LAND USE OUTLINE_______Stacy Aronowitz



LAND USE OUTLINE Stacy Aronowitz

Prof. Been Fall 1997

I. Land-Use

B. regulatory policy

C. conflicts b/w resources held in common & resources held in private hands

D. tends to be matter of local regulation

5. complicated by conception of local gov’t

F. Interactions w/ other areas:

7. democracy

8. individual rights

9. fairness constraints

10. constitutional constraints

11. aesthetics

12. free speech

13. cultural values

II. Need for Regulation? (why not just leave market alone?)

C. Efficiency Concepts:

4. Pareto Superiority: at least some parties better off, no party worse off

5. Pareto Optimality:

vi. no other way to allocate where someone better off & no one worse off

vii. doesn’t tell which to choose b/w different Pareto optimal measures

8. Caldor-Hicks:

ix. parties who are made better off gain enough to pay losers & make them whole

x. gain enough only in theory, no actual pay off must occur

K. Coase Theorem:

12. Two main points:

xiii. Reciprocal nature of externalities (just look to who is least cost avoider)

xiv. In a world of zero transaction costs, parties will bargain to efficient result, regardless of rule of law (where entitlement is assigned)

15. Coase teaches us:

i. need to facilitate transactions or reduce transaction costs

a. remove impediments to private bargaining

b. local gov’t may need to step into shoes of 1 party

iii. gov’t should reach result that would be reached by private parties, but for transaction costs

d. put entitlement w/ the party who would “succeed” in Coase world

v. helps to figure out how to protect property right

vi. realization that if use law to force a party to internalize an externality, skew the natural mkt result (b/c of reciprocal nature of externalities)

vii. must look at opportunity costs ($ gov’t spends in 1 area is $ not spent elsewhere)

viii. importance of alienable rights

ix. need to evaluate administrative costs of a remedy

10. Criticism of Coase:

xi. unrealistic b/c always transaction costs

xii. where gov’t places entitlement affects the wealth of the parties

m. ( wealth of person who gets entitlement

n. no impact on overall efficiency, but impacts distribution & equity

xv. where gov’t places entitlement may skew subsequent exchanges

p. future demands affected

q. offer-ask disparity: if already have something, will demand more $ b/f it can be taken from you than you were willing to pay in 1st place

xviii. where gov’t places entitlement may act as impediment to bargaining

C. Market:

4. Idea that mkt will allocate land to highest & best use

5. Market v. Gov’t planning:

vi. Market is better

g. property rule protection (preserves property rights)

h. less costs

9. time costs:

x) mkt is faster at responding than gov’t

xi) mkt more flexible & adaptable to change

12. costs of gov’t regulation:

xiii) organizational costs

xiv) info gathering costs

xv) decision making costs

xvi) enforcement costs

17. mkt better at figuring out supply & demand

18. citizen participation

xix) ppl participate in mkt system

xx) planning more paternalistic- interferes w/ individual liberty

21. agency costs lower in mkt system

22. mkt has built in incentive of profit motive (gov’t lacks)

23. centralized planning entails controversial & costly decision making formula

xxiv. Mkt might fail- need centralized planning

y. Equity concerns (non-economic objections)

26. Pareto optimality doesn’t help choose b/w diff optimal choices b/c doesn’t say anything about fairness

27. transaction costs

xxviii) favor individuals w/ a lot at stake

xxix) collective action problem in mkt

30. mkt assumes an initial distribution of wealth & that all have resources w/ which to express preferences

31. mkt assumes all have same access to info & expertise

32. some values are not subject to commodification- so are not accounted for in mkt equation

33. externalities (impact on outsiders or future generation not accounted for)

34. info problem- ppl may be misinformed or unable to process info regarding implications of the land use

35. public interest may be different than aggregate of individual welfare

aj. Efficiency concerns (economic objections)

37. lack of competition in land use area

xxxviii) very local industry- might be non-competitive

xxxix) players are often already established uses (already bought land, neighbors already present)

40. information imperfections (eg: various bidders may have different levels of info or different abilities to process the info)

41. mkt assumes goods are fungible; non-fungibility of land (unique)

42. housing mkt is different from other markets

xliii) less elastic

xliv) necessity

xlv) personhood

xlvi) more complex (eg: longer lead time)

xlvii) durability

xlviii) non-convexity (mkt may not work to move resources)

49. mkt assumes rationality & profit motive

l) but self-interest may be over-ridden via informal norms (eg: racial discrimination)

li) informal sanctions punish those who deviate from norms

52. can structure incentives (in place of mkt’s profit motive)

liii) Constituencies that must be accountable to

liv) gov’t officials need to secure own re-election

55. (externality

lvi) attempt to capture (+) externality & avoid (-) ones

lvii) if don’t have to bear full cost of decision:

bf) costs that decision maker accounts for are less than the true costs to society

bg) more of the activity will occur than is efficient

lx) 2 problems:

bi) Spill-Over: 1 person’s land use imposes costs on neighbors, & person doesn’t account for those costs

bj) Tragedy of the Commons:

63) costs to common resource (eg: clean air)

64) development tied w/ public finance

lxv) “commons” of infrastructure, police, sewage systems

lxvi) tie b/w property taxes & financing of public services

lxvii) development leads to over use

68) In absence of collective agreement, developers won’t restrain self by limiting unconstrained growth & overuse of commons

lxix) prisoner’s dilemma: unless can reach cooperative agreement- incentive to build as much as can so don’t lose in relation to others

lxx) free rider problem

lxxi) delay in development might impose greater costs than loss in value from diminished commons

lxxii) developer can “wall” self from problem

lxxiii) info availability- developer may not know of problem

lxxiv) non-fungibility of land

lxxv) costs can be pushed to others

lxxvi) costs of agreement (eg: organizational, enforcement)

lxxvii) hold outs

lxxviii) costs of strategic behavior

79) Need gov’t regulation to counteract tragedy of commons?

lxxx) can use informal sanctions, especially if repeat players

lxxxi) Empirical studies don’t reveal as much property value effects as would expect to buttress rationale that need gov’t regulation b/c of externalities. Why?

cd) developer may offset (-) externality w/ a (+) one (eg: be an employer or provide amenity)

ce) info problems: buyers may lack -

84) sufficient info as to LULU

85) ability to assess risks a LULU poses

lxxxvi) Reciprocal nature of externalities (Coase)

ci) neither party at fault

88) problem b/c activities in close proximity

89) apple & cedar trees

cl) look to which party is least cost avoider

CM. Models of Local Gov’t Behavior:

92. Public-Interest model:

xciii. local gov’t officials try to achieve vision of greater good that is freestanding view

xciv. function of representative gov’t & deliberative process: gov’t officials will come up w/ view of what will serve public interest

95. Public-Choice model:

xcvi. legislature acts in own self-interest (to get re-elected), so will vote based on what will further that self-interest

xcvii. will vary from community to community

ct. Majoritarian model:

99. if smaller electorate:

c) easier for rep. to read sentiments of constituents

cw) smaller grp of constituents &

cx) fewer issues

ciii) better chance constituents will know how rep. voted

104. (majoritarian model likely to prevail

da. Influence model:

106. if larger electorate:

cvii) harder for rep. to read sentiments of constituents

dd) bigger grp of constituents &

de) more issues

cx) constituents less able to monitor rep.

cxi) special interests grps more likely to be involved

dh) organizational ability &

di) wealth

114. ( influence model likely to prevail

dk. Capture model:

116. development interests can capture land use process b/c revolving door…

cxvii) ppl on commission tied to development world

cxviii) in & out of planning side & business side

119. developer familiarity w/ planning commission members

dp. Growth Machine model:

121. local gov’ts likely to support development b/c local officials oriented towards growth

III. TYPES OF CLAIMS

D. 4 main categories:

5. Substantive Due Process (efficiency & reasonableness)

f. Authority challenge: legitimate exercise of gov’t authority?

g. legitimate gov’t decision making process? (claim that deprived of property w/out d.p.)

h. inefficient? (signal that decision making was irrational)

i. ct often looks to cost-benefit analysis

j. level of review: rationality ??

11. Takings

l. unfair burden?

m. interference w/ expectation of profit?

n. ct often looks to diminution in value

o. level of review:

i. higher than mere rationality (Scalia)

3. Civil Liberties

4. Equal Protection

B. Problems:

3. cts not careful in separating out type of claim

4. hard to disentangle substantive d.p. & takings claims

v. takings challenges stem from 5th amend., apply to states only via 14th amend.

vi. early cases often brought as takings by (, but cts treat as substantive d.p.

G. Distinctions Matter:

8. current Ct, under Scalia, trying to ( level of protection for property owners

ix. distinguishing away old cases, which had less protection for property owners, as substantive d.p. cases

x. calling new cases takings

11. Remedies differ

xii. substantive d.p.: damages

xiii. takings: just compensation (mkt value of interest that was taken away)

14. Levels of Scrutiny differ

xv. Rational Relationship

xvi. Strict Scrutiny

17. Ripeness Requirements differ

R. Facial v. As Applied:

1. today, as applied challenge more likely to be successful b/c of ripeness requirements

IV. ZONING

E. Assumptions under Euclidean zoning:

6. uses ought to be rigidly separated via districts

7. major purpose of zoning is to protect single family housing

viii. use of buffers (eg: multi-family houses) from busy streets, etc.

9. need large amounts of open space

10. once a community is zoned- that’s it

xi. don’t need a structure to account for change

xii. today, do wait & see zoning w/ a holding zone

13. relied on fewer big categories

14. cumulative (least restricted zoning category can have “higher” uses)

xv. was demanded by homeowners as well as industry

xvi. move away from cumulative zoning today:

q. doesn’t protect city’s tax base as well (industry may leave /c threat of nuisance suit)

r. ( flexibility & ( bargaining power of city

IV. ZONING CHALLENGES BY LANDOWNERS & DEVELOPERS (Landowners’ & Developers’ Constitutional Rights as Constraints on Zoning Regulations)

E. Substantive D.P. Challenges to Zoning (Reasonableness & Efficiency Considerations):

6. Power to zone

vii. Orthodox quartet (health, safety, morals & general welfare)

viii. (Authority:

i. power given to local gov’t from state

10. State Zoning Enabling Act (SZEA) (more common) OR

11. Home Rule legislation: local gov’t has all powers except those specifically maintained by state; city adopts home rule charter

l. Authority challenges:

13. claim that local gov’t is acting w/out authority

14. 1st line of attack (usually by developer)

15. usually, easiest challenge to win

2. (Not a violation of substantive d.p. if substantial re’ship to public health, safety, morals

or general welfare (Euclid)

i. Rational re’ship?:

b. “arbitrary & unreasonable”

c. considering ordinance in context

d. if fairly debatable, legislative judgment controls

e. some over-breadth in legislation okay

vi. Type of claim: takings or substantive d.p.?

g. ( brought as takings; ct labeled it substantive d.p.

h. takings?

9. drew analogy to nuisance & Hadacheck

10. but did not address usual takings questions:

xi) diminution in value

xii) balance b/w harm to owner v. good to public

xiii. Rationale:

n. legit exercise of gov’t power (w/in orthodox quartet) to protect single family homes

o. c.l. of nuisance as baseline- legislature can verify baseline via zoning

p. average reciprocity of advantages (zoning benefits restricted ppl as well)

q. want to capture (+) externalities created by single family homes

r. b/c facial challenge, didn’t want to strike zoning across the board

xix. Zoning ordinances will not always satisfy “substantial re’hip” test (Nectow v. Cambridge)

t. Rational re’ship?

21. no substantial relation found b/c regulation not indispensable

22. “necessity” evaluation usually indicates higher level of scrutiny

23. but ordinance could’ve failed under ordinary rational re’ship test

x. Zoning okay, but ct might be strict in particular applications

25. Substantive d.p. claims in federal court today:

xxvi. Level of review: rational re’ship ???

xxvii. Interaction w/ takings:

ab. Why substantive d.p. claim & NOT a takings claim?

29. would not satisfy takings ripeness requirements

30. pre-First English, no compensation for temporary takings (for time regulation in effect)

31. takings claim doesn’t allow damages, only just compensation

af. If have takings claim, is substantive d.p. claim pre-empted?

33. cts dislike substantive d.p. claims b/c allows cts unfettered discretion to interfere w/ legislative decision-making…

34. but takings clause not intended to occupy field:

xxxv) takings clause could have been read more narrowly

aj) could apply only if property taken for public purpose, so need substantive d.p. claim if taken for other purpose

37) note: public purpose is always satisfied

al) could not apply to concerns of legitimacy of gov’t action, so need substantive d.p. to reach those claims

xxxix) “no denial of life… & PROPERTY w/out due process…”

xl) takings doesn’t apply to new property (Scalia)

41. keep inquiries separate

xlii. Rare for Ct to find substantive d.p. violation (Coniston- no violation)

aq. No substantive d.p. claim if little reduction in value of property

44. Need property right deprivation b/f have substantive d.p. claim.

xlv) If decision maker had any discretion, no deprivation

at) Is a right to build is part of baseline?

47) if right is part & parcel of land itself- old property

48) if right is gov’t created benefit- new property

aw) If right to build is not part of baseline, no deprivation

l) If not much of diminution in value, not a deprivation that invokes substantive d.p. claim

51. Confusion whether substantive d.p. claims gets to takings issues or whether separate check on efficiency of gov’t

az. Not a substantive d.p. claim if essentially allege that local gov’t engaged in politics

53. should go to political arena, not courts

54. statutes apply to whole class (unlike judicial decisions)

lv) possible to check via democratic process

lvi) factors to determine if democratic process will be check:

be) size of class is that is affected

bf) effect

bg) decision maker an elected or appointed official

bh) ability of affected group to log-roll

bi) ability of affected group to exit

bj) ability of affected group to exercise voice

iv. Different Substantive D.P. claims?:

e. Types:

6. arbitrary & capricious

7. substantive d.p. takings claim:

viii) claim that regulation has taken too much value of property, but…

ix) seeking invalidation of regulation, NOT compensation

j. Sup. Ct. less willing to view substantive d.p. separate from takings

11. no such thing as substantive d.p. claim if takings claim

12. not going to allow ( to choose remedy & avoid exercise of E.D.

