Land Use Law Outline - Jennie and John Nolon PDF

Land Use Law Outline Jennie and John Nolon 12/16- 10 am, closed note, room: G01 , exam 4 **[Common Land Use Info]** - Police Power: Power to regulate to protect the health, safety, morals, and welfare of the people - From the 10th amendment - Early land use- restrictive covenants,...

Land Use Law Outline Jennie and John Nolon 12/16- 10 am, closed note, room: G01 , exam 4 **[Common Land Use Info]** - Police Power: Power to regulate to protect the health, safety, morals, and welfare of the people - From the 10th amendment - Early land use- restrictive covenants, defeasible estates, and common law nuisance - Main ways of controlling land use before Euclid in 1926 - How authority is delegated to municipalities → 1. Home Rule (more broad- allows localities to legislate regarding their own property, affairs, and government unless preemptted by state law) - - Good Planning: public action that has a sustained and widespread private market reaction that improves the quality of life for everyone - What are the three types of public action?: Regulations, strategic investment, and incentives - Eminent domain: government taking private property for public use - Need "public purpose" to pass 5th amendment DP requirements - Uniformity requirement: due process requirement- all such regulations shall be uniform for each class of kind of building, equality - Conformity requirement: all zoning must be made in accordance with the comprehensive plan (if they have one) - Local legislature → Adopts CP and zoning, ZBA→ grants variances - Remedies - Ultra Vires: not within delegated authority, outside scope of authority - Remedy is invalidation of the law/action - Due process: Rational basis, there has to be a reasonable relationship to a legitimate government interest- not arbitrary and capricious - On its face → remedy: injunction - ex: Euclid was ok - As applied → remedy: declaratory judgment and injunction- required to exhaust all administrative resources before seeking judicial review- Ex: Nectow - Takings: fifth amendment - remedy: just compensation - [Claims and Remedies Review] - - - - - - - - - - **[Unit 1: Ethics and Nuisance ]** **[Evolving Ethics]** - Society develops laws to function. They reflect our values. They evolve as we evolve - Ethics- standards we set based on values and worth - The law is all about who and what has rights and what those rights are - Fable for Tomorrow (Forward to Silent Spring by Rachel Carson) - Town that is silenced due to pollution, spring is silent due to death of all the birds from DDT - Humans did this to themselves, not an act of God or witchcraft - DDT is also entering the food chain and causing cancer in humans - **Takeaway:** How we treat the land has consequences, and humans have caused this themselves - Village of Euclid v. Ambler Realty Co (constitutionality of zoning, facial challenge) (**1926**): **Facts:** In 1922 Euclid adopted zoning ords and a ZBA. P's land was zoned into three different districts. P's challenged zoning under 14th amendment that it violated DP and EP. Claimed zoning ord reduced his land value. Is zoning constitutional? - **Rule:** S.C affirmed validity of separating land by use. A zoning ordinance is a valid exercise of PP and will only be declared unconstitutional if it has no substantial relationship to the health, safety, welfare, or morals of the people. Separation of uses is legal - Land Ethic (Aldo Leopold, 1949) - There should be a land ethic- enlarges the boundaries of the community to include soils, waters, plants and animals: the land - A thing is right when it tends to preserve the integrity, stability and beauty of the biotic community, a thing is wrong when it tends otherwise - An ethic ecologically is a limitation on freedom of action in the struggle for existence. An ethic, philosophically, is a differentiation of social from anti-social conduct. The thing has its origin in the tendency of interdependent individuals or groups to evolve modes of cooperation. - **Takeaway:** introducing the idea of a \"land ethic\" and connecting humans to the land and stating that there should be a land ethic - When Global Warming Kills Your God - Climate change is destroying village by Yup'ik people who were forced to settle - Yup'ik fishemen violated salmon fishing ban bc they have to fish for their religion (1st amend issue) - **Takeaway:** "This is climate change on trial"- Yup'ik are big advocates for climate change, they didn\'t cause these problems so why should they be forced to change? - The Vanishing (John Diamond in book "Collapse") - Used to blame Norse vanishing on a "Little Ice Age" - Norse people could not evolve and adapt to changing climate, refused to eat fish although it was abundant - Societies arent murdered, they commite suicide - Environmental determinism: A philosophy of geography that stated that human behaviors are a direct result of the surrounding environment - Similar to America now, refuse to change- climate change is fake! - **Takeaway:** Norse caused their own downfall and can be blamed for the demise of the settlement, similar to humans now.. - Quark and the Jagar - Complex adaptive systems - **Takeaway:** Systems that thrive are those that have established effective mechanisms for reacting to information. Law is a complex adaptive system - Debate Over Plant Consciousness - Plants are very complex, and can communicate with one another and have a sense of kinship, preferences, and memories - But do these traits qualify as consciousness? Or intelligence? - Plants respond to anesthetics, but are not self-aware, - Sipperly slope- everything we eat would be murder - **Takeaway:** Does our ability to communicate with something affect how we value something? - Is the problem hierarchy or is the problem how we rank things and assign values? **[Nuisance and the Quest for Utopia]** - Early planning in the Land Use System - First planned city was New Haven, CT 1641 - In the early period land uses were regulated by private conditions imposed on the land- restrictive covenants, defeasible estates, and common law nuisance - In sufficient because they were retroactive not proactive, didn't guide growth - Laborious, case by case analysis, unpredictable - Expensive to litigate - The Three Magnets, and the Town-Country Magnet - Garden cities- deconcentrate population of industrial city into ring of organized garden cities surrounded by countryside and connected by railroads - Needed magnet that balanced the city and country- suburbs - Howard suggests that if town and country life are married, then the best form of civilization will occur. While town and country life should be married, the question remains of how to properly plan this - Nuisance - General rule of nuisance is that the landowner could be liable if uses are unreasonable. Reasonable use doctrine- balancing test of reasonableness= gravity of harm to plaintiff v. utility of use - Gravity of harm: - Investment backed expectations - Extent and nature of harm - Burden on defendant of avoiding the harm - Utility of land use - Suitability of the activity on the land - Value to society of the alleged nuisance - Impracticability of avoiding hardship/ hardship on defendant for injunction or damages - Nuisance per se: An act that is a nuisance at all times and under all circumstances - Ex: passage of a navigable river, junkyards, brick factories - Nuisance in fact: opposite of per se, not inherently a nuisance but which may become such by reason of surrounding circumstances or the manner in which it was conducted - Ex: loud music in a dance hall, ok in nightlife area but not in a retirement home - Private Nuisance: a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either (a) intentional and unreasonable or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities. - Public Nuisance: Land uses that significantly interfere with public health, safety, comfort, or convenience are public nuisances because they are unreasonable inferences with "a right common to the general public." - Such land uses are deemed unreasonable when significant interference is proved by evidence produced by the plaintiffs or when the conduct is proscribed by a duly enacted law, ordinance, or administrative regulation. - Ex: zoning laws - Clark v. Wambold: **Facts:** D owned a pig farm next to P\'s property. P filed a nuisance claim to enjoin the defendant from maintaining the nuisance. The ct found that the pig pens were kept as clean and sanitary conditions as can be expected considering the characteristics of the animal and the necessity for confinement in close quarters, and the fact that those odors are carried with the summer breeze - **Rule:** Was not a nuisance bc nuisance relied on reasonableness and the farm was kept up with reasonably cleanliness - Moving From Nuisance to Zoning - Nuisance doctrine does not apply where the plaintiff intentionally located within a known industrial area, regardless of whether the particular source of the nuisance existed at the time the plaintiff located there- zoning factors into how reasonable a land use is - Hadacheck v. Sebastian: **Facts:** P was convicted of violating an LA ordinance that makes it unlawful to operate a brickyard. LA expanded its city\'s limits and P\'s land now was in these limits. P filed a writ of habeas corpus, (EP, and DPC.) P acquired land in 1902 before it was within the city limits of LA- his land contained valuable deposits of clay suitable for the manufacture of brick - **Rule:** Police power of the state cannot be arbitrarily exercises - A vested interest cannot be asserted against it because of conditions once obtaining to do so would preclude development and fix a city forever in its primitive conditions - Zoning prohibiting brick manufacturing in a residential district is a valid use of state police power when it is (1) not arbitrary or capricious (it is reasonable), (2) protects health, welfare, safety or morals, (3) is not a total prohibition, and (4) the state legislature has not deemed the regulated activity a nuisance per se. Doesn't violate due process. - We hold our property subject to reasonable regulations. What is reasonable depends upon the objectives and regulation being advanced. - **Holding:** City of LA did not act arbitrarily in using its police power to enact an ordinance that prohibited the operation of a brick kiln within city limits. Due process was not violated because the ordinance was reasonable; it advanced the public health, safety and welfare. Brick operation no longer suited for the residential locality that it was in. Equal protection was not violated because the ordinance applied to everyone within the city limits. - Cities and the Crisis of Civilization - Saw cities as crystallizations of chaos. Early cities were fine, but now there's a problem with development. - Crystallization of chaos- 1800-1900 - Envisioned coal-based industrialized cities giving way to electric-based and eventually biological-based cities; cleaner and more nurturing way of life - Origins of Zoning (1922, Edward Murray Bassat) - We should zone, but we should allow multi-family homes in residential areas, not just zones for single families. Residential zones should