construction
2.1.1.2.2.4. Government statement (Preliminary or final plan
approval, issued building permit)
2.1.1.2.3. "Where a project is caught in a change in the law due to
denials of successive applications or delays in processing, the
court might look askance at a denial based exclusively on the
new law."

2.1.2. Avco Community Developers, Inc. v. South Coast Regional
Commission
2.1.2.1. Background: Avco owned 7,936 acres of land in Orange County,
part of which was located within a coastal zone.47 Prior to February
1, 1973, when the coastal zoning permit requirement became
effective, Avco had obtained a zoning change as well as tentative and
final subdivision map approval. In accordance with approvals issued
by the county, Avco had finished or was in the process of constructing
storm drains, improvements of utilities, and other similar facilities for
the tract. However, Avco had not yet received a building permit. Avco
had spent approximately $2 million and incurred liabilities of
$740,468 for development of the tract. Avco claimed that it had a
vested right to develop, and that it should be exempt from the coastal
zoning permit requirement because it had received final discretionary
approval and incurred substantial expenses in reliance on county
authorizations.
2.1.2.2. Issues: When does a developer have a vested right?
2.1.2.3. Holding: Avco did not have a vested right to proceed because
it failed to meet the vested rights common law rule that a property
owner has a vested right only if he performs substantial work in good
faith reliance on a building permit. The court stated, By zoning the
property or issuing approvals for work preliminary to construction
the government makes no representation to a landowner that he will
be exempt from the zoning laws in effect at the subsequent time he
applies for a building permit. Therefore, the government could not
be estopped from enforcing the California Coastal Zone
Conservation Act of 1972, a law in effect at the time Avco would
have applied for a building permit.
2.1.2.4. Rule of Law: If a property owner has performed substantial work
and incurred substantial liabilities in good faith reliance upon a
permit issued by the government, he acquires a vested right to
complete construction in accordance with the terms of the permit.
Once a landowner has secured a vested right the government may not,
by virtue of a change in the zoning laws, prohibit construction
authorized by the permit upon which he relied.
2.1.2.5. Principles Applied:
2.1.2.5.1. Neither the existence of a particular zoning nor work
undertaken pursuant to governmental approvals preparatory to
construction of buildings can form the basis of a vested right to
build a structure which does not comply with the laws
applicable at the time a building permit is issued.
2.1.2.5.2. The court reasoned that a developer must comply with the
laws in effect at the time a building permit is issued to prevent
serious impairment of the governments right to control land
use policy.

2.2. DEVELOPER AGREEMENTS
2.2.1. American Planning Association, Growing Smart Legislation
Guidebook: Model Statutes for Planning and the Management of Change
(Chapter 8 Excerpt):
2.2.1.1. A development agreement is "a statutorily authorized, negotiated
agreement between a local government and a private developer that
establishes the respective rights and obligations of each party with
respect to certain planning issues or problems related to a specific
proposed development or redevelopment project."
2.2.2. Bollech v. Charles County, Maryland
2.2.2.1. Background: In 1989, Bollech and Charles county, MD
entered into an agreement that would provide water and sanitation
facilities to the county in exchange for the privilege of developing
residential units irrespective of changes in County land use
regulations. In 1999, when Bollech submitted an application for a
preliminary plan for development. The County refused to accept the
application because amendments to the local zoning regulations
prevented the County from approving the application. Bollech sued
the county for (1) impairment of the obligation of contract in
violation of the Contracts Clause, and (2) breach of contract. The
district court stated that the Development Agreement no longer
imposed an enforceable obligation on the County because Bollech
did not ensure the provision of adequate sewer and water facilities
within the time period required by the Development Agreement.
2.2.2.2. Issues: What are the limits of developer agreements?
2.2.2.3. Holding: there was no breach of contract for the same reason
there was no Contracts Clause violation: at the time of the alleged
violation, there was no enforceable contractual obligation against the
County.
2.2.2.4. Rule of Law: In order to prove a violation of the Contracts Clause,
a plaintiff must first prove that there is an enforceable contract that
the government has impaired in some manner. If there is no
enforceable contract, there is no violation of the Contracts Clause.
2.2.2.5. Principles Applied:
2.2.2.5.1. The Contracts Clause states that "No State shall pass any
Law impairing the Obligation of Contracts."


02.18.14
Review
- Conditional Use Permit (CUP): allowed uses, but require a permit
- Variances: non-nuisance exceptions to the Zoning ordinance caused by a hardship
-Nonconforming Uses: grandfathered uses, often amortized to eventually eliminate
the Nonconforming use.
-Accessory Uses/Home Occupations: 1) Subordinate or 2) incidental uses that are
3)customarily found in conjunction with the primary use of a property.

Subdivision
Definition: The creation of new legal properties from a previous property
Interested parties: Consumers, Owners, individuals, developers, public, banks, etc.
--Why have subdivision
1)the community
a) permanent of development
b) future services
c) safety considerations

--What do they do
--By what authority
--With what limitations

Ridgefield land co. v. Detroit
Background: Detroit says that the roads are too narrow and demands that the
developer "dedicate" (ownership) of a portion of the land in exchange for a grant of
subdivision
Issue: Is requiring a dedication of land before granting subdivision a taking?
Holding: no
Principle: The extent to which impacts and demands are connected, a city may
require a dedication to offset the impact. (Higher density place greater demands on
city services).

Common extractions and impacts
1) Installation of public improvements (streets, etc.)
2) dedication of subdivision streets and widening straps along existing boundary
streets
3) Imposition of restrictive covenants dictated by the local unit but promised by the
developer
4) dedication of land for parks, playgrounds, schools, police, or fire stations
5) Payment of fees in lieu of land dedication or infrastructure requirements
6) A contract by the developer to contribute a substantial sum for school construction
a water or sewage or other public facility

Impact fees


Assuming impact fees must be reasonable, the relationship between impact and
demand form this foundation
Level of Service (L.O.S.): the greater the level of service, the greater expectation of
higher fees (number users/usage to cost of service and service provision)
--IMPACT FEES ARE DESIGNED TO OFFSET THE INCREMENTAL IMPACT
OF THE DEVELOPMENT, NOT PRE-EXISITING DEFICIENCIES.
(You can not require a developer to build a highway when they only contribute to a
street).

New Jersey Shore Builders association v. Township of Jackson
Issue: Do townships have the authority to impose an impact fee?
Holding: No, it was not delegated
Principles applied: States must delegate the power to assess impact fees

It is interesting to note that HBA pursued legislation in each state to reign in excessive
impact fees and to improve uniformity in their implementation.

Home builders association of Central Arizona v. city of mesa
background
Issue: can Mesa demand an impact fee

Vested Right (essentially estoppel)
Definition: An implied property right that when one's application is complete, the
property holder is held harmless for any changes in the law.

In California An owner has Vested rights when he has made a substantial
improvement to the property, and not just paying the permitting and fees.

02.27.14
Penn Central v. NYC
Background: PCTC wanted to build an office building on Grand central, but it's
landmark designation precluded them from significantly altering the character of the
building.
Issue: If it doesn't wipe out all economic benefit, is there still a taking?
Rule of Law: 1) Economic Impact, 2) Investment-backed Expectation, 3) Character
of the regulation

1) Economic Impact: Taken value/ Unregulated Value (a continuum of 0% to 100%
taking)
2) Reasonable Investment-backed Expectation: It is a due diligence issue, when you
purchased the property, what were your actual expectations for a return on investment.
A continuum of how much skin do you have in the game? This criteria precludes
frivolous suits for the sake of taking advantage of the government.
3) Character of the regulation: The degree to which the Regulation imposes a


"Physical invasion" to a mutual sharing of public benefits and burdens (reciprocity).

Palazzolo v. Rhode Island
Background: owns wetlands and wants to develop, but is denied
Issue: Can you have real investment-backed expections, if the due diligence warns
you of the regulation?
Holding: Not all value is taken, and deed due diligence is not sufficient to deny the
right to challenge a past taking.
Rule of law: The constitutional right to challenge a taking runs with the land, not the
owner. The right to challenge a taking is transferable from owner to owner

EXACTIONS--the forced transfer of property, because you want something from the
government

Nollan v. CA Costal Commission
Background: Nollans want to teardown their bungalow and build a bigger house.
California says they grant the permit if they provide a public access easement on
either side.
Rule of Law: Government may place conditions on land-use permits so long as there
is a essential nexus between those conditions and the harms likely to result from that
use.

Dolan
Background: Dolan owns a plumbing supply and wants to expand, Portland says not
unless you give us a public access Greenway for bikes etc. Dolan concedes that
there is a nexus between impact and Exaction, but the demand is disproportionate to
the impact

Koontz
02.20.14
Exam Prep
-Format
--50% Consists of 10 short answer
--50% 1 Essay (It will present a story problem and your task is to identity issues and articulate
controlling principles to derive a conclusion)
---Suggestion to read through twice and make margin notes
---Value is placed breadth Not depth
---Ideally each issue deserves a paragraph with 2-3 succinct sentences
----Identify the issue (May be implicit)
----Articulate Principle
----Apply to the facts

Example: What is the unauthorized practice of law? It is the application of legal facts for another.
A planner acting in an administrative capacity



Subdivisions Redux
--A government can subdivide because of its police powers, but it is limited by due process
requirements

Exactions & Fees
--Exactions and dedications are the same, it is a government demand of a property interest in
exchange for permit/Zoning approval
Impact fee: fees must be tied to the actual impact

Vested Rights: essentially estoppel or "entitled", different in every state, a development has
progressed to a point where in the government cannot change its mind. In Utah, a development
is Vested when the application is "complete."

Intro to takings:

Class Notes Part II:



FEDERAL CONSTITUTIONAL LIMITS TO LAND USE REGULATION
(5th & 14th Amendments.)

Chapter 5: Fifth Amendment Limits to Land Use Regulations

1. Constitutional Protections and the Regulation of Private Property
All land use regulations must conform to the 5th Amendment of the U.S.
Constitution, and are not valid if they deprive any person of property without
due process of law and they cannot constitute Takings of real property unless
just compensation is paid
"No person shall be... deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for a public use, without just
compensation."
The "Due Process" clause prohibits Congress from passing any laws that do
not substantially advance legitimate state interests.
The "Takings" clause requires the state to compensate property owners fairly
when private property is conscripted for public use,
The 14th Amendment passes these proscriptions onto the states and their
subdivisions, e.g. local governments.
"No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws."

1.1. Mugler v. Kansas
1.1.1. Background: Kansas had enacted legislation that prohibited the
manufacturing and sale of liquor, and Mugler happened to own a brewery
in the state. Mugler contended that as a consequence of the law, his
property had no value, and since the law was for a public good, he had
not been fairly compensated for the taking.
1.1.2. Issues: (1) Does the Kansas law violate the Due Process Clause of
the Fourteenth Amendment? (2) If a law, which promotes public
HSMW, significantly depreciates the value of a property, does it
constitute a taking?
1.1.3. Holding: Depreciation of property in the abatement of a public
nuisance, i.e. brewing, is not a taking of property for public use.
1.1.4. Rule of Law: If a state's legislation to abate a legitimate public
nuisance results in a loss of some property value, it is not a taking.
(Nobody has a right to be a nuisance).
1.1.5. Principles Applied
1.1.5.1. (not applicable to this case) Eminent domain
1.1.5.2. (Applicable to this case) Police Powers, i.e. HSMW
1.1.5.2.1. "Acts done in the proper exercise of governmental powers,


and not directly encroaching upon private property, though
these consequences may impair its use, do not constitute a
taking within the meaning of the constitutional provision, or
entitle the owner of such property to compensation from the
State or its agents, or give him any right of action."
1.1.5.2.2. A valid legislative prohibition on the use of property for
purposes declared to be injurious to the health, morals, or
safety of the community, cannot be deemed a taking of
property for the public benefit.
1.1.6. Reasoning: Police Powers legislation does not disturb an owner's
right to use property for lawful purposes, or restrict their right to dispose
of it. In other words, a taking requires more than a restriction on
allowable property uses.