13. Substantive d.p. claims in state court:

xiv. Substantial Re’ship test:

o. Burden of proof on party challenging the regulation

p. All states enunciate this test… but, very different interpretations

17. Supportive of property rights?

xviii) pro-property state (eg: IL, RI)

xix) pro-local gov’t states (eg: CA, MA, MD, & NJ- except for exclusionary zoning)

xx) erratic states (NY, PA, MI, FL)

21. Burden of proof on challenger:

xxii) most courts: ordinance okay if “fairly debatable”

xxiii) IL: “clear & convincing evidence”

24. Deference by appellate ct of lower ct findings

xxv) IL: more deferential

xxvi) CA: not bound by lower ct findings

27. Approaches:

xxviii) IL: factor test to determine validity of ordinance (Twiggs)

xxix) CA: focus on whether process was rational (Cormier)

B. Anti-Competition Challenges (Reasonableness & Efficiency Considerations):

3. Can ( competition by limiting entry of businesses into mkt

iv. losses to consumer: added cost in cost-benefit analysis

v. Grandfathering: if ban a use but grandfather in existing non-conforming uses, extremely anti-competitive

vi. regulation unreasonable if too anti-competitive

g. no new business is too anti-competitive (Ex Parte White)

h. forced location of business in certain area (downtown) is NOT too anti-competitive (Sprenger)

ix. Newer mechanisms by which local gov’t can pass anti-competitive ordinances:

j. Requirement on developer to do a need determination

k. Quotas

l. Minimum spacing requirements

13. Tests:

xiv. Effects test

xv. Intent test- but some reluctance to inquire too far into intent

p. might get “manufactured” legislative history

q. local gov’t does not always keep record

18. (Rule: Zoning ordinance invalid only if sole or primary purpose is anti-competitive

xix. No other purposes possible

xx. Can be valid even if anti competitive:

u. Look to process (& avoid looking at substance or motives): okay if protection of downtown is part of comprehensive plan

v. Look to whether rational (perform cost-benefit analysis)

23. Policy issues:

xxiv. We allow private mkt to control community character of a private space, so why not allow local gov’t?

xxv. Cts try & prevent anti-competitive claims by refusing to grant standing to ( whose only claim is an injury to business

26. Federal Anti-trust challenges:

xxvii. pre-Omni, local gov’t viewed potential federal anti-trust liability as huge threat

xxviii. Sherman Act, §§ 1 & 2

ac. can’t K or combine to restrain trade or commerce

30. must be interstate trade or have interstate implications

31. damages must be capable of valuation

32. if monopolize, or conspire or attempt to monopolize trade or commerce- felony

ag. Municipality will be liable if conspire w/ individual to restrain trade

xxxiv. Municipality’s Defenses:

ai. State-Action Exemption

36. State exempted across the board from anti-trust laws (Parker)

xxxvii) states are coequals w/ fed gov’t b/c of federalism.

al) don’t want federal infringement of state rights

xxxix) Sherman Act was geared at private mkt

40. Municipality not automatically exempt from anti-trust laws

xli) Rationale:

ap) less sovereignty concerns (not co-equals)

aq) municipalities are just creatures of state

xliv) (Municipality exempt if satisfy 2 prong test (Omni):

as) Acting under grant of authority from state

46) easy to satisfy this prong if not home rule, b/c anything municipality does must be authorized by state

47) if procedurally or substantively deficient

xlviii) ok as long as authorized b/c…

xlix) these are “garden variety” zoning disputes, more appropriate for state cts

ax) State must have clearly articulated city to act in anti-competitive way & restrain competition

51) “clearly articulated” = reasonably foreseeable result of what state authorized

52) Parker questions arise if if city does something out of ordinary (eg: provides public service)

ba) (if state authorizes a private group to act in anti-competitive way…) State must actively supervise the city’s actions

liv) If act has other purpose, anti-competitive statute will NOT be struck down

lv) NO Conspiracy exception to state action exemption

bd) public choice model of local gov’t: all acts result from agreement b/w private person & gov’t

1) all statutes result of some “conspiracy”

b) can’t label legislation a result of conspiracy merely b/c some segment of society is harmed- b/c all legislation harms some group

iii) Deference to local gov’t:

d) inconsistencies in level of deference (Scalia):

5) Omni very deferential

6) Nollan extremely suspicious; raises specter of heightened scrutiny b/w means & ends

g) Rationale for inconsistencies:

8) just need substantial re’ship b/w means & ends

9) types of property

x) Omni: “new property,” right to build

xi) Nollan: “old property,” person’s home

12) Concern w/ exactions & interest grps

13) ???

n. Local Gov’t Anti-Trust Act

15. Immunizes local gov’t from damages & attorney’s fees in Sherman Act cases

16. Immunizes city officials when acting in official capacity or individual capacity pursuant to gov’t authority

17. NO immunity from injunctive relief

r. Noerr/Pennington

19. Exempts lobbying by private individuals

xx) any legit use of political process by private individuals is not actionable even if anti-competitive intent

xxi) citizens have right to petition representatives

22. Exceptions:

xxiii) does not protect illegal actions

xxiv) “Sham” exception

y) private individuals can’t use gov’t process for process itself if for anti-competitive purposes

z) ok if use process for the ends, not the means

AA. Unfair Burden Challenges (Fairness & Distribution Considerations)

28. Fiscal Zoning (Arbitrary Wealth Redistributions)

xxix. Challenge that ( hurt unfairly b/c local gov’t acted for illegitimate reasons

xxx. Types of gov’t action that give rise to fiscal zoning challenge:

ae. Regulate to drive down price/mkt value so can condemn later & pay less

32. illegit motive; cts very unsympathetic to gov’t who does this

ag. Attempt to force landowner to use empty or under-used land in way that would bring in more tax $

34. exclusionary zoning area: most cts allow municipality to fiscally zone to protect tax base (except NJ cts)

35. as long as gov’t doesn’t come in later & exercise E.D., cts allow regulation that takes away almost all value

2. Equal Protection :

i. Zoning-District Boundaries

b. Challenges to fairness of the line-drawing (Nectow, Yorba-Linda)

3. Should landowner be required to follow zoning rules if neighboring landowners are in violation?

4. Rule:

v) (Court will not interfere w/ local gov’ts line drawing, except where clear abuse of discretion

f) abuse of discretion when NO good reason

g) cts suspicious when local gov’t act in contravention to land-use that already exists

8. Municipality’s defenses:

ix) concern for encroaching urbanization

j) not valid defense if already urbanized

xi) need property as buffer

l) not valid defense if neighboring properties have higher density use, b/c nothing to buffer

xiii) concern for domino effect (all owners will seek less restrictive re-zoning if grant to one owner)

n) not valid defense if all neighboring properties already have less restrictive use

o. When challenge arises:

16. Neighbor’s challenge:

xvii) property owner gets more beneficial zoning than neighbors (more common)

xviii) property owner seeks re-zoning for beneficial zoning that matches current neighbor’s non conforming use

s) problematic b/c “unclean hands” of neighbors

20. Owner’s challenge: 1 property owner gets treated more harshly than neighbors (less common; Ross v. Yorba Linda)

xxi. Distinctions b/w types of uses

v. Challenge to text

w. Cts typically take hands-off approach (Layne v. Zoning Bd of Pittsburgh)

24. presumption that local gov’t is correct

25. burden on ( to show distinction is irrational

26. Takings (Confiscatory Zoning Classifications)

xxvii. Issues:

ab. how much can an individual be sacrificed for greater good?

ac. when appropriate for un-elected, unaccountable judiciary to overturn elected, accountable officials?

ad. takings jurisprudence

31. complete muddle; cases not reconcilable

32. Supreme Ct line-ups not predictable

ag. Level of Scrutiny: (Nollan)

34. Regulation must substantially advance a legitimate state interest

35. Burden on state, not challenger

aj. Defining Property Interest (defining the denominator):

37. Implications:

xxxviii) narrow definition (property affected by legislation): more likely to result in finding of taking

xxxix) broad definition: less likely to result in finding of taking

40. Treatment of separate but related estates/rights

xli) define as estate/right?

xlii) define as bundle of rights or stick in bundle?

aq) encourage subdivision of rights

xliv) define property as physical thing, portion of property?

as) ppl who own large parcels will never get taking

at) ppl who own small parcels will get a taking

au) encourage creation of subdivisions & fragmentation

48) inefficient

49) interferes w/ alienability

50. Different ways to divide property:

li) functionally

lii) horizontally

liii) vertically

liv) temporally

55. Contrast w/ E.D.

lvi) never look to whole parcel, only to portion taken

lvii) takes every stick in bundle for that portion

58. Better way to define denominator:

lix) multi-factored ad hoc balancing test

lx) factors:

bi) Vested Rights:

62) how far towards completion of project?

63) what kind of construction done?

bl) Expectations

65) mkt price regulated v. unregulated

bn) Political Process Protections: influence on avenues of political process

bo) Extent of Reciprocity

bp) Efficiency of inefficiency of dividing or keeping property &/or property rights together

bq) Value left

br) When properties acquired

71) if at same time- more likely 1 parcel

72) if at different times- different parcels

bu) Extent to which lots are contiguous

bv) Owner’s treatment of property (as 1 parcel?)

1) 1 mortgage?

j) Jurisdiction’s treatment of property

11. How lower cts are defining the denominator:

xii) if contiguous, 1 parcel OR

xiii) multi-factored balancing test OR

xiv) examine how jurisdiction defines parcel

xv. Why Takings Clause:

p. Why ever allow gov’t to take property (instead of being mkt participant)?

17. Economic rationale: need E.D. to avoid holdouts

xviii) have this same problem in private mkt…

xix) but place higher value on gov’t acting efficiently b/c we all benefit

20. Public rationale: for greater good

21. Property rights come from state: if gov’t creates, it can take

22. Mkt failures: no-one except gov’t will act as mkt participant

w. If allow gov’t to take, why require compensation?

24. Fairness rationale:

xxv) even out unfair burdens

xxvi) tax all who benefit

27. Efficiency rationale:

xxviii) if don’t require compensation, gov’t might take more than it needs

xxix) problems w/ this rationale:

ad) internalization may be imperfect

ae) gov’t may under-regulate b/c benefits of regulation may be harder to see & quantify

af) gov’t has may ways to pay w/out raising taxes, so might not force internalization

33. Provide incentive to invest in property

xxxiv) problems w/ this rationale:

ai) investments are inherently risky

aj) might be better schemes (eg: insurance)

ak) compensation may cause over investment

38. Secure transferability & marketability of land

39. Concerns for gov’t:

xl) Legitimacy of gov’t: forces gov’t to pay as would in mkt

xli) Preservation of gov’t: make gov’t more stable

ap) Problem w/ rationale: could preserve gov’t wout compensating everything

43. Transparency: so public is aware of gov’t regulations

44. Individuality/personality interests:

xlv) non-fungibility of land

xlvi) personhood interests (but fmv doesn’t compensate this)

xlvii) problems w/ this rationale:

av) but not all land is individual

aw) but if its b/c real property is different, then why compensate for new property?

50. Size of investment usually quite large

51. Purposes of gov’t: protect life, liberty & PROPERTY

52. Property as bulwark:

liii) dividing line b/w private & public goods

liv) giving ppl goods w/ which to use as check against gov’t

lv) gov’t can destroy that bulwark if allow to take w/out compensation

56. Equal protection elements: if no compensation, ripe for abuse

lvii) can single ppl out, use as vehicle for discrimination

lviii) could use as silencing mechanism

bg. Why treat differently than taxation:

60. Often, gov’t can achieve same ends via regulation & taxation

61. More suspicious of regualtion

lxii. Nuisance Line- Mugler & Hadacheck:

bk. Takings or d.p.?

64. litigants thought of as takings

lxv) regulation leaves no value to property (Mugler)

lxvi) gov’t took w/out compensation (Hadacheck)

67. ct treated as d.p.

lxviii) examine whether legit end for gov’t (Mugler)

lxix) treat as deprivation of property (Hadacheck)

70. later treatment:

lxxi) Scalia dismisses these as d.p. cases- defining orthodox quartet (Lucas)

lxxii) nuisance exceptions to takings (Keystone)

bu. (Rule: Gov’t can regulate in public interest:

74. If gov’t is regulating public evil, don’t need to pay compensation

lxxv) Public interest:

bx) benefit to surrounding neighbors?

by) benefit to society as whole?

bz) benefit to landowner (reciprocity of benefits)?

79. Indication that need judicial intervention (& suspect regulation):

lxxx) Failures in political mkt:

cc) landowner being singled out?

cd) landowner discreet & insular minority?

ce) passed by lower level of gov’t (more open to failure in political mkt)?

lxxxiv) Wealth Redistribution:

cg) if landowner not compensated, taking a right/wealth & redistributing it to neighbors. (Hadacheck)

ch) less troubling when “benefit” is to society as whole, especially if reciprocity of benefits (Mugler)

ci. Implications:

88. gives gov’t pretty free reign to take w/out compensating

89. ppl caught in gov’t transitions b/w norms

xc) want ppl to be compensated for losses, but…

xci) want gov’t to be able to adapt & society to transition

xcii. Test for Takings:

co. Going “Too Far” (Penn Coal)

94. (If regulation goes “too far,” it will be a taking

xcv) Looks to diminution in value

cr) Diminution in value

total property interest

1) Look to % taken for regulatory taking (unlike in physical taking)

2) proxy for fairness

c) Need to define property right being regulated (denominator)

4) if define broadly- right is whole bundle of sticks: will rarely find takings here

5) if define narrowly- right is one stick: easy to find a taking here (Holmes)

f) treatment of diminution in value:

7) along a continuum (traditional)

8) balancing test

9) Sup Ct today: per se rules

x) Private benefit v. public good?

xi) Reciprocity of Advantages?:

l) narrow: direct reciprocity (Penn Coal, Euclid)

m) broad: (Penn Central)

14. Differences w/ nuisance cases:

xv) treatment of extent of harm to property owner

p) don’t consider extent of harm (Mugler, Hadacheck)

q) concern whether regulation…: (Penn Coal)

18) makes act “commercially impracticable”

19) creates expense for owner

xx) extent to which gov’t can regulate nuisance

u) public nuisance (Mugler, Hadacheck)

v) private nuisance- no public effect (Penn Coal)

xxiii) extent to which cts must defer to state legislature

x) less deference: inquire whether legislature could have done it better (Penn Coal- Lochner era)

y) more deference (today & Mugler, Hadacheck)

xxvi) treatment of redistribution effects

aa) nuisance cases: less redistribution of wealth

ab) more redistribution b/c sense that legislature is returning a right that was Ked away (Penn Coal)

ac. Ad Hoc Balancing Test: (Penn Central)

30. Factors:

xxxi) Diminution in Value (harm caused):

af) (interfere w/ “distinct investment backed expectations”?

33) fairness & unfair burden inquiry

34) require more than a hope of developing

xxxv) Reasonable expectation

xxxvi) doesn’t protect speculators

ak) Definition of property interest (denominator)

38) define broadly

39) won’t let property owner define interest

an) Earning reasonable rate of return?

41) less likely to be taking if earning return

42) takings usually involve undeveloped land- less likely to be earning return than if developed

xliii) Character of gov’t action (public interest):

ar) Look to:

45) promoting common good?

xlvi) if not, more likely to find taking

47) furthering important public policy?

