Legal Basis of Planning PDF

This Week: Today: Chapter 5 - Legal Basis of Planning Thursday: Chapter 7 - Social Issues and Making of Ferguson & Yonkers Housing Case  Quiz 1 Tuesday February 11th Lectures to date Chapters 2, 3, 4, 5 and 7 Making of Ferguson Yonkers Housi...

This Week: Today: Chapter 5 - Legal Basis of Planning Thursday: Chapter 7 - Social Issues and Making of Ferguson & Yonkers Housing Case  Quiz 1 Tuesday February 11th Lectures to date Chapters 2, 3, 4, 5 and 7 Making of Ferguson Yonkers Housing Case Study guide on My Courses  Group Project Email me by Friday February 13th if you know who you want to work with Color of Law by Richard Rothstein  Legal Basis of Planning Debate in Class 1. Eminent Domain Acquisition of private property by the government or its agents 2. Public Control of Private Property Zoning and Regulations 3. Federal, State, and Municipal Authority Legal Basis of Planning 1. Eminent Domain  Eminent Domain and Its Uses Eminent Domain: “The right of a government or its agent to acquire private property for public use, Take note with payment of compensation.” Rock Creek Park – Washington DC Historically used for national defense, 1890 parks, infrastructure, public works Early use of eminent domain projects that are open and available to the entire community  Eminent Domain and Its Uses 20 Million Acres acquired by Federal Government during WWII Used by all levels of government: Federal State Local  Eminent Domain – Local Example Local Example: Prospect Mountain – Interstate 86  Eminent Domain – Local Example Local Example: Private property is being Prospect Mountain – Interstate 86 acquired for Public Use 2006 2012 2011 Eminent Domain and the Constitution Fifth Amendment – “Nor shall private property be Property must be taken for public use without just compensation” purchased and the owner paid Here’s that phrase again Fourteenth Amendment – No person shall be deprived Property owner has of “life, liberty or property without due process of right to legal process law.”  Process of Eminent Domain Agency can be unit of government or an Authority set up by 5th Amendment Agency government Just Compensation Announces Project and Affected Properties Negotiated Negotiations Agency Inspects and Settlement Values Properties Owner(s) and Owner receives Property Owner(s) Agency Makes Offer Attorney Evaluate Hires Attorney Offer and Develop Payment – Agency to Owner(s) and Appraiser Strategy receives property Trial to Go to Court Where is your 5th Amendment (Litigate) Determine Value (Just Compensation) and 14th Amendment (Due Process) Rights? 14th Amendment Due Process  Evolution of Eminent Domain Fair Housing Act of 1949 Title 1 – Urban Renewal Eminent Domain expands from public USE to public PURPOSE Eminent Domain and Urban Renewal Evolution of Eminent Domain Original Expanded Public Use Public Purpose Roads Projects that provide physical, Subways Expands aesthetic, and monetary benefits Libraries during to the community. Results in: Sewer Plants Parks Urban Private Marinas National Defense Renewal Luxury Condos Corporate Parks Public Public Use: Purpose: Everyone Benefits Benefits May Be Exclusive  Evolution of Eminent Domain Landmark Case: Berman vs. Parker - 1954 Washington DC creates an urban renewal agency Local urban renewal agency determines a large area to be ‘blighted’: Lack of plumbing, heating and electricity Seriously deteriorated 58% of housing units had outdoor toilets 29% lacked electricity 94% lacked central heating 64% of the buildings deemed too dilapidated to repair Tuberculosis death rate in the area more than double the city average Southwest Washington DC - 1939 Comment: Looking back on Urban Renewal, people gloss over how bad conditions were when it started.  Evolution of Eminent Domain Washington DC urban renewal agency proposes acquisition and demolition of large area as part of redevelopment plan Project calls for demolition of 99% of buildings Relocation of 4,500 families Construction of 5,900 new buildings 97% of displaced are African American Only 310 moderately priced housing units constructed Evolution of Eminent Domain 2 small businesses oppose plan Hardware store and Small department store Frank’s Department Store (owned by Mr. Berman) 712 Fourth St. SW Washington, DC 1954  Evolution of Eminent Domain Landmark Case: Berman vs. Parker - 1954 Local department store was an existing businesses within this larger redevelopment area Individual store (Berman) was thriving, building was sound, and it did not present a hazard to the public well-being Attorneys for the department store argued that project was Frank’s Department Store "a taking from one businessman for the benefit of another (owned by Mr. Berman) businessman" 712 Fourth St. SW Washington, DC 1954 Evolution of Eminent Domain Berman Loses Store is acquired and demolished  Evolution of Eminent Domain Berman vs. Parker Decision 1954: 9 - 0 Supreme Court decision to approve eminent domain in this case Expands the definition of public use to include public purpose Public purpose includes physical, aesthetic, and monetary benefits to the community Public purpose is broad and inclusive "It is within the power of the legislature to determine that the community should be beautiful …healthy, spacious …clean, well balanced as well as carefully patrolled" Entire redevelopment plan was needed to address the broader blight issues and prevent it from re-occurring  Reaction to Eminent Domain Landmark Case: Kelo Decision – 2005 Neighborhood Fort Trumbull Neighborhood – New London Connecticut 1. 