1.2. Pennsylvania Coal Co. v. Mahon
1.2.1. Background: Pennsylvania enacted a law that forbids coal mining
within 150 feet of any improved property, which may cause a "human
habitation" to collapse from ground settling (subsidence). Pennsylvania
Coal claims that it purchased the mineral rights to the coal under certain
improved properties, but this law prevents them from mining it, which
therefore completely deprives them from it (it does not consider
technological solutions to subsidence).
1.2.2. Issues: Does prohibiting mining under improved properties (public
roads, etc.) constitute an exercise of police powers or a taking? Is the
value of a property in the whole or the sum of its aggregate parts? "The
question at bottom," in an eminent domain case, "is upon whom the loss
of the changes desired should fall." (a ratio of lost value to the whole
unburdened value)
1.2.3. Holding: "So far as private persons or communities have seen fit
to take the risk of acquiring only surface rights, we cannot see that the
fact that their risk has become a danger warrants the giving to them
greater rights than they bought." Because property rights do not extend
from the surface to the earth's core, the public must also purchase the
separate mineral/mining rights beneath the surface, if they are held by
another. The compulsory sale of these mineral rights is an issue of
Eminent domain, not an exercise of police powers.
1.2.4. Rule of Law: "While property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a taking."
1.2.5. Principles Applied:
1.2.5.1. A taking does not occur if a land use prohibition applies over a
broad cross-section of land and thereby secures an average
reciprocity of advantage. (On balance, a prohibition should
mutually benefit both property owners and the neighboring public).
1.2.5.2. "Government could hardly go on if to some extent values


incident to property could not be diminished without paying for
every such change in the general law."
1.2.5.3. "...As long recognized, some values are enjoyed under an
implied limitation and must yield to the police power."
1.2.5.4. Police Powers can regulate or restrict some uses of property, but
if regulation removes all utility of the property, then it is a taking.
1.2.6. Dissent (Brandeis): Coal in place is land, and the right to use land
is not absolute. "He may not use [his property] as to create a public
nuisance; and uses, once harmless, may owing to changed conditions,
seriously threaten the public welfare." It is within the scope of the
legislature's authority to abate nuisances in pursuit of the public health,
safety, morals, or welfare, and is not required to pay compensation. The
state is not appropriating it or making use of it (yes it is, as a support
column), and the owner will regain use of the property when social
conditions change again. Furthermore, where the public may suffer
detriment and danger, there is no need to consider "an average reciprocity
of advantage," as assumed in this case.
1.3. Lingle v. Chevron
1.3.1. Background: Chevron challenged a Hawaii Statute that placed a
cap on the amount of rent an oil company may charge its lessees dealers,
which was designed to protect gasoline prices from inflation caused by
market concentration, claiming the law constituted a taking of its
property. Chevron contended that the Takings clause is meant "to bar
government from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a
whole." The lower courts struck down the legislation, asserting that it did
not substantially advance a legitimate state interest.
1.3.2. Issues: Does a regulation amount to an unconstitutional taking "if
it does not substantially advance legitimate state interests?" Can
Hawaii regulate rent caps in the interest of retail gasoline prices?
1.3.3. Holding: The "substantially advances a legitimate state interest"
test is not a valid Takings test because it is a due process test. Chevron
must instead challenge the legislation on 1 of 4 bases: 1) physical taking;
2) total regulatory taking; 3) Economic impact and character of
government action; 4) Land use extraction criteria.
1.3.4. Rule of Law: Takings clause challenges to regulations have to be
based on the severity of the burden that the regulation imposes upon
property rights, not the effectiveness of the regulation in furthering the
governmental interest.
1.3.5. Principles Applied:
1.3.5.1. (not applicable to this case) Government regulation of Private
Property effects a taking if such regulation does not substantially
advance a legitimate state interest (Agins v. City of Tiburon)
1.3.5.1.1. The "substantially advances test" arises from a conflation of


due process precedents with takings. It is not doctrinally
tenable because it fails to reveal anything about the magnitude
or character of the burden placed upon private property rights
by a particular regulation. Nor does it provide information
about have any regulatory burden is distributed among
property owners.
1.3.5.2. "While property may be regulated to a certain extent, if
regulation goes too far, it will be recognized as a taking."
"Government hardly could go on if to some extent values incident
to property could not be diminished without paying for every such
change in the general law" (Pennsylvania Coal v. Mahon).
1.3.5.3. The Takings clause does not prohibit the taking of Private
property, but instead places a condition on the exercise of that
power (it requires just compensation). Consequently, takings
decisions should test the severity of the burden that government has
imposed upon the private property rights of the individual.
1.3.5.4. FOUR grounds to challenge per se regulatory Takings:
1.3.5.4.1. (1) A PHYSICAL TAKING: Where government requires an
owner to suffer a permanent physical invasion of her property,
it must provide just compensation (Loretto v. Teleprompter
Manhattan CATV corp.).
1.3.5.4.2. (2) TOTAL REGULATORY TAKING: Regulations that
completely deprive an owner of all economically beneficial
use of her property, government must provide just
compensation, except where the intended use is constrained by
nuisance and property law (Lucas v. South Carolina Coastal
Commission).
1.3.5.4.3. (3) ECONOMIC IMPACT AND CHARACTER OF
GOVERNMENT ACTION TAKING: The economic impact
of the Regulation on the claimant and the extent to which the
Regulation has interfered with distinct investment-backed
expectations. And, the character of the governmental action
(whether it is a direct physical invasion or an incidental
property interest of a government program to promote the
public good). (Penn Central Transp. Co. v. NYC)
1.3.5.4.4. (4) LAND-USE EXTACTION CRITERIA: Government
may not condition the approval of a land use permit on the
owners relinquishment of a portion of his property unless
there is a nexus and rough proportionality between the
governments demand and the effects of the proposed land use.
If an "essential nexus" is found to exist between a
"legitimate state interest" and the conditions of a permit,
then the extent of the conditions must be "roughly
proportional" to the projected impact.



2. PER SE REGULATORY TAKINGS
o A government can commit a per se regulatory taking in two ways
Permanently, physically invading the property
The permanent invasion of the property proscribes the
right to exclude (meter reading).
The extent of the physical occupation is without regard
to the importance of of the public good (it doesn't
matter if the meter measures something really
importance, what matters is that the meter occupies
YOUR space).
Issuing a regulation which results in the in the owner being
completely deprived of all economically beneficial use of his
property.

2.1. Lucas v. South Carolina Coastal Council
2.1.1. Background: Lucas bought two residential lots on Isle of Palms,
intending to build single-family homes in 1986. In 1988 however, SC
enacted the Beachfront Management Act, which barred Lucas from
building habitable structures on the parcels. Lucas did not contest the
legitimacy of the law, or its substantive due process.
2.1.2. Issues: Does the Beachfront Management Act's effect on the value
of Lucas's property constitute a taking under the 5th Amendment? Is
Lucas's property use a public nuisance subject to regulation under the
promotion of HSMW?
2.1.3. Holding: The Beachfront Management Act not only exercises
state police powers, but regulatory enforcement constitutes a taking
because it renders the property in question completely valueless.
2.1.3.1. When a regulation that declares 'off-limits' all economically
productive or beneficial uses of land goes beyond what the relevant
background principles would dictate, compensation must be paid to
sustain it.
2.1.3.2. Where the state seeks to sustain regulation that deprives land of
all economically beneficial use, the state may resist compensation if
the proscribed use interests were not part of the owner's title to
begin with.
2.1.4. Rule of Law: A per se regulatory taking occurs where a regulation
denies all economically beneficial or productive use of land.
2.1.5. Principles Applied:
2.1.5.1. Two categories of compensable regulatory action
2.1.5.1.1. Permanent physical invasion, which precludes the right to
exclude (inspectors).
2.1.5.1.2. Total deprivation of all economically beneficial or
productive use of land.


2.1.5.2. Factors in determining a taking:
2.1.5.2.1. (1) The degree of harm to public lands and resources posed
by the owner's proposed activities;
2.1.5.2.2. (2) The degree of harm to adjacent private property;
2.1.5.2.3. (3) the social value and suitability of the owner's proposed
activity;
2.1.5.2.4. (4) The ease with which the harm could be avoided;
2.1.5.2.5. (5) The uses engaged in by similarly situated owners.
2.1.5.3. (Not Applicable) Average reciprocity of advantages is not
applicable because total economic deprivation goes beyond a mere
adjustment of the benefits and burdens of economic life.
2.1.5.4. "When... a regulation that declares 'off-limits' all economically
productive or beneficial uses of land goes beyond what the relevant
background principles would dictate, compensation must be paid to
sustain it." The Harmful and Noxious use nuisance abatement
principle cannot justify the complete abridgement of a property's
economic utility.
2.1.5.5. "Where the State seeks to sustain regulation that deprives land
of all economically beneficial use, we think it may resist
compensation only if the logically antecedent inquiry into the nature
of the owner's estate shows that the proscribed use interests were
not part of his title to begin with."

3. EXACTIONS
Adjudicative Land Use Exaction: Demands that a government places on a
landowner to dedicate an easement allowing public access to her property as a
condition of obtaining a development permit.

3.1. Nollan v. California Costal Commission
3.1.1. Background: The James and Marilyn Nollan, submitted a coastal
development permit to the California Coastal Commission to demolish a
bungalow and replace it with a three bedroom house in conformance with
the neighborhood. The California Coastal Commission recommended
that the permit be granted only if the Nollans would allow a public
easement on their property between two public beaches. The CCC
contends that the Nollans' bigger house would increase their contribution
to the residential wall that CCC alleges creates a "psychological barrier"
between the public and the beach, therefore limiting them to private use
of nearby homes. (I call B.S., like the court. Do they have any studies
that demonstrate this phenomenon?).
3.1.2. Issues: Does the conditioning of a permit to rebuild a house upon
dedicating a public easement constitute a taking?
3.1.3. Holding: Denial of a permit would not be a taking, so conditioning
of the permit is not a taking unless the condition itself fails to further the


end that would justify the prohibition of construction. Thus, the condition
had to be related to the harm caused by Denial of a permit would not be a
taking, so conditioning of the permit is not a taking unless the condition
itself fails to further the end that would justify the prohibition of
construction. Thus, the condition had to be related to the harm caused by
the new construction and the Permit condition has to serve same purpose
as a prohibition.
3.1.4. Rule of Law: Government may place conditions on land-use
permits so long as there is an essential nexus between those conditions
and the harms likely to result from that use.
3.1.5. Principles Applied:
3.1.5.1. Exactions are permitted if there is a rational nexus.
3.1.5.2. A permit condition that serves the same legitimate police power
purpose as a refusal to issue the permit is not a taking if the refusal
to issue the permit would not constitute a taking also.
3.1.5.3. "We are inclined to be particularly careful about the adjective
where the actual conveyance of property is made a condition to the
lifting of a land use restriction, since in that context there is
heightened risk that the purpose is avoidance of the compensation
requirement, rather than the stated police power objective."
3.1.5.4. Government may not condition the approval of a land use
permit on the owners relinquishment of a portion of his property
unless there is a nexus and rough proportionality between the
governments demand and the effects of the proposed land use.