48) Reciprocity of Advantages: does regulation benefit on property owner?

aw) But, public interest is never questioned

ax) Standard of Review:

51) probably reasonableness…

52) no reason to reject b/c under or over inclusive

53. Reconcile w/ Penn Coal

liv) “distinct investment backed expectations” not useful concept in takings, so…

lv) usually, Penn Central & Penn Coal read as same

56. Transferable Development Rights (TDR)

lvii) Problematic:

bf) Need receiving parcel: what parcels? when?

bg) Gov’t can use as way around findings of takings

bh) TDRs not easy to value (not clear mkt)

lxi) Compensation?

bj) NO- most cts use TDRs as part of value of property, NOT compensation

bk) Offset finding of taking b/c:

64) denominator is bigger

65) property right in TDR not taken

lxvi) Incentives:

bo) landowners: may seek more zoning permission than want & then sell those rights

bp) gov’t: may over-zone to…:

69) create currency (TDR)

70) ( likelihood that taking is found

lxxi) Exercise of TDRs NOT part of ripeness requirement

v. Per Se Rules:

a. Nuisance: will never be taking

b. Permanent Physical Occupation Exception: always a taking (Loretto)

3. If gov’t authorizes a 3rd party to do any permanent physical invasion, per se taking, regardless of strength of public purpose

4. Rationale:

v) Personhood:

f) different is something on land

g) can see an occupation, not a regulation

viii) Political process failure

i) but w/ occupation, better suited to protect self

10) identifiable loser(s), can align w/ other effected owners

11) smaller # effected, easier to align

l) unlike regulation, where…

13) hard to figure out who’s effected

14) more ppl impacted, more diffuse grp

xv) Evidentiary issue

xvi) Michelman

q) Everyone would want compensation paid under these circumstances, if asked in abstract

r) Demoralization costs of not paying outweigh administrative costs of paying

19) demoralization costs: feel treated unfairly; unwillingness to invest

20) administrative costs: figuring out who to pay; sending payment

21. Problems w/ exception:

xxii) occupation probably interferes w/ transferability LESS than a regulation

xxiii) words themselves (“permanent physical occupation”)

x. 100% Diminution in Value Exception: always a taking unless regulation rooted in C/L nuisance (Lucas)

25. Rationale:

xxvi) Always had rule- takings is 2-fold test:

aa) substantially advance legit interest

ab) can’t take away all value

xxix) 100% dim. is like a physical appropriation

xxx) No reason to own land if 100% diminution

xxxi) 100% dim. rare, won’t interfere w/ gov’t ability to regulate

af) but this depends on how define property interest

ag) might chill local gov’t

xxxiv) Less likely to have reciprocity of benefits if 100% dim.

xxxv) Political process failure:

aj) greater risk of abuse of singling out 1 person to provide societal benefit if 100% dim. okay

ak) but does 100% dim. make it easier for owner to protest/align w/ others?

38. Definition of property interest:

xxxix) distinguishes previous cases as not having had 100% diminution in value (but different denominators there)

xl) personal property different- may be able to take 100%

41. No balancing of public interest against harm

xlii) Thus, different from “too far” test

xliii) Doesn’t matter how strong public interest is (unless rooted in nuisance law)

44. Problems w/ exception:

xlv) How to define property interest?

at) 100% of what?

au) Over what time period?

xlviii) to evaluate whether 100% diminution, would have to evaluate bundle stick by stick

xlix) Chilling effect on gov’t regulation b/c unsure what denominator will be

l) dismisses nuisance cases as d.p. cases (articulations of orthodox quartet)

51. C/L Nuisance exception to the exception:

lii) Rationale:

ba) C/L nuisance: inherent limitation on title

bb) C/L adjudication of nuisance more trustworthy than having legislature declarations of nuisance

lv) Problems w/ C/L nuisance- might not be indications of limitations that we’d want:

bd) C/L: narrower view of harm

be) historical development of nuisance:

58) C/L development stopped when legislatures stepped in

59) legislatures stepped in b/c CL nuisance law inadequate

bh) definition of nuisance influenced by kinds of remedial options cts had

bi) past cts no better than today’s cts

bj) nuisance law varies from state to state

63. Level of scrutiny: higher level of scrutiny on state ct decisions

D. Constraints on Zoning that Threaten Civil Liberties

5. Freedom of Religion:

vi. Regulation gives benefit to religious uses & thus aids religion

g. violates establishment clause of 1st amendment

viii. Intent Cases (indication that intent of regulation was to have certain effect)

i. very difficult to prove intent

j. challenge will work if enormous evidence (Likumi)

xi. Effects Cases (no hint that it was purpose of regulation was to have the effect)

l. Impact of Smith:

13. pre-Smith (First Covenant I)

xiv) If undue burden, gov’t must: (First Covenant I)

o) have compelling interest &

p) use least restrictive means of achieving interest

17. no claim if rules are not targeted to any particular religion

xviii) religions NOT exempt from generally applicable rules.

xix) will not subject ordinance to heightened scrutiny (compelling interest, least restrictive) that would get if not generally applicable

xx) But, religion exception (religious aspects not regulated) might make ordinance non-neutral (First Covenant II)

21. Exception for hybrid claims (religious & free speech claim)

22. Congressional response (Religious Freedom Restoration Act) struck down by Sup. Ct (Boerne v. Flores)

23. After-Smith: What’s left of freedom of religion claims?

xxiv) Might have claim challenging that ordinance that determines landmarks

y) subjective, too discretionary criteria

z) non-neutral criteria

aa. Types of effects cases:

28. bar on all religious uses (makes it difficult for all religions & particularly difficult for some)

29. allow religious uses, but bars accessory uses (eg: shelter)

30. clash b/w historic preservation & religious uses

xxxi) Landmarking ordinance:

af) Need approval to make non-religious changes

ag) Asks church to “think 2x”- explore if another way

xxxiv) Religious/liturgical exceptions:

ai) church does NOT need approval for changes that have to do w/ religious practice

aj) might make ordinance non-neutral (First Covenant II)

ak) Hard to draft liturgical exception:

38) Not okay if too vague (First Covenant I)

39) Why have it vague?

xl) to be protective as possible

xli) avoid favoring a religion (establishment clause violation)

xlii) equal protection concerns: avoid discriminating against minority religions

xliii) Undue burden on religion:

ar) Interference w/ religious practice:

45) design might be part & parcel w/ religion

46) shouldn’t have to seek secular approval

au) Economic burdens:

48) Depreciation of value of building

49) Maintenance expenses: might make it prohibitive to carry out religion

ax. state v. federal ct:

51. federal:

lii) religions not exempt from economic burdens

ba) but at some pt, grave enough hat becomes religious burden

liv) must less sympathetic on what will classify as a burden

lv) scrutiny: must show burden on religious practice to get higher scrutiny; otherwise, rational re’ship test

56. state:

lvii) majority:

bf) favorable to religious uses

bg) religions should be exempt from many zoning burdens

lx) but shifting towards fed ct standards

bi) partly b/c establishment clause dangers

lxii. Takings claim?: (St. Barts)

bk. Problematic:

64. if church not going to sell, why concern w/ diminution in value?

65. possible claim that preventing profit that will further religious use

66. Freedom of Speech:

lxvii. Content Based Restriction on non-commercial, non-obscene speech:

bp. (Test: strict scrutiny:

69. compelling state interest

70. least restrictive means of implementing that interest

lxxi. Time, Place & Manner Restriction: (Renton v. Playtime Theaters)

bt. (Test: lower than strict scrutiny

73. substantial gov’t interest

74. reasonable alternative means of communication

lxxv) not clear how to do alternative means analysis

lxxvi) use of economics- 2 part inquiry:

by) what is available mkt?

78) zoning

79) infrastructure

80) available to industrial/commercial use?

81) un-developable for any use at all?

cd) w/in mkt, can the land use compete?

83) but 1st amend. doesn’t protect from mkt.

cf. Secondary effects

85. threshold question

86. can rely on other municipality’s studies

87. examples of effects:

lxxxviii) noise

lxxxix) ( in property value

c. Offensive speech: not really w/in 1st amendment protection

4. Abortion rights

v. Secondary effects analysis not permitted

f. would have troubling implications

vii. Juxtaposition w/ religion & speech cases:

h. If sufficient enough impact, triggers scrutiny more than rational re’ship

i. speech cases: burden test comes in when evaluating alternative means

j. reconcile cases to have significance of burden threshold:

11. If above threshold: higher scrutiny

12. If below threshold: rational re’ship

E. Procedural & Remedial Aspects of Landowners’ & Developers’ Constitutional Challenges- Proceeding in Federal Court:

(4 hurdles b/f can get case heard in federal court:

1. Judicial hostility to land use claims

2. Issue & Claim Preclusion (Dodd)

3. Abstention (4 kinds)

4. Ripeness requirement (Williamson County)

e. finality

f. sought state remedies

1. Jurisdiction

ii. Challenge to federal regulation:

c. Takings claims against fed gov’t: Tucker Act

d. Due Process, Equal Protection, Civil Liberties claims: 28 U.S.C. §1331

v. Challenge to state or local regulation:

f. Violation of Constitution or fed laws: §1983 (also awards atty’s fees)

7. Ripeness

viii. Williamson County:

i. Common Scenario:

10. development came along sequentially

11. competing tensions for both city & developer:

xii) do not want to commit selves for too far down road (don’t want to lock shape of development), but…

xiii) want to commit enough (developer may fear political change)

n. Procedurally:

15. developer appealed commission’s decision & filed takings claim

xvi. Ripeness Doctrine

q. jurisdictional bar for claims against non-fed gov’t

r. (Two Prongs:

19. Final Decision

xx) If variance proceedings still available, ct can’t determine if there has been a taking

u) If face of statute lets developer ask for exception, not ripe until developer asks

v) Must’ve been denied variance

w) Do NOT have had to sought re-zoning

x) Futility exception

xxv) Rationale:

z) In takings balancing test (Penn Central)- look to how much of property’s value was destroyed

aa) can’t determine unless know what gov’t will finally allow- need to know gov’t’s bottom line

xxviii) Good rule?

ac) Criticism of prong:

30) Not clear at what point decision is final

31) Delays cost developer $- who pays?

32) What is a “normal” delay?

33) Possible abuse by gov’t- can string along developer

ah) Defense of prong:

35) developers know of & account for risks of denial

36) right not part of property interest; was not so assured that it could be “taken”

37) developer can exit (choose municipality)

xxxviii) municipalities must compete: ( ability to act strategically

xxxix) but exit only disciplines gov’t b/f project starts- no protection from changes mid-stream

xl) Implications of First English

ao) compensation for temporary taking

ap) Finality prong:

43) on it’s face, pro-gov’t b/c developers delayed & kept out of fed ct.

44) but, if gov’t liable for temporary takings & abnormal delays- delays expensive if regulation later found to be taking

xlv) How parties deal w/ prong:

at) gov’t: should never give final answer; always indicated openings

au) developer: should keep strict record of every avenue pursued so can show all foreclosed

xlviii) Response: development agreements as to total shape

aw) b/f start- gov’t agrees to not change mind

ax) problematic

51) gov’t supposed to be legislative, not supposed to K

52) cts not allowing these Ks

53. Sought j.c. through state compensatory mechanisms

liv) Requirement:

bc) avail self of state remedies

bd) ??bring state takings claim in state ct 1st ??

be) Utilization requirement- not exhaustion requirement

bf) do NOT have to bring fed claim in state ct 1st

lix) 5th amend: allows property to be taken if gov’t pays j.c.

bh) in order to have takings claim:

61) must show denied j.c.

62) so, must show asked for j.c.

bk) no fed claim if gov’t might pay j.c. via state ct proceedings

bl) 5th amend. creates fed right that state must pay attention to property rights-

lxv) State remedies: often inverse condemnation

bn) claim that gov’t took land via regulation, & gov’t must be forced to condemn

bo) attempt to force gov’t to use E.D.

lxviii) Effect:

bq) garden variety zoning disputes kept out of fed ct

br) could be read that can never get to fed ct unless bring state action 1st (how can it be read any other way??)

lxxi) PRECLUSION: (Dodd)

bt) NOT required to bring fed takings claim in state ct 1st

73) Must proceed w/ state takings claim in state ct 1st, but…

74) Rationale:

lxxv) if had to bring fed claim in state ct 1st, would never get to fed claim in fed ct b/c res judicata.

lxxvi) Williamson Co. still allows for fed remedies

by) State ct decision- likely cause issue preclusion in fed ct:

78) collateral estoppel if state ct rests decision on same things fed ct would

lxxix) every state looks to same factors as fed cases

lxxx) so will likely always be c.e.

81) Will always be precluded except if:

lxxxii) state ct reserves fed claim

lxxxiii) fed takings claim where state didn’t provide adequate compensation

lxxxiv. Ripeness requirement for other claims?

cg. Non-land use §1983 claims: do not have to go through all state remedies

ch. Non-takings land use claims (equal protection & substantive d.p.):

87. In theory, could have substantive d.p. claim separate from takings claim

88. But, most cts sweep substantive d.p. under ripeness requirement

89. Abstention

xc. Generally:

cm. Jurisprudential concern

cn. Abstention supposed to be the exception, not the rule

93. Some cts neglect this, treat requirements too loosely (Pearl)

xciv. Pullman abstention doctrine: (Pearl)

cq. fed cts can postpone exercise of jurisdiction if the adjudication would be avoided in a state ct proceeding

96. reflects reluctance to reach constitutional issues if can avoid

97. reflects federalism concerns- comity b/w state & fed cts

98. reduces congestion in fed cts

cu. (3 requirements

100. Sensitive Area of Social Policy:

ci) Localism as sensitive area? (Pearl)

cx) but most cts not deferential to local gov’t

cy) not clear that state cts are more sensitive to localism than fed cts

civ) Land use sensitive area b/c inherently local issue (Pearl)

105. State Law Issues:

cvi) adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the proceeding

cvii) if state ct holds that local gov’t acted wrongly, then fed issue goes away.

dd) only have fed case if pure takings claim b/c claim won’t go away via state ct decision unless state has parallel takings clause

de) if representing landowner, kitchen sink claims can be problematic:

110) if pair takings claim w/ substantive or procedural d.p. claims…

111) other claims can be decided in state ct

112) so fed ct will abstain

di) further complicated b/c ripeness doctrine

cxiv) this prong almost always met

115. State Law is Uncertain:

cxvi) Uncertain:

dm) not fact specific

dn) fed ct cannot predict w/ confidence how state’s highest ct would decide an issue of state law

cxix) If state & fed had parallel provisions, & fed is the one at issue, ct can’t abstain just b/c state provision uncertain

cxx. Burford abstention doctrine: (Pomponio)

dq. fed cts should stay out of areas where state cts are struggling to come up w/ comprehensive state law scheme

122. Rationale problematic in land use area:

cxxiii) more local; not comprehensive state law scheme

cxxiv) most states: local, not comprehensive, decision making

125. Conflicts w/ Pullman rationale that should local decisions are important social policy reason to abstain

dv. if remedy is j.c. or damages, & not injunction, hard to see how fed ct rulings would interfere w/ state scheme

cxxvii. Younger abstention doctrine:

dx. Requirements:

129. abstain from enjoining pending state criminal proceedings if

130. ( can make adequate fed defense in state proceedings &

131. no irreparable harm

eb. Some cts extend from criminal to administrative proceedings

cxxxiii. Colorado River abstention doctrine:

ed. Abstention might be justified if concurrent state proceedings & factors (eg: serve wise judicial administration, etc.)

ee. Some cts use or apply these factors under rubric of Pullman

4. Remedies: Compensation

v. j.c. for temporary regulatory taking when all value taken??(First English):

f. Pre-First English- j.c. required if:

7. physical taking (temporary or permanent)

8. regulatory permanent taking

ix) ct found a takings

x) gov’t kept regulation, exercised E.D.

k. First English-

12. temporary taking:

xiii) ct finds a taking

xiv) gov’t does not want to exercise E.D., gets rid of regulation

15. Gov’t must pay j.c. for this time b/w when the regulation was enacted & when ct found a taking & state got rid of regulation

xvi. Good rule?

q. Criticism:

18. Property has dimensions

xix) Dimensions:

t) Physical: if consider value as whole parcel, & only take a piece of parcel, not a taking

u) Time: if consider value over years, & only prevent use for short time, not clearly a taking

xxii) No reason to treat time differently than other dimensions

xxiii) Problems w/ this rule:

x) encourage property owners to divide property into discreet segments

y) neglected why have “too far” rule

26) look at diminution in value as proxy (for fairness, unfair burden)

27) doesn’t easily translate into time

28. Policy:

xxix) if states have to pay for mistakes (when never intended to take), will chill development of land use regulation

xxx) fed cts have trouble deciding what is a taking; can’t expect gov’ts to figure out what is a taking ex ante

31. If substantive d.p. violation & not a taking, should get damages (more akin to tort damages), not j.c.

af. Better if drew analogy to unintentional physical temporary takings:

33. remedy there is tort-like damages

xxxiv. Unresolved Issues After First English:

ai. Apply to less than 100% diminution in value?