1996 U.S. Navy’s announces closure of the 32-acre Naval Undersea Warfare Neighborhood Center (NUWC) at Fort Trumbull Sewage 2. 1997 Pfizer Inc. announces that they Treatment Naval Base would be developing their Global Plant Research and Development Headquarters on an abandoned 24-acre mill site adjacent to and immediately south of the Fort Trumbull In 2000, City of New London Connecticut Pfizer Site approves Fort Trumbull Municipal Development Plan (MDP) Map - 1991  Reaction to Eminent Domain Redevelopment Plan Landmark Case: Kelo Decision – 2005 Goals of 2000 New London Municipal Development Plan Project: 1. Create a world class development, setting the standard in New London 2. Create jobs, tax revenue and spin-off economic activity for the City Former 3. Maximize public access to the water, and Naval Base 4. Develop a project which will help build momentum for the revitalization of Pfizer Site downtown New London.  Reaction to Eminent Domain Redevelopment Plan Landmark Case: Kelo Decision – 2005 Plan Highlights: Total project area of more than 80 acres 250 Room Hotel 104 Residential Units Over 200,000 square foot Office & R&D Mixed-use Development Former Naval Base Pfizer Site  Reaction to Eminent Domain Landmark Case: Kelo Decision – 2005 Homeowner Susette Kelo objects and fights Eminent Domain Map - 2002  Reaction to Eminent Domain Landmark Case: Kelo Decision – 2005 Homeowner Susette Kelo objects and fights Eminent Domain Map - 2015 Reaction to Eminent Domain Landmark Case: Kelo Decision – 2005 Affirms Berman vs. Parker – 1954 5 - 4 decision Kelo loses (house is moved not demoed) Again, eminent domain is allowed for economic development (Public Purpose) Kelo ruling means eminent domain is constitutional, but states and localities are free to Susette Kelo limit its use Reaction to Eminent Domain Landmark Case: Kelo Decision – 2005 First major eminent domain case since Parker vs. Berman - 1954 Conservative court upholds previous decision Unleashes backlash: 44 of 50 State legislatures discuss bills banning or limiting eminent domain for economic development projects 28 States pass measures limiting eminent domain Referendums limiting eminent domain pass in 9 States Ultimately the project loses funding and does not happen!  Debate 1 2 Eminent Domain Eminent Domain Should be Should NOT be Allowed for Allowed for Economic Economic Development Development Projects Projects Legal Basis of Planning 2. Public Control of Private Property (without using eminent domain) Public Control of Private Property Buchanan vs. Warley 1917 Louisville passed an ordinance in 1914 that prohibited black individuals from owning or occupying any buildings in an area in predominately white areas. In 1915, William Warley, an attorney for the National Association for the Advancement of Colored People (NAACP), made an offer to purchase property from Charles H. Buchanan in a predominately white neighborhood. Purchase does not go through due to city ordinance.  Public Control of Private Property Buchanan vs. Warley 1917 The Supreme Court overturns Louisville ordinance (9-0) "The effect of the ordinance under consideration was not merely to regulate a business or the like, but was to destroy the right of the individual to acquire, enjoy, and dispose of his property. Being of this character, it was void as being opposed to the due process clause of the constitution.” Reversing the Appeals Court decision, the Supreme Court ruled that the ordinance surpassed the legitimate grounds of police power, as it interfered with individuals' rights of property. Should have Focus is on been an end to property Jim Crow laws – rights not largely ignored civil rights Public Control of Private Property Communities begin to regulate use and building size Washington DC and Boston limit heights Los Angeles limits uses Skyscrapers and spreading industrial uses force action in New York City Equitable Building - 1915 1.2 Million Square Feet 34 stories 1 acre of land Equitable Building - 1915 Cast a 7.7 acre shadow  Public Control of Private Property Proposed Building How is the loss of economic return not a ‘taking’ under the { Fifth Amendment? Maximum Permitted Building Building Height { Zoning Restrictions Maximum Lot Coverage  Public Control of Private Property Takings Clause Police Power Fifth Amendment – “Nor shall Ability to regulate land use and private property be taken for form of buildings to promote public use without just and protect “health, safety and compensation” general welfare”  Public Control of Private Property 1916 Zoning Resolution In response to Equitable Building and industrial uses approaching 5th Ave Height restrictions Use districts Lot coverages Police All elements of zoning are Edward Bassett Power connected to public health, safety “Father