3.2. Dolan v. City of Tigard
3.2.1. Background: Florence Dolan owned a plumbing and electric supply
store and wanted to redevelop the site. The City of Tigard issued Dolan a
permit on the condition that she dedicate 10% of the total land area of her
property to the city for a pedestrian/bicycle pathway and flood drain. The
city claimed that the drain was necessary to help prevent likely flooding
from a nearby creek and the pathway would also offset some of the
traffic demand. Dolan claimed the dedication is a taking of her property
for public use without just compensation. Dolan does not contend with
the city's authority to exact some form of dedication as a condition of a
permit, but challenges the justification of the exactions, indicating a lack
of reciprocal (mutual) benefits or quantifiable burdens her expansion
would create.
3.2.2. Issues: Does an impermissible taking of property occur when a
city requires a landowner to convey property to the city in order to get a
permit to redevelop property?
3.2.2.1. Does an essential nexus exist between the legitimate state
interest and the permit? If so, then what is the required degree of
connection between the easement and the projected impact of the


proposed development.
3.2.2.2. Holding: Conditions of a land use permit must be roughly
proportional to the impact of the new development. The
prevention of flooding and mitigating traffic congestion are
legitimate state interests especially since expansion will likely
increase traffic, and expanding the amount of impervious surface in
a flood plain reduces its efficacy. However, demanding a larger
Exaction for a public access Greenway, is disproportionate with
established flood abatement dedication requirements and
eviscerated the core right to exclude. Furthermore, the pathway fails
to serve a legitimate purpose of reducing traffic because the city did
not meet its burden of proof ('could' versus 'will' or 'likely to').
3.2.3. Rule of Law: When a city requires a landowner to convey some
property to the city as a condition to obtaining a permit, there must be a
rough proportionality (balancing) between the burdens on the public that
would result form granting the permit and the benefit to the public from
the conveyance of land.
3.2.4. Principles Applied:
3.2.4.1. Exactions are permitted if there is a rough proportionality of
impact.
3.2.4.2. If an "essential nexus" is found to exist between a
"legitimate state interest" and the conditions of a permit, then
the extent of the conditions must be "roughly proportional" to
the projected impact.
3.2.4.3. Government may not condition the approval of a land use
permit on the owners relinquishment of a portion of his property
unless there is a nexus and rough proportionality between the
governments demand and the effects of the proposed land use.
3.2.4.4. The right to exclude is one of the most essential sticks in the
bundle of sticks characterized as property rights.

4. Ripeness

5. AD HOC FACTUAL INQUIRIES
5.1. Penn Central Transportation Co. v. New York City
5.1.1. Background: NYC's Landmark Preservation Law precluded Penn
Central Trans. from building a multi-story office building on top of
Grand Central Station. PCTC claimed this statute constituted a taking.
PCTC does not contest NYC's objective of preserving structures with
special historic or cultural significance as a permissible government goal.
They also do not contest the appropriateness of the restrictions used to
attain that goal. Finally PCTC concedes that even with the landmark
status Grand Central Station can earn a reasonable return and that the
landmark status itself has value, even if not as valuable as the proposed


office complex.
5.1.2. Issues: Did the restrictions imposed by New York Citys landmarks
law upon PCTC exploitation of the Terminal site effect a taking of
PCTC's property for public use within the meaning of the Fifth
Amendment?
5.1.2.1. (1) When do "justice and fairness" require that economic
injuries caused by public action be compensated by the government,
rather than remain disproportionately concentrated on a few
persons?
5.1.2.2. (2) Are selected owners singled out to endure hardships when a
any property becomes a restricted landmark, and does that hardship
constitute a taking?
5.1.3. Holding: As part of a comprehensive plan to preserve
historical/cultural landmarks, a city may place restrictions on the
development of individual historical landmarks without effectuating a
taking requiring the payment of just compensation within the
meaning of the Fifth Amendment.
5.1.4. Rule of Law: Land use designations, such as landmarks status, do
not effect a taking when such restrictions confer both additional value
upon the property and do not interfere with a reasonable return on
investment.
5.1.5. Principles Applied:
5.1.5.1. Land use regulation does not effect a taking if it does not deny
an owner economically viable use of his land.
5.1.5.2. The 5th amendment bars government from forcing some people
to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole.
5.1.5.3. 3 Factors For Consideration
5.1.5.3.1. Economic Impact: Balancing of the (Value taken) /
(Unregulated value)
5.1.5.3.2. The impact of the Regulation on the claimant and the extent
to which it interferes with investment-backed expectations
(Gallant v. Hempstead)
5.1.5.3.3. "A taking may more readily be found when the interference
of with property can be characterized as a physical invasion of
Government, than when interference arises from some public
program adjusting the benefits and burdens of economic life to
promote the common good." (U.S. v. Causby).
5.1.5.3.3.1. The degree to which the Regulation imposes a
"Physical invasion" to a mutual sharing of public benefits
and burdens (reciprocity).
5.1.6. Dissent: Penn. Central has had a servitude placed upon them not
to abate some public nuisance, but because "it did too good of a job in
designing and building it." "Property is taken in the constitutional sense


when inroads are made upon an owner's use of it to an extent that, as
between private parties, a servitude has been acquired" (U.S. v.
Dickinson). While Zoning may reduce individual property valuses, it is
not a taking because it shares the burden relatively evenly. "It is the
character of the invasion, not the amount of damage resulting from it, so
long as the damage is substantial, that determines the question whether it
is a taking" (U.S. v. Lynah).

5.2. Palazzolo v. Rhode Island
5.2.1. Background: Palazzolo owned a waterfront parcel of land, almost
all of which was designated coastal wetland. The state of Rhode Island
rejected Palazzolos development proposals.
5.2.2. Issues: Whether the Rhode Island Coast Resources Management
Council's application of the wetlands regulations was a taking without
just compensation.
5.2.2.1. Is the chain of title sufficient notice of an earlier restriction to
bar a Takings claim?
5.2.3. Holding: Palazzolo was not deprived of all economically valuable
use. However, the case was remanded for consideration under the Penn
Central analysis. On remand the court would need to make a
determination of whether the regulations went too far so as to constitute
taking, considering the owners investment backed expectations. Court
would have to consider whether he has suffered a taking even though
some use of the parcel remained viable and also considering the character
of the governments action and the economic interference with owners
investment backed expectations.
5.2.4. Rule of Law: A regulation may be found to constitute a taking if
it goes too far in light of the property owners reasonable investment
backed expectations, even though it does not deprive the owner of all
economically viable use.
5.2.5. Principles Applied:
5.2.5.1. (NOT APPLICABLE Principles)
5.2.5.1.1. A purchaser or successive title holder is deemed to have
notice of an earlier enacted restriction and is barred from
claiming that it effects a taking.
5.2.5.1.1.1. This rule is not a valid rule because it precludes heirs or
other successors from challenging onerous regulations on
the basis of an arbitrary function of time and the change
of title (bad rules don't get better over time).
5.2.5.1.2. It is a general rule of law of eminent domain (direct
condemnation) that any award goes to the owner at the time of
the taking, and that the right to compensation is not passed to a
subsequent purchaser.
5.2.5.2. A state may not evade its duty to ccompensate by leaving a


property owner with a token interest.

6. Remedies

7. Supplemental Cases
7.1. Stevens v. Cannon Beach
7.1.1. Background: The Stevens owned two vacant lots in the dry sand
area of the City of Cannon Beach, OR. They applied to the Oregon
Department of Parks and Recreation for permits to build a seawall as part
of the eventual development of the lots for motel or hotel use. City and
department denied the application on a number of grounds. The City
denied the Stevens' application, in part because city found that the
eventual proposed commercial use of the property conflicted with a Land
Conservation and Development Commission (LCDC) planning goal 18,
which limits residential developments and commercial and industrial
buildings on beaches, and on active foredunes, and other foredunes
which are conditionally stable and that are subject to ocean undercutting
or wave overtopping. The Stevens also applied for a permit to build the
seawall within the dry sand area of the beach, which also was denied.
The Stevens alleged that the city of Cannon Beach and the Department of
Parks and Recreation's denials, and the ordinances and rules on which
they were based, resulted in a taking of their property, for public use, in
violation of Article I, section 18, of the Oregon Constitution, and the
Fifth Amendment of the United States Constitution.
7.1.2. Issues: 1) If government denies a building permit, to promote a
public interest (beach use), and the property in question loses economic
value, is it a taking? 2) Also, are the regulations that proscribe said
development, in promotion of an public interest (beach conservation), an
unconstitutional taking? 3) Can a land use law be retroactively applied
to property purchased before its enactment?
7.1.3. Holding: The doctrine of custom existed long before LCDC--it is
not a retroactive application of new law--consequently the custom of
public access to the beach's foredunes was never part of the Stevens'
bundle of property rights. The other 2 points are moot.
7.1.4. Principles Applied:
7.1.4.1. When a plaintiff'sproperty interest does not include
development rights, at the onset, the denial of a permit does not
constitute a taking (Thornton Supra).
7.1.4.2. Where the state seeks to sustain regulation that deprives land of
all economically beneficial use, the state may resist compensation if
the proscribed use interestswere not part of the owner's title to
begin with (Lucas v. Atlantic Coastal Commission).
7.1.4.3. Prescriptive easement: an easement upon another's real property
acquired by continued use without permission of the owner for a


period provided by state law to establish the easement. The
problems with prescriptive easements are that they do not show up
on title reports, and the exact location and/or use of the easement is
not always clear and occasionally moves by practice or erosion.
7.1.4.4. 'The rule in this case, based upon custom, is salutary in
confirming a public right, and at the same time it takes from no man
anything which he has had a legitimate reason to regard as
exclusively his.'
7.1.4.5. Doctrine of Custom: First arose in medieval England where, by
immemorial custom, citizens would acquire the right to use land in
specific localities. Sir William Blackstone identified seven
requirements for every custom:
(1) The land has been used in this manner so long "that the
memory of man runneth not to the contrary";
(2) without interruption;
(3) peaceably;
(4) the public use has been appropriate to the land and the
usages of the community;
(5) the boundary is certain;
(6) the custom is obligatory, i.e., it is not left up to individual
landowners as to whether they will recognize the public's right
to access; and
(7) the custom is not repugnant or inconsistent with other
customs or laws.

7.2. Kelo v. City of New London
7.2.1. Background: In 2000, the city of New London approved a
development plan that, in the words of the Supreme Court of Connecticut,
was projected to create in excess of 1,000 jobs, to increase tax and other
revenues, and to revitalize an economically distressed city, including its
downtown and waterfront areas. The city purchased property and
seeks to enforce eminent domain to acquire the remaining parcels from
unwilling owners.
7.2.2. Issues: Whether the citys proposed disposition of Kelso 's
property qualifies as a public use within the meaning of the Takings
Clause of the Fifth Amendment.
7.2.3. Holding: The citys proposed disposition of petitioners property
qualifies as a public use within the meaning of the Takings Clause.
Public use in this case was broadly interpreted to mean public purpose.
7.2.4. Rule of Law: The court has to meet two burdens for eminent
domain: (1) that the takings of the particular properties at issue were
reasonably necessary to achieve the Citys intended public use; and (2)
that the takings were for reasonably foreseeable needs.
7.2.5. Principles Applied:


7.2.5.1. The Court held in the Midkiff case that economic development
qualifies as a valid public use under both Federal and State
Constitutions.