36. unclear b/c juxtaposition w/ Lucas- how to define denominator?

ak. What about regulations intended at outset to be temporary?

38. cts tend not to apply First English- no j.c.

am. Need to know 3 things to calculate j.c. ((look at timeline on 3-217)

40. when taking began

xli) When does clock start running?

ap) when ordinance adopted?

aq) when proposal rejected by commission?

ar) when variance rejected (when claim becomes ripe)?

xlv) First English doesn’t cover “normal delays” (but no clear interpretation)

46. When taking ended

xlvii) When does clock stop running?

av) usually when gov’t rescinds regulation after ct finds taking

aw) possibly when building or land could change

l) procedural requirements may cost gov’t a lot of $

51. What compensation is due?

lii) Measures:

ba) Rental value of property? (suggested in 1st Eng)

54) fmv undeveloped? OR

55) fmv developed?

lvi) developed as proposed? OR

lvii) developed pursuant to constitutional regulations?

b) Return on similar investments?

1) original purchase price? OR

2) on developed land?

c) What would cost gov’t to buy option on property when regulation in effect?

4) but options not common- thin mkt- hard to gauge price

e) fmvT2 (after regulation) - fmvT1 (b/f regulation):

6) measure:

vii) return on difference (b/c difference was restored when regulation lifted)? OR

viii) difference itself (but difference restored when regulation lifted)?

9) both problematic:

x) hard to isolate diminution in value (disentangle other effects on fmv) caused by regulation

xi) appreciation & depreciation: charged to gov’t or developer?

xii) Better if don’t use timeline, but evaluate fmv as if on same day, what would be regulated or not

xiii) pay developer complete difference in fmv even though amt actually equity investment is often just % of fmv?

xiv) Example: (Wheeler)

o) Measure of compensation:

16) looked only at equity (what developer actually had invested)

17) fmv as developed - fmv undeveloped

18) (difference in that equity interest) X (interest rate) X (# of days regulation in effect)

s) Problem:

20) didn’t account for huge costs that’d be incurred to develop land

21) although only give return on equity interest, developer pays taxes on equity & debt interest

V. ZONING CHALLENGES BY NEIGHBORS (Zoning Changes & the Rights of Neighbors)

F. Flexibility Devices:

7. 3 traditional devices landowners use:

viii. Variances: developer seeks exception to ordinance

ix. Rezoning: developer seeks amendment to ordinance (actual change in law)

x. Special/Conditional Use Permit: ordinance allows for use if satisfy conditions

k. gives gov’t further scrutiny of developer by adding a procedure

l. developer must prove that satisfies conditions

13. Holding Zone:

xiv. Most gov’ts put undeveloped land in holding zone

o. usually agricultural or single family use

p. do so in place of projecting how it might be used in future

q. “wait & see” type of idea

xviii. How it gets converted to other use:

s. Developer comes in w/ ida, negotiates

t. local gov’t often tells developer to apply for flexibility device

21. Authority under SZEA:

xxii. Anticipated gov’t bodies:

Legislative Body (elected city council)

(

Planning Commission (executive body)

(

Board of Zoning Adjustment (zoning board)

ii. Level of gov’t responsible for different devices:

c. Legislative body:

4. rezoning w/ advice of planning commission

5. hears appeals for variances

f. Planning commission: (administrative body)

7. advice on rezoning

8. conditional use permits

i. Bd of Zoning Adjustment (administrative body)

10. body of 1st resort for variances

xi. Interaction between gov’t bodies:

l. Notion that administrative bodies have some expertise that elected governing body should not disregard.

m. If advise ignored, possible grounds for substantive d.p. claim for arbitrary & capricious

14. Neighbors’ Challenges:

i. Usually, presumption that gov’t is acting correctly

B. Constraints on Zoning Changes by Administrative Bodies:

3. Variances

iv. Uses:

e. not generally used for large scale development

f. used when filling in pocket of land in fairly developed area

g. generally not used by repeat players or big developers

viii. Issues:

i. Authority:

10. Authority questions: (look to SZEA)

xi) Authority (from state) for local gov’t to grant variance?

l) if state permits variances, city must permit

xiii) Correct body deciding it?

n) administrative agency have authority to grant?

o) variance requests usually 1st heard by zoning bd

xvi) Correct standard by which body deciding under?

17. Authority challenges:

xviii) more successful when challenging grant of use variance

s) b/c use variance is essentially a rezoning

t) some states’ SZEA explicitly prohibit use variances

xxi) less successful when challenging grant of area variance

v. Type of Variance:

23. 2 categories:

xxiv) use variance: asking for use that land not zoned for (eg: wants mutli-family house when zoned for single family)

xxv) area variance: has to do w/ lot size, side-yard requirements, height, etc.

26. Line b/w the two can be fuzzy (as seen in dispute in Matthew)

27. Implications:

xxviii) authority challenges:

ac) challenge more successful when use variance

ad) challenge less successful when area variance

xxxi) standard:

af) often higher for use variance

ag) often lower for area variance

ah. Standards for grant of variances

35. Different standards for use & area variances in some states:

xxxvi) Use Variances: “Unnecessary Hardship” (Matthew)

ak) lack of reasonable return (+ criteria)

38) rationale:

xxxix) use variances intended as safety valve

xl) standard for use variances should look to same factors as takings test

41) problem: variances commonly granted; easier than takings analysis

ap) unique circumstances (+ criteria)

43) strictly, must show unique topographic feature (but not strictly applied)

44) rationale:

xlv) zoning works b/c everyone somewhat restricted (avg. reciprocity of advantages)- if grant variance to everyone who’s restricted- undermine purpose of zoning

xlvi) administrative law/separation of powers: if similarly situated land owners have same problem, reflects flaw in ordinance, & all should get relief- via legislature, not administrative agency

47) interaction w/ ripeness requirement:

xlviii) ripeness doesn’t require landowner to seek re-zoning

xlix) but local gov’t may say variance not proper b/c not unique, but re-zoning might be okay

l) not clear if part of ripeness…

ay) if granted, won’t alter essential character or surrounding community (- criteria)

52) rarely addressed criteria b/c subsumed in other 2 criteria

liii) Area variances: “Practical Difficulties”

bb) in theory, requires uniqueness

bc) in actuality, multi-factor balancing test

56) self-imposed hardship or not?

57) less drastic avenue?

bf) vague & easier to satisfy than use variance

59. Same standard for use & area variance in some states:

lx) use higher (use variance) standard

bi. Standard of review over grants of variances:

62. cts often impose higher standard of review:

lxiii) legislature did not okay this use, so…

lxiv) attempt to reign in agency’s liberal granting of variances

65. “Substantial Evidence” standard of review

lxvi) grant must be supported by substantial evidence in record

lxvii) much less deferential standard then how cts review legislative decision

lxviii. Players in variance disputes:

bq. Neighbors:

70. what if neighbors have “unclean hands”?

bs. Applicants:

72. Non-conforming use law: if qualifies as non-conforming use, why request variance?

lxxiii) sale context: new purchaser wants change which non-conforming use doesn’t allow

lxxiv) non-conforming use is politically unstable- city might amortize at any time

75. (Self-created hardship:

lxxvi) Rule: if self-created hardship, no variance

lxxvii) Rule should not apply:

bz) if pay fmv that reflects anticipated variance

79) price accounts for original owner’s right to variance

80) self-created hardship (by paying so much)…

lxxxi) but hardship anyway b/c original owner could have qualified variance

lxxxii) if don’t grant variance, interfere w/ transferability of land

ce) (can turn on issue of whether right to variance not yet granted run w/ land or owner.)

lxxxiv) Rule should apply:

cg) if sub-divider who actually draws lot lines later applies variance

ch) if go ahead & do something out of compliance w/out checking

87) in reality, zoning bds grant here

lxxxviii. Gap between “variance as exception” standard & reality (80-90% granted):

ck. Cts regard gap as proof something is broken

90. separation of powers problem

xci) administrative agency which grants variances undermining what legislature authorized

92. Attempt to reign in grants of variances:

xciii) impose procedural requirements

cp) agency must state reasons on record for granting variances

cq) agency must develop records (findings of fact)

xcvi) “Substantial Evidence” review standard

cs) grant must be supported by substantial evidence in record

ct) much less deferential review than that accorded legislatures

xcix) impose fairly strict conflict of interest standards

cv. Hard for legislature to constrain or reign in agencies

101. principal - agent problem

102. cutting budget of agency only short term solution

103. authority problem to change zoning ordinance- will violate SZEA

cz. Why this gap?

105. Unclear whether variances (& all flexibility devices) are adjudicative or legislative function ???

106. Accountability mechanisms not reliable

cvii) rarely hold mayor, who appointed zoning commissioners, responsible for these appointments

cviii) in large jurisdictions, land use not main issue voted on

cix) hard for voters to figure out what’s going on

cx) can’t make these elected positions

dg) thankless jobs; ppl wouldn’t bother if had to run

dh) would allow influence of $

cxiii) if majoritarian politics (small, single issue area)- allows for small # of voters to have large impact

dj. Not problematic b/c allows for case-by-case decision making: (Steele)

1. Developed v. undeveloped jurisdictions:

i) Less developed: “variance as exception” applicable

ii) More developed: variances should not be exception

3. variance application: requires notice to neighbors

iv) triggers public participation

v) get info & objections from neighbors

6. nothing wrong just b/c most variances are granted

vii) if neighbors protest, landowner often comprises

viii) variance process good b/c mechanism to allow for case-by-case decision making

i. Need to know more about who applies for & gets variances:

10. expect that if little or no exit rights, will see that the variances are being granted to established homeowners (who need minor adjustments)

2. Special Exceptions (Conditional Use Permits)

iii. Generally:

d. More the rule than the exception

5. unlike variances in this way

6. if applicant meets criteria, gov’t body must grant permit

g. Tool for gov’t to single out certain types of land use for higher scrutiny

8. uses are generally okay in the district, but…

9. gov’t wants greater control

j. Ordinance generally specifies which are special uses & standards by which to examine

xi. Authority: (Gladden)

a. Which body is making decisions?:

1. Strict SZEA jurisdictions:

ii) grants to Board of Zoning Adjustment (BZA)

iii) BZA advised by planning commission & neighborhood advisory commission

4. Jurisdictions which don’t follow SZEA for special use permits:

v) planning commission decides OR

vi) legislature, on advise of planning commission, decides.

g. Ct’s standard of review differs depending on which body made decision

8. more deferential to legislature

9. more scrutiny to zoning board or planning commission

j. What weight ct should give to discrepancies b/w advise/recommendation by lower bodies & what decision maker ultimately does?

11. If do not heed advise, decision might be arbitrary & capricious

xii. Standard to be applied by decision maker in granting conditional use permits:

m. Requirements:

14. general requirement that:

xv) furthers purpose of zoning ordinance OR

xvi) will not adversely affect neighborhood

17. specific requirements for specific types of use permits

xviii) eg: no other group home w/in 500 feet

s. No discretion in body making decision: must issue special use permit if proponent proves that meets requirements.

t. Problems w/ some conditional use permit ordinances:

21. if provides no standards

xxii) improper delegation challenge likely to succeed b/c delegated authority but did not condition on any criteria

23. if provides very broad vague standards

xxiv) improper delegation challenge likely to fail b/c most cts say the vague language is sufficient guidance

ii) if vague, room for arbitrariness & discrimination

a) but point of these permits is flexibility

b) if statute to specific, ceases to be flexible

3. *Need to find balance b/w providing guidelines but leaving room for flexibility

iv. Standard of Review of BZA’s Decisions:

e. Substantial Evidence Review: (Gladden)

6. findings of fact based on substantial evidence in record

7. conclusion must follow as matter of law from findings

h. Deference:

9. not as deferential as would be to legislature

10. less deferential b/c this is administrative agency

k. Review of variances v. special uses:

12. w/ variances-

xiii) cts unsympathetic to variances; try to reign in grants

xiv) so closely scrutinize any decision that GRANTS

2. w/ special uses-

i) legislatures said these uses are okay (unlike variances)

ii) cts sympathetic to conditional use permits

iii) so closely scrutinize any decision that DENIES

d. Problems:

1. Any limits on amt can zone as conditional use?

i) Some cities say anything but single family is cond’l use…

ii) Might be vulnerable to challenge that over-using

3. Evidentiary requirements & ct review:

iv) Seem to allow unpersuasive decisions by BZA to get by

v) high burden of proof on neighbors- only wealthy neighbors can protest a grant of a cond’l use permit

6. Tension b/w:

vii) prevent neighbors’ fear from controlling grants &

viii) not having such high burden of proof that neighbors can’t resist

ix. Use for LULU

j. neighbors respond w/ NIMBY reaction

k. concerns for disparities in wealth of opponents

l. not clear if cond’l use factors are:

13. floor?

14. ceiling?

15. guidance as to what over-saturation may be?

C. Constraints on Rezoning (Zoning Changes by Legislative Bodies):

4. Rezoning generally:

v. Use when:

f. don’t satisfy variance criteria

g. ordinance doesn’t provide for as cond’l use

viii. Standard of Review:

i. presumption that legislature is right

j. Burden on challenger

k. Rational Basis Scrutiny

12. But, other findings (eg: spot zoning) may trigger higher scrutiny

xiii. Most drastic flexibility device

xiv. Techniques cts use to restrict rezoning:

o. spot zoning

p. higher scrutiny by treating rezoning as administrative (& not legislative)

q. “change & mistake” doctrine

r. examine whether in accordance w/ comprehensive plan

s. ban on K zoning

xx. Challenges:

u. Authority

v. Substantive d.p.

