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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