Land Use Outline Finn PDF Fall 2024

Fall 2024 Exam: 3 hours, majority is MC, second part is hypos like the Bay Window Exercise - The Bay Window exercise is a little more step by step, the exam hypos will be larger - New York Law is the default - Be sure to leave enough time for the second part of the exam, maybe do it first (at least 45 minutes) - 4 hypos - 14 specific questions within the hypos - About 1 min and 48 secs per question - 75 MC questions - The MC questions go in order from the syllabus so you know what world you're operating in - Remember that the topics overlap (ex. The local environmental law section might have a takings question) - Wawayanda Code is the only thing we are given - We should know what is necessary to point out Table of Contents {#table-of-contents.TOCHeading} ================= [1. Historical and Ethical Underpinnings of Land Use 2](#historical-and-ethical-underpinnings-of-land-use) [Evolving Ethics 2](#evolving-ethics) [Nuisance & the Quest for Utopia 3](#nuisance-the-quest-for-utopia) [2. The Modern Origins of Land Use Law 5](#the-modern-origins-of-land-use-law) [The Advent of Zoning 5](#the-advent-of-zoning) [The City of Tomorrow 7](#the-city-of-tomorrow) [Economic Development 8](#economic-development) [3. Land Use Plans and the Planning Process 9](#land-use-plans-and-the-planning-process) [Land Use Plans and the Planning Process 9](#land-use-plans-and-the-planning-process-1) [Conformance with the Comprehensive Plan 12](#conformance-with-the-comprehensive-plan) [4. The Basics of Zoning 14](#the-basics-of-zoning) [Introduction 14](#introduction) [Administrative Treatment: Variances 16](#administrative-treatment-variances) [Special Permit Regulations 18](#special-permit-regulations) [Nonconforming Uses 19](#nonconforming-uses) [Accessory Uses & Home Occupations 22](#accessory-uses-home-occupations) [5. Subdivision Controls and Development by Agreement 24](#subdivision-controls-and-development-by-agreement) [Introduction 25](#introduction-1) [Vested Rights & Development Agreements 28](#vested-rights-development-agreements) [Exactions and Impact Fees 31](#exactions-and-impact-fees) [6. Discrimination and Free Speech 33](#discrimination-and-free-speech) [Race, Nationality, Exclusion & Property 33](#race-nationality-exclusion-property) [Inclusionary Housing Ordinances & Fair Housing 33](#inclusionary-housing-ordinances-fair-housing) [7. Neo-Euclidean Zoning 35](#neo-euclidean-zoning) [Introduction 35](#introduction-2) [Floating Zones & Transit Oriented Development 38](#floating-zones-transit-oriented-development) [8. Fifth Amendment Limits to Land Use Regulations 39](#fifth-amendment-limits-to-land-use-regulations) [Regulatory Takings & Exactions 41](#regulatory-takings-exactions) [Ad Hoc Factual Inquiries 42](#ad-hoc-factual-inquiries) [9. Local Environmental Law and Sustainability 43](#local-environmental-law-and-sustainability) [Local Environmental Law 43](#local-environmental-law) [Environmental Impact Reviews: SEQRA 45](#environmental-impact-reviews-seqra) [10. Exam Review 47](#exam-review) Historical and Ethical Underpinnings of Land Use ================================================ Evolving Ethics --------------- - ***A Fable of Tomorrow***: Painted a powerful picture of the consequences of synthetic pesticides. If humans poison nature, nature will poison humans. How we treat the land, how we live on it, has consequences - ***Village of Euclid***: Called apartments a "mere parasite" and that they devalued sections of the land. Court is looking at clean air, height, etc. - ***Aldo Leopold's The Land Ethic***: "A thing is right when it tends to preserve the integrity, stability and beauty of the biotic community. It is wrong when it tends otherwise." Leopold believed that an evolution of ethics was essential for conservation - The Vanishing: They had a social ethic, but that ethic prevented the group from adapting. The other tribe was eating seal and using the whole seal, and they survived. - Early Light, the Quark, and the Jaguar: Complex adaptive systems learn from each other every time they operate. The systems that thrive are those that adapt to information and evolve through the efforts of their component parts. - **Land use law is the full range of laws and regulations that influence and affect the development and conservation of land**. Deals with a broad range of non-legal problems, and it's important to lawyers, planners, civil engineers, architects, landscape architects, public interest groups, etc. - ***The Police Power***: The **power to regulate to protect the health, safety, and welfare of the people (sometimes includes morals). States specifically delegate this power to local governments, from which they derive the authority to zone** - ***Home rule***: The **power of local governments to adopt law that relates to their property affairs & government** Nuisance & the Quest for Utopia ------------------------------- - In early American history, individuals were thought to have powerful control over their land. Land uses were regulated by private conditions imposed on the land through titles conveyed by colonial authorities - **Restrictive covenants, defeasible estates, common law nuisance** - ***The Three Magnets and the Town-Country Magnet*:** Howard envisioned decentralizing the population of an industrial city like London into a ring of carefully organized garden cities surrounded by countryside and connected by railroads - **Town Country magnet**: The perfect combination of beauty of nature and social opportunity. There are fields and parks of easy access. **Garden Cities** - **Nuisance**: A common law action that established that private landowners may not use their property in a way that injures the property held by another. Relief can come in the form of damages or an injunction. Offensive intrusions include smoke, dust, noise, odors, heat, or other effects that diminish normal uses of property. - Four types of nuisances are: - **Nuisance per se:** Any action that is always a nuisance and under all circumstances - **Nuisance in fact:** Not inherently a nuisance, but under the circumstances or the way conducted, is a nuisance - **Public nuisance:** Affects an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance of damage inflicted upon individuals may be unequal - **Private nuisance:** A legal cause of an invasion of another's interest in the private use and enjoyment of land. - The restatement indicates that a landowner is subject to a nuisance action for a land use if that use is unreasonable. - Value to society of the alleged nuisance - Hardship on the defendant on an injunction or damage award - The social value of the Ps use of their land - Courts weigh the gravity of harm to the plaintiff against the utility of the defendant's use. - **Moving From Nuisance to Zoning**: Courts in nuisance cases affected a funny form of zoning. Farm uses favored in agricultural or rural areas and those who move into farming areas are unable to proscribe such uses in most cases because they moved to the nuisance. - ***Cities and the Crisis of Civilization*** (1938): Deep fear that warlike forces would subvert human values and small-scale relationships he saw as characterizing pre-industrial cities. **Lewis Mumford** sought to respond to the problems of the overcrowded industrial city by advocating the decentralization of population to achieve better balance of city and countryside. - "Mind takes form in the city, and in turn, urban forms condition mind" - ***Edward Murray Basset and the Origins of Zoning*** (1922): Basset made arguments to adopt zoning. Lack of human language, only economic language in the ways he justifies zoning and is not concerned about concentrating poverty or perpetuating sprawl. - ***New Towns in the Country***: Post WW2, there were differing views of what America should continue to build towards - **New urbanists:** High density districts served by mass transit, rather than what they decry as vacuous sprawl accessible only by automobile - **Neo traditionalists** accept that the electorate is not prepared to invest in transit, corridors designed to organize entire metropolitan regions. - **New town advocates**: New towns are cheaper because they can be created on large properties and do not require costly, time-consuming site assemblage. Bring back villagelike organization that may reduce conflict and increase social interaction. - **1870-1920 is an essential history for land use planning, because this influenced land use patterns** - ****: Major shift in what was the familiar pattern of immigration. Until this year, majority of the immigrants were protestants, northern/western European, came as families, went to farms. Now single unskilled workers. - Rise to the urban slum and the tenement - The **Progressive Era**: Wanted to eliminate problems that were caused by urbanization and industrialization. Sought regulation of monopolies and corporations through antitrust laws in a way to support equal competition. - **Social Darwinists:** Believed that the new immigrant poor were the problem and inferior. That they were what they were because of genetics - **Progressives:** People are the product of their environment The Modern Origins of Land Use Law ================================== The Advent of Zoning -------------------- - NYC was the first city to adopt comprehensive zoning because regulating conflicts of things like street congestion and new high-rise buildings through the common law was way too laborious, unpredictable, and ponderous. **[1916!!]** - **The legislative authority of local governments** is limited to that delegated by the state and extends only to local government's geographical boundaries, with modest exceptions. - **Home rule:** Constitutional or statutory provisions which provide local governments with authority to make a wide range of legislative decisions, affecting property and governmental affairs. - **Specific enabling acts:** Provide more narrow authority to address a specific issue - **Zoning enabling act,** narrow authority to handle zoning - In 1922, the US Department of Commerce published a model statute, the **Standard State Zoning Enabling Act** (SZEA) to promote zoning. It was adopted to encourage state municipalities to adopt zoning ordinances. - ***Section 1*** = grant of power mentions the police power of the legislative bodies. Empowering municipalities to regulate and restrict height, lot, size of yards (**bulk and area requirements**) - ***Section 2*** = Local legislative body may divide the municipality into districts of such manner and regulate (**uniformity requirement** -- buildings in a district must be treated the same) - ***Section 3*** = requiring that all regulations shall be made in accordance with a comprehensive plan" (**conformity requirement**) - ***Section 6*** = Establishes the zoning commission, to [**recommend**] the boundaries of the districts and uses. It is the legislature that adopts the zoning. - ***Section 7*** = legislative bodies may provide for the appointment of an adjustment board (**Zoning Board of Appeals in NY**) who can make special exceptions to terms of the ordinance in accordance with rules. - The essential function of the ZBA is to **grant variances**. To create zoning, you must create a ZBA. - **The Standard City Planning Enabling Act (SCPEA)**: Promoted the adoption of a **local comprehensive land use plan** as a document separate and distinct from zoning. This act gave rise to the notion that comprehensive land use planning should precede the zoning ordinance and serve as its predicate. - ***Title 1***: Municipal Planning and Planning Commission - "And create by ordinance a planning commission with the powers and duties set forth" is giving the local government the power to [create the planning commission] - It shall be the function and "duty to adopt a master plan/comprehensive plan" - [No street, square, park, etc. shall be constructed or authorized until the location character has been submitted and approved by the commission. ] - ***Title 2***: Subdivision Control - No plat of a subdivision [shall be filed or recorded until it's been approved by a planning commission.] - ***Early Cases*** The City of Tomorrow -------------------- Know what the original ideas about planning were and how far we've come from these ideas. - **Urban Redevelopment**: The clearing and rebuilding of decaying cities, section by section, until every corner had been transformed into an efficient, modern metropolis. Cities were terminally ill. - ***1880---1980: A Century of the Evil City*:** The city was deemed as this terrible place to be and required cleaning up. - ***Le Corbusier, the City of Tomorrow*** (1924) - Proposed the creation of new cities that consisted of three separate districts: a business center of office towers, a residential area of elevator apartment houses, and a manufacturing warehouse district (Towers in the park) - **Vision was never fully implemented because there was no mixed use**. - Successful in Stuyvesant Town and Pittsburg - Said that municipalities needed to go beyond the traditional taking, and he wanted to spur private reconstruction. Condemnation of entire districts to allow area wide redevelopment - Assigning to government the functions of the real estate developer - **National Housing Act of 1934**: Catalyzed suburbanization, which was further catalyzed by the baby boom - Created the FHA mortgage loan program, regulated the interest rate of every mortgage insured - By 1939, every house could be bought with a 10% down payment - Increased the amount of people who owned their home (44% to 68% by 2000) - **1939 GM Exhibit**: Futurama --commercialized the City of Tomorrow idea - **Robert Moses**: Emerged out of the Progressive Movement, had the paternalistic mentality of a god looking from above. - **The Moses Method**: Production oriented and shaped by political reality. He negotiated with parties in private. The developer assumed the burden of relocating the businesses and families on the designated sites. - **Jane Jacobs**: Loved the city for what it was, she said it was challenging for all of these planners because they could not handle *organized complexity* and it was too hard for them. - Called it the ***Radiant Garden City Beautiful Movement*** - Criticized the Garden Cities by Ebenezer Howard - The Radiant City of Le Corbusier - City Beautiful -- DC monument idea, Henry Reed - **Urban Renewal**: Taught their communities what their wants and needs are, although it is painted to be the worst. Money doesn't solve the problems if you don't know what needs to be addressed. - In some places, urban renewal worked because they removed impediments to a prosperous economy - **1880-1980: A century of the Evil City**. The city was deemed as this terrible place to be and required cleaning up. - **A realistic approach to city and suburban planning** - **Planning** should be defined as 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, convenient, and environmentally healthy. - Government agencies are not the only entities in the planning game. Planning is about change and preventing undesirable change and encouraging desirable change. - Nonprofit and private parties - Planning **requires three things**: - 1\. **[Strategic public investment]**: Making more attractive for private development - Note that capital investment can cause adverse impacts too, like the Federal Aid Highway Act of 1956 (cars plot) - 2\. **[Regulation]**: Used to alter the size and character of the market and the design of the physical environment - 3\. **[Incentives]**: Intelligent spending on capital improvements and regulatory policies that provide stability and encourage market demand. Only when investment