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Land Use Planning
Land use regulation- law school
| Question | Answer |
|---|---|
| What are the goals of land use planning | to distribute justice be efficient in maximizing property values aestheic regulation communitarian basis of affecting how people interact |
| Doctrinal basics of zoning | Under the doctrinal implications of the Village of Euclid, the court held that zoning on its face was constitutional under the 14th amendment if there is a legitimate state interest that is rationally related |
| what is the wisdom of separating commercial from residential uses? | controlling noise and aesthetics controlling type of retail risk aversion providing advance notice |
| What is suburban sprawl | it is the shape certain land use takes functionally- 4 type of land use types: residential, retail, places to work, and institutions aesthetically- highbrow elitism and setbacks |
| Positive and Negative consequenses of suburban sprawl | negative: environmental, quality of life, gentrification, and social patterns positive: quality of life, social, and choice |
| Structure of Zoning Law | zoning regulation is done at the local level, delegated by the state into zoning enabling acts zoning ordinances variances special exceptions incentive zoning transferable development rights performance zoning accessory uses nonconforming uses |
| Regulating Large developments | floating zones subdivision regulation site plan review aesthetic regulation historic preservation |
| Developer Challenges to Municipal exceeding power | municipalities can exceed their powers by excercising a power that has been preempted by the state or by attempting to excercise a power the state has not delegated to it |
| What is the extent of municipality's delegated powers? | assesments taxes exactions and impact fees |
| unlawful exactions | need to have a raitonal nexus between the needs and the demands you are making- necessity standard specifically and uniquely attributable to activity |
| vested rights | vested rights under regulations in effect at acertain time only having it build and in operation gives a vested right. unless acquire vested right by substantial expenditures in reliance(must be legal) and not in bad faith (improper purpose exists) |
| zoning estoppel v vested rights | vested rights can be lost by abandonment + evidence or discontinuance estoppel is on the city, not focusing on what developer did but the citys actions that induced reliance or change so are estopped from denying change |
| developer challenges | takings clause under the 5th amendment susbtantive due process looks at the fitness between the ends being pursued and the means to get there |
| takings clause | when the govt acts in public safety to protect people fom causing harm and does not have to compensate for harm because cant pay for everything under penn central pennsylvania coal per se and exactions |
| zoning enabling act | zoning enabling acts authorize the enactment of ordinances first step is coming up with a comprehensive plan |
| zoning ordinances | division into districts under use restrictions area restrictions height restrictions due to the euclidian zoning categories and often involve unfavorable zoning to landowners such as variances, special exceptions, administrative appeal, and rezoning |
| variances | waiver of the application of the terms of an ordinance and is authorized in an ordinance for undue hardship, practical difficulty, or unnecessary hardship helps inject flexibility |
| special exceptions | Another tool for increasing flexibility is a use which will be permitted in a use district if certain criteria already set up in the regulations is met. advantage:protects applicant from arbitrary and capricious decisions and prevents discrimination |
| incentive zoning | permits developers to exceed normal zoning limits in exchange for including certain special amenitites as part of the development project |
| transferable development rights | gives owners of restricted land the power to exceed development restrictions on other parcels (sending/receiving parcels) |
| performance zoning | require minimizing impact of activities on neighbors, community, ecological systems to permit greater flexibility to actual use the landowner makes of land |
| accessory uses | uses that would not be permitted by themselves but which are permitted in conjunction with the permitted principal use of the parcel must aid or contribute to the principal in some way that is clearly, customarily, and incidentally subordinate permitted |
| nonconforming uses | incorporates vested rights and takings. is any lawfully existing use of a structure or of land that does not conform to the use regulation in which located establish that before ordinance was lawful then became non-permitted |
| unnecessary hardship--variances | 3 elements: being uniquely affected by implementation of ordinance, not left a reasonable number of uses because of ordinance, and if the use is authorized by granting a variance will not adversely affect the surrounding neighborhood. |
| types of variances | area: requires proof of practical difficulties use: requires unnecessary hardship |
| special exception v. variance | special exception is legislatively permitted in a zone subject to contol whereas a variance is legislatively prohibited |
| floating zones | special detailed use district of undetermined location in which the proposed kind, size, and form must be preapproved and eventually located if specified standards are met and application is not unreasonable. floats over where it may eventually be |