include all housing types. - SCOTUS hated apartment buildings, so it worked in Euclid's favor to zone for single families. It didn't hurt their case like Bassett thought. - Better than nuisance and lease restrictions, etc. It will manage growth and stabilize property values and help cities maximize investment - Zoning encourages investment, better than deed restrictions, applied comprehensively, better than nuisance law, manages growth, prevents wealthy from leaving the city -- advised cities to not base zoning that forbids apartments buildings and said to apply board residential zoning - New Towns in the Country - Utopias from the city , Appeal is away from congested cities with benefits of city and country. Access without a city. - Garden cities didn't work - Levittown first cookie cutter subdivision, after WWII, Boomers **[Unit 2: Modern Origins of Land Use Law]** - Major wave of immigration in 1881 centering on cities- rise of progressive era and tenements - Urban poverty, eugenics movement, tenement reform acts (required certain amount of air and light) - Original ways to restrict land use were not effective- laborious, case-by-case, not proactive, expensive - First National Conference on Land Use Planning was in 1909 - NYC created heights of building commission in 1913 and they published their report, in 1914 NY amended their constitution to allow for zoning bc they needed delegation **[First Comprehensive Zoning]** - 20th century social, political, and legal events compelled local officials to consider zoning- regulate uses - NYC was the first city to adopt comprehensive zoning, due to changes in land use and development - Increased congestion in streets, deplorable housing, new high building and subway - **1916**- NYC's board of estimate and apportionment adopted first comprehensive zoning ord- divided city into multiple land use districts, or zones - Created 3 classes of districts: residential, business, and unrestricted, 5 height districts **[Authority to Zone and Federal Action]** - Legislative authority of local gov is limited to that which is delegated by the state - Delegated in 2 ways: 1. Home Rule Authority: constitutional or statutory provisions- broad authority 2. Enabling Acts: more narrow authority to address specific issue - Land use authority comes primarily from discrete enabling acts - Shortly after NYC first zoning- fed gov formulated a model act for state legislatures to make it clear their localities had to the power to zone (SZEA) - Standard Zoning Enabling Act (SZEA), **1922** - US DOC published model statute - Use police power - Local legislature body (ex: town board) adopts zoning! - Should and can appoint a zoning commission to recommend zoning - If you adopt zoning you have to adopt ZBA, ZBA allows for variances - Uniformity requirement: due process requirement- all such regulations shall be uniform for each class of kind of building, equality - Conformity requirement: all zoning must be made in accordance with the comprehensive plan (if they have one) - Standard City Planning Enabling Acts (SCPEA), **1928** - DOC thought more was needed and this promoted the adoption of a local comprehensive land use plan as a document separate and distinct from zoning - Notion that CP should proceed zoning - Four major topics: - The making of the city plan and the organization and powers of the city planning commission - Control of subdivision of land - Control of buildings in mapped streets - Regional plans and planning commission - Euclidean zoning- authorizing local zoning of use, height, and area - SZEA and SCPEA create a zoning and planning commission and the ZBA - It is not recommended to have zoning without a CP- bc it is your insurance policy!\-- not having one might open the door to a lawsuit that zoning is arbitrary - If local legislature adopts a zoning law that is inconsistent with the enabling statute it is ultra vires - Judicial interference - judges are hesitant to step in, if there is a reasonableness behind legislation then courts will defer to logical legislature and won't disturb it (just look at enabling statute and make sure they did not exceed authority and that it is reasonable) - Wawayanda Code - ZEO- building inspector to administer building permits - If after ZEO looks over app and denied permit, THEN you can go to the ZBA - §6- Main function: make an adopt master plan (CP) - §2- power to make plan and create planning commission - Planning commission is established to create CP and that gets adopted by local legislature (town board) and that governs the physical development of the community - §7- police power to enable - §13- subdivision (large land that you cut up) must conform to CP - Title 4- can create regional planning commission but it doesn\'t have the same authority **[The Early Cases ]** Carter v. Harper (non-confoming use) 1923: **Facts:** P operates a dairy plant which he bought in 1919. He wanted to expand it and applied for a building permit. The permit was denied because it was in violation of zoning ordinance. P's plant was not in a residential zoning district. Ord provided that no building w/n a residential district devoted to a non-conforming use shall be enlarged unless it is changed to a conforming use. P claims ord is unreasonable, oppressive, and deprives him of EP, and takes away his property with DP and without just comp (is saying this is a regulatory taking) - **Rule:** Incidental damage to property resulting from government activities, or laws passed in promotion of the public welfare, is not considered a taking for which compsensation must be made. Purpose of zoning is to bring about orderly development of the cities - Interests of society justify restrains on individual conduct - Municipalities was to phase out non-confomring uses Goldman v. Crowther (PP)1925: **Facts:** P operated a sewing business in the basement of their house. Business did not require alteration of building and P believed no permit was necessary. P was arrested for not having a permit. Permit was denied and on the ground that the inspector was compelled under the zoning law to approve such a use, P sued - **Rule:** zoning must be done for the health, safety, moral, or welfare- cannot just be for aesthetic purposes - If ord does not have a public purpose it is invalid because it deprives property owners of DP. This zoning ord was just for aesthetics so P won Nectow v. City of Cambridge (as applied challenge) 1928: **Facts:** zoning ord divided city into 2 districts. P owns 140K of land. The territory lying east and south is unrestricted (did include industrial use- there was a Ford land and soap factory w/n 75 ft). The land beyond the north in a 100 ft width tract is for residential purposes. Before the passage of the ord, the P had a contract for sale of the land. Purchaser now refused to comply with the K. P challenges ord saying it deprives him of his DP of law. Sought injunction directing city and its building inspector to permit P to erect buildings w/o regard for the ord. - **Rule:** Governmental power to interfere with the general rights of a landowner by zoning is not unlimited. zoning restricts and any other zoning action must bear a substantial relation to PP. - Here, zoning ord didn\'t accomplish anything and comes within ban of the 14th amend, cannot be sustained - Burden is on P to show zoning is invalid, bc you presume it is "As applied" challenge (Nectow) v. "Facial" attack (Euclid) - As applied- challenging effect of specific portions of ordinance on the challenger. Claiming that zoning ord is fine but as applied to the challenging particular property it is unconstitutional - Burden is on P to prove - Facial- whole zoning ord is invalid as applied to everyone **[City of Tomorrow]** - Le Corbusier: swiss born french architect, is the start of the redevelopment period and wanted the condemnation of whole districts to allow efficient reconstruction of an entire city. Said city of today was dying, towers in park - **National Housing Act of 1934** - Created FHA (federal housing admin) - Established FHA mortgage insurance loan - Regulated terms and interest rate of every mortgage it insured and VA guaranteed mortgages - Before this, few banks provided loans that covered more than half the cost of a house and length of loan was like 2-5 years - 1938: A house could be bought for 10% and the rest could be backed by FHA mortgage and the amount of people who could buy a home increased from 44-68% qualifying for loans - Baby Boom- 1946-1964- bunch of families who want to move out of the city into the suburbs - 1939 world\'s fair showed city of tomorrow to show what had to be adapted to the needs to American ever practical population and showed this new world of utopia and skyscrapers- GM motors exhibit called Futurama - 1943- Robert Moses, NYS parks commissioner, began slum clearance persuaded met life to join the city gov in a slum-clearance project which allowed cities to condemn blighted areas for resale to private developers who agreed to clear and reconstruct them pursuant to a government approved plan. Resigned as chairman of NYC slum clearance in 1960 - Steveston a 75 acre super block- was separated from the rest of the neighborhood by wide streets - Housing act of 1949 - Urban renewal act - 1880-1980: A century of the Evil City - Mindset of planning at the time - Urban renewal did not work- you need to engage the communities and wiping out entire section was not good - Error to assume a new city could be created on block at a time - Urban areas need open spaces that attract people and activities - 1973: Nixon declared a stop on all new housing and renewal project because they were too costly and opponents too powerful - 1974: Housing community development act- block grants - The Life and Death of Great American Cities (1961), Jane Jacobs - Attack on city planning, moses wanted to build a highway through her neighborhood - City planners did not pay attention to what actually worked, what they "ought" to do contradicted reality- theories out of touch with reality - Not wiping out slums, but going there and learning- garden cities and other theories did not work because they were trying to create cities by separating them and making them self sufficient - What makes cities work is pedestrians, local economies, and use of the streets - A Realistic Approach to city and Suburban Planning - Planning: public action that generates a sustained and widespread private market reaction, which improves the quality of life of the affected community, thereby making it more attractive, convent, and environmentally healthy - Only when a project has a beneficial impact on the surrounding community can it be considered successful planning - Planners obtain changes in safety, utility, and attractiveness of city life through: strategic public investment, regulation, and incentives for private action - Regulation: NHA, setbacks, zoning - Investment: making it more attractive Fed highway act - Incentives: density bonuses, tax breaks - Federal Highway Act of 1956 - Vastly decreased the amount of land within communities distance of cities and in the process increases attractiveness of the suburbs **[Redeveloping Urban Areas]** - Berman v. Parker: **Facts:** SC