and regulation are insufficient to do the job should incentives come into play. Economic Development -------------------- **Eminent Domain in the Magna Carta**: The king's confiscation through the law was limited, "no free man shall be deceased of his freehold by the law of the land" (1215) **Fifth Amendment:** "No person shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for a public use, without just compensation" - Note the intentional semi colon. This separates the Due Process Clause from the Takings Clause. - ***Due Process*** (*Hadacheck v. Sebastian*): Police power protects the public health, safety, and welfare. Private interests must yield to the good of the community. - In the *Sebastian* case, the residences were being protected from the fumes of the brick making process---using the police power to protect public health - ***Eminent Domain*** (*Berman v. Parker*): Department store title taken to further comprehensive urban renewal plan, a public use. - "Take the property and take title to it" is why it's called a taking Municipalities have the power to exercise eminent domain and create land use regulations. This is delegated to the municipalities by the state through the state constitutions. The role of the courts in reviewing the property in land condemnations is threefold: - To be sure the condemning authority [followed the procedures] required by the state eminent domain law. - To be sure the purpose for which the property is taken is [public] (Broadly defined in *Berman*) - ***Berman v. Parker***: Court deferred to the D's urban renewal authority, who had decided that area-wide blight could only be cured by an area-wide solution and thus, it was necessary to take the plaintiffs' building whose existence and use did not conform to the urban renewal plan---even though the P claimed the building was not blighted. The court will look at the plan as a whole, not just the property being taken and whether that was reasonable. - See that [just compensation is paid] - **Just compensation**: Whether the authority paid the price that a willing buyer would pay a willing seller at the time of condemnation. ***Kelo v. City of New London,*** 2005, (pg. 1019): New London had a comprehensive plan with public benefits, jobs, saving a hospital, improving the infrastructure. Their unemployment rate was nearly double that of the state in 1998 (two years before the comprehensive plan was approved). The New London Local Development Corporation was a nonprofit, established by the local legislature, that assisted the city in planning for economic development. The NLDC held meetings to educate the public about the process. This was an open and public process. ***HOLDING*:** Given the comprehensive nature of the plan, the thorough deliberation that preceded its adoption, and the limited scope of the Ct's review, it is appropriate to resolve the challenges considering the entire plan. This plan serves a public purpose, and therefore the public use requirement of the 5^th^ amendment is satisfied. - **Kelo Jurisprudence** - ***Stricken v. Highboy Gold Mining***: The [public welfare of that state demands] that aerial lines between mines on its mountain sides and the railways in the valleys below should not be made impossible by the refusal of a private owner to sell the right to cross hiss land. - ***Casino Reinvestment v*. *Banin***: To expand the casino was not a public purpose - ***Bailey v*. *Myers***: The taking of a break shop for a hardware store to advance economic development lacked the requisite public use. - **To be a public purpose, it has to be part of a whole plan or connected to an actual government purpose. Not just a conceivable government purpose**. Land Use Plans and the Planning Process ======================================= Land Use Plans and the Planning Process --------------------------------------- **The Consistency Doctrine** - **Standard State Zoning Enabling Act**: Zoning regulations shall be made in accordance with a comprehensive plan. - The Consistency Doctrine is in Section 3, Purpose in View. This section is a model for other states for what zoning ordinances should be like. - **Standard City Planning Enabling Act**: A municipality is authorized to establish a planning commission to make and adopt a master plan to accomplish harmonious development of the municipality and its environs. - You *can* establish a planning commission to adopt a master plan, and the Act specifies what goes into a master plan **The Content and Effect of the Master Plan** - The *content* of the comprehensive plan and the level of detail at which the subjects are addressed vary from jurisdiction to jurisdiction. - **New York Town Law §272,** adopted by the New York State legislature, says that the **most important of town powers is the 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**. - It provides that a comprehensive plan may include: - General statements of goals, objectives, principles, policies, and standards upon which proposals for the immediate and long-range enhancement, growth and development of the town are based - Consideration of regional needs - The existing and proposed location and intensity of land uses - ***Definitions***: - **Comprehensive Plan**: The materials that identify the goals, objectives, principles, guidelines, policies, standards, devices, and instruments for the immediate and long-range protection and enhancement of the city. - **Land Use Regulation**: Ordinance or law that is enacted to regulate any aspect of land use. - The **town board** by resolution may prepare a comprehensive plan and amendments thereto - Any proposed comprehensive plan or amendment *[may be referred]* to the town planning board - **Subject to environmental review** - The town board will provide intervals at which the adopted plan can be reviewed (**periodic review**) - Under **Section 11(b), all town land use regulations must be in accordance with a comprehensive plan adopted pursuant to this section.** - When courts are presented with a challenged land use regulation **and there is no comprehensive plan**, they **will construe one from policy statements and land use decisions to determine the comprehensive planning objectives that have guided the community in the past**. **Planning and Land Use Regulation** - **Spot zoning**: **Is illegal**, but if a single parcel of land is removed and the local government can show that it was removed to accomplish a specific public objective of the comprehensive plan, and not to benefit a private owner (solely), the complaint is put to rest. - ***Udell v. Haas***: The comprehensive plan is the essence of zoning. Without it, there can be no rational allocation of land use. - Town of Wawayanda Comprehensive Plan Outline: - Section 1: Introduction - Purpose - Vision, with four major themes - Background and Process - Regional and Local Planning Efforts to Date - Contents - GIS - SEQRA - Section 2: Major Themes - Promoting Economic Development and Diversity - Maintaining and Supporting Wawayanda's Rural Character - Protecting Natural Resources and Open Space - Cultivating a Sense of Community - Section 3: Setting - Location - History - Land Use --- a survey of how the town is looking now - Zoning **[Can you create a comprehensive plan without the input of some of the segments?]** ***Creative Displays, Inc. v. City of Florence,*** 1980, (pg. 81): A Planning and Zoning Commission formed out of 4 different localities came together. After the creation however, the Planning and Zoning Commission adopted a comprehensive plan comprised of the existing plans of two of the towns. ***HOLDING*:** A statement of goals and objectives, principles, policies, and standards, which shall serve as a guide for the physical development and economic and social well-being of the **entire planning unit** is required. Goals of only a portion of the parties does not address the goals. - Court emphasizes the **value of a public hearing** (the most significant factor) in addition to the difference in specialized research, analysis, and projections. **[Do permits need to be in conformance with the comprehensive plan?]