7.3. Koontz v. St. Johns River Water Management District
7.3.1. Background: Koontz sought permits to develop a section of his
property from respondent St. Johns River Water Management District
(District), which, consistent with Florida law, requires permit applicants
wishing to build on wetlands to offset the resulting environmental
damage. Koontz offered to mitigate the environmental effects of his
development proposal by deeding to the District a conservation easement
on nearly 3/4ths of his property. The District rejected Koontzs proposal
and informed him that it would approve construction only if he (1)
reduced the size of his development and, inter alia, deeded to the District
a conservation easement on the resulting larger remainder of his property
or (2) hired contractors to make improvements to District-owned
wetlands several miles away. Koontz agreed to deed the rest of his land
into a conservation area but rejected the reduction in development and
the proposed off-site mitigation.Subsequently, Koontzs permit was
denied premised upon the assertion that his development would
adversely impact the Riparian Habitat Zone without adequate mitigation,
and Koontz brought suit against the District for inverse condemnation.
Believing the Districts demands to be excessive in light of the
environmental effects his proposal would have caused, Koontz filed suit
under a state law that provides money damages for agency action that is
an unreasonable exercise of the states police power constituting a
taking without just compensation.
7.3.2. Issues:
7.3.3. Holding: the Nollan and Dolan rule is applicable only where the
condition/exaction sought by the government involves a dedication of or
over the owners interest in real property in exchange for permit approval;
and only when the regulatory agency actually issues the permit sought,
thereby rendering the owners interest in the real property subject to the
dedication imposed. The court ruled that the test for regulatory takings
set forth in Penn Central v. New York City (1978) was more appropriate
to the dispute between Koontz and the District.
7.3.4. Rule of Law:
7.3.5. Principles Applied:
7.3.5.1. (NOT APPLICABLE) Government may not condition the
approval of a land use permit on the owners relinquishment of a
portion of his property unless there is a nexus and rough
proportionality between the governments demand and the effects of
the proposed land use.
7.3.5.2.
Class Notes Part II:

03.20.14 Permit Application Procedures (Procedural Due Process)

Procedural Due Process

Fasano v. Washington County
Background: In 1959, Washington County adopted a comprehensive plan including
classifications for residential, commercial, industrial and agricultural uses. The land in question
was designated residential under the plan and zoned R-7 Single Family Residential. In 1963
the County adopted an ordinance establishing a new Planned Residential (P-R) floating zone,
to be applied to a particular location only upon approval by the governing body. The P-R zone
provided that a planned residential unit development could be established and should include
open space for utilities, access, and recreation; should not be less than 10 acres in size; and
should be located in or adjacent to residential zones.
In 1970 the defendant, AGS Development Company, applied for a zone change from R-7
to P-R to construct a mobile home park on its 32-acre property. The request was denied by the
Planning Commission, but subsequently approved by the Board of County Commissioners who
found, among other things, that the change allowed for increased densities and different housing
types to meet the needs of urbanization in the area. Fasano, a neighboring lawyer, did not like
the change because the developer planned to build a mobile home park. The Board of County
Commissioners approved the zone change. The trial court reversed, on grounds that the decision
was arbitrary and capricious, saying there was no change in the character of the neighborhood to
justify the rezone. The Court of Appeals affirmed, adding that the defendant failed to show the
change was consistent with the Washington County comprehensive plan. While the county
contends that rezoning is a legislative function, The Supreme Court says that the commission is
acting in a "Quasi-Judicial" capacity.
Issue: By what standards does a county commission exercise its authority in zoning matters;
who has the burden of meeting those standards when a request for change of zone is made; and
what is the scope of court review of such actions?
Holding: The act of rezoning in this case not legislative but quasi-judicial. The Supreme Court
of Oregon concluded that a determination regarding the permissible use of a specific piece of
property is an exercise of judicial authority (not legislative authority) therefore the burden of
proof is placed upon the person seeking the change of use. In this case, the record was
insufficient to ascertain whether there was a justifiable basis for the rezone. The defendant failed
to overcome the burden of proof: there was no adequate showing that the change was in
accordance with the comprehensive plan of Washington County.
Rule of Law:
"Quasi-Judicial" decisions require:
1. Public Notice: applicants and other impacted parties
2. Public Hearing: A public meeting to
3. Impartial Decision maker: adjudicators who are not bias
4. Presentation and contesting of evidence (not opinion)
5. Record Created
6. Reasoned result:
a. Substantial evidence
b. Application of the law to the evidence
Principles:
+ A legislative action is presumed to be valid, until substantively proven invalid.
+ Judicial
- Physical trappings of a court: Judges, attorneys (adversarial), jury, witnesses, bailiffs,
recorder, gallery, and evidence.
- Juries weigh the evidence, apply the law to the facts, and then reach a conclusion.
- A plaintiff/prosecutor must meet a burden of proof (prima facia) for the suit to proceed.
The prima facia burden of proof is necessary to ensure fairness.
Rationale:
Ordinances laying down general zoning policies are usually an exercise of legislative authority
and are subject to limited review and may only be attacked upon constitutional grounds for an
arbitrary use of authority. A determination whether the zoning of a specific piece of property
should be changed is usually an exercise of judicial authority and is subject to a different level of
scrutiny. A change must be proven to be in conformance with the comprehensive plan, including
a demonstration that there is a public need for the change, and that the need will best be served
by changing the classification of the particular piece of property in question, compared with
other available property. The burden of proof is on the party seeking the change. The greater the
change, the greater the burden to prove that the potential impact upon the area in question was
carefully considered and weighed. The court found that the evidence to support the change was
too conclusory and superficial to support the change and was insufficient to justify a change of
use.

Citizen's Awareness Now v. Marakis
Background: Citizen's Awareness Now ("CAN"), a not-for-profit organization, sued East
Carbon City, UT, demanding that the city authorize voter referenda on city zoning ordinances
which allowed the construction of a multi-million-dollar solid-waste treatment facility on land
adjacent to the city. The East Carbon Development Corporation ("ECDC") owned the land
(approximately 2500 acres) which was the subject of the dispute.
In 1989, ECDC and the city council negotiated an agreement allowing ECDC to build the
facility in exchange for certain economic benefits to the city. On July 11, 1989, the city council
passed a resolution to annex the ECDC property to permit the building of a solid waste treatment
facility. Although the resolution acknowledged that the city zoning categories did not provide for
a privately owned facility.
Issues: The distinction between legislative actions and administrative actions. Can you hold a
referendum on an administrative action?
Holding: A legislative matter, such as an amendment to the zoning ordinance, can be the subject
of a referendum, whereas an administrative matter such as the granting of a conditional use
permit is not subject to referendum. (Additionally, a private transaction of an individual should
not be subject to majority opinion. A right is the protection of a minority from majority).
Rule of Law: If the new zoning ordinance falls within the general purpose of the original
ordinance, it is administrative. It is judicial if __ and __ except when material or immaterial

Utahs Test to determine whether an action is legislative or administrative:
1) Whether the threshold requirement of proper notice of the zoning change to the affected
citizens is satisfied, and then considers in turn, the elements of
2) Whether the new zoning ordinance is consistent with the general purpose and policy of
the original zoning ordinance,
3) Whether the new zoning ordinance is a material variation from the basic zoning law of
the governmental unit, and
4) The appropriateness of voter participation in the matter.

Principles:
+ see Fasano because this case has been overturned and the new rule is closer to Fasano's
+ Marakis Test:
Does the new law fall within the general purpose of the original zoning enactment? If it
does, the change amounts to an administrative action and is not subject to referendum. If
it does not, the court presumes the action is legislative but it then looks the following
two factors to see if the legislative presumption is rebutted:
o Does the change represents a material variance from the basic zoning law of the
jurisdiction? If does not, and the new law merely implements the comprehensive
plan and adjusts it to current conditions, then the action is administrative.
o Does the zoning change implicate a policy-making decision amenable to voter
control? If it does not, and the action is of such complexity that that it is not
practical for the public to give it sufficient time and attention to make a proper
determination of the matter, then the action is administrative
+ Carter v. Lehi City replaced the Marakis test with a new, more general standard:
A ballot initiative should be deemed an appropriate legislative act where it proposes a law
of general applicability. Laws that prescribe rules of conduct for the general population
are squarely within the ambit of generally applicable rules, and ballot initiatives
proposing such laws are per se legislative.
o A site specific zoning decision is legislative if it is made by a city council that
possess only legislative authority. A site specific zoning decision is also
legislative if it involves the adoption of a new zoning classification.
o Entering into a contract with a specific entity or exercising an option is an
administrative act, while enacting a broad zoning ordinance is legislative.
Similarly, action on a variance or a conditional use application is executive.

Comparison of legislative and administrative action in Utah
Legislative Action Administrative Action
Definition Law-making Law applying
Geographic Scope Broad Narrow
Process Electoral Procedural
Referendum Yes No
Due process Minimally factual Substantial evidence


03.25.14 Concurrency
Concurrency: Matching growth with facilities and services
Growth Phasing: How fast?
Growth Controls/cap: How much?
Growth Management: Where? (location)

Golden v. Planning Board of Ramapo
Summary: Ramapo has revised zoning ordinance made all of its residential development
conditional use, which required special permits. Essentially, it limits the rate of growth to the
city's ability to build facilities and provide services. Ramapo used a growth management system
that awarded points to development proposals based on the availability of public utilities,
drainage facilities, parks, road access, and firehouses was approved by the New York Court of
Appeals. Developers could increase their point total by providing the involved facilities
themselves. Only after a proposal reached a certain point total could it be approved by the Town
of Ramapo.
Background: Due to development pressures, the Town of Ramapo adopted a master plan in
1966. A comprehensive zoning ordinance and capital budget, which provided for the
improvements described in the Master Plan, soon followed. A capital program was also
introduced which detailed the capital improvements projected for maximum development over
the next 18 years in line with master and other plans. A 1969 amendment to the Town of
Ramapos zoning ordinance was made in an attempt to eliminate premature subdivision and
sprawl. Residential development was to proceed along with adequate municipal facilities and
services. The amendment prohibited subdivision approval except where the developer has
obtained a special permit or variance. These were granted when a level of development points
were obtained which characterized the level of the following facilites for the property: sanitary
sewers, drainage facilities, parks, recreational facilities and schools, roads and firehouses.
Property owners may install, at their own expense, public improvements that make their property
meet development point criteria and thereby allow their subdivision to go forward.
Restrictions on subdivision were meant to be temporary (until public facilities were adequate)
and single family uses were still permitted. The purpose of the amendments was to phase
residential development to the Towns ability to provide said facilities and services.
In Golden, the plaintiff seeks to annul a decision made by the towns planning board,
which denied their application for preliminary approval for a residential subdivision map.
Golden sues because the revision might be a taking and that the law is arbitrary and capricious.
The denial came due to failure to obtain a special permit. In Rockland County Builders
Association, the plaintiff sought declaratory judgment that the ordinance was unconstitutional.
They are a membership corporation of developers and although they own property have never
made application for approval of a plat. The subdividing land owner finds that the ordinance
destroys the value and marketability of their property thereby amounting to an invasion of
property rights.
Issue: Growth Phasing Do zoning ordinances that require a special permit before subdividing
property step outside of the authorized objectives of zoning enabling legislation, if that permit is
only available when public facilities and services are deemed adequate?
Holding: The zoning ordinance is valid and its objectives are within those defined by the zoning
enabling legislation. It is also not a taking because it is a temporary moratorium on development
and not a permanent taking. Furthermore, the ordinance does not preclude a developer from
providing these services and facilities to expedite the development.
Rule of law: Zoning ordinance, allowing subdivision development only by special permitcupon
showing that adequate municipal facilities and services were available or would be provided by
the developer, constituted a rational attempt to provide for sequential and orderly residential
development in conjunction with the needs of the community and its ability to supply public
facilities.
Principles applied:
- The right to travel: An inferred right that precludes restrictions on one's freedom to move and
live where one may choose (internal migration).
- reasonable use over a reasonable period of time as measured by a comprehensive plan
- The court examined the effects of the scheme as a whole and its role in producing viable land
use and planning policy. This ordinance provides for sequential and orderly development. The
objectives of the zoning enabling legislation are as follows: secure safety, avoid undue
concentrations of people and ensure adequate provision of transportation, water, sewerage,
schools and parks. Based on this, the challenged ordinances are proper zoning techniques.
Plaintiffs argue that timing controls are not authorized since they prohibit subdivision
without action by the Town. The Planning Board may not completely deny the right to
subdivide. However, a plan is in place to ensure action by the Town. Protection from abuse of
this mechanism comes from the mandatory on-going planning and development requirement.
Some properties will not be able to be developed for 18 years according to the general
plan. They still are not valid as takings. Landowners are still able to put the property to some
use, maybe not the most profitable one (single family residences are allowed). Reducing the
value of property does not amount to confiscation unless it is unreasonable or the value is
diminished to nearly nothing. These restrictions, while harsh, are not absolute. The court must
assume that the Town will act on their plan. If this assumption is shown later to be unwarranted,
the restrictions may be undone.
The court uses presumption of validity and cast the burden of proving invalidity to those
challenging the action. Legitimate public purpose is forwarded by the ordinance as it ensures all
new homes will have adequate public services. It is not exclusionary, instead it enables a
cohesive community and efficient utilization of land. Population is not frozen but instead growth
is maximized through efficient land use.