defines ends to which property can be taken through eminent domain. P's complained their property could not be taken for slum clearance. - **Rule:** Ct deferred to urban renewal authority which had decided that area-wide blight could only be cured with an area wide solution - Critics of urban renewal say that it fostered segregation, was responsible for the demolition of historic buildings, dislocated the urban poor, and wasted government resources - Housing and Community Development Act of 1974 - Federal urban renewal planning and project grants were folded into the special revenue sharing formula of the community development block grant program - The role of courts in reviewing the propriety of land condemnations: - Be sure the condemning authority followed the procedures required by the states eminent domain law - To be sure the purposes for which the property is taken is a public one - See that just compensation is paid - Just compensation: does not mean enough money to reestablish your home or business. It is whatever seller would pay - NYS Eminent Domain Law - Two appraisers to figure out what willing seller would pay for just compensation - Strickley v. Highland: **Rule:** public welfare of the state should not be made impossible by the refusal of a private land owner to sell the right to cross his land - United States v. Gettysburg (ED): **Facts:** RR owns an easement. Condemning property around the Gettysburg battlefield for historical preservation. The Federal government is allowed to preserve historic areas. Wants gettysburg to serve a "public purpose - Kelo v. New London (ED, economic): New London economic distressed city, New london development corp assisted city in privatization and bought in Pfizer to build a big research facility that would draw in business. City council authorized NLDC to purchase property or acquire homes using ED. P's didn\'t want to sell because their properties were in good condition. If taking property under ED a "public use" if it is for economic development? Is economic development a valid public purpose? - **Rule:** A state's use of eminent domain to condemn property from private individual and distribute it to other private individuals constitutes a "public use" under the 5th amendment if it is rationally related to a conceivable public purpose - NEED a public purpose, can't give away private property without it - Economic plan for distressed city derived a public purpose - 10th amendment→ gives police power to the state - Cities have no inherent jurisdiction, they only get power from state action **[Unit 3: Land Use Plans and the Planning Process]** **[Comprehensive Plan in NY]** - Detail and CP varies from jurisdiction to jurisdiction - NYTL provides 15 suggested elements that might be included in a local comprehensive land use plan- but does not require localities to follow a fixed format in developing plans - 3 types of local governments in NYS: towns, villages, and cities- all town law and reads identical NY Town Law §272-a - §272(a)(1)(b)- NY gives authority and responsibility to undertake town comprehensive planning and to regulate land use for the purpose of protecting the public health, safety, and general welfare of its citizens - §272(a)(11)- conformity requirement, all land use regs must be in accordance with the CP - Legislative findings and intent - Public participation, authority to create a CP and regulate, land use from the PP of the state granted to the locality, CP is encourage but not required (§1H) - Definitions: - §272(a)(2)(a)-Town Comprehensive Plan: means the materials, written and/or graphic, including but not limited to maps, charts, studies, reports, and other descriptive material that identify the goals, objectives, principals, guidelines, police, standards, and instruments for the immediate and long-range protection, enhancement, growth, and development of the town located outside the limited of any incorporated village or city - §272(a)(2)(b)-Land Use Regulation: means an ordinance or local law enacted by the town for any regulation of any aspect of land use and community resource protection and includes zoning, subdivision, special use permit or site plan regulation or any other regulation which prescribes the appropriate use of property or the scale, location, and intensity of development - §272(a)(2)(c)-Special board: board consisting of one or more members of the planning board and such other members as are appointed by the town board to prepare a proposed comprehensive plan or amendment - §272(a)(3)-Content of CP: suggested elements to be included but not required- section 3 - §272(a)(4)-Preparation - Law allows for CP to be prepared by town board, planning board, or special board - §272(a)(7)-In the event a planning board or special board is used- must refer the plan to town board and town board must be final adoption authority - §272(a)(5)-Referrals - Any proposed CP or amendment that is prepared by the town board or special board must be referred to the town planning board for review and recommendation before action is taken by any town board - CP not final until adopted by town board/legislative body - §272(a)(6)-Public Hearing - Town board should hold at least one public hearing - If plan is made by planning or special board they must hold at least one public hearing, Town board must hold hearing within 90 days of receiving planning or special board plan - Notice of public hearing must be posted in newspaper of general circulation in the town at least 10 days in advance - During this time a copy of the proposed plan must be made available at the clerk's office for public review - §272(a)(8)-Environmental review - If town adopts CP it is subject to SEQRA - §272(a)10)-Periodic review - Town board must designate intervals for review Wawayanda Comprehensive Plan **[Planning and Land Use Regulation, a Comprehensive Planning]** - Comprehensive Plan: a written document formally adopted by the local legislature that contains goals, objectives, and strategies for the future development and conservation of the community - Zoning and all other land use regs must be in conformance with the CP - When the courts have to determine whether a challenged land use regulation conforms to a CP- but one has not been formally adopted, they will look at "all relevant evidence"- including zoning law itself, land use decision to the locality- to determine the comprehensive planning objective that have guided that community in the past - When a regulation is challenged the court will inquire whether it significantly advances a legitimate public interest - Spot zoning: When a single parcel or small amount of land is rezoned - Court will look to a localities "total planning strategy" in absence of CP - If a local legislative body attempts to adopt of amend zoning laws in a manner that is inconsistent with the enabling laws, that attempt will be challenged as ultra vires- beyond the corporate authority of the municipality - Spot Zoning: any change that departs from the CP. Singling out by a zoning amendment of a small parcel of land and permitting the owner to use it in a manner inconsistent with the permissible uses in the area. ILLEGAL if it is for the benefit of a private owner - arbitrary, capricious, unreasonable - Spot zoning can be legal if it is done for a public purpose (under PP) Udell v. Haas (No CP): struck down village zoning amendment because it failed to conform to the comprehensive plan requirement even though the town did not have a comprehensive plan. - **Rule:** Even if there is not an adopted comprehensive plan, the courts will look at all available evidence to determine what the comprehensive plan is where there is no formally adopted plan Creative Displays v. City of Florence (not following procedure): **Facts:** Boone County and Florence, KY merged existing comprehensive plans for the jurisdictions to form new comprehensive plans for several counties and cities as part of a new planned development unit. No public hearing for plan - **Rule:** It is not sufficient to simply compile the existing individual CP for the jurisdictions in an area and merge them. Local governments have to be authorized to do things, if they are told to do something in a particular way they have to do it that way. If not it is ultra vires - Comprehensive plans must be both (1) in compliance with state law and (2) inclusive of all entities under the jurisdiction of the zoning and planning boards Elysian Heights v. City of LA (building permits and CP): **Facts:** Developer issued a building permit for construction of 45 unit apt complex, existing plan only allowed for 12 units. Permit was consistent with zoning ordinances but not CP. P\'s argue that building permits must be in conformance with the CP - **Rule:** Building permits must conform to zoning. Zoning must conform to comprehensive plan. Building permits DO NOT have to conform to the comprehensive plan. Depends on what state law says: - State says zoning has to conform- but building permits do not - Says it would bring construction to a halt - Reasonable amount of time to amend zoning to comply with comp plan. In the interim, building permit would have to comply with zoning, but might not comply with comp plan Cochran v. City Planning Board of Summit (authority of CP): **Facts:** Plaintiffs challenged the adoption of master plan by the planning board. P\'s object to part of plan that would permit an expansion of the Ciba Corp\'s parking area and research and office space into the residential area which adjoins the rear of their property - **Rule:** Comprehensive plans are advisory, not regulatory. A plan for a municipal development, not yet implemented, cannot be legally be considered to deprive one of use and enjoyment of property. CP is just advisory it does not get enacted until locality enacts regulations (ex: zoning). Merely a declaration of policy, until it is implemented Bone v. City of Lewistown(conformity rec): **Facts:** P filed an application to be rezoned from a low-density residential use to a limited commercial use.The city\'s land use plan map shows his land being zoned for commercial use. Commission recommended his request be denied and city council agreed. P filed suit challenging the denial. Argued that he is entitled to have his property zoned in conformance with the city\'s land use map - **Rule:** If zoning does not conform to CP, they have to give a reason (but they don\'t in this case). A city's land use map does not have to be in conformance with zoning. Maps are visionary. Would have the effect of making a comprehensive plan a zoning ordinance. - Legislatures do not have to consider requests for rezoning!! Hypo: our client applied for rezoning to commercial in an area the CP calls for residential development. Does the city council have to entertain requests, hold hearings etc? - Bartram v. Zoning Commission (spot zoning): Application to change from residential to business district by d's. Neighbors opposed because they desired to have residential character preserved. Commission approved zoning change because there was no shopping center within a mile, no grocery store to feed the people, and practically only one house adjacent to this tract - **Rule:** Action