of Zoning” and welfare Gives NYC Skyline its unique ‘stepback’ look Public Control of Private Property New York City Zoning Which skyscraper took a different approach to NYC’s zoning setbacks? A Different Approach Seagrams Building Mies Van Der Rohe 1958 Zoning Adoption Nationwide Public Control of Private Property – Rise of Zoning 1916 – NYC Adopts Zoning 1921 – 48 municipalities have zoning 1923 – 218 municipalities have zoning 1924 – US Department of Commerce prepares model ‘State Enabling Act’ Zoning Reaches Supreme Court Landmark Case: Village of Euclid vs. Ambler Realty - 1926 Village of Euclid, Ohio Adopts Zoning Ordinance with use districts Three use classes Wants to preserve character of village against industrial uses and expanding development in Cleveland Remember this when reading Making of Ferguson  Zoning Reaches Supreme Court Landmark Case: Village of Euclid vs. Ambler Realty - 1926 Ambler Realty Owns 68 acres Wants industrial development This is not allowed under Euclid’s new zoning ordinance Zoning Reaches Supreme Court Village of Euclid vs. Ambler Realty - 1926 US Supreme Court: Upholds Euclid’s Zoning Ordinance 6 - 3 Zoning must be related to police power and health, safety and general welfare Dispels all doubts about legality of zoning  Zoning Reaches Supreme Court ‘Euclidean Zoning’ becomes standard zoning model Two key components of ‘Euclidean Zoning’ 1 Community is divided into Use districts such as industrial, commercial, residential, agricultural and more 2 Limits are placed on the size and location of buildings, requirements for parking, limits on signage etc. Euclidean Zoning remains the most common form of zoning today In time, the criticism of ‘Euclidean Zoning’ is it segregates uses, making communities less of a network  Standard or Euclidean Zoning 1. USE REGULATIONS Community is divided into Use districts such as industrial, commercial, residential, agricultural and more  Standard or Euclidean Zoning 2. AREA REGULATIONS Limits are placed on the size and location of buildings, requirements for parking, limits on signage etc.  Public Control of Private Property Loss of Penn Station 1963 Loss of Penn Station galvanized historic preservation movement When it happened, there were no legal tools to stop demolition Community activists like Jane Jacobs and local architects are deeply upset by this Public Control of Private Property Grand Central Station Public Control of Private Property Grand Central Station  Public Control of Private Property Pennsylvania Central Transportation vs. New York City 1978 After loss of Penn Station, New York City adopts Landmarks Law – 1965 Owners of Grand Central Station then propose demolition and construction of skyscraper on land above Owners argue that New York City Landmarks law is a ‘taking’ of their air rights, depriving them of additional revenues Supreme Court finds “the New York City law does not interfere in any way with the present uses of the Terminal. … More importantly, on this record, we must regard the New York City law as permitting Penn Central not only to profit from the Terminal but also to obtain a "reasonable return" on its investment.”  Property Rights Movement Begins in 1980’s Reaction to Environmental Regulations Wetland protection (Federal) Endangered Species Act (Federal) Growth Management Acts (local and state) Ballot initiatives to limit governmental takings or require ‘takings impact analysis’ Legally separate from eminent domain, but linked in the public’s mind  Fair Housing and Segregation ‘Exclusionary or Restrictive Zoning’ Large minimum lot sizes Minimum house sizes Higher Housing Prices Minimum set backs Stated Goals of Restrictive Zoning Safety/Low crime Quiet upscale neighborhoods Maintain good schools Unstated Goals Homogeneous neighborhoods All one race/class Fair Housing and Segregation 1960’s and 1970’s Urban outmigration (white flight) Mount Laurel, NJ seeks to attract upscale residential development  Fair Housing and Segregation Town of Mount Laurel, NJ begins Anti-poverty group rezoning for more affluent proposes zoning an residential development area for garden apartments for Steps up code enforcement efforts displaced residents against existing lower income residents Opposed by town leaders Does not offer relocation assistance to displaced residents Ethel Lawrence Residents file lawsuit 1926 - 1994 Does not provide for affordable housing in new zoning “If you people can’t afford to live in our town, then you’ll just have to leave.” Bill Haines Mt. Laurel Mayor - 1970  Fair Housing and Segregation Mount Laurel Doctrine Mount Laurel I (1975) “every… municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the Ethel Lawrence municipality’s fair share of the present and prospective regional need therefore.” Mount Laurel II (1983) Reaffirms and extends Mount Laurel I. Municipalities must do more than provide for ‘fair share’ of affordable housing, they must provide a “realistic opportunity” for housing types at all income levels. Evolution of Takings Issue Supreme Court Rulings on Takings No takings cases between 1926 (Euclid) and 1978 (Penn Central) Series of cases between 1987 and 2001 which limit governmental