Construction industry association of Sonoma County v. City of Petaluma
Summary: CIASC sues Petaluma after the city implements growth caps. Essentially, Petaluma
is not taking its share of regional population growth. CIASC seeks to invalidate the ordinance
because it claims that the Zoning ordinance limits the right to travel, but more importantly
violates equal protection under the 14 amendment. They also claim that it violates the Commerce
clause.
Background: Petaluma is located in Southern Sonoma County, about 40 miles north of San
Francisco. The town experienced a steady population growth from a population of 10,315 in
1950 to 24,870 in 1970. As the city was drawn into the Bay Area Metropolitan housing market, it
began to experience extremely rapid growth reaching a population of 30,500 in 1972, an increase
of almost 25 percent in a little over 2 years. This increasing population was reflected in an
increase in the number of housing units. In 1970 and 1971, builders won approval of a total of
2000 permits although only 1482 were completed by the end of 1971. Alarmed by the
accelerated rate of growth in 1970 and 1971, the demand for more housing, and the sprawl of the
city eastward, the city adopted a temporary freeze on development in early 1971 in order to give
the city council and planners an opportunity to study the housing and zoning situation and
develop short and long range plans.
To correct the imbalance between single family and multi family dwellings, curb the
sprawl on the east side of the city and slow the accelerating growth of the city, the council
adopted several resolutions in 1972, which collectively were called the Petaluma plan. The
five year plan placed a 500 unit per year cap on new projects involving more than 5 units. The
plan implemented a residential development control system, which provided procedures and
criteria for the award of the annual 500 development units using an intricate point system where
a builder accumulates points for conformity with the citys general plan and environmental
design plans, for good architectural design, and for providing low and moderate income dwelling
units and various recreational facilities. The plan mandated that allocations of building permits
were to be divided as evenly as feasible between the east and the west sides of the city and
between single family and multi family dwellings, that sections of the city closest to the center
were to be developed first in order to encourage infill of vacant lots and that 8 to 12 percent of
the housing units approved were to be for low and moderate income persons. The plan also
placed a 200 foot wide greenbelt around the city to serve as a boundary for urban expansion for
at least 5 years.
Procedure: Two landowners and the construction industry association of Sonoma county
brought the case against the city claiming that the plan was unconstitutional. The district court
ruled that certain aspects of the plan unconstitutionally denied the right to travel insofar as they
tended to limit the natural population growth of the area. The court enjoined the city and its
agents from implementing the unconstitutional elements of the plan, but the order was stayed
pending appeal. The ninth circuit found that while the landowners did not have standing to raise
the right to travel argument for unknown third parties, who might be excluded from Petaluma by
the plan, they did have standing to challenge the plan on the grounds that it is arbitrary and
violated their due process rights and that the plan poses an unreasonable burden on interstate
commerce.
Issue: Growth controls/caps; Equal protection. Does a plan serve a legitimate public purpose if
it places limits on new residential development units in order to preserve small town character
and avoid the social and environmental problems caused by an uncontrolled growth rate, or is it
arbitrary and in violation of the due process rights guaranteed by the 14th amendment?
Holding: The court found that the plan was a constitutional means to preserve the towns
character and mitigate growth.
Rule of Law: If the present system of delegated zoning power does not effectively serve the
state interest in furthering the general welfare of the region or entire state, it is the state
legislature's and not the federal courts' role to intervene and adjust the system... The federal court
is not a super zoning board and should not be called on to mark the point at which legitimate
local interests in promoting the welfare of the community are outweighed by legitimate regional
interests."
Principles applied:
Equal protection (14th amendment)
o Equal Opportunity (not equal outcomes)
o Differential treatment
Occasionally permissible when there is a rational basis tied to HSW
(Interstate) Commerce Clause
o The Dormant Commerce Clause: Even when Congress has not exercised its
authority to regulate interstate commerce, states are prohibited from enacting any
legislation inhibit interstate commerce.
Prohibits direct discrimination
Prohibits undue/disproportionate impact on commerce
Rationale: In attacking the validity of the plan, the appellees rely heavily on the district courts
finding that the plan would exclude substantial numbers of people who would otherwise elect to
move to the city. The fact that the plan is exclusionary, however, does not render it invalid.
Practically all zoning restrictions have as a purpose and effect the exclusion of some activity or
type of structure or density of inhabitants. If the exclusionary regulation can be shown to further a
legitimate state interest, it must be upheld as a legislative act.
The court relies on two cases to support its finding that the citys interest in preserving its
small town character and avoiding uncontrolled and rapid growth serves the public welfare. In the
Belle Terre case, the supreme court found that the prohibition of boarding houses and other multi-
family dwellings was reasonable and within the public welfare because such dwellings present
urban problems, such as the occupation of a given space by more people, the increase in traffic
and parked cars and the noise that comes with increased crowds.
In the Los Altos Hills case, the court found that a zoning ordinance providing that a housing
lot must be larger than one acre and that no lot could be occupied by more than one dwelling unit,
which as a practical matter prevented poor people from living in the town, was rationally related
to a legitimate governmental interest the preservation of the towns rural environment and thus
did not violate the equal protection clause of the 14th amendment.
In both cases, the court found that regulation that had the purpose and effect of permanently
restricting growth served a legitimate governmental interest falling within the concept of the public
welfare. The Petaluma plan was even less restrictive and exclusionary than the zoning ordinances
in these cases - it did not freeze the population at present or near present levels and it did not have
the effect of excluding any particular income class or minority group.
While the court agreed that the plan might have some negative consequences for regional
housing needs, it argued that it is the state legislatures and not the federal courts role to intervene
and adjust a system that does not effectively serve the state interest in furthering the general welfare
of the region or entire state.


Managing Growth With Priority Funding Areas: A Good Idea Whose Time Has Yet to Come
Issue: Growth Management
UGBs: Urban Growth Boundaries (UGBs) separate areas where urban growth is allowed
to occur from areas where it is not allowed. Greenbelts.
USAs: Urban Service Areas (USAs), which bound the expansion of public services like
water and roads rather than limiting development of housing units. It is not regulatory, but
rather a demarcation of the availability of urban services.
EZs: Enterprise Zones (EZs), areas where taxes are lower and regulations are relaxed to
encourage economic development.
PFAs: Priority Funding Areas (PFAs), are areas designated by local governments and
reviewed by the state and serve as target areas for spending by state agencies. These zones
are given priority funding for urban scale infrastructure (roads, utilities, sewers, drainage,
transit), to encourage development within a specified region. Developers who develop
outside of PFA's would be responsible for providing the infrastructure needs of their
development as the state/county/city will not give them priority.

Constitutional Principles:
Substantial due process
Takings
Equal Protection
Commerce Clause
Right to travel

03.27.14 Performance Planning/Zoning
Land use law consists of a framework with two primary components:
Substance of Land use policy (the program to achieve a public good)
Legal framework to determine the validity of that policy

POLICY
Performance based Planning and Zoning
Oregon Planning System
1000 Friends v.LCDC

LEGAL STANDARDS
State Statutes
Administrative Rules

Performance-Based:
- Outcomes
- Ends
- Basically it is about ensuring local government land use laws are consistent with state standards
(and applicable agencies are complying with their own rules).

Utahs land use laws tend to focus on means, and not ends

LEEDS
leadership
environment
energy
design

1000 FRIENDS of OREGON v. LAND CONSERVATION AND DEVELOPMENT
COMMISSION, LANE COUNTY
Summary: Oregon adopted a set of land use law goals. LCDC was established by Oregon to
develop these goals and then adjudicate them. Local governments were ordered to implement
planning and zoning that is consistent with these standards. It is left to the local government to
determine how best to achieve these goals. In its plan, Lane County zoned large portions of the
county as forestland. Lane County established two types of forest zones, non-impacted
forestlands and impacted forest lands. The latter lands Lane County defined as "impacted by
non-forest uses." Lane County Development Code. Residence were not permitted on non-
impacted forestlands, but dwellings were permitted on impacted forestlands, if, among other
reasons, they were "necessary and accessory" to forest management. The Oregon Court of
Appeals reversed all but one of the assignments of error. 1000 friends of Oregon, Lane County
and the LCDC all petitioned the Supreme Court for review. The Supreme Court appears to be
looking specifically at two of the mentioned errors.
Background: Oregon had adopted a system of state-wide land use controls. The system relies
on a series of 19 statewide land use management goals adopted by a statutorily created Land
Conservation and Development Commission in 1973. All state, city and county comprehensive
plans, ordinances and regulations must conform to the LCDC adopted goals. Compliance is
accomplished through and acknowledgement procedure in which the LCDC receives the plans
and ordinances and confirms that they have been adopted in accordance with the statewide goals.
Lane County presented a proposed comprehensive rural land use plan to the LCDC in
February of 1984. The LCDC found a number of deficiencies and granted Lane County a
continuance during which Lance County fixed these deficiencies. In September of 1984, LCDC
acknowledged the Lane County Plan was in compliance with the statewide land use goals.
1000 Friends of Oregon, a non-profit group whose proclaimed objective is to represent
the citizens' voice for land use planning that protects Oregon's quality of life from the effects of
growth, objected to the plan and sought judicial review by the Court of appeals on seven
assignments of errors.
Issue: There are two items at issue in this case, concerning whether LCDCs approval of the
Lane County Plan was in accordance with goals 3 & 4 of Oregons Statewide Planning Goals:
1. Was LCDC correct in approving the Lane County Plan, which provided the existence
of a forest management plan ipso facto, which allows for construction of a dwelling
as being necessary and accessory to the forest management plan. A use which
would otherwise be a non-forest use?
2. Is it acceptable for Lane County to zone for, and LCDC to acknowledge, zoning
which allows for exclusive farm uses (specifically woodlots) on Goal 4 forest lands.
Holding:
1. In deciding whether LCDC erred in allowing dwellings on forestland, the court found
there was not a sufficient showing in the record made by LCDC that the sole test of
necessary and accessory test in the Lance County plan used to evaluate dwellings
on forestland will protect the states Goal 4.
2. The court found that LCDC violated the requirements of Goal 4 in acknowledging
Lane Countys plan despite the fact that it allowed farm uses on forest lands without a
showing of compatibility with forest uses.
Rule of Law: When government establishes a standard, government must then adhere to it.
Rationale:
1. The court found that LCDC must show the necessary legal connection between the
policy of conserving forest land for forest uses and allowing dwellings on forest land.
The court does not rule out that a dwelling could be considered necessary and
accessory to forest use, but will not agree that allowing a dwelling on some part of a
lot simply because it may enhance forest uses on the remainder of the lot protects
existing forest uses to the extent required by goal 4. The court also ruled that the
necessary and accessory testing the Lane County plan is neither precise nor strict
enough to show that dwellings on forest lands will meet the stated intent of goal 4 to
conserve forest lands for forest uses. Thus, the LCDC approval of this variation of
the necessary and accessory test is inconsistent with the purpose of goal 4.
2. The court states that when it created separate goals for agricultural use and for forest
use, LCDC recognized that these uses had distinct characteristics, and to suggest that
land may appropriately be converted from farm to forest use or vice versa
depending on economic conditions and other factors. blurs the distinction between
goal 4 and goal 3. Nothing in the goals themselves, nor in the language of any
statute, suggest that the goal can be thus reinterpreted.
a. Where there are mixed uses so closely or rationally connected that it is
impractical to divide the land into exclusive Goal 3 or Goal 4 zones, the court
does not contest LCDCs decision that a mixed designation can be given to the
zone as a whole. However, within such a mixed-use zone, and within an
exclusive zone of either type, individual parcels cannot meet one goal merely by
having a use corresponding to another goal. In order to be a forest use on
forestland, the use must be compatible with and conducive to the retention and
protection of forest land, and must be supported by findings in the record.