by a zoning authority must conform to a comprehensive plan applicable to the community as a whole.Where rezoning is based on an exercise of discretion that the change would benefit the entire community, it is valid. If legislative body can explain why it did spot zoning and can show it is in connection with comprehensive plan, it is for public purpose and not illegal Enterprise Partners v. County of Perkins (need CP b4 zoning): **Facts:** Proposals to build hog facilities, individuals became concerned with effects on health and environment. Local legislature passed 2 ordinances to address odor and insects and the impact on county roads. Proposals were submitted to board and board passed both zoning ordinances. Enterprise filed a petition for declaratory judgment that zoning ords were in violation of Nebraska law were requires board to have a county CP before the adoption of zoning ords - **Rule:** Both ordinances clearly zoning regulations. Since county had no comprehensive plan, ordinances are ultra vires. Oseki v. Town of Huntington (conformity rec.): **Facts:** Plaintiffs own 5 acre property- judgment declaring that one acre zoning classification on their property is invalid bc it does not comply with a comprehensive plan - **Rule:** If you're told you can't have rezoning that would be in compliance with a comp plan, and you're not given a reason, that would be arbitrary and capricious. At a minimum, Town must articulate a reason if it decides to deviate from a master plan. **[Unit 4: The Basics of Zoning]** NY Town Law §261-263 - - - - - - - - - - **[Amendment Procedures (re-zoning)]** - Amendments typically occur on the local legislatures own initiative, on recommendation, or on petition - Typically subject to typical notice and public hearing requirements - Conditional zoning amendments are adopted when conditions are imposed unilaterally by the city - Illegal contract zoning occurs when conditions are bargained and negotiated for - Town board may refer a problem to the planning board for review, but town board does not have to agree with planning board's advice - Can condition a rezoning request, if conditions are reasonable - Zoning (a legislative act) is entitled to the strongest possible presumption of validity and deference - Church v. Town of Islip (conditional zoning): **Facts:** Town adopted zoning. Rezoned d's lot from residential to business. Town board imposed conditions on zoning that building cannot take up more than 25% of lot. Defendant was required to file a deed restriction on property, restrictive covenant. - **Rule:** Power to rezone includes the power to add new conditions and restrictions. Conditional rezoning is good for the public, and conditional rezoning is a legislative act and is entitled to strongest possible presumption of validity. - Uniformity requirements do not prohibit classifications within districts so long as they are (1) reasonable and (2) based on the public interest served. - Condition zoning is ok if it is reasonably made and advances public interests - The court gives GREAT deference to legislative approval of zoning changes, presumes the city is acting in the public interest, absent clear arbitrary decisions - Giger v. City of Omaha (conditional zoning): **Facts:** developer applied to rezone property with a lot of planning, city approved, neighbors said it was arbitrary and capricious and unreasonable conditional zoning, could NOT prove that conditions imposed bore no relationship to the purposes sought to be accomplished - **Rule:** Conditional rezoning is valid if it is w/n pp. Rezoning of developer's land conditioned on incorporating development agreements here was valid. Agreement actually enhanced the city's regulatory control over the development rather than limiting it. It was reasonably related to the public interest, health, and general welfare, and the city's police powers were not harmed in any way. City has deference and it considered the rezoning plan to be in the public's interest. - Uniformity clause - Mainly a political rather than a legal provision - Prevents improper discrimination - It does not prohibit classification within a district, so long as it is reasonable and based on the public policy to be served - Rezoning based solely on conditions is invalid - Montgomery v. National Capital -- developers agreed to deed restricted land if rezoning was granted, conditional zoning was allowed by state law, but could NOT be the only reason for rezoning **[Variances]** Applicant → ZEO → ZBA - Each town that adopts a zoning must also adopt a ZBA to grant variances - ZEO and ZBA appointed by local legislature - Variances- provide flexibility in local zoning practice and provide relief for individual parcel owners while protecting the surrounding neighborhood. Provide relief from unnecessary hardships that arise due to special conditions applicable to the affected parcel - Use Variance: permits a use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations (ex: residential to retail zone) - Example: wants to build a artisan shop, but isn\'t allowed because in AR zone, but that use is allowed in an HB zone- so asking ZEO for use variance - - Area Variance: allows for a use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations - - - - Zoning Board of Appeals (ZBA): quasi-judicial body - Conducts meetings in a formal fashion, supported by the record - May also be used for other functions, such as issuing special permits - Acts as an appellate body hearing, and ruling on appeals from the zoning enforcement officer - It may reverse any ruling or order of the ZEO - It may award variances (area and use) on appeal from a determination of the ZEO - Has original and appellate jurisdiction - Ex: special use ord. Can have ZBA have og jurisdiction NY Town Law- Variances - Each town that adopts zoning must adopt a ZBA, a person appeals a decision from the ZEO to ZBA - A person appeals a decision from the ZEO to the ZBA - NYTL §267- b (2)(b)Use Variance Determination: - Applicant must demonstrate that zoning regulations and restrictions caused unnecessary hardship, in order to prove unnecessary hardship the applicant must prove: 1. That the applicant cannot realize a reasonable return- lack of return must be substantial and demonstrated by competent financial evidence 2. Alleged hardship is unique and does not apply to substantial portion or district of neighborhood 3. Requested variance will not alter essential character of the neighborhood 4. Alleged hardship has not been self-created - NYTL §267-b(3)(b)- Area Variance Determination: - Balancing test: ZBA must balance benefit to applicant if variance is granted, weighed against detriment to health, safety, and welfare of the community consider: 1. undesirable change in neighborhood character or detriment to nearby properties 2. whether benefit can be achieved by other means feasible to applicant 3. whether request is substantial 4. whether request will have adverse physical or environmental conditions 5. whether difficulty is self-created - For both use and area variance, shall grant minimum variance necessary and impose reasonable conditions - If ZBA doesn't look at one of the factors→ ultra vires Wawayanda Zoning Code §80 and §83 ZBA MUST follow its own precedent to be consistent 1. 2. Larsens v. ZBA of Pittsburgh (use variances): **Facts:** Property owners wanted deck that Violated rear yard setback requirement, ZEO denied, appealed to ZBA. Is a dimensional requirement so it would have been an area variance in NY, but here it was a use variance- which they got the neighbors appealed - **Rule:** no unnecessary hardship, so owners failed to satisfy all criteria for use variance and failed Sasso v. OsGood (area variance): **Facts:** Owner wanted area variance to build a larger boat house, neighbors objected - **Rule:** Balancing test- area variance granted, minimal impact- the fact that it was self created does not preclude bc it is a balancing test **[Special Uses]** - A type of property use that is expressly permitted within a zoning district by the controlling zoning ordinance so long as the use meets certain criteria or conditions (unlike variances, which are not permitted in a district) - NY Town Law- §274-b - NYTL §274-b(1)-An authorization of a particular land use which is permitted In the zoning ordinance or local law, subject to requirements imposed by such zoning ordinance for local law to ensure that the proposed use is in harmony with such zoning ordinance or local law and will not adversely affect the neighborhood if such requirements are met. - NYTL §274-b(2)-Town board MAY adopt special use permits, but is not required - Town board can authorize any board to review applicants- ZBA, planning board or town board - Zeo you have to go to but they don't deny they just get you on the agenda (idk confused) - §274-b(6)Must have public hearing within 62 days, with 5 days\' notice to public, 10 days\' notice to parties involved.Town board has to decide 62 days after hearing (can be extended with mutual consent), decision filed within 5 days withh town clerk and copy mailed to applicant - NYTL §274-b(4)-Can impose conditions if reasonable and directly related Wawayanda Zoning Code V and IX - Planning board authorizes special use permits - Title IX- site plan and special use permit review and approval - Examples of special use permits: daycares, camps, group homes, pools - Special use permits run with the land not the applicant - Local legislature is empowered to authorize planning board (or another admin body) to adopt SUP - Legislature must adopt standards to guide the body in reviewing, conditioning, and approving special uses - SUP allows flexibility and diversity - Reviewing board attaches conditions to the permit - When the local legislature is issue permits they don't need to have standards, but if any other authority is they have to attach standards - For a SUP to be granted the applicant must put on the record showing that it can meet the standards condition in the local law for issue SUP - Power to condition is not unlimited- conditions must related to the impact of the development of the land itself and not the manner in which the use will be operated City of Chicago Heights v. Living world outreach full gospel: **Facts:** church submitted applicant to city for SUP to build a church. Planning commission, ZBA, and city council denied permit because churches in this zone were not in conformance with the CP. church continued to run and city sued - **Rule:** Special use criteria do not include conformance with the comp plan as a requirement that must be met before a special use permit may be granted. Cannot create new zoning district through de facto measures **[Non-Conforming Uses]** - Any use of a building or structure, lot, or land or part thereof lawfully existing at the effective date of this chapter or any amendments thereto affecting such use which does not conform to the regulation of this chapter for which this district is located - No statutory law at state level, but there is in wawayanda - Non-conforming use is created when existing land uses, valid when established, are prohibited by a new or amended zoning law - Local laws often prohibit the