** ***Elysian Heights Residents Association, Inc. v. City of Los Angeles***, 1986 (pg. 89ish): LA issued a building permit to Morton for the construction of a three-story 45-unit apartment complex. This permit was consistent with the zoning ordinances of the city, but it was not in conformity with the [comprehensive plan] (wanted to reduce the density of units). The P wanted the permit revoked. ***HOLDING*:** California law does not preclude the issuance of permits that may be inconsistent with the community's general plan. The locality is not required to make progress towards the plan once adopted. - The planning and zoning law does not contain any language that is intended to prohibit the issuance of building permits that are inconsistent with the general plan. - Comparing apples to oranges: permits v. zoning ordinances **[Can a P allege a governmental taking if the locality has only adopted the plan? Does the plan have legal consequence? ]** ***Cochran v. Planning Bd. Of Summit***, 1965 (pg. 90): The P was seeking to enjoin the the city from implementing the master plan in any way. The master plan provided for the area near the P's property to be rezoned to provide for expansion of business/commercial area. The planning board conducted a study and met with citizens every two weeks for about a year. ***HOLDING*:** The Summit Planning Board had the power to enact a master plan; Ps have provided no proof that their property has been [damaged or harmed by the adoption of the plan.] - The master plan represents the **best judgement** of the planning agency as to the proper course of action to be followed (at a given time). It's **not a straitjacket**. It is a guide that can be easily changed. - **The adoption and recording of a master plan has no legal consequence**. It is a declaration of policy and a disclosure of intention. - If necessary legislative implementation is taken, then this would be a zoning ordinance case and not a master plan case. **A master plan requires legislative implementation before its proposals have binding effect and legal consequences**. - The **power of a municipality to plan for the future is part of the police power**. **[Once a locality has adopted a comprehensive plan, are they required to immediately conform to it? Is failing to rezone in accordance with the comprehensive plan an ineffective exercise of the police power?]** ***Bone v. City of Lewiston,*** 1984, (pg. 97): Bone wanted his property rezoned from a low-density residential use to a limited commercial use. The comp plan showed the land as being zoned for commercial use. The commission denied his application because (1) the uses in the classification sought would not be compatible with the low-density residential uses of the area (2) the P has an over-abundance of unused commercial properties. ***HOLDING*: A city's land use map does not require a particular piece of property as a matter of law to be zoned exactly as it appears on the land use map**. - The law states that if a rezone request is in accordance with the comprehensive plan, the P&ZC ***may*** recommend, and the governing board ***may*** adopt or reject the amendment request as proposed. - The [municipality articulated reasons] for not zoning the area. So, this was like creating a new comp plan, and the court saw this evidence. - **Local legislature is not required to entertain your rezoning request**. **Overall, the differences between planning and zoning can come to these**: - **Planning** is **long** **range**; **zoning** is **immediate** - **Planning** is **general**; **zoning** is **specific** - **Planning** involves **political processes (policy action**); **zoning** is a **legislative function** and an **exercise of police power** Conformance with the Comprehensive Plan --------------------------------------- **Local governments are municipal corporations that obtain their legal authority from their charters, home rule authority, and from state enabling acts**. If a local legislative body attempts to adopt or amend zoning laws in a way that is inconsistent with the enabling laws, that attempt could be successfully challenged as ***ultra vires*** (**beyond the corporate authority of the municipality**) - State statutes proscribe both the **subject matter** of local land use laws and their **mode of adoption. Failure to adhere** to either could be **jurisdictionally** **defective** or **ultra vires**. **The "In Conformance With" Requirement** - You're probably in conformance with a comprehensive plan if you're not engaging in illegal **spot zoning**. - **Spot zoning** is singling out by 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 - It is **invalid if it is not in accordance with the comprehensive plan AND it is merely for private gain**. - Every departure from the plan does not constitute illicit spot zoning - Local legislatures cannot use their power to benefit private property interests in ways that are counter to the public interest. **Scope for conformance w comprehensive plan** ***Bertram v. Zoning Commission***, 1949 (pg. 105): A property owner approached the Zoning Commission of the City to rezone his property to construct a building that would have a drugstore, grocery store, hardware store, bakery, and beauty parlor. Some, but not all, of the residents in the neighborhood registers their opposition to the proposal. The zoning commission granted the request, and the Ps are alleging that this decision was an abuse of the commission's authority and amounted to spot zoning. ***HOLDING*:** Action by a zoning authority must conform to a comprehensive plan applicable to the community as a whole. Not just the surrounding area, but the entire municipality. - The only question of whether this is illegal spot zoning is: *whether it is consistent with the comprehensive plan goals*. If it is, it cannot be spot zoning. - Remember, if there is no comp plan, the courts are going to look for evidence of one. - Here, the zoning commission asserted that the decision furthered its comprehensive plan of allowing business development in outlying areas in order to [decentralize shopping in the city, reduce traffic congestion, and encourage neighborhood stores]. - Not an arbitrary or unreasonable decision. - There is no such thing as "vested rights in zoning" --- case where *person* exposed herself as a NIMBY. **Failure to create zoning [properly] is ultra vires!!!** ***Enterprise Partners v. County of Perkins***, 2000 (pg. 111): The zoning board became aware of proposal to build hog confinement facilities. The Department of Environmental Quality couldn't do anything about it and told the board to use their authority to do something. The Board passed an ordinance to regulate the use of the lagoons, that required an owner or operator of a large livestock containment facility to cover their storage facilities. The ordinance also included that the county had the right to inspect sites to ensure compliance with the cover requirement. ***HOLDING*:** A county board must adopt a comprehensive development plan before regulating the use of lands within its jurisdiction. **If you're going to adopt zoning, you must have a comprehensive plan**. If the state legislature says you can regulate land use and you must do it a specific way, and the local legislature doesn't do it, it is ***ultra vires*** (beyond their authority) - "If they had done it properly, they could've regulated the hell out of the CAFOs" **Municipalities MUST articulate a reason why they didn't zone in accordance with a comprehensive plan. Otherwise, they could end up like...