2. Tempered Deference:

iii. Spot Zoning:

d. Treatment by courts:

5. Review by courts:

vi) Level of scrutiny:

g) supposed to be rat’l basis scrutiny in rezoning

h) but some cts look at factors to see if spot zoning (Griswold)

ix) Up-zoning v. Down-zoning:

j) Scrutiny:

11) higher scrutiny if change to less restrictive spot (benefit to landowner)

12) lower scrutiny if move to more restrictive spot (benefit to neighbor)

m) Recently, some move away from ( suspicion of up-zoning

14. Two approaches to spot zoning:

xv) Conclusion (end of inquiry)-

p) if determine spot zoning exists- illegal

xvii) Trigger for higher scrutiny

r) if determine spot zoning exists- need to look harder at the rezoning

19) eg: will look to see if spot zoning is beneficial to community

t) more modern trend

21. Treat piecemeal rezoning different from original zoning:

xxii) Standard of review:

w) if not “re”zoning (spot in orig. zoning)- rat’l basis scrutiny

x) legislature gets rat’l basis review if pass spot in original zoning, but higher scrutiny if rezoning

xxv) Rationale:

z) Neighbors’ settled expectations:

27) may be no expectations when 1st zoning

28) rezoning upsets neighbors’ expectations created by original zoning

ac) Procedures:

30) rezoning:

xxxi) stakes & interests more clear

xxxii) easier for special interests & influence & developer pressure

xxxiii) BUT, also easier for neighbors to influence as well…

34) Problem: not clear that procedures in original zoning any better than rezoning

ai) Whose rights implicated:

36) original zoning:

xxxvii) less parcel specific

xxxviii) more of a K where all are parties (all get benefits & restrictions)

39) rezoning more parcel specific

an) Original zoning reflected forethought

41) But, most rezoning arises in “wait & see” zoning, where there wasn’t forethought in original zoning

ap) Rezoning is piecemeal

43) piecemeal- more administrative than legislative- higher scrutiny appropriate

44) But, “piecemeal” legislation in non-land use areas doesn’t get higher scrutiny

45. Zoning as science v. politics:

xlvi) cts treat as science; most others treat as politics

xlvii) tied to conception of role of local gov’t

48. Factor Test to Examine if Spot Zoning:

xlix) Factors:

ax) Accordance w/ comprehensive plan

ay) Benefits & costs to landowners & neighbors to see who comes out on top

az) Size of parcel

ba) Nature of surrounding community

how incompatible is rezoned use?

1) surrounding area uniform & stable?

2) if mixed use area, less likely to spot zoning

3) disparate impact- usually only suburban middle class neighborhoods are stable

d) Procedure- strange (to indicate a problem)?

e) Slop v. Spot

6. slop: extension of a use

7. spot: dropping in a brand new use

viii) Why these factors?

i) looking for signals of undue special influence- these factors may indicate its presence

j) concern for stability & neighbors’ special needs

xi) Problems w/ factor test:

l) becomes mechanistic checklist instead of true scrutiny into what’s going on

m) cts often apply w/out rally looking to see if goals behind doctrine of spot zoning are being served

n) might not really examine what gov’t is doing

o. Spot Zoning doctrine deflects attention away from underlying issues:

16. What is our model of what protection is due neighbors?

17. When do the interests of more ppl trump the interests of fewer?

r. Absence of a “Change or Mistake” Doctrine:

19. Piecemeal rezoning only if:

xx) Change: substantial change in character of neighborhood where rezoned property is located OR

xxi) Mistake: mistake in the prior zoning classification

22. Extends rule prohibiting spot zoning & severely limits possibility of small zoning changes

ii. Contract Zoning

c. Generally:

4. gov’t contracts rather than legislates

5. K zoning v. Cond’l Use zoning

vi) nature of promises:

g) cond’l use: gov’t promises that will zone if landowner satisfies condition

h) K zoning: bilateral promises- gov’t & landowner make promises

9. Conception of spot zoning as trigger for higher scrutiny, not conclusion

j. Treatment by cts:

11. initially, cts struck down (Allred)

xii) concern that local gov’t couldn’t enforce landowner’s promise

13. cts more receptive when K to rezone to a cond’l use district

xiv) local gov’t can enforce the proposal

xv) ensures that the use proposed will be the one carried out

xvi) gov’t has greater control & flexibility

17. cts usually accept unless explicit bilateral promise (Allred line)

r. Good idea?

19. Cons:

xx) danger of binding future legislatures

xxi) danger of gov’t use of K power to extract benefits it has no right to (things that otherwise would have to pay j.c.)

22. Pros:

xxiii) gov’t grants rezoning anyway- his way ensures some mitigation of costs to neighbors via return promise

xxiv) economic rationale:

y) gov’t may zone too restrictively

26) may be more beneficial use

aa) removes inefficiency

28) allows more beneficial use

29) yet developer must pay off costs via return promise (neighbors don’t suffer)

ad) problems w/ this rationale:

31) neighbors not necessarily fully compensated

af) neighbors not in equal bargaining position

33) broader community interest not necessarily accounted for

iii. Zoning Without or in Conflict With Planning

d. Comprehensive Plan:

5. SZEA §3: must zone in accordance w/ a comprehensive plan

6. Planners:

vii) project what municipality will need

viii) lay out sequence, space & shape of development think will be needed

ix) put forth objectives

j) often vague

k) often don’t reconcile competing objectives

12. Future oriented

xiii) may be based on inaccurate & inadequate data

xiv) highly general & often inconsistent

15. Standard Planning Act (equivalent of SZEA)- plan must address:

xvi) community infrastructure (facilities & utilities)

xvii) transportation (movement of ppl & goods)

xviii) land use

xix) housing, environment concerns

xx) coordination w/ state &/or other municipalities

21. Plan used in other claims: cts look to plan-

xxii) for avg. reciprocity of benefits (takings claim)

xxiii) to see if regulation is arbitrary & capricious (substantive d.p. claim)

x. 2 Questions:

25. Presence or absence of comprehensive plan?

xxvi) Has municipality failed to adopt a comprehensive plan?

aa) Is this a state that mandates planning?

28) Remedy if mandated, but municipality didn’t:

xxix) all zoning changes invalid?

xxx) usually, cts give time to plan

ae) If state doesn’t mandate, has it adopted some version of SZEA §3? (3 possible readings)

32) plan doesn’t have to be separate from zoning itself (Kozesnik)

xxxiii) looks to procedure: zoning must be planned product of comprehensive process

xxxiv) rationale:

ai) historically, zoning did not proceed planning

aj) cts don’t want to undo thousands of zoning ordinances

xxxvii) very low level of review

xxxviii) majority approach

39) “in accordance w/ comprehensive plan: must accord w/ police power

40) If no plan, zoning ordinance loses presumption of validity

xli) triggers higher level of scrutiny

xlii) close to requiring separate plan

xliii) stricter review

xliv) minority approach, but trend towards this view

xlv) If municipality adopted plan, is it consistent w/ zoning changes at issue?

at) Does plan allow something zoning forbids? OR

au) Does plan forbid something zoning allows?

iii) Can the plan be amended to allow the zoning?

2. If comprehensive plan, does statute mandate that zoning be consistent w/ it (consistency requirement)?

iii) If NO:

d) Plan as constitution: (Baker)

5) zoning implements constitution

6) plan is statement of general objectives

vii) even if zoning strictly inconsistent, may still be compatible

viii) zoning & plan don’t have to match exactly

ix) plan addresses whole area; zoning addresses smaller tracts

10) look to see if rezoning might further plan’s overall objectives

11) doesn’t constrain rezoning much

12) context: rezoning as quasi-judicial, not legislative

13) influential approach, but no state followed strictly

n) Plan as guide:

15) Legislative determination rezoning is consistent w/ plan- upheld if rational

16) Rational basis review

q) Plan as ceiling, not floor:

18) if zoning allows more intensive use than plan, must bring into accordance w/ plan

19) if zoning allows less intensive use than plan, okay

20) plan as ultimate future goal:

xxi) zoning ordinance determines how fast get to this “ceiling”

xxii) If YES:

w) Procedural requirements:

24) eg: can deviate if procedures such as majority vote

y) Substantive requirements:

26) What Standard of Review:

xxvii) rat’l basis: anyway legislature could rationally view these as consistent?

xxviii) no legislative deference- require written findings, etc.

xxix) rat’l basis but ct constrained by evidence that was b/f legislature by looking at record (Haines)

ad) somewhat heightened scrutiny

ae) reflects discomfort w/ giving plans too much weight

af) ct will likely find consistency w/ this

ag) Zoning via initiative: subject to consistency requirement (Lesher)

ah) Remedy if inconsistency: zoning instantly void if inconsistent w/ plan

ai) Possible constraints on ability to amend plan:

xxxvi) higher scrutiny to plan amendments

xxxvii) allow substantive d.p. challenge to amendment as arbitrary & capricious (but challenges will usually fail)

xxxviii) amendment must be consistent w/ original plan

xxxix) procedural requirements (eg: can’t amend plan more than 4X a year)

an. Planning Process v. Zoning Process:

41. In theory, hierarchy of care of procedures

planning

(

zoning

(

rezoning

2. In reality, not clear that planning process is better than zoning (or that zoning is better than rezoning)

3. Planning process might attract some interest grps that zoning process does not

3. Rejection of Deferential Review of Rezonings

i. Advice by administrative body:

b. Notion that administrative bodies have expertise that elected governing body should not disregard.

c. If legislature disregards advice:

4. Substantive d.p. claim as arbitrary & capricious

5. Usual deference (rat’l basis scrutiny)?

vi) No, higher scrutiny if disregard advice (Snyder I)

vii. Rezoning as Quasi-Judicial/Administrative OR Legislative?

h. Factors:

9. Party affected:

x) quasi-judicial: limited, specific grp

xi) legislative: general, open class

12. Size of parcel:

xiii) quasi-judicial: small

xiv) legislative: larger (more ppl affected…)

15. Nature of hearing:

xvi) quasi-judicial:

q) adversarial

r) fact-finding

s) application of existing law

t) allocation of burden of proof

xxi) legislative:

v) policy making

w) prospective, new law

x) no burden of proof

y. Rezoning as quasi-judicial (new trend by cts) (Fasano)

26. possible exception if comprehensive rezoning

27. Assumption that rezoning more susceptible to political processes than original zoning

3. Parties aided by determination of quasi-judicial?

i) Protect neighbors (Fasano)

b) concern w/ special influence of developers on legislature, especially in rezoning

c) influence driven political model

iv) Protect landowner, not neighbor (Snyder)

e) Idea that neighbors don’t have constitutional rights like landowners do

6) but neighbors do have rights

7) ignores reciprocity of benefits & reciprocal nature of externalities

h) concern w/ powerful neighbors, NIMBY influence on legislature in original zoning

9) idea that original zoning benefits developed landowners (neighbors)

10) majoritarian political model

xi) Underlying tensions:

l) majoritarian v. influence model

m) Wait & See Zoning & Deal Making- good idea?

14) better to encourages restrictive zoning & work down from that (Snyder I)

xv) not clear that this is better for developer, who will likely bear the risk of error

16) no better alternative to wait & see zoning & dealmaking (Fasano)

17) not clear why decision to “wait & see” can’t be considered planning

4. Deference:

v) if legislative:

f) more deference

g) rat’l reship scrutiny

viii) if quasi-judicial: (Snyder I)

i) for a landowner’s challenge (Snyder I)

j) less deference

k) scrutiny:

12) heightened scrutiny: higher than rat’l reship, but not as high as strict scrutiny

13) akin to level of review being applied in consistency challenges

14. allocation of burden of proof:

i) pro-landowner: (Snyder I)

a) burden of going forward on landowner

2) must show:

iii) meets criteria for rezoning

iv) use sought is consistent w/ comprehensive plan

e) if owner meets burden, presumption in her favor

6) presumptively entitled to rezoning

7) problems w/ presumption:

viii) upsets distinction b/w rezoning/ variances v. cond’l use

i) rezoning & variances: supposed to be exception, not the rule

j) cond’l use supposed to be rule, not exception b/c legislature authorized cond’l uses.

xi) conflicts w/ traditional remedial scheme

l) remedy for substantive d.p. claim- usually legislature must fix ordinance

m) remedy here awards rezoning

n) Burden shifts to gov’t:

15) must show, w/ clear & convincing evidence, that had specifically stated compelling public necessity that requires specified, more restrictive use

16) findings requirements (like Toponga)

xvii) record

xviii) findings of fact

s) Burden shifts back to landowner:

20) must show that the more restrictive use constitutes a takings

21) problems w/ this burden:

xxii) collapses substantive d.p. analysis into takings analysis

xxiii) less pro-landowner: (Snyder II)

x) eliminates presumption that landowner entitled to maximum use

y) gov’t no longer has burden to show compelling public necessity as to why more restrictive use

26) instead, must show that proposed more restrictive use is consistent w/ both plan & gov’t authority

27) must show that proposed use is not arbitrary & capricious

28) no strict findings requirement: just need some proof in record that gives substantial basis to decision

D. Other flexibility devices: (enable gov’t to get around neighbor challenges to other devices)

5. Text Amendment for a Floating Zones:

vi. response to spot zoning challenges

vii. Floating Zone Amendment:

h. if amend far enough b/f actual proposal, can change ordinance to read “know we’ll need a particular zone, just not placing it”

i. better than cond’l use permits, where cts suspicious

x. Advantages of floating zones:

k. divorced from entreaties of 1 particular owner

l. have criteria b/f can get floating zone attached

13. criteria often more vague than w/ cond’l use permits

14. gives gov’t more flexibility

o. gov’t reviews specific proposals, so has bargaining power

p. decision made by legislature preferable b/c deal making???