enlargement, alteration, or extension of a nonconforming use - Localities intent on eliminating non-conforming uses - State v. Perry: **Facts:** Ice cream manufactured company was rezoned to a commercial neighborhood zone so it became a non-conforming use bc it was not allowed as a use in the new zone. P bought a trailer to cool their products. Nonconforming uses should not be expanded. P said it was not a building expansion so looked to common law - **Rule:** Ct said it was an expansion, and NCU cannot be expanded - Discontinuance - Modern zoning laws frequently stipulate that any discontinuance of the nonconforming use of a specified period of time constitutes abandonment - Local discontinuance periods apply even when the owner can prove that he did not actually intend to abandon the nonconforming use - State ex rel Morehouse v. Hunt: (discontinuance) **Facts:** building was used as a frat house until the district was zoned for single family residences. House was then leased to dean for purpose of residence for a year.After dean moved out they sought a nonconforming use permit to continue the use of the frat house.The building commissioner refused , ZBA reversed, circuit judge reversed ZBA - **Rule:** Discontinuance needs evidence of abandonment in CL, but statute said if you stop for a year then you\'re out - Mere cessation of a nonconforming use under the terms of a zoning ordinance does not destroy the right to continue or to prevent it - Discontinuance involves more than mere cessation it involves abandonment - Had the owner of the finding of fact as to the owner\'s intention , employed a caretaker for the house this would not have operated as a discontinuance - Toys R Us v. Silva (substantial): **Facts**:zoning resolution changed the neighborhood from a retail zoning district to a residential district overlaid with strips of commercial districts on the avenue. Bc warehouse was no longer permitted in the zoning area it became a non-conforming use.Morgan continued to use building as a warehouse when it sold to real estate developer, sale fell then chase bank got it from foreclosure and sold to toys r us - **Rule:** Substantial discontinuance over a 2 year period. Role of the judiciary is factual determination of whether there was substantial discontinuance.Was a big place, the discontinued a lot but continued a little. substantial rather than complete cessation is required for abandonment - Destruction - local zoning ordinance may prohibit the restoration of a nonconforming structure that suffers significant physical damage and may require reconstruction (typically 25%-50% damage) - Mofatt v. Forrest City: **Facts:** Meat market business rezoned to residential district, and market was a nonconforming uses. there was a fire in which the meat place was almost entirely destroyed. When they undertook repaired to resume business, the municipality filed suit -- building was more than 60 percent destroyed - **Rule:** statute said can't rebuild after 60% damage, this was substantial damage so could not rebuild - Amortization - the process by which nonconforming uses and structures must be eliminated or made to conform to requirements of the current zoning regulations at the end of a certain period of time. This period of time, called an amortization period, allows the property owner a return on their investment in the property. - Use balancing test: benefit to the public vs. Detriment to the property owner - Context where amortization is likely to be upheld: - When the common law of nuisance would allow neighboring property owners to enjoin the continuation of the nonconforming use (ex: junk yards) - When the nonconforming use is somewhat noxious and the owner has little investment in it (ex: raising pigeons on the roof) - AVR v. City of St Louis Park: **Facts:** AVR operates ready mix concrete plant. City amended zoning code to eliminate concrete plants as permitted uses in the city. Rezoned AVR property in a zone that established the amortization period for individual not uses not permitted. Considered factors (hearing, useful life) to determine amortization period- 2 years. AVR sued that 2 year amortization period was wrong - **Rule:** Because zoning or rezoning classifications are legislative acts, courts must uphold them unless: "\[their\] opponents prove that the classification is unsupported by any rational basis related to promoting the public health, safety, morals, or general welfare, or that the classification amounts to a taking without compensation. This rule applies regardless of the size of the tract of land involved." - Amortization ordinance upheld. Wawayanda Zoning Code §68-71: Non-conforming uses - §68- Applicability - Shall apply to all building and uses legally existing on the effective date of the chapter - §69- non conforming use can continue indefinitely subject to - Can\'t be enlarged, cannot be changed to another NCU w/o ZBA permission, can\'t be reestablished after 1 year of discontinuance of NCU - §70- nonconforming buildings - Cannot be enlarged or extended - Can be restored after damage w/n a year - Can be maintain normally - §71- registration of junkyards - May be continued only if registered within 18 months - Submit registration to building inspector **[Accessory Uses]** - Those uses of land found on the same lot as the principal use and that are subordinate, incidental to , and customarily found in connection with the principal use - Ex: garage is an accessory use to a residence - To qualify for an accessory use a use must be incidental and subordinate to the principal use - Incidental- must be reasonably related to the principal purpose, accompanying but not a major part of something - Subordinate- accessory use must be proportionally smaller than the principal use - Must be customary- if it commonly, habitually, and by long practice has been reasonably associated with a principal use - municipality must be careful when enforcing accessory use regulations against educational institutions and religious organizations - These accessory uses are connected to principal uses and are presumed to serve the public - Accessory uses can be used to change or expand a NCU, or use of a property- so have to be careful - Height and setbacks and such from principal uses (see schedule) are applicable to accessory uses. - You go to ZEO- then if you have to go to ZBA - The zoning code's setback, height, and other restrictions apply to the accessory use too - If accessory use becomes the dominant use, then the use will violate zoning code - Parks v. Board of Adjustments: **Facts:** Defendants own a residence that is zoned in a single-family residential district which they operate a music school out of. They teach about 110 hours a week and earn 20K annually from the musical school. Plaintiff owns property nearby and claims music school is in violation of zoning ordinance - **Rule:** Music school is an accessory use and permitted. Always look at statute - Greentree v. Good Shepherd Episcol Church: **Facts:** Church operates a homeless shelter to 10 men three nights a week. Plaintiffs assert that the church may not operate homeless shelter because the church is zoned as a \"place of assembly\" and not a \"residential use\". Also argue that a new certificate of occupancy would have to be granted to ensure premises are safe for intended us - Rule: Church can have accessory uses - If an accessory use is incidental (to activities of church), subordinate (not church's main activity), and customary (church help homeless) without being a nuisance per se (homeless could only be there at certain times) or being injurious to public health, safety, and general welfare, then it is valid. Wawayanda Zoning Code art III and IV - **[Home Occupations]** - Conducting a profession within a home - Town of Sullivans Island v. Byrum: **Facts:** P renovated home and added 6 separate bedrooms and large kitchen to run B&B. At the time, zoning code permitted B&B so long as it was incidental and secondary use of home, did not change character of the home, no person not a resident was employed, and that not over 25% of floor space was used for B&B. Ds sought variance from 25% floor limit. Denied. Ds then violated the rule - **Rule**: B&B clearly dominated use of home and was not "incidental and secondary" use and disrupted character of neighborhood. this was NOT a nonconforming use and could not have expected it to be allowed - Toussaint v. Town of Harpswell: - Operating a dog kennel - ZEO issued AN interpretation of zoning code that it was fine, appealed to ZBA , zba denied appeal - The ct determines that the board correctly concluded that a dog kennel qualifies as a business customarily conducted on residential property - Ct deferred to ZEO/ZBA decision Wawayanda Zoning Code - - - - Steps: Go to wawa defense Go to wawa accessory uses See if home occupation is included w/n special uses If not go to zeo see what they say **[Unit 5: Subdivison Controls and Community Development ]** **[Subdivisions]** - ZEO agrees you need subdivision → planning board → go to building department to get permit - Subdivision: The regulation of the division of raw land into building lots - Division of any parcel of land into a number of lots, blocks, or sites - Regulate the use of privately owned land in the public interest - Preliminary Plan: Developer submits a preliminary plan to resolve basic plan design issues, must be reviewed at public hearing and be denied, approved, or approved on condition - Final Plan: developer prepares the final plan, must be consistent with approved preliminary plan, check to ensure compliance with zoning code, planning board submits its recommendation to the legislative body for the final plan to be approved - What is the relationship between subdivision approval and selling title to individual parcels within the subdivision? - You can' sell a piece of property that hasn\'t been legally subdivided - Zoning relates to the type of building development which can take place on the land- subdivision relates to the way in which land is divided and made ready for building development - Closely related to zoning, focus on the creation of building lots that are proposed as part of a subdivision and must comply with applicable zoning - Local governments get power to subdivide from police power - Modern issues in subdivision control focus on the conditions that governments might attach to a proposed subdivision. These requirements may require developers to install certain public amenities on or adjacent or near proposed subdivision, to set aside certain land within the subdivision for public purpose, and to pay a fee to the municipality NY Town Law §276: Subdivision review; approval of plats; development of filed plats - NYTL §276(1)-The town board MAY authorize the planning board to approve subdivisions (or do it themselves) - NYTL §276(3)-Town clerk shall file certificate - NYTL §276(2)- TB may require All plats shall be submitted to planning board for approval - NYTL §276(5)- - §276(5)(a)- all plats shall be submitted to planning board in final form, except when planning board has been authorized to approve preliminary plats - §276(5)(c)- planning board shall comply with SEQRA - §276(5)(d)(1)- PB shall hold public