** ***Osiecki v. Town of Huntington***, 1991 (pg. 117): Osiecki owned a parcel of land that was zoned for low density residential use, and the town's plan designated the property for commercial development. Osiecki wanted his property to be zoned in conformance with the comprehensive plan, as the nearby parcels were also zoned for commercial use. ***HOLDING*: A town's zoning classification is invalid if it is not consistent with the comprehensive zoning plan**. A town is not required to follow the master plan but [**must justify a determination to act inconsistently**] with the comprehensive zoning plan. - The town did not articulate any reason for changing the comprehensive plan, and none is apparent. The residential zoning of Osiecki's parcel is void because it fails to comport with the town's comprehensive plan. - The failure to explain why the town did not zone in accordance with the comprehensive plan was the downfall of the municipality. All they had to do was articulate a reason why. The Basics of Zoning ==================== Introduction ------------ ***Definitions*** - **Dillons Rule**: - Dillon\'s Rule is a principle of local government that states that local governments only have the powers that are: - **Expressly granted**: Powers that are explicitly given by the state - **Implied**: Powers that are reasonably implied from the powers that are explicitly granted - **Essential**: Powers that are crucial to the existence of the local government - Dillon\'s Rule is used to: - Interpret state law - Determine if a local government has a certain power - Narrowly define the power of local governments - **Home rule:** Gave local governments broader powers; powers to achieve public health, safety, and welfare in their jurisdictions. - Gradual Flexibility coming in for local governments - Rezoning - Conditional rezoning - Judicial deference - Variances (next) & Special Use Permits (following that) **A Standard State Zoning Enabling Act, Sec. 1-3**, pp. 40-401 **NY Town Law §§261-263** (Supp.) - The zoning ordinance establishes a number of zoning districts and contains a map indicating which parts of the community are within each district. - Zoning provisions are adopted by the local legislative body after being drafted by a zoning commission or a planning body and subjected to public scrutiny. +-----------------------------------------------------------------------+ | A Typical Zoning Chapter Layout | +=======================================================================+ | [Article 1. General Provisions] | | | | [Article 2. Definitions] | | | | [Article 3. Zoning Districts and Map] | | | | [Article 4. District Regulations] | | | | [Article 5. Supplementary Regulations] | | | | - Accessory Uses | | | | - Home Occupations | | | | - Mobile Homes | | | | - Planned Unit Development | | | | - Prohibitions | | | | - Etc. | | | | [Article 6. Special Use Permits] | | | | - Submission of Application | | | | - General Standards | | | | [Article 7. Planning Board/ Commission] | | | | [Article 8. Zoning Board of Appeals] | | | | [Article 9. Administration and Enforcement] | | | | [Article 10. Amendments] | +-----------------------------------------------------------------------+ **Text amendment**: Amending the actual text of the zoning code **Map amendment**: Amending the application of the code to one area on the zoning map. Making an exception. ***Church v. Town of Islip***: Map amendment. Town consented to a zoning change from residential to business for Charles Housler's lot. At the time, the town did not have a comp plan in place. The board found that Housler's property was more desirable for business than residential use. Neighbors got mad because this wasn't in conformance with the nonexistent plan and was therefore arbitrary. Ps said that this was illegal contract zoning. ***HOLDING*:** A town can amend the zoning of a parcel of land that is not in conformity with a comprehensive plan if this amendment is supported by a factual basis. - A **legislative act is entitled to the strongest possible presumption of validity** and must stand. - An **act is void if it is arbitrary, preferential, or discriminatory**. - The board required Housler to execute and record restrictive covenants for the benefit of the neighbors, which were imposed to reduce annoyances. (covenants concerned maximum building size and putting up a fence) ***Giger v. City of Omaha***: Text amendment. Midlands Development Company sought to create a mixed-use development with retail, office, and residential buildings. The city approved of their plan under a development agreement with four agreements. One of the agreements was that Midlands could vary the development only if the city did not find the variation deviates from the development plan and that the variations do not violate any provisions of the Muni Code. Also provided for more restrictive ceilings and development regulations than the underlying zoning regulations. Ps sought to invalidate the ordinance passed by the city to approve the development agreement. Sam argument as above that the city engaged in illegal contract rezoning and solid its police power. ***HOLDING*:** A city can incorporate a development agreement by reference into the rezoning of land if the agreement constitutes conditional zoning that imposes **[stricter standards on a developer than the zoning itself. ]** - **Conditional rezoning** is a legislative function and **therefore must be within the proper exercise of the police power**. - The conditions imposed by the city for conditional rezoning must be **reasonably related** to the interest of public health, safety, morals, and the general welfare. - To **successfully challenge the validity of conditional rezoning**, a plaintiff must prove that the conditions imposed by the city in adopting the rezoning ordinance were unreasonable, discriminatory, or arbitrary and that the regulation bears no relationship to the purpose or purposes sought to be accomplished by the ordinance. ***Flexibility of Zoning Takeaways*** - Conditional rezoning is legal - Uniformity flexibly interpreted - Powers broadly construed - Delegating statutes have general words - Courts defer to local legislatures regarding which laws to adopt in the public interest - 1970-1990 Euclidean straight jacket loosened significantly. Administrative Treatment: Variances ----------------------------------- - **Zoning Administrative Process**: 1. Application 2. Zoning Enforcement Officer a. Planning Board 3. Zoning Board of Appeals - **Variances and special (or conditional) use permits** provide flexibility in local zoning practice and provide relief for individual parcel owners while protecting the surrounding neighborhood. A **variance** allows a property owner to use her land or buildings in a manner that is **prohibited by the ordinance**. - **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 regulation**. - Ex. An owner wants to build a deck that encroaches slightly into a yard setback area, apply for an area variance. - **Use Variance:** Permits a "**use of the land for a *[purpose]* which is otherwise not allowed or is prohibited by the applicable zoning regulations**". - Ex. Piece of land is zoned for single-family residential use and the owner wishes to operate a retail business, ask for a use variance. - **Special use permit** **authorizes uses that are allowed and encouraged by the ordinance and declared to be harmonious with the applicable zoning district**. - Special land uses are subject to the **imposition of certain conditions** that **protect surrounding properties from adverse impacts**. - **Zoning Board of Appeals**: When a locality adopts a zoning ordinance, the state enabling statute requires that it establish a zoning board of appeals, and they serve in a review (**appellate capacity**) - Go to them after the **zoning administrative/enforcement officer** denies the