04.01.14 Transferring Development Rights
Transferring of Development Rights
Definition: is a mechanism for channeling growth to those areas of a community where the
infrastructure and services needed to support additional development may be provided cost-
effectively

The process by which development rights are transferred from one lot, parcel, or area of land in a
sending district to another lot, parcel, or area of land in one or more receiving districts.

Mandatory TDR Suitum v. TRPA
Voluntary TDR West Valleys (former) ordinance
PDR
Oso, Washington

Figure 1 TDR Exchange

(Circles represent a bundle of property rights)

Basic components of a TDR:
1. Designation of sending area (willing sellers/supply)
2. Designation of receiving area (willing buyers/demand)
3. Government acting as a mediator of TDR credits

Requirements:
1. Healthy market in receiving area
Sending
Area
$
Recieving
Area
$
2. Voluntary program: market conditions in the sending area will affect value
3. Density base zoning in the receiving area has to be lower than market
4. Amount of location of receiving areas will affect market

Suitum v. Tahoe Regional planning agency
Background: Bernadine Suitum owned an undeveloped watershed lot near Lake Tahoe, before
the creation the Tahoe Regional Planning Agency. TRPA determined that the lot was ineligible
for development under agency regulations. However, the agency determined that Suitum was
entitled to "Transferable Development Rights" (TDRs) that she could sell to other landowners
with the agency's approval. Rather than sell her TDRs, Suitum filed suit claiming that the
agency's determination amounted to a regulatory taking of her property without just
compensation in violation of the Fifth and Fourteenth Amendments. The District Court held that
Suitum's claim was unjusticible because she had not attempted to sell her TDRs. The Court of
Appeals affirmed, reasoning that an agency action on a TDR transfer application would be the
requisite "final decision" regarding Suitum's lot in order for her claim to be ripe for adjudication.
The court of appeals essentially punts and claims that the issue has not achieved ripeness. The
local government has not yet made its decision, and that decision might change the basic facts

TRPA, is an interstate board approved by congress to preserve water qualityit prevents
siltation from water runoff. It identifies 3 rights:
1) Residential development
2) Coverage right
3) Residential Allocation (growth cap)

Issue: Must property owners attempt to sell their developmental rights before claiming the
regulatory taking of property without just compensation, in accordance with the Fifth and
Fourteenth Amendments?
Holding: the Court held that Suitum's regulatory taking claim was ripe for adjudication. Justice
Souter reasoned that, by determining that Suitum's property was ineligible for development, the
agency had had made final determination, even though she had not attempted to sell the TDRs
which she had received, or was eligible to receive, under the agency plan. "While the pleadings
raise issues about the significance of the TDRs both to the claim that a taking has occurred and to
the constitutional requirement of just compensation, we have no occasion to decide, and we do
not decide, whether or not these TDRs may be considered in deciding the issue of whether there
has been a taking in this case, as opposed to the issue of whether just compensation has been
afforded for such a taking," wrote Justice Souter.
Rule of law:

West Valley Ordinance
Background: Sending area Decker Lake, receiving area 4800 west. The value of the sending
area was predicated on the area of the property. Areas that were more sensitive received more
credits. People in the receiving area could buy this credits but the density limit was at 3.5 to
create the market. The TDR was recorded in the deed, running with the land, to ensure that the
property near Decker Lake would not be developedrequires and title search.

How effective is the Sale of development rights?
It is very popular
Unfortunately, it results in very fragmented distribution of land. Inaccessible or
insufficient land prevents necessary agglomeration economies in some industries
(agriculture).
Furthermore, the fragmentation results in unequal market demand (with those closer to
urban centers having a higher value). The system also hyper-inflates the value of some
lands over others.

04.03.14 TOD & LEED-ND
Zoning addresses: 1) Density, 2) Use, 3) Envelop

TOD & LEED ND
- Why?
- What?
- How?


WHY? Transportation is a derived demand because it is appurtenant to a primary goal, e.g.
driving to school, or work. (Economics: It is a transaction, therefore it should be measured as an
inefficiency).

WHAT?
Transit Oriented Development
+ focused in on proximity
+ tries to use zoning to resolve inefficiencies
+ Human scaled, people oriented (not car oriented)

HOW?
Proximate Planning: A good transportation plan accounts for more than just the beginning and
end point; it also accounts for all the likely stops on the way.

Setbacks: Generally speaking setbacks are defined minimums in most ZOs, whereas high-density
planning seeks to minimize setbacks to increase walkability.


Bloomington Ordinance
Density
Use
Envelop- setbacks should be smaller because the larger the setback the greater the isolation

LEED-ND
Leadership in energy and environmental designneighborhood development

04.08.14 Business and Economic Development
Business and Economic Development
- Restrictive Covenants
o Runs with the land
o Touches or concerns the land
o Privity of estate
o Consistent with the public welfare
- Condemnation: The process by which government exercises eminent domain to re-
appropriate real property.
o Under the 5
th
and 14
th
amendments, government is required to compensate the
owner when it condemns property for a public purpose.
- Tax Increment Financing (TIF): Property value is generally expected to appreciate over
time. A TIF bond can finance a development based on the difference in the unimproved
assessed value of the property and its future improved value.
o Essentially, the property tax repays the RDAs municipal bond.
o TIFs usually include a sunset clause.
- Commerce Clause
o Discrimination
o Incidental Burdens
- Equal Protection: Differential treatment between two groups of people, for all relevant
purposes, are equal.

Davidson Bros. v. D. Katz and Sons, Inc.
Brief Summary: A deed restricted the use of property as a supermarket, which negatively
affected the city. Davidson Bros. appealed a judgment from the Superior Court of New Jersey,
Middlesex County that held a covenant prohibiting the use of property as a supermarket was
unenforceable against defendant city, who purchased the property for use as a supermarket in an
effort to promote economic development in the downtown area.
Background: Davidson Bros., Inc. (Plaintiffs) owned supermarkets. At one time, he owned a
supermarket in the inner city, which he had to close because its volume decreased. Plaintiffs sold
the property to a rug merchant who then sold the property to the city, which sold it D. Katz &
Sons, Inc. (Defendant) who subsequently operated a competing supermarket in the location. A
covenant in the deed stated that the property could not be used as a supermarket, and that the
covenant ran with the land. Defendant then leased the property to the local Housing Authority
that planned to use it as a supermarket because the neighborhood was in need of one. The
residents did not have easy access to another supermarket because many did not have cars.
Plaintiffs seek to enforce the covenant.
Issue: If a covenant is contrary to public policy, does it still have to be enforced?
Holding: Public policy supersedes restrictive covenants. The covenant was so contrary to
public policy that it should no longer be a valid, enforceable obligation. The city where the store
is located has been the focus of redevelopment and revitalization. Many moderate-income
housing projects are located downtown. The residents depend on the supermarket for their
shopping needs. Many do not have cars to go to other locations. The closing of the supermarket
was a hardship. When a supermarket leaves a neighborhood, many other merchants leave. Food
becomes more expensive. A struggling neighborhood struggles even more because of the effects
of the withdrawal of a supermarket. The property in question could easily be reconverted to
supermarket use, when other properties could not. Having a supermarket is essential to restore
the community as a desirable place to live, work, and shop. The deed restriction impeded the
relocation of another supermarket operation in the area because there were no economically
viable substitute supermarket locations. The covenant causes a hardship because of the
withdrawal of a supermarket as well as the damage to the ongoing efforts to revitalize the city.
The covenant is so contrary to the public interest so is unenforceable.
Rule of Law: If a covenant is contrary to public policy, it may not be enforced.
A noncompetition covenant will be enforced against a subsequent purchaser with actual
notice if the covenant is reasonable.
Principles Applied:
Restrictive Covenants: 1) Run with the land; 2) Touching or concerning the land; 3)
Privity of estate. [(4) Cannot be contrary to public welfare (policy)]
When a covenant is no longer reasonable and ends up hurting a community, it will not be
enforced.
The court affirmed the judgment which held that plaintiff's covenant adversely impacted
the public interest and therefore was unenforceable.
Closing the supermarket caused difficulties and hardships on the downtown citizens, who
lost the only opportunity to purchase food at a reasonably close location.
Plaintiff's restriction impeded the relocation of another supermarket operation to the
downtown area.
This obstacle to remediation efforts by defendant city was so contrary to the public
policies expressed in the New Jersey Urban Enterprise Zone Act, N.J. Stat. Ann.
52:27H-60 to H89, and similar acts, that it represented a scorched earth policy that under
the circumstances was unreasonable and unenforceable.