17. but, legislature has less expertise

r. results in change of zone of property- more like rezoning than use permit

s. can encompass many uses- more than w/ cond’l use permits

xx. Ct’s initially struck down:

u. Initially struck down:

22. authority grounds

23. vagueness grounds- text amendment fails to set out w/ sufficient specificity the criteria for which zones attach

24. *spot zoning challenge if text amendment & attachment of floating zone at same time

25. notice problems-

xxvi) other flexibility devices, neighbors get notice

xxvii) w/ text amendment, no particular land affected yet, no neighbors to notify

ab. Should be more deferential:

29. less suspicious b/c text amendments for floating zones are NOT at request of specific owner

30. city comprehensively thinking about what it needs

2. Cluster Zoning:

iii. Developer can cluster together buildings to preserve open space

d. can construct dwellings in pattern not in literal compliance w/ zoning

e. usually applies to residences

f. exempt from set back or side yard requirements

vii. Advantages:

h. gets away from cookie cutter pattern

i. gives flexibility to work w/ topography of land

j. preserves open space

3. Planned Unit Development (PUD)

iv. Cluster zoning + mixed uses

e. allows for mixed uses that traditional zoning doesn’t allow for

f. reflects New Urbanism movement

g. acknowledges some advantages to mixed uses

8. eg: live w/in walking distance of work

ix. Cts treatment:

j. initially:

11. authority challenges

12. vagueness challenges when standards not sufficiently specific

13. violates SZEA requirement that things be “uniform”

14. K zoning challenges b/c result of negotiation & K

o. recently:

16. reject authority challenges

xvii) gov’t can create mixed uses like PUD

18. Uniformity requirements:

xix) satisfied by equality OR

xx) satisfied by uniform regulations

21. K zoning more acceptable if no bilateral promise

4. Overlay Zones:

v. Places tract in 2 different zones- both uses can go on land

vi. 2 kinds:

g. sinking overlay zone:

8. when 1 of the specific uses comes into being, other use sinks out of existence

9. traditionally used when area in transition- gov’t not sure which way it’ll go

j. particular kind of land- need additional requirements

11. 1 zone overlayed on zone that is there

xii) instead of drafting a separate zone, leave underlying zone in place

xiii) overlay a zone that adds requirements

14. Usually, topographical uses: steep hillsides; wetlands; historic preservation districts; flood plains

15. Similar to floating zones: set of standards to be attached where find particular trait

xvi. rarely used

5. Site plan review:

vi. any time developer doing something that requires any gov’t permission, must submit fairly well developed site plan proposal

g. way for gov’t to get info about development (eg: from preliminary plat), so have control & input

h. usually only for subdivisions

ix. Problem:

j. typically, administrative body does site plan review

k. may reject on something not based on zoning ordinance

c. cts will usually strike down this attempt to grab power

iii. Ct treatment:

d. Initially, struck down

e. Now, usually allow (unless attempt grab power as outlined above)

vi. rarely used

6. Performance zoning:

vii. Rather than specify a district for a tract, local gov’t specifies a goal

h. eg: pollution may not be higher than “X”

i. developer then comes in w/ proposal which gets rated on those criteria

j. if achieve certain # of points, use allowed

xi. Looks to how well proposal performed against criteria

xii. Problem:

m. difficult to specify criteria

n. gov’t must anticipate when lack ability to do so

xv. rarely used

E. The Procedural Rights of Developers & Their Neighbors

6. Procedural D.P. Implications of Classifying Rezoning as Quasi-Judicial (a la Snyder)

vii. Requires gov’t officials to behave in ways inconsistent w/ its roles

a. if quasi-judicial, land use decision maker treated as judge (see below)

ii. Requires level of formality that usually lacking in zoning matters

c. if quasi-judicial, must have formality & trappings of a trial

d. problematic:

5. formality is costly & time consuming

6. imposes costs on gov’t & taxpayers

7. hearings & processes less amenable to public participation

viii) unlikely to appear w/out atty. b/c will be cross-examined

ix) only affordable to participants who can pay lawyers

x. *Level of procedure felt is due will rest to large extent on whether buy into conception of land-use decision making as quasi-judicial or not

2. Sources of Procedural D.P. Claims:

iii. SZEA’s procedural requirements

iv. Constitution

e. state

f. federal

vii. Zoning ordinance’s procedural requirements

3. Fair Proceedings:

iv. Right to cross examine:

e. Trend- cts require that administrative body must afford opponents of rezoning opportunity to cross examine (Kaelin)

f. Rationale:

7. state d.p. protections require trial type hearing, which involves opportunity for cross exam

8. fed d.p. protections: Sup. Ct. held that d.p. rights include right to cross-exam in context of a welfare hearing (Goldberg v. Kelly)

ix) But not proper analogy b/c rezoning is special context

x) policy making aspects

xi) involves much more discretion & policy making than a straightforward application of law

12. representational interest: so participants feel that their interests were taken into account

m. Problematic:

14. Not clear whether right is for hearing b/f planning commission & legislative body

15. Right to cross examine who? Entire staff?

16. Remedy?

xvii) sent back for re-hearing?

r) most advocate this, but takes time

s) neighbors may challenge to stall & delay

xx) damages?

u) most reject

22. Can d.p. right be preserved?

xxiii) Can ppl hide/sit on their d.p. rights & then use later?

5. What should developer do if sees a procedural d.p. violation?

ii. Notice

iii. Verbatim Transcript requirements (in part b/c of Snyder & Topanga)

4. Qualified Decision Makers

v. To what extent should land use decision makers be held to standard of a judge?

f. if quasi-judicial decision-maker treated as judge, although is politician

7. must have no predisposition

8. must have no financial interest

i. problematic:

10. b/c participants in rezoning are typically part-time appointees w/ jobs in the industry

xi) must earn outside living

xii) financial dealings w/ parties that come b/f commission

13. local legislators might also be part-time & need for other income

xiv. Conflict of Interest problems (1000 Friends of Oregon)

o. To determine if conflict of interest:

16. Explicit quid-pro-quo?

17. Decision maker stand to gain $?

r. Appearance of fairness continuum:

19. 3 questions:

xx) Extent to which officer acting like ct

xxi) Extent to which matter is like actual adjudicatory matter

xxii) Actual personal interest

23. If all low, no appearance of unfairness (1000 Friends of Oregon)

xxiv. Open Issues:

y. Pre-decision articulation of position by legislator (eg: while campaigning)

26. Legislator have to excuse self?

27. Want legislators to announce stances

xxviii) maintains accountability

xxix) but then not impartial decision maker

30. Politics will likely win out

ae. Campaign contributions:

32. If from development interests, legislator have to excuse self?

ag. If some decision makers excused b/c of conflict of interest requirements:

34. What if don’t have quorum?

35. Modify quorum requirements?

aj. Does conflict of interest matter if was NOT swing vote?

37. Some cts: not harmless error b/c of deliberation & persuasion

F. Constraints on Land Use Decisions by Neighbors

(attempts to control discretion

(allow neighbors to directly check ability of local gov’t to use flexibility devices

1. Neighbors’ Consent Requirements

ii. Initially- alternative to zoning & nuisance law (Chicago v. Stratton)

iii. Challenges:

d. authority grounds:

5. impermissible delegation grounds: legislature can’t delegate this power to neighbors

6. ct rejects (Chicago v. Stratton)

vii) baseline is prohibition

viii) neighbors can waive prohibition

i. Substantive d.p. (this usually fails)

x. Rationale:

k. Efficiency:

12. allows for Coase bargaining

xiii) get more efficient result than flat ban or flat allowance

xiv) puts entitlement/property right w/ neighbors

o) collective action prob., so put right w/ neighbors b/c they’re less able to get together & bargain

p) property owner can overcome transaction costs

17. giving neighbor entitlement forces developer to internalize externalities: must pay neighbors off to cover their losses

18. more efficient than zoning b/c allows for waiver

19. Problem w/ efficiency rationale:

xx) Neighbors not only group affected- so ignore their needs by giving neighbors the power

xxi) Transaction costs may prevent bargaining

xxii) Gov’t may be better at valuing true losses to neighbors then that neighbors are.

w. Better than flexibility devices:

24. “payoffs” here go to group that most suffers loss

xxv) exactions don’t necessarily reimburse neighbors’ loss

26. suggest way to better zoning scheme?

xxvii. Protest statutes:

ab. different from traditional consent requirements

29. consent requirements: must get neighbor consent to rezone

30. protest statutes: will rezone unless neighbor protest

ae. gov’t decision to rezone takes effect unless written protest signed by certain % of effected neighbors

32. protest after the fact that prevents rezoning from taking effect

33. shifts burden from developer to neighbor:

xxxiv) traditionally: developers have to persuade gov’t

xxxv) here: burden on neighbors to get together & protest

aj. Problematic:

37. impermissible delegation of power if neighbors are not guided by standards in their protest (Cary v. Rapid City)

38. no bypass provision: no “out” for local gov’t- can’t override neighbor’s veto.

xxxix. Establish/Waive Distinction:

an. Consent requirements:

41. essentially give neighbor waiver power

42. burden on developer

aq. Protest Statutes:

44. essentially give neighbor power to establish a restriction

45. burden on neighbors

xlvi. Sup. Ct on Consent Requirements:

au. Neighbors cannot impose a restriction if… (Eubank)

48. leaves no discretion to gov’t committee

49. neighbors can act arbitrarily & capriciously:

l) had unfettered discretion when to petition

li) violates substantive d.p.

b. Neighbors can consent to waive a restriction (Cusak)

1. upheld b/c gov’t has greater power to prohibit altogether

2. okay b/c just waiver ability

c. Neighbors cannot have consent requirement if no restraint on ability to w/hold consent for wrong reasons (Roberge)

2. Ballot Box Zoning: Initiatives & Referenda

iii. Generally:

d. Referendum:

5. approves or disapproves action local gov’t already took

6. types:

vii) mandatory: where actions of legislature do not become effective until voter approval

viii) permissive: submitted to voters for approval if legislature or sufficient # of voters ask.

i. Initiative:

10. voters doing the legislating

11. requires certain % if voters sign in order to get initiative on ballot

12. recently, states require that local gov’t get to act 1st

m. work best in small town b/c can get majoritarian decision

xiv. Challenges:

o. Improper delegation?:

16. NO- Not improper delegation (Eastlake)

xvii) ppl have power to make law

xviii) ppl delegate this power to legislature

xix) but, can retain some power if they want & reserve for selves some law making power

20. YES- improper:

xxi) d.p. requires that certain kinds of law be done via certain grps or processes

xxii) representatives- more deliberative, better decisions

w. Authority challenge (conflict w/ SZEA)

x. Consistency challenge (inconsistent w/ comprehensive plan)

y. D.P. challenge

z. Equal Protection:

27. if discriminatory on face: good e.p. claim (Hunter v. Erickson)

28. if not facially discriminatory, but disparate impact:

xxix) no e.p. claim b/c need to prove intent (Arlington Hts I)

xxx) Fair Housing Act claim- only need proof of disparate impact

xxxi. Good idea?:

a. Advantages:

1. ideal of democratic decision-making- ppl vote directly

2. direct way to put check on & advise elected representatives

3. single-issue

4. check on capture of land-use regulators by special interest grps

5. induce legislatures to make better decisions (to avoid having issue go to ballot box later on)

f. Disadvantages:

7. more threatening to minority rights (outsiders, racial grps)

8. belief that no opportunity for informed deliberation

ix) each side has lacks same abilities to put forth position

x) no “trial-like” hearing

xi) info that voters get is slim, bad, misleading

xii) (Note: w/ referenda- full hearing b/f elected body b/c referenda just approves or disapproves)

13. concern that ppl will take short term view

xiv) idea that legislature has long term comprehensive view

15. hard to bring challenges

xvi) if challenges have intent requirement: hard to discern intent when ballot box zoning

xvii) exclusionary zoning measures can go unchallenged

xviii) no guarantee of equal protection

s) hard to prove intent

t) hard to establish “similarly situated”

21. very small # of ppl vote- so decided by fraction of electorate

xxii) ppl that turn out are most interested & those otherwise inclined to vote (white middle class)

xxiii) minorities, poor, etc less likely to vote

24. 1 issue, 1 vote rule:

xxv) may not account for levels of intensity of preferences

xxvi) unlike legislatures who, via committees, etc., can account for levels of intensity

27. inadequate consideration to outsiders:

xxviii) less inclined to think about regional concerns then elected officials, who might have sights on higher office

29. inflexible, error prone

xxx) drafted by ppl w/out expertise

xxxi) less fit w/ existing legislation

xxxii) initiatives: once voted- legislature can’t change language

33. decision by electorate virtually unreviewable

xxxiv) no record for ct to examine a la Snyder

35. for referenda: takes a lot time

xxxvi) especially problematic if later ruled a takings:

ak) clock may have started running w/ referenda vote & not legislature’s vote

al) First English implications

xxxix) ripeness implications

40. for initiative: developers use referenda process to short circuit the legislative process

xli) ppl not as good at spotting bad development proposals

xlii) less bargaining (eg: ppl less likely to get exactions that would a legislature)

aq. Ways to address concerns:

44. Exercise care about which land use decisions subject to ballot box (eg: trend of if quasi-judicial, not subject to ballot box)

45. Higher # of signatures to put land use issue on ballot

xlvi) less susceptible to special interest grps

47. Require votes to be geographically distributed

48. Prohibit special elections (ballot box must be at regular election)

49. Pass only if specified # of electorate votes (not just % of voters)

50. Try to ensure the info to voter is simple, accurate, & concise

li) but leads to litigation over wording requirements

52. Require initiatives be submitted to legislature 1st to vote on

53. Submit to some official or legislature 1st to improve wording, drafting, & coordination w/ other laws

VI. SUBDIVISION REGULATIONS, BUILDING CODES, AESTHETIC CONTROLS

A. Subdivision Regulations

2. Rationales & Standards:

iii. Rationale:

d. Originally:

5. consumer protection

vi) early in century, many failed developments- homeowners left w/ shoddy work or no infrastructure

vii) regulations to make sure development built & built right

8. mapping requirements which made transactions easier

i. Now:

10. Although implied warranty of habitability to protect consumers, this warranty useless against absent or bankrupt developer

11. ppl can’t figure out road designs, quality of pavement, etc.

12. Protect gov’t fiscal situation

xiii) otherwise, gov’t has higher expense to maintain & service subdivision

14. Enhance fiscal situation: local gov’t can exact promises

15. Necessary to protect health & safety of neighbors

xvi) eg: prevent duplicative street names, drainage issues

xvii. Over-regulation concern:

r. Effect: ( cost of housing

s. Constrain?:

20. rat’l basis scrutiny: not effective device- cts not competent to do cost-benefit analysis necessitated

21. reign in w/out rat’l basis scrutiny:

xxii) Developer held to no higher standard then applied to locality themselves

w) ct tried to undo this in Miles

x) Good idea?