permit. The **ZBA may reverse any ruling or order of the ZEO**. - **May also award variances (area and use)** on appeal from a determination of the ZEO - **Wawa Zoning Code §80 and §83** - ***§80: Enforcement***: The building inspector has the power to take legal action against anyone who does not comply with the code. The building inspector issues permits and certificates of occupancy - ***§83: Zoning Board of Appeals*** - 5 members, quorum is 3 members - Power to interpret and power to grant variances - **Courts tend to defer to the ZBA unless the appellant** can provide that the decision is *[arbitrary or unreasonable, not based on facts on the record, or does not conform to applicable standards]*. - **[NY Town Law §267 & §267(b)]** -- pg. 218 of Supp. --grant minimum variance necessary - §267: Zoning Board of Appeals - Definitions: - Use Variance - Area Variance - Appointment of Members - §267(b) Permitted Action by the ZBA -- Four Permitted Powers of the ZBA - \(1) Orders, requirements, decisions, interpretations, determinations - Reverse, affirm, wholly or partly, modify - **(2) Use Variances Should be Granted Where:** The applicant **[shall demonstrate]** - \(1) **R -** The applicant cannot realize a ***[r]easonable return***; lack of return is substantial as demonstrated by financial evidence - \(2) **U -** The alleged hardship relating to the property is ***[u]nique*** - \(3) **N -** The requested use variance will not alter the essential character of the ***[n]eighborhood*** - \(4) **S -** The hardship was not ***[s]elf-created*** - Least intrusive solution must be chosen - **(3) Area Variances, the board must apply the *practical difficulties balancing test.*** The local board must articulate on the record that they considered each of the factors. The ZBA shall balance: - \(1) **C -** An ***undesirable [c]hange*** will not be produced in the character of the neighborhood or a detriment to nearby properties - \(2) **O -** Where the benefit sought cannot be achieved by some ***[o]ther method*** other than an area variance - Least intrusive solution - \(3) **S -** Where the requested area variance is not ***[s]ubstantial*** -- more like the court must weigh this - \(4) **A -** Where the variance will have an ***[a]dverse*** ***impact*** on the physical or environmental conditions in the neighborhood - \(5) **S -** Where the alleged difficulty was not ***[s]elf-created*** - **Wishy washy**, as found in *Sasso*. The fact that a difficulty is self-created does not preclude from the grant of an area variance. - ***Sasso v. Osgood***: D bought a waterfront parcel of land, wanted to build a larger boathouse. Town Zoning Board considered an **area variance**, and neighbors said that the boathouse would negatively affect their properties. ***HOLDING*:** An applicant for an area variance is not required to demonstrate that strict compliance with his local zoning ordinance will result in practical difficulties. - **Town law §267(b)** requires that the Zoning Board engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the community. - \(4) ***Imposition of conditions***: The board of appeals shall have the authority to impose reasonable conditions and restrictions as are incidental to the proposed use of the property. Special Permit Regulations -------------------------- - A **variance** is an authority to a property owner to use property in a manner **[forbidden]** by the ordinance - A **special exception** allows the property owner to put their property to a use **[expressly]** **[permitted]** by the ordinance. - Predetermined by the legislature - Less of a burden **New York Town Law §274-b**: Special Use Permits (This is Local Administrative Law) 1. **Special Use Permit:** The **authorization of a particular land use** which is **permitted in a zoning ordinance subject to requirements imposed** by such ordinance or local law to assure 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. - ***City of Chicago Heights v. Living Word Outreach Full Gospel***, pg. 178: Living Word applied for a special use permit to provide church services on its property. The City's zoning ordinance indicated that churches were listed as a special use in that district. City council denied the permit (they empowered themselves to issue special use permits). The rejection was based on the comprehensive plan. ***HOLDING*:** A city council cannot deny an application for a special-use permit by setting aside the legislative intent expressed in the zoning ordinance and instead relying upon development goals expressed in the comprehensive plan. **If the five considerations (ex. below in the Wawa code) are found, then the board must approve the permit**. - A special use is expressly permitted within a zoning district. - The inclusion of a special use within a zoning ordinance is equivalent to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the community. - If the city wishes for special permit decisions to consider the comprehensive plan, they must amend their law to do so. - Since legislature, need specific criteria for them to carry out admin function 2. ***Approval***: The town may authorize the **planning board** or **another administrative body** to grant the special use permit. 3. ***Application for Area Variance***: Where a proposed special use permit contains one or more features which do not comply with zoning regulations, a party can apply to the **ZBA** for an **area variance**. 4. ***Conditions***: The authorized board **shall have the authority to impose conditions** and restrictions as are directly related to and incidental to the proposed special use permit. a. Can't get a certificate of occupancy or other permits until the condition is met 5. ***Waiver of Requirements***: The authorized board can waive any requirements for the approval, approval with modifications or disapproval of special use permits submitted for approval. b. Just cannot be contrary to public health, safety, or general welfare. 6. ***Public Hearing*** required! c. Public notice in newspaper 7. ***Court Review***: Within 30 days of decision, a person can request court review of the decision. 8. ***No costs against the planning board unless there is malice or gross negligence***. **Wawa Zoning Code Article V -- Special Use Permits,** planning board - ***Purpose of special use permits***: To provide for the location of certain uses which are deemed desirable within a given district or districts, but which are potentially incompatible with typical uses permitted within them. - [Desirable but potentially incompatible ] - Subject to authorization and plan approval by the Town board - The Board shall find that: - The proposed use is properly located - Will not create undue traffic - Will not adversely affect the value of property - Will encourage the appropriate use of land consistent with the needs of the Town - Will not impair public health, safety, and general welfare - Meets all applicable requirements of this chapter - In imposing conditions, the board shall consider - Location and intensity of use - Location and height of all proposed buildings and structures - Traffic access - Parking and offloading areas - Artificial screening and fencing - Noise, vibration, smoke, dust, and other influence **Wawa Zoning Code Article XI** -- Interpretation **Nonconforming Uses** ---------------------- How can a local government adopt comprehensive zoning, apply it to already developed properties, and not violate property rights? The answer is: **Let existing uses and buildings continue indefinitely as nonconforming uses**. The **discontinuance, destruction, and amortization standards remove the onus from zoning as the cause of the owner's loss**. As a result, we are no longer concerned with confiscatory takings or regulations. - A **nonconforming use** is when existing land uses, valid when established, are prohibited by a new