regulation and expand the definition of takings 2 more recent cases which limit takings argument and defend governmental regulation Constitutional Governmental Protections Regulation to protect for Individual Community Property Rights Legal Basis of Planning 3. Federal, State, and Municipal Authority State Involvement in Planning “Creatures of the State” Villages, towns, cities, counties are not addressed in US Constitution Left to State constitutions to determine powers  Dillon Rule vs. Home Rule “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control“ - John Forrest Dillon - 1868 Dillon Rule State Home Rule State All powers are held by Municipalities hold all State, except where powers except where it granted to local conflicts with State governments constitution New York grants planning powers to local towns and villages  Home Rule in New York Municipal Home Rule Sec. 10(1)(ii)(a)(1): “In addition to powers granted in the constitution, the statute of local governments or in any other law… Every local Municipalities have control government…Shall have power to adopt and amend local over planning and zoning laws not inconsistent with the provisions of the constitution or not inconsistent with any general law, relating to the following subjects… except to the extent that the (State) Except where the State legislature shall restrict the adoption of such a local reserves control law…(addressing) the government, protection, order, conduct, safety, health and well-being of persons or property therein.” Home Rule in New York Environmental Conservation Law 23-0303 “The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries, but shall not supersede local government jurisdiction over local roads or the rights of local government under the real property tax law.” High Volume Hydraulic Fracturing Prevailing wisdom was that (State) Environmental Conservation Law pre-empted (superseded) (Local) Municipal Home Rule in this matter High Volume Hydraulic Fracturing and Municipal Home Rule in New York Municipal Home Rule State Preemption Local Municipalities’ right to VS New York’s right to prevent local exercise police powers municipalities from enacting conflicting laws High Volume Hydraulic Fracturing and Municipal Home Rule in New York Two Cases Challenge State’s Pre-emption Anschutz v. Town of Dryden Dryden bans exploration, extraction, and storage of natural gas and support activities Cooperstown Holstein v. Town of Middlefield Middlefield bans heavy industry and oil, gas or solution mining and drilling High Volume Hydraulic Fracturing and Municipal Home Rule in New York Both Dryden and Middlefield zoning ordinances were upheld by lower courts and on appeal Existing zoning codes may allow or prohibit drilling High Volume Hydraulic Fracturing and Municipal Home Rule in New York Current Status New York bans High Volume Hydraulic Fracturing statewide due to adverse environmental impacts – State Environmental Quality Review Act High Volume Hydraulic Fracturing and Municipal Home Rule in New York But…… It was an administrative decision that could be reversed with a new Governor  Planning in New York New York State Enabling Statutes No requirement to have a comprehensive plan No requirement to have zoning Zoning Board of Appeals for relief from the strict application of a zoning ordinance (due process) New York State law provides a general description of the components of a comprehensive plan New York State law outlines the process of writing a comprehensive plan Federal Involvement in Planning 1 2 Grants and Funding Regulations  Federal Grants and Aid Source: budget.house.gov  Federal Grants for Planning Federal Grants for: Water Quality Community Development & Economic Development Transportation – including bike and pedestrian improvements Planning Environmental Clean Up Job Training Hazard Mitigation  Federal Grants and Aid 1. Drinking Age 2. Speed Limits 3. Motorcycle Helmets 4. Texting While Driving Federal Regulations Clean Air Act Establishes a national ambient air quality standard Requires State Implementation Plans Programs to maintain or achieve national standards: Vehicle emissions testing Standards for emitters like vehicle paint shops  Federal Regulations EPA Storm Water Requires no off-site storm water for construction Regulations projects over 1 acre in size Annual Reporting Education and training of contractors and code officers Federal Regulations Chesapeake Bay Standards Establishes effluent standards for point and non-point pollution sources Examples – sewage treatment plants, farms Requires significant investments to meet new standards  Two Lies and a Truth Zoning is based of the Police Power. New York is a Home Rule State. The Kelo Decision was overturned. Eminent Domain is no longer allowed for economic development projects.  Two Lies and a Truth Zoning is based of the Police Power. True New York is a Home Rule State. True The Kelo Decision was overturned. Eminent Domain is no longer Lie allowed for economic development projects.  Coming Up Thursday: Chapter 7 - Social Issues and Making of Ferguson Yonkers Housing Case } Next Week Tuesday: Quiz 1 – Chapters 2-5, 7 and Making of Ferguson