25) don’t want gov’t to have hands tied & locked into standards

26) want gov’t to have ( standards for self

xxvii) when gov’t acting on own, will take proper level of care b/c will bear costs down road if don’t

xxviii) developer externalizes costs down road, so no incentive to take proper level of care

29) proper level of care may not be same for developer & locality

xxx) city can self-insure

xxxi) city may not want to pay for aesthetic benefits, but may want developer to provide

xxxii) Exit opportunities for developers

xxxiii) Set “average”:

ah) can’t deviate too much from average

ai) problems w/ this:

36) held to average

37) most towns use standards in model codes as avg- those might over-regulate

xxxviii) Bonding requirements:

am) set lower level of regulation, but…

an) developer posts bond to cover future repairs

41. Chronology (see chp. 5, p. 10)

3. Vesting of Rights to Subdivide

iv. Vested Rights:

e. Idea that can’t retroactively apply new legislation

f. Originally resisted (Avco)

g. standard scenario: regulation changes b/w preliminary & final plat

8. Preliminary approval: vested right to proceed if invested & it was content specific investment

9. Final approval: vested right to proceed

x) If rights only vest when no more discretionary reviews pending: (West Hollywood v. Beverly Towers)

k) may be limited to when final approval

l) will never apply if building- always need another permit

xiii. (Rule

n. Traditional & majority rule: Developer reasonably & in good faith relied on gov’t act or omission in making such as substantial change, that developer changed position

15. “reasonable & in good faith”:

xvi) Good faith of developer:

q) couldn’t know change was in air

r) can’t just be trying to bear a regulation

xix) Good faith on part of city:

t) No delay or procedural irregularity to stall

21. “gov’t act or omission”

xxii) municipality actually issued building permit or subdivision approval

xxiii) some cts okay w/ informal approvals

24. “substantial change in position”

xxv) Amount of $ developer spent in reliance

z) absolute $ amt (cts have set expenditure) OR

aa) $ amt expended relative to total project cost OR

ab) weigh amt expended (harm to developer) against benefits to community of stopping

xxix) Whether expenditures were wasted or unrecoverable

ad) eg: built streets not wasted b/c developer has alternative or lesser use

ae) knocks out certain expenditures (eg: cost of buying land b/c can sell or develop otherwise)

xxxii) Nature of preliminary work:

ag) cts along a continuum

ah) cts not sympathetic to preliminary expenditures (architecture fees, soil tests, legal fees, etc)

ai. Minority rule: look to substantial expenditures towards project completion

xxxvi. Trend: legislatures moving away from Avco & offering developers protection

ak. regulations that apply- those in play at time of preliminary plat approval

al. but do put time limitation

xxxix. Tension:

an. how to protect developer who has made investments but still give local gov’t right to regulate?

ao. Problematic b/c subdivisions built in stages

42. gov’t might see problems only as phases are built

xliii) need ability to change regulation based on experience

44. developers tend to think that gov’t changes regulations not b/c problems arise w/ development, but b/c of changes in politics

4. Grounds for Rejection of Preliminary Plat

v. Rejection of site plan:

f. Authority challenges: Right agency doing site plan review?

7. usually planning commission

h. Discretion to go beyond criteria?:

9. No discretion to reject if developer meets criteria (Richardson)

x) objection to this view: overly mechanistic; treats criteria as checklist

11. How much local gov’t flexibility?

xii) Tradeoffs b/w:

m) more specificity, less flexibility, less discretion &

n) costs of specificity

xv) pro-flexibility:

p) gov’t bodies need flexibility to be effective

q) costs of specificity:

18) hard to draft performance standards that apply to all situations w/out over-regulating

19) freeze development

iii) anti-flexibility:

a) developers view regulations as providing rules commission must follow

b) ( potential for abuse if too much discretion

3) unequal application of law

4) over-reaching (too many exactions)

5. Solutions:

vi) (make it explicit what standards will be & level of discretionary power b/f developer purchases land

g) thus, no concerns about interference w/ investment backed expectations

viii) can’t just make standards ambiguous (built-in discretion)

i) separation of powers problem:

10) administrative agency who needs flexibility, but

11) elected body w/ different views

l) can’t just revise all the time

m) sometimes state involved in setting subdivision regulations

xiv. Subdivision regulation process:

o. initially, governed inside of subdivision, didn’t consider re’ship to outside.

p. challenged, so regulations modified to consider outside re’ships

xvii. Characteristics of subdivider usually not considered when evaluating plans

r. maybe would be less manipulating of regulations if allowed gov’t to consider characteristics

s. could achieve result via bonding requirements

5. Neighbors’ Rights

vi. Challenges:

g. more likely to succeed if commission clearly violates a regulation

h. if ambiguous regulation, less chance challenge will succeed

ix. Ability of locality to tinker w/ subdivisions may be limited

j. SZEA often defines subdivisions

k. state may have politics where pro-development forces win

12. define large land areas out of subdivision category

B. Building Codes

3. Rationale (why not just leave to mkt?)

iv. info problems (consumer don’t know what to look for)

v. externalities

f. costs borne by neighbors (eg: if use non-fire resistant materials)

g. costs borne by future generations

8. Alternatives:

ix. Liability scheme (eg: developer liable; insures self)

VII. FINANCING THE URBAN INFRASTRUCTURE

A. Special Assessments & Exactions

2. Special Assessments:

iii. Definition & Characteristics:

d. fees levied upon real property to pay for improvements which were provided primarily for benefit of assessed property

e. not uniform: (b/c tied to special benefit owner receives)

6. unlike property taxes, which are required to be uniform

g. not tied to development land use hurdles

h. typically imposed in same way as property taxes (yearly bill)

i. typically pay after the fact

j. tied to benefit property receives

k. usually cover traditional forms of infrastructure (street, parks, etc.)

12. Exactions

xiii. Definition & Characteristics:

n. requirements in which developers provide or pay for some public amenity

o. imposed as a pre-requisite or condition for developer receiving some for of development approval.

p. pay or do typically up front, b/f infrastructure goes in- 1 time lump fee

q. tied to problem attributable to development (Nollan, Dolan)

r. go much further than traditional forms of infrastructure (eg: child-care)

xix. Kinds:

t. Dedications:

1. Where developer required to

i) dedicate land, on which public improvements will be put OR

ii) build improvement itself & then dedicate improvement & land

3. originally, interior & internal to subdivision; then, moved off site

4. originally for subdivisions

5. Gave gov’t less control

f. In-Lieu-of-Fees:

7. developer must pay fees (in lieu of dedication) for gov’t to build improvement

8. originally, developer had choice of dedication or fees

9. typically for subdivisions

j. Impact Fees

11. Charge levied for capital cost of infrastructure (eg: costs of sewers)

12. not limited to subdivision (as was originally)

xiii) severs exactions from subdivision regulation process

14. usually tied to building permits

o. Linkage programs:

16. Must compensate for the harm the development causes & how much it costs municipality to remedy

17. eg: ( need for municipality to provide child-care

18. usually tied to building permits & rezonings

xix. Categories:

t. Scheduled: published, can consult, set

u. Negotiated: don’t know b/f what will have to pay

3. Challenges:

iv. Authority:

e. Generally:

6. is municipality authorized to do this? (only recently not as imp.)

7. are these actually taxes?

viii) if no specific authorization to tax, no authority to tax

ix) if tax- stricter review; can get advantages of tax limits

j. Special Assessments:

11. b/c more like taxes, stricter guidelines

12. for authority, look to state const., state enabling legislation or home rule

m. Exactions:

14. most states passed explicit authorization

15. other states-

xvi) challenges to off-site exactions usually successful

xvii) challenges to exactions that don’t get at traditional things (eg: sewer)- more chance of success

xviii. Procedural d.p. challenges

s. special assessments: granted fair hearing to challenge how assessed?

t. exactions: correct procedures in adopting exaction ordinance?

21. did developer get notice & opportunity to contest amount?

22. Is body establishing the exaction given sufficient authority from legislature so not unconstitutional delegation of power?

i) more room for this challenge if negotiated exaction

iii. Substantive d.p. challenges: (see below)

d. justified by legit state purpose? (but anything passes for legit purpose)

e. challenge will likely only succeed if directed to aesthetics

vi. Takings: (see below)

vii. Equal Protection:

h. Horizontal equity: whether 2 groups who are now similarly situated are treated equally

i. Vertical equity: whether 2 groups historically similarly situated are treated equally

4. Policy Issues:

v. Financed via gov’t OR private sector?

f. Why do we need gov’t provision of facilities here?

7. Positive externalities:

viii) Pure public/collective good:

i) Characteristics:

10) Non-Rival: 1 person’s consumption of godd doesn’t ( another person’s ability to consume (up to a pt)

11) Non-Excludable: either impossible or unfeasible to limit enjoyment of food to those ppl willing to pay for it

l) Implications:

13) can’t really charge

14) ppl will free-ride

15) developers won’t provide

xvi) Mkt won’t provide sufficient quantities of public goods

q) Gov’t can more easily overcome collective action problem b/c coordinates consumers & providers

xviii) What if quasi-public good?

s) less argument for public provision

t) more concern w/ efficiency & ppl not paying

21) if ppl had to pay, wouldn’t free-ride & externalize their costs

22. Society as a whole benefits from public services (eg: education)

xxiii) mkt may account for only individual preferences, not societal benefits

x. Move to benefits financing:

25. get ppl to pay for what they use

26. offers incentive to sub-divider to build efficiently

xxvii. Financed via benefits financing OR out of general treasury?

ab. more efficient to link use of service to payment for a service?

xxix. To what extent are these tools being used for exclusionary zoning (( costs)?

xxx. For exactions: Appropriateness of negotiating & deal-making & flexibility devices

B. Special Assessments

3. Fit b/w assessment mechanism & benefit gained

iv. How to figure out assessment?

e. front-footage as proxy for benefits conveyed?

6. not very precise to measure value added

g. change in market value as proxy for benefits conveyed?

8. ( value may be attributable to something else

c. cost of improvement as proxy for benefits conveyed?

ii. Tests: How close does it have to be?

c. (Heightened Scrutiny (McNally)

4. Shouldn’t have to pay more than you’re benefited

v) if assessment > benefit added, cost must be reduced

vi) Presumption:

g) cost of improvement as close enough proxy

h) rebutable: if owner can show benefits < costs.

9. Assessment must be as close to actual benefit as possible

j. Sup. Ct:

11. Strict rule: (Norwood v. Baker)

xii) need exact determination of benefits

xiii) response to state ct’s deferential standard

14. Very Deferential (Louisville & Nashville RR v. Barber Asphalt)

xv) determination is inexact, so ask gov’t to do best it can

xvi) response to strict rule under Norwood.

17. parallel in exactions?

xviii) states were deferential

xix) Sup. Ct responded by requiring exactness

xx) But will Ct back down as did in special assessments?

xxi. Inexactness okay?

v. okay if believe in avg. reciprocity of advantages

w. costs to getting it exact; cheaper to be inexact

2. What goods are appropriate for special assessments?

iii. Not okay if not intended to enhance value of surrounding area (eg: library) (Heavens v. King County Rural Library District)

iv. Must consider specifics of the good provided:

e. layout

f. amenities

g. functions served

3. Fell from Favor: (can tell us a lot about exactions)

iv. Moved to subdivision regulations-

a. required that developers build infrastructure

b. rationale:

3. consumer protection measure

4. special assessments are paid after the fact

v) 1920’s & 30’s: subdivisions had high bankruptcy rate

vi) cities billed, but didn’t get paid

vii) requiring developer to build ensures infrastructure gets built, but gov’t doesn’t pay

8. special assessments not tax deductible as mortgages & property taxes are

ix) if get costs of infrastructure built into cost of house- can then finance via mortgage (also tax deductible) OR

x) if get costs as property taxes, tax deductible

xi. Got hard to justify that 1 landowner was getting “special” benefits

l. parallel w/ exactions: ( concern about horizontal & vertical equity

xiii. Avoiding special assessments became platform for politicians

n. opposite w/ exactions: platform of “look what exactions I got for you”

xv. Got difficult to control costs:

p. all parties had limited stake in infrastructure:

17. fracture investment: property owners did not bear full costs (shared costs w/ gov’t)

18. no clear owner of infrastructure

s. insufficient oversight by city & homeowners

20. got sloppy construction

21. massive corruption

v. parallel w/ exactions: if subdivider pays & city builds, no check on city

xxiii. Nature of real estate development process changed

x. huge subdivisions, huge investments

y. developers had access to loans & $ up front

C. Exactions

4. Efficiency:

v. tax on land is efficient b/doesn’t effect incentives to productivity (Henry George)

vi. exactions are generally a tax on land (although recently, tax on improvements)

vii. Do exactions force an internalization of costs of behavior?

2. State Court Review Prior to Nollan - - along a continuum

iii. Strictest: (IL, Pioneer Trust)

d. Need for the good (what’s being exacted) must be uniquely & specifically attributable to developer; benefits must specifically accrue to developer

e. Developer must be:

6. sole cause of problem

7. sole beneficiary of benefits exaction will bring

viii. Most Deferential (CA, Associated Home Builders v. Walnut Creek)

i. Reasonable Re’ship b/w exaction/fees imposed & benefits attributable

x. Middle Ground:

k. “Rational Nexus” 2 prong test

12. Re’ship b/w need created by subdivision & benefits subdivision will get:

xiii) harm created by developer: subdivision must contribute to need (but not sole cause)

14) amount of exaction has to be reasonable related to amount of harm/need created by subdivision

15) some notion of proportionality

xvi) benefit attributable to exaction:

17) doesn’t have to be exclusive to subdivision, but must be reasonably proportional to fee exacted

18. “Ear Marking”

xix) exaction must earmarked to address the need/harm created by subdivision

20) fee paid must be used to correct harm

xxi) requires: proportionality & nexus

xxii) some jurisdictions also earmark by district

3. Sup. Ct: Constitutional Challenges:

iv. Nollan:

e. commission had greater power to refuse development entirely

6. Exercise lesser power- granted upon condition (of easement)

g. (Rational Nexus b/w reason could have exercised legit power & the reason that condition was imposed

8. Must have legit reason to exercise power & must be same reason why imposed condition/exaction

9. Can’t leverage & condition just to obtain benefits

x) If allow leveraging like this

k) underprotective of property rights

l) gov’t will set strict rules that will just bargain away, & end up w/ less stringent regulation

xiii) Snyder implications:

n) administrative - legislative distinction

o) bargained for exactions different from scheduled exactions

c. Dissent: any smart legislature will now give a better reason…

ii. Dolan

c. Nollan Prong: Nexus(could’ve been answered under Nollan):

4. Rational Nexus?

v) exaction (bike path)

f) legit reason #1 to exercise power: prevent flooding

7) just need undeveloped land

8) do not need easement for bike path

9) match not really good enough

j) legit reason #2 to exercise power: ease traffic

11) if store ( traffic, bike path won’t help

12) not good enough if just offsets traffic in general

13. One reason don’t proceed under Nollan is to make clear that won’t allow offsets

xiv) If not close enough match b/w thing exacted & problem caused indication that not really concerned w/ actual problem. Not going to allow it

15. Idea that gov’t can’t direct developer on how to solve problem unless tightly scripted cost-benefit analysis

xvi) tell developer that she is causing “X” problem- solve it to get building permit (Epstein)

xvii) Problems w/ this:

r) inefficient:

19) makes municipality a mkt participant

20) removes ability of gov’t to correct mkt failure & act as mkt coordinator

u) doesn’t factor in benefits owners get (eg: to extent that their property not flooded)

1) skewed cost-benefit analysis

b. Dolan prong: Rough Proportionality:

3. (Degree of exactions demanded must bear required re’ship to projected impact of proposed development

iv) Rough proportionality probably = rational re’ship

v) Requires sophisticated cost accounting by gov’t

f) cannot go by rough estimates

g) cannot base on studies by neighboring municipalities (as can in adult zoning cases)

viii) Shifts burden of proof to gov’t:

i) gov’t bears burden of proof & non-persuasion- - must show:

10) amount of harm caused

11) that harm proportional to exaction

l) other zoning matters- burden on challenger

13. Ct’s true concern:

xiv) doesn’t seem as if truly concerned w/ proportionality

o) didn’t ask proper questions:

p) eg: how much flooding? how many extra cars?

xvii) (building a case for higher scrutiny

r. Nature of claim:

19. Substantive d.p.

xx) this is really a substantive d.p. claim but…

xxi) Ct reluctant to think about this as substantive d.p.

v) refuse to call it rational re’ship test

23. Takings claim

xxiv) Ct treats this as takings claim

xxv) (make takings claims something special so can treat differently from substantive d.p. or equal protection cases by giving higher level of scrutiny

d. Ct labeled gov’t decision as adjudicative:

1. even though scheduled, & not negotiated, exaction

2. of adjudicative means that shift burden to gov’t- big implications b/c cts in general are moving towards conception of land use decisions as adjudicative

3. (Test (Nollan + Dolan)

d. 3 Prongs:

5. Essential Nexus: (Nollan)

vi) rational nexus between legitimate state interest & the permit condition exacted

vii) fit- must be pretty close

2. Rough Proportionality (Dolan)

i) degree of the exactions demanded by the permit condition bear the required re’ship (roughly proportional) to the projected harm/impact of the development

ii) burden on gov’t to prove harm caused & that harm is proportional to condition/exaction

iii) requires cost accounting by gov’t

4. Earmarking

v) earmark for particular use to address harm caused

vi) earmark for municipality/district in which harm caused

g. Problems:

8. Costs:

ix) will become battle of experts (b/c of Dolan)

x) requires sophisticated cost accounting (b/c of Dolan)

xi) but costs can be recovered via ( taxes on development

12. confusing treatment of substantive d.p. & takings claims

xiii) seems to set higher level of scrutiny for takings claims

14. Will rule influence amount of exactions or amount of building?

xv) Scalia: will have same amt of building, fewer exactions

xvi) Reality: less building will likely occur b/c gov’t will allow less if can’t exact

q. Open issues:

1. Leave room for neighbors’ challenge?

i) what if gov’t exaction does not cover full cost?

ii) can neighbors challenge & say developer must pay in full & force gov’t to not give away their interest?