| subdivision regulation | a typical subdivision review process involves 3 steps sketch plan: broad brush: informal meeting to sketch map preliminary plat approval:biggie:precise details of boundries and layout, etc. final plat: automatic: sent to city council for approval |
| site plan review | aims t control externalities associated with large projects |
| aesthetic regulation | enacting controls designed solely to generate aesthetically pleasing buildings compatible w/ adjacent build relationship to nature proportionate cant be arbitrary and capricious, unless void for vagueness |
| historic preservation | |
| assesments | are city improvements that benefit a few that should pay for it. (city charges) special assesment fees may require an exaction or a dedication then money as an impact fee |
| taxes | when you throw money into a pool and city uses it as they see fit |
| exactions | if its land, dedicate it and exact it |
| impact fees | $$ to be a fee and not a tax there nees to be a special benefit |
| preemption of municipal powers | municipalities can exceed their powers by excercising powers that have been preempted or attempt to exercise powers that have not been delegated to it |
| state preemption of municipal powers | when a developer challenges state law there are two kinds of preemption, state law preempting city and federal preempting state law conflict preemption: higher one will trump complete preemption |
| extent of municipalities delegated powers | before a city can demand an exaction, must show developer has created a problem an need city to help fix it |
| pennsylvania coal | controversial. there was a takings under actual severance home owning surface rights and support land whether the quasi-easement allowed for conceptual severance under a denominator issue. (allows evaluating diminution of value due to regulation) |
| penn central | test is concerned with balancing on an ad hoc basis 1- constitutionality 2-regulator deference, burden of proof on challenger |
| denominator issue | whether we conceptually sever starting from total value of owner rights or surface v. subsurface make the denominator as narrow as possible. |
| Conceptual severance: | is a verbal tool popular among those who want to classify more regulations as takings, by severing property into regulated and unregulated pieces, we decrease denominator of takings fraction and increase extent of diminution in value caused by taking. |
| 4 ad hoc factors that determine whether regulation is a taking | 1. Economic impact (per se) 2. Extent to which it interferes with investment backed expectations 3. Character of gov’t action (physical invasion is per se a taking) 4. Interference with Existing Use |
| Per Se Case: | Loretto and Lucas-when there is a total wipe out(lucas), required to show what was taken from landoner was not taken in the first place. |
| regulatory takings | are different than eminent domain and defacto takings |
| takings | base line is penn central (with exceptions) then Taho Sierra when govt. restricts land to deprive you of all value it is per se taking unless just codifying what couldnt do b4 |
| exceptions to takings | proscribed use shows interests were not part of title to begin with permitted to assert permanent easement preexisting limitation and duplicates ct result pg 206..... |
| judicial takings | rare. state fucking up own laws |
| Palazzolo v. Rhode Island | a landowner cannot challenge a regulation on a property theyve acquired after knowing regulation is in effect lost because did not argue in L. Ct. that he was severing the land |
| Moratoria | temporary pause button where cannot develop |
| Tahoe-Sierra preservation v. regional planning agency | stresses deprivation of economic viability , establishes category of temporary takings. retroactively temporary-thought permanent but not ex ante temp. moratorium with a sunset sunset to being means do not apply lucas |
| takings taxonomy | eminent domain: formal condemnation/de facto appropriation regulatory takings: penn central-BOP.O., per se- BOP.O., exactions- use logic |
| cant condition grant of governement permission on certain constitutional waivers | bargaining occurs pervasively |
| Nolan | coastal commission conditioning grant of heught increase on use of easement across front beach line. there is no connection between the requests and the uses. |
| when asking for permit and permit is conditioned | must have essential nexus rough proportionality test (to what extent gvt involvement helps problem) and legitimate interest that is substantially related |
| Dolan | commission conditions conveyance for flood control and bike lanes, reasoned related by traffic and transportation and the means-end is proportional to the exaction and harm |
| money exactions | are treated as property exaction: must show impact fee demanded is tied to someone getting permit- nexus and adequate fee (not a tax) |
| forcing the govt to use eminent domain | pg 255-262 |
| Due Process Clause | If means infringe on a fundamental (individual) constitutional right, analysis requires compelling state interest substantially related, the higher gov, the narrower the tailoring |
| united artists theatre v. township of warrington | competing theatres being built, was a substantive due process claim: had opportunity to be heard, no corruption, or skipping procedures. has to be deprived of--permit! |
| discriminatory zoning | claims are brought under equal protection and the fair housing act |