or amended zoning law. - Effective date - Often, the nonconforming use article of the zoning law will prohibit or limit changes in buildings and lot uses that are nonconforming and provide a variety of ways for the termination of nonconforming uses. - Prohibit the enlargement, alteration, or extension of a nonconforming use - [**Several questions the courts will consider in dealing with nonconforming uses**:] - 1\. *Was there an established use at the time of zoning*? - What was the existing situation when zoning was instituted? - Consider the change in position and good faith by the landowner - 2\. *What is the extent of the nonconforming use, and will the terms of the ordinance permit expansion or a change with respect to the use*? - 3\. *Has there been a termination of the nonconforming uses due to substantial destruction of the building in which it is houses, or abandonment of the use, or legislative action of one type or another*? - 4\. *Is the nonconforming use subject to termination as a nuisance through the granting of injunctive relief*? - **Wawa Zoning Code Article VIII §§68-71** - Apply on the *effective date of the chapter*, excepting nonconforming farm buildings or structures - **§69: Nonconforming Uses** - **May continue indefinitely** - **Shall not be enlarged, extended, or placed on a different portion of the lot occupied** - ***State v. Perry*** (pg. 189): Ice cream company site was zoned as industrial and then rezoned commercial residential. The industrial ice cream use became nonconforming. P brought a large trailer to the property to store materials connected with the production of ice cream. ***HOLDING*:** The placement of this trailer was an expansion and extension of the use of the premises by adding facilities for storage and the freezing of commodities where such accommodations had not previously existed. - Zoning is about impact, and we don't like the inharmonious uses in our residential or commercial districts. - **Shall not be reestablished if such use has been discontinued for any reason for one year or more or has been changed to or replaced by a conforming use** - ***Toys R Us v. Silva*** (pg. 197): Warehouse in the City's site was rezoned residential. The building could still be used as a warehouse as a nonconforming use. Stopped using as a warehouse for 20 months and then transported some goods to keep the nonconforming use. ***HOLDING*:** Substantial discontinuation rather than complete discontinuation of the active nonconforming activity forfeits the nonconforming use, and the good faith of the owner is irrelevant to the determination. - **Objective substantial discontinuation**: looking at insurance records, tax documents, advertisements, liability coverage, consumer records (question of fact) - Even though the lapse period was two years, this did lapse because it was not used for 20 months AND then it was very minorly used --being substantially discontinued. - **§70: Nonconforming Buildings or Structures** - ***The nonconforming structure:*** - **Shall not be extended or enlarged** - ***Moffatt v. Forrest City*** (pg. 205): Moffatt's home-meat market caught on fire. There was a zoning ordinance that classified the district where the Moffatt's home was located as entirely residential. Under the new zoning ordinance, the Moffatts' market was a nonconforming use. Ordinance provided that if a building operating for a nonconforming use is damaged for 60% or more of its reproduction value, exclusive of foundations, the building cannot be restored for a nonconforming use. ***HOLDING*:** A building that is partially dedicated to a nonconforming use and partially a residence constitutes a single structure. - The Moffatt's argument that the residence and the market were different buildings fails because the residence and the market were housed in one structure, and although there were additions, there was only one building. Therefore, this was one structure. - **Shall not be moved to another location where it would also be nonconforming** - May be restored but not enlarged after damage by fire, accident, or other act of God provided that the restoration is completed within one year after such damage - Normal maintenance and repair - A nonconforming building is a building, lawfully existing at the effective date of this chapter or any amendment thereto affecting such building, which does not conform to the building regulations of this chapter... - **Amortization**: Allows the owner sometime during which to recoup their investment in the nonconforming use. - These ***provisions are likely to be upheld when***: - The Common law would allow the neighboring property owners to enjoin the continuation of the nonconforming use - Showing that the amortized property owner is vulnerable to a nuisance suit. - ***AVR, Inc. v. City of St. Louis Park*** (pg. 208): A ready-mix concrete plant was constructed and then rezoned to a high-density residential use---in two years the ready-mix plants would be phased out. The city had considered the remaining useful life of the plant based on conclusions drawn by an accounting firm and a real estate appraisal firm. City concluded that the plaint had passed its useful life. ***HOLDING*:** AVR has not shown that the city's adoption of the ordinance establishing an amortization period for the plant is unsupported by any rational basis related to the promotion of the public health, safety, morals, or general welfare. - **A city can mandate that a property owner cease certain land uses after a determined period through rezoning ordinances so long as the rezoning act is rational and related to the general welfare**. - **When the nonconforming use is somewhat noxious and the owner has little investment in it.** **Accessory Uses & Home Occupations** ------------------------------------- **For home occupations & accessory uses, there is no state statute with standards. It's up to the local rules, the Zoning enforcement officer, and the case law!!** **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]**. **Generally**, **zoning laws allow the principal** **and activities that are necessary to that use**. - **To qualify as an accessory use, it must be**: - **[Incidental and]** - To be incidental, an accessory use must be reasonably related to the principal use - **[Subordinate to the principal use]** - To be subordinate, the accessory use must be proportionately smaller than the principal use - **[Customarily found in conjunction with its principal use]** - If **commonly, habitually, and by long practice** has been **reasonably associated** with a principal use, **the use is necessary**. - ***Parks v. Board of Adjustment of the City of Killeen***, Texas, 1978: P brought a claim against the Board of Adjustment bc they found that the neighbor's in-residence music school was an accessory use. She was mad about the size and the noise associated with the music school. ***HOLDING*:** The Zoning ordinance provides that accessory buildings and uses that are customarily incident to home occupation are permitted on residential lots, so long as they do not involve the conduct of a retail business. (Look at the zoning ordinance). - P asked the Court to consider the profitability and value of the business, but the court did not do that because it was not in the statute. - ***Greentree v. Good Shepherd Episcopal Church***, NY, 1989 (pg. 219): Church operated as a temporary homeless shelter for 10 men. Ps alleged that the church needed a certificate of occupancy to run a motel/hotel. Clergymen attested to their religious obligations to shelter the homeless. ***HOLDING*:** The NYC zoning resolution defines accessory use as a use conducted on the same zoning lot as the principal use that is clearly incidental to and customarily found in connection with the principal use. The operation of a church as a temporary homeless shelter is a