Minneapolis Community Development Agency v. Opus Northwest, LLC.
Background: Appellant Minneapolis Community Development Agency filed a petition to
condemn property belonging to respondent Opus Northwest, LLC In response, respondent filed a
suit against the City of Minneapolis and appellant, challenging both the formation of a tax
increment financing (TIF) district to finance the project and the alleged statutory public purpose
for acquiring the property, which is located along Nicollet Mall in downtown Minneapolis.
The condemnation suit and respondent's suit, although not formally consolidated, were tried
together, and issues from both suits were often dealt with in single motions by the parties and in
single orders by the court. Appellant prevailed in both suits.
Appellant then moved for attorney fees, arguing that it was statutorily entitled to fees and costs.
The district court denied the motion, reasoning that condemnation law does not allow a
condemning authority to recover fees and that respondent's suit was simply a defense to
appellant's condemnation action. This appeal followed.
ISSUE: Did the district court abuse its discretion by denying appellant's motion for attorney
fees?
HOLDING: While the district court correctly denied fees for the portion of the litigation
involving the condemnation issues, respondent's challenge to the TIF financing included issues
beyond the scope of the condemnation action. Condemnation law governs fees in those claims
that were valid defenses to the condemnation action, but TIF law entitles appellant to fees
attributable to TIF claims that were not direct defenses to the condemnation action.
Affirmed in part, reversed in part, and remanded
RULE OF LAW: It is enough to find that the proposed taking is reasonably necessary or
convenient for the furtherance of a proper purpose.
RATIONALE:
Courts have interpreted Public Use in the 5
th
amendment takings clause to also mean
Public Purpose.
Attorney fees are allowed only if provided for by statutory or contractual provision. Fownes v.
Hubbard Broad., Inc., 310 Minn. 540, 542, 246 N.W.2d 700, 702 (1976). Interpretation of a
statute is a question of law reviewed de novo. In re Estate of Palmen, 588 N.W.2d 493, 495
(Minn.1999). A district court's decision regarding attorney fees is not reversed absent an abuse of
discretion. Carlson v. Mutual Serv. Cas. Ins. Co., 527 N.W.2d 580, 584 (Minn.App.1995),
review denied (Minn. Apr. 27, 1995).
The parties agree that fees are not generally allowed under condemnation law. See Minn.Stat.
117.195, subd. 2 (1998) (allowing fee shifting in certain situations, but not here); City of
Minnetonka v. Carlson, 265 N.W.2d 205, 207 (Minn.1978) (fees allowed in condemnation action
only when authorized by statute).[599 N.W.2d 584] In contrast, Minn.Stat. 469.1771, subd.
1(a) (1998), relating to tax increment financing, provides that:
The owner of taxable property located in the city, town, school district, or county in which the
tax increment financing district is located may bring suit for equitable relief or for damages, as
provided in subdivisions 3 and 4, arising out of a failure of a municipality or authority to comply
with the provisions of sections 469.174 to 469.179, or related provisions of this chapter. The
prevailing party in a suit filed under the preceding sentence is entitled to costs, including
reasonable attorney fees.
(Emphasis added.) Thus, as the "prevailing party" in respondent's TIF challenge, appellant
normally would be "entitled to costs, including reasonable attorney fees."
The district court denied appellant's motion for fees regarding both the condemnation-related
portion of the litigation and the TIF-related portion of the litigation because it applied
condemnation law, relying on Sipe v. Kalitowski, 390 N.W.2d 910 (Minn.App.1986), review
denied (Minn. Sept. 24, 1986). In Sipe, the government petitioned to condemn property, and the
property owners brought a countersuit against the government for failure to comply with the
Minnesota Environmental Rights Act (MERA). 390 N.W.2d at 912. The Sipe court reasoned that
fees for the MERA claim were governed by condemnation law because "the MERA case was
actually a form of defense to the condemnation proceedings." Id. at 912, 914. In addition, the
court limited its holding to "circumstances" involving the early consolidation of the two actions
into a single case. Id.
This case is distinguishable from Sipe because respondent filed a separate TIF suit, which was
never formally consolidated with the condemnation proceeding, and, although a taxpayer is
allowed to sue the taxing body for failure to comply with TIF statutes, the suing taxpayer is
assigned the risk of an award of fees and costs if it does not prevail. Minn.Stat. 469.1771, subd.
1(a).
Furthermore, the TIF challenge here did not share a common question of law or fact with the
condemnation action. The TIF claim only challenged appellant's ability to tax. Generally,
challenges to a condemnation proceeding involve a challenge to the public purpose supporting
the taking or a challenge to the amount of compensation for the taking. See Minn. Const. art. I,
13; County of Dakota v. City of Lakeville, 559 N.W.2d 716, 719 (Minn.App.1997); Wegner v.
Milwaukee Mut. Ins. Co., 479 N.W.2d 38, 40 (Minn.1991); McShane v. City of Faribault, 292
N.W.2d 253, 257 (Minn.1980). Here, however, respondent attempted a collateral attack on the
condemnation proceeding by challenging the method by which the city sought to raise the money
needed to finance the development. See Minneapolis Community Dev. Agency v. Opus
Northwest, LLC, (In re Condemnation by Minneapolis Community Dev. Agency), 582 N.W.2d
596, 601-02 (1998) (property owner challenged city's condemnation of its property for
redevelopment project and brought separate civil taxpayer action challenging use of TIF money
for project), review denied (Minn. Oct. 29, 1998).
Respondent argues that, if it had proved appellant violated the TIF laws, then appellant could not
raise the money to compensate respondent for its property, appellant's alleged public purpose
would be unattainable, and the condemnation would then become defective. See Minnesota
Canal & Power Co. v. Fall Lake Boom Co., 127 Minn. 23, 32, 148 N.W. 561, 564 (1914) (cannot
take property if circumstances prevent petitioner from being "enabled to perform some public
service" with the property). But cases involving attainability of a public purpose deal with the
ability to put property to a public use, not with the ability to pay for the property. See, e.g., id. at
32-33, 148 N.W. at 564 (taking of property invalid because could not use [599 N.W.2d 585]
property for alleged public purpose without illegally draining waterway). Respondent did not
argue in connection with its TIF claim that appellant could not use the property to fulfill its
development plan.
Although fees would not generally be allowed in the condemnation suit, here respondent, as part
of its opposition to the condemnation, chose to challenge the use of TIF financing. The fees
provision of section 469.1771 should, therefore, have been applied.
We reverse and remand, with instruction to the district court to award appellant fees attributable
to the TIF portion of the litigation. Respondent cannot litigate the TIF issue and escape the
legislature's direction to shift costs and fees to the unsuccessful challenger. But respondent's
public purpose issue could legitimately have been raised in the condemnation proceeding, and it
is, therefore, improper to levy fees against respondent for its public purpose challenge

Coronadans Organized v. Coronado
Background: The city has an ordinance that limits the types of retailers that may develop in
town. It requires certain retailers to seek a special use permit. These retailers must then meet
specific criteria to be granted this permit. CO argues that this systematically excludes box retail
and violates the commerce clause
Issue: Commerce Clause, Incidental Burden, and Equal Protection. Can a municipality use
ordinances to exclude certain developments/merchants to protect their brand.
Holding: The court rules that it does not violate the Interstate Commerce Clause or imposes
Incidental Burdens. The special permit merely delays the approval.
Rule of Law:
Principles Applied:
Interstate Commerce Clause
o No discrimination against out of state businesses
Facial (obvious violations, no out of state businesses need apply)
Purpose (if the inherent purpose is to discriminate)
Effect (if the end result is discrimination)
Incidental Burdens Test
o Balances the burden on interstate commerce with benefits to the local community
Equal Protection Clause
o Differential treatment between two groups of people, for all relevant purposes, are
equal.
o Based on a distinction
o Rationally related to a legitimate state interest (economic equal protection:
Health, Safety, and Welfare)

04.10.14 Brownfield and Industrial Redevelopment
Redevelopment
CERCLASuperfund Act:
Comprehensive Environmental Response Compensation and Liability Act
Liable parties: current, present, and past
Eminent Domain / public use requirements


Emeryville v. Elementis pigments, inc.
Background: Emeryville sues Elementis Pigments to recoup the costs of cleaning up a
superfund site. The case is notable because Comprehensive Environmental Response
Compensation and Liability Act (CERCLA) allows a local government to sue current owners of
a contaminated site in addition to present and past contaminators. It is then incumbent upon the
current owner to roundup prior contributors to the contamination
Issues: Can government recover cleanup costs from current elements?
Holding: Yes, a current owner can be
Rule of Law: Current land owners can be held liable for the entire cost of decontamination with
the following exceptions:
1) The owner did not cause any of the contamination
2) The contamination was not caused by an agent of the owner
3) The current owner was not in a contractual relationship with the person who caused the
contamination
4) The owner exercised due care regarding the contamination
5) The owner took precautions against foreseeable acts of third parties
Principles Applied:
Court Interpretation
1. Plain language (what does it mean in ordinary language)
2. Legislative History
a. Committee transcripts, and committee hearings, committee reports
b. Floor vote
3. Pattern of practice
4. Overall policy objective of the legislation (last resort)

Sun Co. v City of Syracuse Industrial Development Agency
Background: City of Syracuse established SIDA, an RDA, which then contracted with
Pyramid. SIDA granted Pyramid a Preferred Developer Agreement.

Plaintiffs and intervenor are the owners of various properties in the Oil City area of Syracuse.
Defendant City of Syracuse Industrial Development Agency (SIDA) is pursuing a development
plan for the area and has entered into a contract for that purpose with defendant Pyramid
Companies. In January 1993, SIDA notified plaintiffs and intervenor that it intended to enter the
properties for the purpose of making visual inspections. Plaintiffs sought an injunction barring
such entry and a judgment declaring that SIDA was not a lawful condemnor. SIDA
counterclaimed for an injunction barring interference with its inspections.
Supreme Court properly dismissed the complaints of plaintiffs and intervenor as premature.
EDPL article 2 sets forth the procedure for challenging a condemnation, and a condemnation
proceeding is a necessary prerequisite for such a challenge. As yet, SIDA has not condemned
any of the subject property. Moreover, should there be a condemnation, any challenge is within
the exclusive jurisdiction of the Appellate Division of Supreme Court (EDPL 207 [B]; 208; see
also, Matter of Broome County, 159 A.D.2d 790, lv denied 76 N.Y.2d 709, mot to dismiss
appeal granted 76 N.Y.2d 771).
The Supreme Court also properly enjoined plaintiffs and intervenor from interfering with SIDA's
entering and making visual inspections of the properties. SIDA's right to conduct those
inspections is granted by statute (see, EDPL 404). Supreme Court's order that SIDA file a bond
in the amount of $500,000 in favor of the property owners and that SIDA comply with the
owners' safety and liability release requirements was properly calculated to protect the property
owners from any damage that might result from SIDA's inspections (see generally, Matter of
Northville Dock Pipe Line Corp. v Fanning, 21 N.Y.2d 616; Transportation Corporations Law
81 [1]). SIDA's argument that EDPL 404 prohibits placing any limitations upon a potential
condemnor's right of entry is not supported by Power Auth. v Potocnik (124 A.D.2d 914). The
Third Department in that case held only that such limitations
[197 A.D.2d 913]
as restricting the size of trees that could be cut, the location of test borings and the use of track
vehicles could not be imposed upon a right of entry, especially because any damages caused
thereby were compensable under EDPL 404. It did not hold that a bond to cover damage could
not be required.

Issues:
Has the city improperly delegated condemnation powers to SIDA?
Does it violate public use doctrine?
Has SIDA improperly delegated authority to Pyramid

Holding:
State law grants eminent domain to RDAs
The actions are just a portion of a broader plan to remediate economics, i.e. it meets
HSW
SIDA had control over the ultimate decision on the carousel Landing Project, and thus
Pyramid did not acquire SIDAs power of eminent domain. There is no prohibition on
private funding of a public condemnation.

KELO v. CITY OF NEW LONDON
Background: In 2000, the city of New London approved a development plan that, in the words
of the Supreme Court of Connecticut, was projected to create in excess of 1,000 jobs, to
increase tax and other revenues, and to revitalize an economically distressed city, including its
downtown and waterfront areas. The city purchased the surrounding property and sought to
acquire the remaining parcels from unwilling owners through enforcement of eminent domain.
Issues: Whether the citys proposed disposition of Kelo's property qualifies as a public use
within the meaning of the Takings Clause of the Fifth Amendment.
Holding: The citys proposed disposition of petitioners property qualifies as a public use
within the meaning of the Takings Clause. Public use in this case was broadly interpreted to
mean public purpose.
Rule of Law: : When the legislatures purpose is legitimate and its means are not irrational, our
cases make clear that empirical debate over the wisdom of takingsno less than debates over the
wisdom of other kinds of socioeconomic legislationare not to be carried out in the federal
courts.

The city has to meet two burdens for eminent domain:
(1) The takings of the particular properties at issue were reasonably necessary to achieve the
Citys intended public use; and
(2) The takings were for reasonably foreseeable needs.

Principles Applied:
The Court held in the Midkiff case that economic development qualifies as a valid public use
under both Federal and State Constitutions.