3. Nollan/Dolan both physical invasions-

iv) apply to scheduled exactions? (Erlich)

v) most cts say yes- same concern w/ over-reaching

4. Evolution of State Law in the Shadow of Federal Doctrine

v. Proportionality Dolan Prong:

f. Look to harm development causes- not harm individual homes w/in subdivision (St. Johns)

g. Look to benefits development gets from the exaction (less skewed cost-benefit analysis b/c account for benefits) (St. Johns)

viii. Earmarking: (St. Johns)

i. for use

j. for specific locality

iii. Application of Nollan/Dolan to scheduled exactions (non physical invasion)

4. Issues & Problems w/ Exactions:

v. Dangers:

f. Over-reaching by local gov’t (use to punish or discriminate)

g. Dangers of bargaining regime:

8. will end up w/ less stringent rules than if gov’t just passed laws that it wanted

9. Scalia’s concern

x. Alternatives to limit gov’t w/out hazards of judicial review (Nollan/Dolan path)

k. Private liability scheme

12. but developers might fare much worse… might prefer exactions

b. Constrain via procedural mechanisms

iii. Mechanisms available to developer:

d. Mechanisms

5. Exit:

vi) do ppl hit w/ exactions have exit abilities?

vii) how competitive is mkt for land use permission?

viii) if competitive- generally want to leave it alone

9. Protest/Voice

x) often strong voice to state- who constrains local gov’t

b. Must look at how strong are these options

5. Defenses:

vi. Duress defense:

g. developer agrees to pay exaction, builds, then later sues

h. NOT allowed in most jurisdictions

VIII. DISCRIMINATORY LAND USE CONTROLS & THE REGIONAL OBLIGATIONS OF MUNICIPALITIES

A. Restrictions on Racial Discrimination

1. Constitutional Race-Based Challenges

ii. Equal Protection Challenge: (Arlington Hts I)

c. To trigger heightened scrutiny (where gov’t must have compelling interest):

4. (NOT enough to show disparate impact

5. (Must show intent to discriminate

vi) Evidence of intent:

g) specific statements in record

h) procedural irregularities

i) substantive irregularities

10) criteria normally used are:

xi) not addressed

xii) run contrary to decision

m) historical background

14) history of discrimination or segregation?

xv) Almost impossible to prove intent here:

p) gov’ts careful not to have discriminatory statements on record.

17) but even if do, still hard to fulfill standard:

18) land use decisions made by multi-member bodies & multi-levels of gov’t

xix) hard to prove that all levels & members motivated by racial discrimination

t) generally, no legislative history maintained

21) today, b/c of Snyder & Topanga, legislative histories kept; standardized hearings

v. If just show disparate impact, will just get rational basis deferential review

2. Fair Housing Act (Title VIII)

iii. (Prohibits discrimination in connection to provision of housing

iv. Only need to establish disparate impact, NOT discriminatory intent (Arlington Hts II)

e. if ( establishes disparate impact, gov’t not liable if business justification

vi. Hurdles to get challenge under Title VIII:

g. directed towards provision of housing:

8. some cts won’t apply to provision of municipal services or environmental justice claims if not sufficiently related to housing

i. some cts only apply towards = access to buying a house, not at loss in property values

3. Title VI

iv. (Prohibits any grp receiving federal funding from discriminate on basis of race, etc.

v. Triggered if: Receiving federal funds:

f. If entity has received any fed $, even if funding was for different program than one being challenged

7. often, local gov’t has received fed funds which may be implicated in zoning as a whole or specifically the challenged zoning

8. Fed funding to build municipal services

9. LULUs often require permits from state grp that receives fed funds

j. Broad causation connections allowed

xi. Only need to establish disparate impact, NOT discriminatory intent

l. if ( establishes disparate impact, gov’t not liable if business justification

m. Unresolved issues:

14. not clear what counts as disparate impact

15. not clear what counts as business justification

B. Municipal Obligations to Furnish Equal Services

1. Challenging disparities in kinds of services being provided & who’s getting the services (Hawkins v. Shaw line)

ii. Racial implication in disparities in how public goods are allocated

iii. More success in racial discrimination challenges here b/c:

d. Stark disparities in provision of municipal services

e. lack of any credible reasons advanced for disparities

vi. Reach of Hawkins is limited (scope narrowly construed in later cases)

vii. Post-Arlington Hts I, less municipal service disparity cases can succeed

8. Issues:

ix. Raises questions :

j. when appropriate for gov’t to provide services

k. nature of gov’t obligation to provide services:

xii. Similar ideas surface in environmental justice cases

13. What is fair distribution?:

xiv. Measure inputs or outputs?

o. Constitutional if gov’t gives = input even though ( results (Beal)

p. Inputs ($ invested) v. outputs (quality, condition, whether usable)

q. may need more inputs to get = output as different neighborhood

xviii. What factors should come in?

s. land price?

t. population density?

xxi. Fair distribution should account for both the goods & bads gov’t provides

22. Environmental Justice:

xxiii. Challenges ( distribution of public “bads” are distributed

x. flip side of municipal disparity cases, which challenge ( distribution of goods

xxv. Bads are disproportionately located in minority areas

xxvi. Possible scenarios as to cause & effect:

aa. Demographics 1st: LULU’s disproportionately placed in minority neighborhoods

28. Original study: found hazardous waste dumps 2X more likely to be in black or Latino neighborhoods

xxix) snapshot of findings in 1980

xxx) did not clarify if black & Latino b/f dump placed or if became so after

ae. Demographics follow: LULU comes in, property values decline, then minority groups move in

32. Study which accounted for demographics b/f site:

xxxiii) at time facility went in- areas not disproportionately black, but were disproportionately Latino

ah) could be b/c Latino population had ESL

xxxv) areas did become poorer over time

xxxvi) areas did NOT become more black or Latino overtime

ak) but in 1990’s, areas w/ facilities are disproportionately black & Latino

al) disparity could be because facilities from b/f 1950- predated ability to look at demographics, but these facilities were factored into 1990’s picture

39) pre-1950’s: facilities might have been placed in disproportionately black areas OR

40) pre-1950’s: had more time for mkt effects to work & demographics to follow

xli. Distribution of bads:

ap. Ways to distribute:

43. Per capita distribution:

xliv) but may be preferable to lump together LULUs rather than spread them out (eg: economies of scale)

45. Lottery:

xlvi) but some areas geographically more suited

au. Instead of focusing on distribution, compensate ppl who are hurt by LULUs

48. but politically un-powerful groups will likely undervalue their harms

49. will place LULUs in areas willing to take for a price

l) will be disproportionately poor/black areas

ay. Even distribution:

52. Unless perfectly even: over a # of years, mkt effects will lead to demographic changes & to disparate impact

53. If really even: all neighborhoods will have, so can’t move to avoid

liv) But will never have such an even distribution: some areas fully built or unsuited to these “bads.”

d. Complex problem: “bads” may be offset by “goods”

C. Discrimination on the Basis of Disability

4. Equal Protection Challenges:

v. Level of Scrutiny:

f. Depends on whether discrimination is against suspect class

7. higher scrutiny if suspect class

8. rational re’ship if not suspect class

b. Mentally retarded not suspect/quasi-suspect class like blacks (Cleburne)

1. Rationale:

ii) disability along a continuum, unlike race

iii) don’t want to create slipper slope- need to draw line

iv) accord grp suspect class status in part b/c lack political power

e) mentally retarded lacked power historically, but recently getting political power

f) so shouldn’t get suspect class status

vii) differently abled:

h) might make sense to treat them differently

i) maybe legit state interest to classify along these lines (unlike race)

10. officially, in rational basis scrutiny

xi) but Ct in fact applies heightened scrutiny

l) looks past any possible reason

m) engage in more searching scrutiny

xiv. (Implications for levels of scrutiny in future land use cases?

o. Nollan issue: some indication of ( scrutiny for takings

p. Cleburne holding

17. Broad reading:

xviii) some heightened scrutiny for land use- rational basis w/ bite

xix) likely not get broad reading: most cts don’t want to chill legislatures

20. Narrow reading:

xxi) some heightened scrutiny if implicates rights of some group where some characteristics of discreet & insular minority

v) history of past discrimination

w) immutability of characteristic

xxiv) might have exclusionary zoning claim along these lines (poor as having traits of discreet & insular minority…)

25. Narrower reading:

xxvi) some heightened scrutiny if deal w/ housing

27. Alternative reading: land use should be directed at uses, not users

ab. Implications for takings:

29. likely to be read fairly narrowly, so framework not easily applicable

2. Inconsistency b/w Sup. Ct in Cleburne & lower ct treatment of environmental justice cases:

iii. Treatment of “protected” group

d. Cleburne: when protected grp is trying to come in, the gov’t attempt to keep them out will be reviewed by some heightened scrutiny

e. Environmental justice: if protected grp trying to keep LULU out, plain rational basis scrutiny

vi. Treatment of “unsubstantiated” fears

g. Cleburne: won’t consider unsubstantiated fears of community that’s opposing a protected grp

h. Environmental justice: won’t consider unsubstantiated fears of protected grp trying to keep LULU out

ix. Is the real focus on unsubstantiated fears or prejudice?

D. Discrimination Against Unconventional Households

5. Land use regulations can be aimed at non-land use purposes (Belle Terre)

vi. extraordinary level of deference to local gov’t

vii. okaying attempts to impose majority values & norms

h. family values as legit gov’t objective

i. might be especially problematic for gays

x. Has not had big implications:

k. state cts not so deferential- family values not legit gov’t objective

l. state cts look to state const.- reject land use decisions aimed at family values

E. Exclusionary Zoning

1. Ways to do exclusionary zoning:

ii. Large lot zoning

c. ( available land; ( supply of housing;

d. ( prices of housing

e. ( cost of infrastructure (via exactions, ( cost of houses)

f. unsophisticated

vii. Minimum house size requirements

h. unsophisticated

ix. Subdivision Covenants that impose minimum costs

x. Lot width, set back, side yard, & frontage requirements

xi. Over-zone for industry or farmland

l. but that might just be holding category…

xiii. Prohibit or limit:

n. multi-family housing

o. mobile homes (or ( requirements to ( cost)

xvi. Exactions to ( cost of housing

q. line b/w legit forcing of internalization of externalities & gold plating

xviii. Administrative processes to ( cost of housing

s. eg: delay

t. easy to drive away low income housing developers- usually non-profit grp

xxi. Prohibit school aged children (although, now Fair Housing Act prohibits this)

xxii. Unnecessarily stringent building codes

xxiii. Bedroom taxes

xxiv. Growth control ordinances (( cost of housing)

xxv. Preservation ordinances (eg: farmland preservation)

xxvi. Amortization requirements for non-conforming use

aa. Substandard housing as non-conforming use

xxviii. Private land use controls (covenants), which can contain all of these

2. Why exclusionary zoning:

iii. Racism/Prejudice

iv. Classism (dislike things associated w/ poor… eg: high crime)

v. Environmentally based

vi. Fiscal Zoning

g. Communities must provide public services - but how much?

8. No market to set prices or signal demand

9. How to figure out what amount to provide?

x) User fees

k) but not everything subject to this

l) subject to horizontal & vertical equity challenges

xiii) Ask ppl how much they want

n) but say they want more than the’re willing to pay for

xv) Look to “median voter”

p) but that leaves out almost ½ of voters, even though will have bare majority support

xvii) Economic Model (TIBOUT)

r) Mkt has way of signaling demand…

19) Exit option- vote w/ feet

20) ppl decide where to live based on package of public services & taxes

u) Induces competition b/w municipalities

22) to compete, must do some fiscal zoning

23) must keep out free riders

x. Issues:

25. Theoretical concern: assumes ppl just making decision based on pkg of tax & services.

xxvi) if enough ppl making decisions this way, valid model

27. Possible implications:

xxviii) Basic problem w/ way structure state & local gov’t

ac) Can’t redistribute income on local level- must redistribute at state & federal level

OR

ii) Structure of gov’t is right-

c) reflects that ppl have different tastes- gives choice

d) more efficient if can exercise discretion in choosing communities - allows sorting of ppl into communities of ppl w/ like taste

3. Mt. Laurel

iv. Ct

e. most legislative activity by any ct

f. but kept emphasizing it’s wish that the legislature would step in; only acting by default

g. Different composition of ct than past eras:

8. pre-Mt. Laurel, NJ cts used to be one of the most tolerant states of exclusionary zoning- enormous deference to local gov’t

ix. Decisions:

j. Mt. Laurel I:

11. asserted affirmative obligation for municipality to provide housing

12. little remedial suggestions or practicality

13. in response, Mt. Laurel rezoned ineffectually

xiv) notion of affirmative obligation not heeded at all

xv) barely any area rezoned that could truly accommodate any low or moderate income housing

p. Mt. Laurel II:

17. Re-affirmed affirmative obligation to provide housing

18. Specified, detailed attempt to effectuate a remedy

19. Legislature responded:

xx) Regional Contribution Agreement: wealthy towns can buy way out of ½ of Mt. Laurel obligation

xxi. (Obligation to provide fair share of regional low income housing needs

v. jurisprudential basis of decisions

w. Why this obligation?

24. Gov’t as monopolist:

xxv) gov’t having affirmative obligation (must do more than just not make things worse)

2. Housing as fundamental right; poor as suspect class

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