hearing within 62 days if no enviro impact is determined - §276(5)(d)(2)- if PB determines there is an adverse enviro impact, then public hearing will be 62 days after DEIS is submitted - §276(5)(d)(2)(ii)- notice of hearing must be published 5 days in paper of general circulation - §276(5)(d)(iii)(1)- decision w/n 62 days - §276(5)(d)(iii)(2)- If EIS is required, then FEIS should be submitted 45 days after close of public hearing on DEIS and decision w/n 30 days NY Town Law §277: Additional requisites - NYTL §277(1)- If the plat is entirely or partially undeveloped the planning board shall require that the land shown on the plat be of such character that it can be used safely for building purposes without danger to health or peril from fire, flood, drainage, or other menace to neighboring properties or the public health, safety, and welfare - NYTL §277(6)- if you need a variance you can go straight to the ZBA- you don't need a denial from the ZEO first - Can request planning board to send a recommendation (here you are not in front of the planning board necessarily bc law says town MAY authorize planning board, so here you might be in front of the town board and they might want the planning board to give a recommendation)- just streamlines the process NY Town Law §274-a - §Site plan is the development plan for one or more lots Wawayanda Chapter 162 §3,4,5,6 - Planning board adopts subdivision regs Ridgefield v. Detroit: **Facts**:Plaintiff refused to accept conditions of street plan so he filed suit- claimed it was ultra vires and a taking - **Rule:** as a requirement for platting, subdivision was required to meet specific road conditions, court said it was NOT unreasonable to require conformity with general street plan **[Cluster Unit Development and Planned Unit Development]** - Zoning enabling acts contain broad language to allow localities to create new districts and make alterations to existing districts - Uniformity requirement only applies to uniformity within the district, not within boundary districts - Planned Development District: flexible zoning technique that allows mixed use compact development - Cluster development: a subdivision plat in which the applicable zoning regulations are modified to allow for an alternative configuration of the property. For example, cluster development is sometimes used to construct more homes in a smaller area than which is otherwise permitted in the zoning code NY Town Law §788: Cluster Development - "Cluster development"- a subdivision or plats, approved pursuant to this article in which the applicable zoning ordinance or local law is modified to provide an alternative permitted method for the layout configuration and design of the lots, buildings, structures, etc. - The town board may, by local law or ordinance, authorize the planning board to approve a cluster development NYTL §278 - §278(2)(a)- Planning board is authorized to do cluster development - Cluster development allowed in all residential districts - Increased variety and price of houses - Area variance- don't have to get denied by ZEO first for area variance (§2d) - This is smart growth **[Vested Rights]** - You have a building permit but then regulations change - Vesting statute intended to protect the legal statutes of rights obtained at various points in the development review process - Vesting statutes are laws that create criteria for determining when a landowner has achieved or required a right to develop his or her property in a particular manner, which cannot be abolished or restricted by regulatory provisions subsequently enacted - Vesting statutes apply to the generally applicable regulation of land use, and no agreement is needed for the landowner to be able to assert a vested right to develop - Create a vested right to develop that is protected by the federal government - For development rights to be vested, the govt must have made a decision and the landowner must have, in good faith, relied, to their detriment, on that decision by making some improvement or commitment of resources - THIS IS THE COMMON LAW RULE - In most places, the reliance must be in the form of substantial or extensive expenditures or actual construction. - Some states have vesting statutes intended to protect legal status of rights obtained at various points in the development review process NY Town Law §261(b): Vested Rights Rule - This is the statutory law for vested rights - Legislation vests rights for time periods of 2-3 years §265(a) - Has to be an approved development (building permit) and owner has to have made a substantial construction (*Arvo)* Dawe v. City of Scottsdale (No VR): **Facts:** Developer had filed a subdivision plat for 10,000 square feet. Zoning changed to require 35,000 sq. Ft. Lots. Arizona vesting rule required that site work of \"small consequence\" is not enough to vest rights in the plat- no building permit, no construction so no vested right Avco community Developers v. South Coast Regional Commission (No VR): **Facts:** City passed law that all persons who want to develop within the area need a building permit from the commission, also allowed those to continue to develop if they vested a right to do so by having a building permit in good faith before the act was passed. Plaintiffs property lies within the zone and performed over 2 million in construction before act was passed but did not have a building permit. Applied to commission for exemption of permit claiming they had a vested right to complete development, application was denied - **Rule:** no building permit, no vested right. Allowing this could cause serious impairment of the government\'s right to control land use policy. Consequence would be that lots in places that were subdivided years ago upon which no building have been constructed could be free of zoning laws enacted subsequent to the time of the subdivision McGee v. Town of Clarkstown (VR): **Facts:** substantial construction, approved for SUP, and got it and started building. Neighbors complained. P sued - **Rule:** P won because he had building permit and did substantial construction Downey v. Ardsley:**Rule:** some states, such as NY, require that substantial work be completed. Ex: "having the shovel in the ground" **[Estoppel]** - Relied on a contract - Parkview v. City of NY: **Facts:** got building permit for 31 floors, 19 allowed under zoning. Even after construction of excess floors estoppel is allowed. Estoppel may not be used to cure an administrative error. Reasonable diligence required on part of the developer. Probably would send her back for a variance - B and B case- estoppel only applies when something is undiscoverable by developer, here zoning was discoverable - Lack of knowledge - Jusifable reliance of gov conduct - Pre judicial change in conditon **[Development Agreements]** - Development Agreements: Landowner accepts restrictions that government could not otherwise obtain in exchange for fixed obligation or exemptions from land development regulations - Is a contract \-- dont need statutory authority! - Get authority from a broad interpretation of zoning enabling act or some state law or CP - States can adopt through statutes, enabling acts, or home rule - Is one way to get a vested right - governments need to ensure positive fiscal outcomes, and developers need to ensure their projects won\'t be interrupted by future zoning - Must contain limitations on the duration of the agreement - Significant use of development agreements is implementing adequate public facility ordinances known as concurrency - Waive your ability to bring a taking clause - US v. Dolan: \"rough proportionality\" test- development extractions, impact frees, or dedications cannot exceed the needs generated by the development -- not available in voluntary consensual agreements Bollech v. Charles County Maryland: **Facts:** Developers entered into development agreements with the county- county required sanitary sewage facilities w/n 6 years + country granted them residential dev. Agreement lasted for 10 years. Development agreement contained specific times for the developer to perform. Developer failed to provide services timely. Developer submitted plans but county refused and dev sued - **Rule:** No enforceable contract. Vested rights can be lost under development agreements if you do not perform **[Exaction and Impact Fees]** - Exaction: As a condition for plan/permit approval, must agree to make changes for the benefit of the public or pay fees for the town to do so on your land - You give up rights to part of land as a condition for approval - You must pay for the impact that you're planning - Conditions must be reasonable, directly related, and incidental to the site plan (proportional) - 3 legged stool: zoning, property tax, and paying for public infrastructure - NEED statutory authority! - 274 and 277 also require streets, sidewalks, and utilities to be adequate - NY Town Law §277(4): Exacion - - - NY Town Law §274(6) - Same language as above but for residential site plan developers - HOA - Client is buying FSA lot with a house on it - If there is covenant on the deed you\'re stuck- ex: that no racial minority can buy property or can only build single family homes - In subdivisions covenants say you must belong to a HOA- this includes paying fees. Delegating authority to HOA to regular maintained-- so if developer isn\'t require to transfer title to the facilities then the HOA has to pay for it - Due Process Takeaway - Due process is not violated if we hold our tiles subject to reasonable regulations - Would it be reasonable for planning board to make developers pay for recreation or infrastructure improvements that go beyond the needs their developments create? No because the developer is not responsible for water and sewage for next door developer - If developer is not causing the problem you can\'t expect them to solve the problem - State of Impact Fee Law in NY - Recreation set aside or fee in lieu of is legal but constrained by state law - Transportation impact fees are void as preempted by comprehensive state transportation law with inconsistent provision- ct said you don't have power to impose transportation fee *(Albany case)* - But there is no comparable provision for affordable housing or firetrucks so there is no preemption - - no dispositive laws on how far you can go on other impact fees - City of Corpus Christi v. Unitarian Church of Corpus Christi: **Facts**:Church applied for building permit to rebuild church. City required the church to be platted before permit. Church prepared a plat, but city would only approve if they widened the street for the public. The church refused and sued - **Rule:** no statute, charter, or ordinance which would require the church as a single lot owner to dedicate a portion of its property for streets in order to get approval of its plat to obtain a building permit - Ultra vires - No statue or charter power to regulate site plans other than zoning and building permit - Requiring church to dedicate 15% of land for street widening hence is invalid - New Jersey Shore Builders v. Township of Jackson: **Facts:** **[Unit 6: Discrimination and Free Speech]** **[Race, Nationality, Exclusion, and Property]** - Stuyvesant