| equal protection clause | suspect classes: race, color, creed, national origin. infringing on these is strictly scrutinized under compellint state interest or a rational basis review |
| class of one claims covered by equal protection | saying i was treated differntly as an individual |
| racial and ethnic minorities covered by race-based claims | disparate intent is not enough but may be supportive of anumus toward a group. must prove intent to discriminate. hard to prove, may not be right legal standard |
| fair housing statute makes it unlawful to | refuse to sell/rent, negotiate, or otherwsie make unavailable a dwelling for any person due to race, color, religion,nationality, sex family status handicap |
| circumstances where conduct that is unintentionally discriminatory will violate the rule | community and minority racial groups can show strong discriminatory effect what is interest in taking action complained off (determines deference) is there evidence of discriminatory effect? |
| sources of discrimination | private racial discrimination state action, micro preferences in macro movements (economic analysis) |
| four factors of disparate impact | how strong Ps showing of discriminatory effect discriminatory intent below constitutional standards private v. govtal interest in taking action P compelling D to provide housing for minorities |
| discrimination based on disability | rational basis in justifying |
| discrimination based on family composition | village of belle terre show it is permissible to regulate the use of house by composition (regulating unrelated people living together) but argument is there is a fundamental right for families to live together |
| Free Speech Claims- are part of expressive land uses | sign regulation- susbtantive protections, protecting expressive activity and speech adult regulation- cant regulate if content based |
| Metromedia v City of San Diego | attempted to regulate billboards, held unconstitutioinal to prohibit all noncommercial offsite billboards if its truthful and regulation substantatially/directly advances activity |
| adult use regulation | 1st amendment says cant ban just because think its offensive, freedom of speech issue. can regulate them to industrial areas but must be aimed to dispersing not reducing. |
| to increase lack of support for proposition that ordinance is directed at secondary effects will succeed | challenge studys methodology introduce other studies that cast a doubt on validity conduct new study that casts a doubt on citys study |
| religious land uses | religious freedom causes of action substantial burden (compelling and narrowlly tailored) discrimination and exclusion RLUIPA |
| Religious uses: | is this a religious land use- threshold question what other kinds of land uses are religious is there a substantial burden (there is govt reg that burdens free excercise and is not the least testrictive) pg 360 |
| neighborhood challenges | community of landowners and govt dont always agree must have standing must show injury (special damage) is in a zone of interest |
| neighbor challenges to zoning amendments | does it conform to the plan? is it spot zoning? whats the standard of review? |
| initiative v. referendum | initiative: people petition referendum: |
| standing | limiting challenge to govt to those who suffer tangible harm from action. need to be affected more than general public protection form competition is not enough show injury and it is a legally protectable interest |
| conformity to the plan | statutes often required creation of a comprehensive plan that is reviewed |
| spot zoning | usually creates concentrated benefit and disperses negatives. test: size, effect, consistency with plan, is a variance an alternative concerned with arbitrary corruption |
| how to mitigate risk of spot zoning invalidity for developer | text instead of map amendment statement of reasons to justify differential treatment rezone a larger parcel when possible variance |
| standard of review | in a rational basis is related to municipal purposes |
| neighbor challenges to administrative determinations | have standing show harm substantial evidence as SOR to deference |
| environmental challenges | is it subject to environmental review has environmental consequences--may need enviro. study EIS improves decision making, activates political rocess, may involce shaming urban decay and cumulative effects |
| development problems with exurban subdivision | the DRC can approve nonsubstantial variances and upon review can recommend some substantial ones. additional sidewalk example: can be an assessment if not an unlawful exaction as long as they show a nexus |
| private residential options (fragmentation argument) | metro areas are increasingly fragmented it's efficient more citizen representation and involvment |
| law of municipal formation and fragmented metropolis | meet minimum to qualify as a community of interest can contract for those minimums rather easy, study annexation |
| 2 types of interesting externalities when considering metro fragmentations | put undesireable land uses around property boundries problem with land uses no one wants |
| addressing problems of scale in land use decision making | getting local government to think regionally standard of review is narrowly tailored compelling state interest dont gentrify |
| 3 stage analysis of scale problems | determine region forecast probably effect and duration of restriction substantive due process analysis test lacks teeth |
| eminent domain | taking off private land for public use for a just compensation |
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