04.15.14 Green Building and Generating Alternative Power

Third Party Standards
- Non-Delegation
- Certificate of Occupancy
Pre-emption
- When a superior government revokes the authority of a subordinate government
- Full/Partial
o Full pre-emption: superior government solely determines a standard
o Partial pre-emption: superior government sets a minimum standard but a
subordinate my set a standard above that minimum
- Expressed/Implied
o Expressed pre-emption is when the legislation is unambiguous
o Implied pre-emption is when a standard is set, but a question remains at to
whether there is still room to regulate
2 prong test
Something left for the state to regulate
Conflicts with the purpose of congresss standards
Displacement (similar to pre-emption)
- Ones right to sue for violations of HSW has been displaced by legislation
- Common Law v. Legislative Law
o Common law is based in the precedents of legal decisions
o Legislative law is based on representative
Nuisance per se
- Does not require the careful weighing, they are nuisances on face value
Substantive Due ProcessAdministrative
Moratoria: A temporary cessation of a class of actions, and also include the accepting of
applications

Green Building Codes
Leadership in Energy and Environmental Design standards (LEED)

What happens if you do or do not meet 3
rd
Party Standards
- Adopting external standards has the advantage of being cost effective
- The disadvantage is the likelihood that the local government may not meet standards
- May not be able to extend exceptions
- The 3
rd
party is not liable/increases municipal liability
- Catch 22 Circular requirements (financing) (liability)
-
- Non-delegation (legislative authority) (administrative authority)


Town of Babylon
Background: the town adopted LEED standards. It also adopts language that automatically
adopts future LEED standards.
Issue: non-delegation (both legislative and admin)
Holding:
Rule of Law:
Principles Applied:

San Mateo
Background: establishes a green points formulation
Issue: Catch 22 Circular requirements
Holding:
Rule of Law:
Principles Applied:
+ the programs efficacy is questionable
+ checklist methods provides questionable incentives

Model Code (Columbia law school)
Background:
Issue: code grants an administrator legislative authority to update standards
Holding:
Rule of law:


BURCH v. NEDPOWER MOUNT STORM
Occupancy
LEED Tenant
Background: city grants permit to build windmill, neighbors sued
Issue: Displacement/pre-emption and Nuisance Per Se
Holding: The legislation is an implied displacement of a public nuisance. There is still room to
legislate and such legislation does not conflict with established standards
Rule of Law: Displacement

West Beekmantown Neighborhood Assn v. Zoning board of appeals of Beekmantown
Summary: The West Beekmantown Neighborhood Association challenged a wind development
project, asserting that the proposed wind farm did not meet the definition of a public utility. The
appellate court dismissed the Associations complaint against the towns Zoning Board of
Appeals (ZBA). The Association challenged the ZBAs grant to Windhorse Power LLC of a
conditional use permit to develop a 700 acre wind farm and its negative declaration under New
Yorks State Environmental Quality Review Act (SEQRA). The zoning commission determined
that windmills are an essential utility
Background: The Beekmantown Zoning Board of Appeals approved an application for a
conditional use permit to allow the construction of a wind farm on a 700-acre parcel in an R-2
Residential District. According the Towns zoning law, conditional use permits are required for
essential services defined in part as, [e]rection, construction, alteration, operation or
maintenance by municipal agencies or public utilities ofelectrical or gas substationsand
similar facilities that provide essential use and services, an [sic] general (unidentified) public has
a legal right to demand and receive. The petitioners argued that the applicant, Windhorse, is
neither a municipal agency nor a public utility and that therefore, the zoning board erred in
concluding that the wind farm constitute an essential service.
The Appellate Division, Third Department noted that although public utility is not
defined in the local zoning law, the wind turbines proposed to be constructed will generate
energy which is a useful public service, and further, that such activity will be subjected to
regulation and supervision by the New York State Public Service Commission. Noting that great
deference is afforded to the determination of zoning boards and that in this case the petitioners
did not demonstrate that the boards determination that Windhorse is public utility for purposes
of the local zoning law was unreasonable or not rationally based, the boards decision is upheld.
As to the petitioners second claim that the zoning board failed to conduct an adequate
review under the State Environmental Quality Review Act (SEQRA), the Court disagreed noting
that the Board issued a thorough and reasoned decision outlining its rationale for issuing a
negative declaration. Further, the Court concluded that since the Board conducted an extensive
review of the application, considered the various factors set forth in the applicable section of the
local zoning law, and imposed numerous conditions to ensure that the project would comply with
the local zoning standards, the Boards issuance of the conditional use permit was neither
arbitrary nor capricious nor was it an abuse of discretion.
Issue: interpretation, substantive due processadministrative
Holding: the court gives an administration deference to the interpretation of its own codes unless
such interpretation is arbitrary and capricious
Rule of Law: Public Utility doctrine

Ecogen, LLC. V. Town of Italy
Background: Ecogen LLC, interested since 2001 in developing a wind project in and around the
Town of Italy (Yates County), filed suit to obtain relief from a wind energy (and related)
development moratorium enacted in 2004 in the Town of Italy (Yates County) which was
preventing Ecogen from constructing a substation in the town. The substation was for turbines to
be constructed in Italy and neighboring Prattsburgh. The court indicated that while Prattsburgh
was supportive of the project, Italy extended the six-month moratorium multiple times. The
moratorium allowed a hardship exception, to be granted only after review of an application for
such exception. Ecogen did not apply for such exception.
Ecogen claimed six causes of action: deprivation of due process; unconstitutionality of
the moratorium; violation of 42 U.S.C. 1983; the seeking of injunctive relief; and two state law
claims. The town moved to dismiss, stating that Ecogen had failed to state a claim, in part
because it failed, by not seeking a hardship exception, to obtain a final decision from the town
concerning the application of the moratorium to the proposal to build a substation.
The court looked to whether the moratorium on its face was deficient or whether as
applied to Ecogen it was. Regarding the facial challenge, the court indicated that to prevail
Ecogen would need to show that the moratorium, at least to the extent it prevented
construction of the substation, bore no rational relationship to any legitimate government
purpose. The court found no valid claim that the moratorium was invalid on its face, because,
under federal law, it was not so arbitrary or irrational as to violate [Ecogen's] substantive due
process rights. The court declined to apply state law standards advocated by Ecogen.
While Ecogen insisted that it was not challenging the moratorium as applied to Ecogen,
the court nevertheless took it upon itself to consider such a claim. It found such a claim not ripe
for review. Ecogen had argued that should the court so construe its claims, that the claim was
ripe, because applying for the hardship exception would have been futile. The court disagreed.
While a plaintiff need not jump through a series of hoops, the last of which it is certain to find
obstructed by a brick wall, the court said there did need to be evidence that the town had no
discretion to grant the exception, or had dug in its heels and made clear that it would not grant
the exception. The doubtfulness of the grant of an exception, or the towns hostility to the project
was not enough. The court left for another day what an adequate showing of futility would be.
Issues: For what purpose and how long may a city use moratoria and interim controls?
Holding: The court found the length of the moratorium (two years running) needed to draft
wind regulations curious and suspicious. However, it did not order an end to the moratorium,
but made it contingent upon the town developing a comprehensive plan within ninety days of the
courts order or rendering a decision on a hardship exception application (if filed) within ninety
days of filing.
Rule of law: Moratoria are valid so long as they are achieving a purpose.
Principles applied:
+ does the moratoria promote HSW?
+ is it arbitrary and capricious, i.e. is there a plan to resolve the problem?

04.17.14 Housing Discrimination
Housing discrimination

HUNTINGTON BRANCH, NAACP v. HUNTINGTON
Brief Fact Summary: A town refused to rezone to allow construction of a housing unit in which
mostly minorities would reside.

Background: Huntington branch Appellants requested relief from a judgment of the United
States District Court for the Eastern District of New York, which held that appellees did not
violate Title VIII of the Civil Rights Act of 1968, 42 U.S.C.S. 3601-3631. Appellants
brought suit in district court against appellee city and its board members. Appellants alleged that
appellees violated Title VIII of the Civil Rights Act of 1968, 42 U.S.C.S. 3601-3631 by
restricting private construction of multi-family housing to a narrow urban renewal area and by
refusing to rezone the parcel outside of this area where appellants desired to build multi-family
housing. The district court refused to invalidate the zoning restriction.
The Town of Huntington (Defendant) had a very small black population. A larger
proportion of the black population requires subsidized housing than the white population. A
disproportionately large percentage of families in existing subsidized projects are the minority.
Under Defendants zoning ordinance, multi-family housing is permitted only in an R-3M district,
where 52% of the residents are minority. In response to a need for subsidized housing, an
organization decided to sponsor an integrated housing project for low-income families. The
organization determined that the project could foster racial integration only if it were located in a
white neighborhood. They found a suitable site, and sought to have the property rezoned so as to
allow multi-family rental construction. The Town Board rejected any zoning change. The
Huntington Branch of the NAACP (Plaintiffs) alleged that Defendant violated the Act by
restricting private construction of multi-family housing and by refusing to rezone the parcel
where the organization wished to build.

Issue: When a town uses land in a way that has a disparate effect on a racial minority group, will
that be enough for a violation of the Fair Housing Act?
Holding: The appellate court reversed the district court and granted site-specific relief holding
that appellees violated Title VIII of the civil rights act in application of their zoning ordinance.
Under the Fair Housing Act, a plaintiff does not need to show that a defendants actions were
intentionally discriminatory. Instead, an action that has a disparate effect will be enough to
violate the statute, i.e., if the defendant did not have a legitimate government interest in his
actions.

The Act was enacted to provide fair housing throughout the country. This case requires a
disparate effects analysis, which examines a facially-neutral policy or practice for its differential
impact or effect on a particular group.
A prima facie case is established by showing that the challenged practice of the defendant
actually or predictably results in racial discrimination; in other words, that it has a discriminatory
effect. There does not need to be a showing of discriminatory intent.
Once a prima facie case is presented, the burden shifts to the defendant to prove that his action
furthered a legitimate government interest and that no alternative would serve that interest with
less discriminatory effect.
The discriminatory effect of a rule arises in two contexts: adverse impact on a particular minority
group and harm to the community generally by the perpetuation of segregation. Here, refusing to
permit construction of a subsidized housing unit reinforces racial segregation in housing.
Refusing to amend the restrictive zoning ordinance to permit the construction significantly
perpetuated segregation in the town.
The failure to rezone had a substantial adverse impact on minorities because a higher percentage
of minorities need subsidized rentals.
As to the defendants burden, he must provide both a bona fide and legitimate justifications for
his actions and show that no less discriminatory alternative can serve those ends. The
justification must be of substantial concern that it would justify a reasonable official in making
the determination. Here, Defendants goal can be achieved by less discriminatory means, by
encouraging development in other areas with tax incentives or abatements.
Defendant raised traffic issues and health hazards as justifications. The health reasons were only
thought of after litigation started, so it was not a legitimate problem. Defendants justifications
were weak and inadequate.
When balancing the showing of discriminatory effect against Defendants justifications, the
balance should be more readily struck in favor of the Plaintiff when it is seeking only to enjoin
the Defendant from interfering with its own plans rather than attempting to compel the
Defendant itself to build housing. Here, the showing of discriminatory effect resulting from
Defendants refusal to rezone outweighs Defendants justifications. Thus, Defendant violated the
Act.

Rule of Law: In a disparate impact suit brought under the Fair Housing Act (Act), an intent to
discriminate is not needed to establish the plaintiffs prima facie case. The plaintiff must only
show a disproportionate impact or a segregate effect by the defendants actions. Then, the
defendant has to show it could not achieve its goals with a less discriminatory alternative.

Test:
1) Plaintiff must Demonstrate disparate impact (based on Race, sex, disability, family status,
and nation of origin)
2) Demonstrate discriminatory impact (intent is not yet relevant).
3) Government must show a compelling interest (a legitimate policy objective)
4) Government must show that there are no reasonable alternatives are available with lesser
impacts

Rationale:
The appellate court held that the zoning restriction had a discriminatory effect and that
appellees had not shown a legitimate justification for their actions that outweighed this
effect.
The appellate court reversed the decision of the lower court and granted site-specific
relief to appellants.
Coronado has a much lower standard, in economic due process, government only has to
show legitimate plan to meet a plan.