Town - Opened in 1947 - Part of urban renewal by met life- le corbs "towers in the park", "superblock" - Robert moses was dominant force in creation - Public action → Done by eminent domain for private ownership, bc moses viewed this area as blighted - Done without community engagement or public participation - Constitutional rights→ protect you from the government (laid out in the constitution) - Civil rights → protects individuals freedoms from the government, individuals, corporations- guarantee equal social opportunities and protections under the law - Equal protection- applies to the government through the 14th amendment and the states via the 5th - Both constitutional and civil rights need to be defined in the law - Civil rights need to define he rights and the class of persons it is required to protect - Civil Rights Act of **1866:** defined citizenship and determined that all citizens have EP under the law - **1881**: Major shift in immigration protestants northern and western European families→ unskilled, single, males, catholic to cities- then you get tenements! - 1853-1867: CA gold rush- immigration of chinese workers - 1860's: Transcontinental RR - 1870's: Jim Crow Laws - 1873: Great panic - 1882: Chinese exclusion action- first law that specifically preventing a race from immigrating - **1880-1920:** Progressive Era - Darwinists- social ability is indicative of your genetic, so social reform isn't legal - Social reformers- genes do not determine your performance it is your environment, so social reform helps - 1916-1970: Great migration- 90% of american americans went south to cities - 1914-1918: WWI - 1924: Johnson Reid act- national origins act set restrictions on Asian immigration - National Housing Act of **1934:** created FHA mortgage- increased amount of people being able to buy their own home - 1944: Korematsu and et parte endo- japanese internment camps - **1949-1973:** urban renewal - **1974**: community block grants, gov stopped giving money to urban renewal and started giving out block grants - **1964:** Civil rights act- ended segregation in schools and employment - Kerner commission report -- found that residential segregation and unequal housing and economic conditions in the inner cities, underlying causes of social unrest - 1947-1951- Levittown - After ww2 and baby boom is when sprawl really starts to happen - Dorsey v. Stuyvesant Town **1949:** **Facts:** is housing accommodation a recognized civil right? If not, is this development considered a public action due to all the government intervention because there is a violation of state constitution? - **Rule:** court says housing is not a recognized civil right. Ct says civil rights aren\'t violated here because you need to define civil rights in legislation in state legislature. Ct says it is not a public project participation by government is expanding and going well (starting to help spur economic growth after great depression) and we want to continue this growth - - NYS Constitution - Equal protection clause - Civil rights clause (**1938)** - Housing article(**1938)** - Public Housing Law (**1939)** - Redevelopment Companies Law (**1943)** - Administrative Code of the City of New York (relevant amendment: **1944**) - Buchanan v. Warley: The Court observed that while the Civil Rights Act of 1866 conferred on all persons and citizens the legal capacity to make contracts and acquire property, it did not prohibit or invalidate contracts between private individuals concerning the control or disposition of their own property. - **Rule:** Not govt action, it was private action so racial covenants are fine, but separation of people into zones is not legal - Shelley v. Kramer: **Facts:** D's who were black, bought a home in a neighborhood in which thirty out of thirty-nine parcel owners had signed a restrictive covenant which stated that no home was to be sold to any person who was black, which led to the suit by the neighborhood to undo the sale of the property to Shelley. - **Rule:** state action via courts enforcing restrictive covenants is not constitutional, it was public action and violated the constitution **[Inclusionary Zoning]** - Fair Housing Act of **1968:** bans racial discrimination in renting by landlords, real estate agents, and certain zoning and land use decisions that contribute to patterns of racial segregation - Housing and Community Development Act of **1974**: requires that recipients of federal funding under the act must certify that "the grant will be conducted and administered in conformity with the civil rights act and the guarantee will affirmatory further fair housing" - FHA provides three major legal tools: 1. Prohibits intentional discrimination (disparate impact)- ex: private developer of government body cannot refuse to sell or rent to someone bc of their race or can government zone land or refuse to zone land out of concern the minorities will enter a neighborhood- would violate EPC 2. Disparate impact- forbids actions by private or government bodies that create a discriminatory effect upon a protected class or perpetuate housing segregation (permits P\'s to counteract unconscious prejudices and targets arbitrary, unconscious or hidden barriers to minority housing) 3. Take type of action to undo historic patterns of segregation - 3 step process for prosecuting a fair housing case: 1. the plaintiff must present a prima facia case of disparate impact. Reliance on statistical disparity is not enough. There must be a showing that the defendant\'s policy cause the disparity 2. The burden then shifts to the defendant to show that the challenge practice is necessary to achieve one or more substantial , legitimate, nondiscriminatory interest (disparate impact mandates the removal of artificial, arbitrary, and unnecessary barrier not the displacement of government practice) 3. Then the plaintiff must prove that the defendant\'s substantial legitimate, nondiscriminatory interest supporting the challenge practice could be served by another practice that has a less discriminatory effect and deserves the defendant nondiscriminatory interests - California Bdg. Indus. Assn. v. City of San Jose: **Facts:** City passed inclusionary zoning ord due to the steady increase in the cost of housing and substantial need for affordable housing. Applied to all residential developments that created 20 or more units, 15% must be made affordable. Is this an taking? - **Rule:** inclusionary zoning is not a taking. Inclusionary zoning is applicable under police powers- city had reasons for the ord in the public's interest. Ord did not require developer to dedicate any portion of their property to the public or pay any money to the public (not an exaction) - Texas Dept of Housing and Comm Affairs v. ICP: **Facts:** Dept of housing gives low-income tax credits that are distributed to developers. Congress has directed states to develop plans identifying selection criteria and preferences such as, low income housing units, and to be built in low income housing areas. Texas uses a point system that gives priority to statutory criteria such as financial feasibility of the project and income level of tenements. ICP bought suit under a disparate impact claim under §804(a) and §805(a) of the FHA and alleged that it caused continued segregated houses matters by its disproportionate allocation of tax credits, granting too many credits in predominantly black inner-city areas and too few in white suburban areas- says it must modify plan to encourage construction of low income housing in suburban communities - **Rule:** Recognition of a disparate impact is consistent with the FHA central purpose.A disparate impact claim that relies on a statistical disparity must fail if a plaintiff cannot point to a defendant\'s policy or policies showing disparity. Difficult to says that a decision to build low income housing in a blighted inner city neighborhood instead of suburb is discriminatory. Courts must examine whether a plaintiff has made out a prima facia case of disparate impact and prompt resolution of these -- allege facts and produce statistics - Mckinn v. Town of Oyster Bay: **Facts:** P\'s are owners of a four bedroom house in Massapequa in a Residence district. They leased home to four guys and criminal information was filed against them for violating the zoning ordinance because their house was occupied by more than one family. P\'s commenced action against defendants for a declaration that \"single family\" in the ordinance- meaning any number of persons related by blood, marriage, or adoption or two persons who are 62 or older violates the DP and EPC of the NY state constitution. Contend that the restrictive definition of \"family\" contained in the ordinance is facially invalid under executive law and DP and EPC of st con - **Rule:** Ordinance is unconstitutional under due process clause. The discrimination does not achieve its legitimate purposes (it is both over-inclusive and under-inclusive) **[Unit 7: Neo-Euclidean Zoning]** Old ways (restrictive covenants, defeasible estates, and nuisance) → Euclidean zoning (separation of uses, subdivisions height, bulk, and use) → Neo- euclidean zoning (cluster, local enviro laws) **[Neo-Euclidean Zoning]** - Encompasses a variety of approaches designed to allow regulatory flexibility - Based on a desire to create, mixed use, walkable cities with diverse housing options and easy access to open spaces and multiple modes of transportation - Zoning is prescriptive- directing what the local community wants, not prospective- informing landowners and developers what they cannot build or setting forth in very general terms what the permitted uses are - Have to review enabling acts and determine that new approaches are within the local governments delegated authority **[Sprawl]** - Sprawl: development that is inefficient in its use of land, "low-density" development beyond the edge of services and employment, which separates people from where they live to where they work, recreate, and educate- thus requiring more cars - "Planned unit development" means a site upon which residential, commercial, industrial or other land uses or any combination thereof may be authorized in a flexible manner so as to achieve the goals of the municipal comprehensive plan. - Once development parcel is approved as it becomes planned then that plan becomes the zoning -- eases administration - Let the developer present the project **[Moratoria]** - Moratoria: suspends the right of a property owner to obtain development approvals while the community takes time to consider, draft, and adopt land use plans or rules to respond to new or changing circumstances not adequate dealt with by its current laws - Can be seen as most extreme land use action because it completely suspends development - Gives communities experiencing growth time to plan - Sometimes used when a community is adopting its first CP or zoning laws- prevents developing from rushing to develop their land under current rules - Can be used by government agencies when deciding whether to acquire land for public use - Golden v. Planning Board of Ramapo: **Facts:** 15 development points had to be accrued for a special use permit. De facto moratoria on interest of achieving master plan - **Rule:** Local governments have the ability to address or control urban growth beyond Euclidean zoning - Tahoe- sierra case- note 5 - Sc did not overrule golden, a 32 month moratorium was imposed to allow planning agency to adjust threats to lake tahoe - Temporal taking of all value was not held to be a per se taking- - Moratoria are not per se takings, but they can be invalidate as applied on a case by case basis **[Growth Management]** - How local governments can zone to control growth - Sanoma v. Petaluma: **Facts:** city experiencing rapid growth and demand for housing. Alarmed by this rate city put a temporary freeze on development. City then adopted plan which limited growth and made a greenbelt to ensure growth was done in a reasonable, attractive manner. P's attack plan on ground that is unconstitutional bc taking and DP. city argues that plan is to preserve small town character and avoid social problems caused by growth - **Rule:** plan is not arbitrary or unreasonable, it does not follow that the due process rights of builders and landowners are violated merely because a local entity exercises in its own self-interest the police powers delegated to it by state - Local governments do not have to take into account regional concerns when enacting local land use decisions **[Transfer of Development Rights (TDR)]** - Process by which development rights are transferred from one lot, parcel, or area of land in a sending district to another lot, parcel, or area of land in one or more receiving district - Three basic elements 1. Sending district- area to be protected from development 2. Receiving district- where additional density can be absorbed and supported with existing or expanded infrastructure and services 3. TDR credits- legal representation of the abstract development rights that will be served from property in the sending district and grafted onto property in the receiving district - TDR credits can be traded in a free market - When a TDR credit is purchased from a property owner in the sending district, that property owner records a deed restriction prohibiting development on the property- the TDR credit can then be applied to property in the receiving district as a density bonus - TDR is most often used to protect the environment can be used as a smart growth technique - Why create a TDR program? Why not just change the density permitted in the zoning? Because there is all such of other complicated factors such as environmental resources- and in the enabling act -- and the zoning would be uniform for the whole district - Purposes for TDR programs: Carbon sequestration, soil absorption, endangered species habitat, historic habitats - Suitum v. Tahoe: **Facts:** Local governments could not approve any development on plaintiffs lot but she could get some TDR credits- so she brings a taking action because she says it was a total ban on development so she was entitled to compensation. Facts show TDR credits will yield a good amount of money - **Rule:** Ct said P had no gone through process yet to get TDR credits -- one needs to exhaust their administrative remedies before a case is ripe - Ct said P had no gone through process yet to get TDR credits -- one needs to exhaust their administrative remedies before a case is ripe - NY Town Law §261(a): TDR - developers who have land in a receiving district and buy credits from someone in a sending district - (2)(a): The sending district from which transfer of development rights may be authorized shall consist of natural, scenic, recreational, agricultural, forest, or open land or sites of special historical, cultural, aesthetic or economic values sought to be protected. **[Floating Zones]** - Zone that floats above an area until you apply it (you have to meet standards) to have it mapped to your property - Doesn't completely supplant underlying zoning - Originated for development purposes - You create and define district in your code, but you don't map it - Rodgers v. Tarrytown: **[Overlay Zoning Districts]** - - - - - - - - **Rule:** Court upholds overlays districts as valid, BUT reversed board\'s decision denying KCI permit because board didn\'t articulate standards in making decision and reasonable standards on proposed use - Court said zoning is fine but project shouldn\'t of been denied so it goes back for reconsideration - When ZBA looks at standards it can\'t use any discretion it is just looking at standards **[Smart Growth]** - - - - - - - - - - - - - - - - - - - - - DiRico v. Town of Kingston: **Facts**: Plaintiffs own land near smart growth zone and contend that it is a and c and an unreasonable exercise of the town\'s zoning power. P\'s focus on the decrease in the amount of developable land and change in designation of a portion of priority habitat of an endangered species - Kingston experience unprecedented growth and housing pressure and was approached by a development corporation to adopt a smart growth zoning district - Local government got authority from states to create smart growth overlay districts (40R) - **Rule:** Court said town had valid public purpose and doing this is fine just need to provide justification **[Transit Oriented Development (TOD)]** - TOD: Development that encourages mixed used compact, dense, walkable, development near transit station areas - Walkable design within 10 minute walk of transit station (¼ to ½ mile from transit) - Need a large enough and diverse enough number of commuters - Can be incorporated into a city's comprehensive plan - Usually done with overlay zones that allow for TOD to offer density bonuses - Enabled by federal transportation laws or state TOD enabling acts - 1.5-2 parking spots per unit→ suburb - Bloomington, IN TOD ordinance: FAR incentive bonuses to encourage TOD design FAR: Floor area ratio - Building floor area (all stories)/ to cite area - Take square footage of site and multiply it by FAR to get how much you building can occupy - 80,000 sq ft (your building) / 40,000 sq ft= 2 FAR Build to line\--\> your building must be at least this far (minimum) Setback\--\> this is as far as your building can go (maximum) Reasons: if you have a setback with no build to line, people might put parking in front of building, like cvs, so it is encouraging cars and destroying public realm and walkability **[Unit 8: 5th Amendment Limits to Land Use]** **[Constitutional Protections and Regulations of Private Property]** - All land use regulations must conform to the 5th amendment- they are not valid if they deprive any person of property without due process of law and they cannot constitute takings of real property unless just compensation is paid - Fifth amendment: No person shall be... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." - First part- land use regulation is invalid if it does not in fact further a legitimate public purpose (Euclid and Nectow) - Second part- if private land is taken for a public use, just compensation must be paid (Takings cases) - Fourteenth amendment- applies the 5^th^ amendment onto the states and local governments to which states legislatures have delegated the authority to adopt and enforce land use restrictions - Euclid- court upheld comprehensive zoning, despite owners argument that placing some of its land in a residential district devalued it - - **[Exactions (as a category of takings)]** - As a condition of obtaining a development permit government imposes a condition requiring the person to dedicate land to the public in some way - Burden in exaction cases shifts to the defendant to show that there is an "essential nexus" or a "rough proportionality" - Londoner v. Bi-Metallic - *Londoner*- adjudicative- p's think they are being taxed unfairly.. PDP issue because they were "exceptionally affected" and "in each case on individual grounds" - *Bi-Metallic*- legislative- 40% tax increase to everyone.. No PDP issue because it was general and across the board and is subject to a different est - Most state courts held that land use actions were legislative in nature (so no PDP)- but *Fasano* argues that a determination where the permissible use of a specific piece of property should be changes is usually a exercise of judicial authority - *Fasano* test: determination of whether action produces a general rule of policy which is applicable to an open class of individuals (legislative), interest or policy to specific individual, interest or situations (administrative) - Courts routinely hold that unconstitutional conditions doctrine only applies to administration, but not legislative, land use cases - Nollan v. CA Coastal Commission: **Facts:** Commission granted building permit if P's granted an easement on their property allowing for public access to the beach- because there was a psychological effect on the public not being able to see the beach. - **Rule:** A permit condition may constitute a taking if there is not an "essential nexus" connecting the imposition of the condition to a legitimate state interest in solving a problem relating to the development - Allowing the public to walk across the nollans property will not mitigate the view of the beach so there was no "essential nexus" - If the state wanted to do this they would then have to exercise eminent domain and provide just compensation - Dolan v. City of Tigard: **Facts:** Dolan's want to expand store so they go to commission for site plan approval - you need to submit site plan and application showing how plan meets legal requirements. Commission approved plan if dolans provides a strip of land to prevent flooding and a bike path. - **Rule:** must have a "rough proportionality" between conditions imposed and impact. Test is done through individualized determinations (go to the site and check it out) - Ct expanded the "essential nexus" test and planed the burden on the defendant - Here, court said the conditions were too general and needed a rough proportionality **[Per Se Regulatory Takings]** - Pennsylvania Coal case: If regulation goes too far it be considered a taking (1922)- first time court determined a regulation can be a taking - Government can commit a per se regulatory taking in 2 ways: 1. Permanently physically invading the property - Burden is on property owner to show a permanent physical invasion - Loretto v. Teleprompter Manhattan TV corp: **Facts:** Owner of apt building challenged a law which required her to allow a cable tv company to permanently install its equipment on her property. Only occupied one-eighth of a cubic foot and was installed before she purchased the property. - **Rule:** court found for P and said it was a per se regulatory taking, which can only occur if there is a permanent invasion, not a temporary one. - Owner must prove the government requires another party to permanently enter her property without her consent, the owner has carried the burden of proof - Burden of proof then shifts to the defendant to show that regulation is.. 2. Government issues a regulation which results in the owner being completely deprived of all economically beneficial use of his property - Burden is on owner to prove economic deprivation - Lucas v. South Carolina Coastal Council: **Facts:** P paid 975K for two resident