permissible accessory use - NY Courts have held that permissible accessory uses for a church include Sunday school, clubs, community centers, daycare centers, drug rehabilitation programs, and temporary shelter - **Five approaches** a **municipality can utilize to regulate accessory uses in zoning law** 1. A municipality can permit accessory uses by accepting that those uses meet qualifications of what is **customary and incidental**. Ordinance simply defines accessory uses 2. A zoning law **may permit certain accessory uses and prohibit all others**. a. Listing which accessory uses are allowed in each use district b. Most restrictive means of regulation [because it limits] what qualifies as an accessory use that is otherwise incidental, subordinate, and customary to the principal use. 3. **List and prohibit only problematic accessory use** 4. Provide **guidelines** that can **assist the ZEO and ZBA** in interpreting what an accessory is. c. Adoption of a nonexclusive list 5. List some accessory uses that are allowed by special use permit and subject them to certain requirements. - **Wawayanda Zoning Code, Art. III, IV**. - Art. III: §195-6 Application of District Regulations: **Any use not listed as a permitted use, special permit use, or accessory use by this chapter shall be deemed to be prohibited (most restrictive form)** - Art. IV: Lists all the Accessory uses for each of the 11 districts under Sections D. - number 6 says "such as", so there's some leeway there. **Home Occupations**: Some municipalities use accessory uses to define other uses that are incidental to the primary use, but others define "home occupations" in their zoning laws. Requiring homeowners to conform their occupational uses to those definitions. - Permitting occupations conducted in single-family zoned neighborhoods honors expectations of homeowners that such uses have been permitted historically and are within the bundle of rights purchased with the single-family home. - Municipalities use a variety of techniques to regulate home occupations and professional offices: 1. Let the definition of an accessory use govern the matter, leaving it to the zoning enforcement official to determine 2. Adopt a general definition and then provide some guidance to enforcement officials to aid determinations 3. Supplement their general definition of home occupation with a list of permitted occupations, a list of prohibited occupations, and a definition of permitted professional offices 4. Specific home occupations may be permitted only upon the issuance of a special use permit by a designated reviewing board. - **Wawa Zoning Code §195-22, Art IV** - ***Article 2 Definition of Home Occupation***: A profession or other occupation customarily conducted within a dwelling by one or more members of the family residing therein and which in residential districts, conforms to the conditions set forth in 195-22. - Adhere to technique 2, where they adopt a general definition and then provide some guidance. - Must be carried on within the dwelling - Cannot occupy more than one-half of ground floor - Not more than 1 employee that is not immediate family - Time period for renewal can be implemented, within the power of the planning board (in its advisory capacity) - ***Town of Sullivans Island v. Byrum***: Ps owned a home that was damaged by a fire, repaired it to be partially used as a bed and breakfast, with 6 more bedrooms and bathrooms and separate living quarters for them. The town's ordinance defined "permitted home occupation uses" to include conduct that is [clearly incidental and secondary to the use of the home as a dwelling] for residential purposes, does not change the character of the home, and does not take up more than 25% of the structure of the floor space. Board denied the P's variance on 25% floor space. Denied, Ds then violated. During trial, the town passed an ordinance that prohibited the operation of a bed & breakfast, Ps applied for a license, and it was denied again. ***HOLDING*: Conduct is not a permitted home-occupation use if it changes the character of the dwelling so that residential use becomes a secondary purpose**. - Bed and breakfast dominated the residence - Even if the bed and breakfast was a home occupation that did not exceed 20%, the amended ordinance prohibits a bed & breakfast. To get a license for the use, it must be a legal use. - BROAD STATUTE? (1) ***Toussaint v. Town of Harpswell*** (pg. 232): Ps wanted the ZEO to prohibit the operation of a Dog Kennel home-occupation with a capacity for 15 dogs. ***HOLDING*: Conduct is a permitted home occupation if it complies with the applicable zoning ordinances and is compatible with the community**. - The town's definition of a home occupation is broad, permitting the operation of businesses that are customarily conducted on residential property. The town's ordinance contemplates that home occupations may provide food service to the public or public restrooms. Subdivision Controls and Development by Agreement ================================================= This **section is about the general nuts and bolts of land use law and how the field moved away from Euclidean Zoning towards the flexible neo-Euclidean Zoning**. Introduction ------------ Origins & Purpose - **Subdivision control** is the regulation of the division of **raw land into buildings lots**. - Regulating the use of privately owned land in the public interest - Why? Safety, health, accurate records, permanence of development - Subdivision controls are DIFFERENT from zoning regulations - Remember the turtle hypo , under subdivision regulations, the local government can control where the curb goes and how it is built. - **Subdivision** is the **division of any parcel of land into a number of lots with or without streets for the purpose of sale or ownership or development**. - **Wawa Subdivision Regulations**, ***Section 2***: *Administers to ensure the orderly growth and development, conservation, protection and proper use of land and adequate provision for circulation, utilities and service*. - **Examples of matters regulated by subdivision**: Sidewalks, street lighting, location of curbs, sewage disposal systems, the location of all trees over one foot in diameter - **Wawa Code** - Ch 163-3: **Plat** -- the drawing of all or part of the subdividers plan as presented to the board for final approval and which if approved shall be filed for record with the county clerk - 163-5: Required information (22 different items) - Information and data on the land - Proposed layout with lots - Sidewalks, streetlighting standards, and species of street trees, the location of curbs, gutters, water mains - 163-6: Design standards **NY Town Law §276-278** (pg. 221 of Supp.) Planning Board ***Subdivision review; approval of plat; development of filed plat*** 1. Purpose. *For providing for the future growth and development of the town*--- 2. Authorization for review of previously filed plats 3. Filing of certificate 4. ***Definitions*** a. **Subdivision**: Division of any parcel of land into a number of lots, blocks or sites as specified in a local ordinance, law, rule or regulation, with or without streets or highways, for the purpose of sale, transfer of ownership, or development. b. **Preliminary plat**: A drawing prepared showing the layout of a proposed subdivision including road and lot layout and approximate dimensions, key plan, topography, and drainage, etc. As detailed as local regulation may require. c. **Preliminary plat approval**: Approval of the layout of a proposed subdivision as set in the preliminary plat. d. **Final Plat**: A drawing prepared that shows a proposed subdivision and contain additional detail as shall be provided by local regulation all information required to be shown on a preliminary plat and the modifications e. **Conditional approval of a final plat** i. ***Ridgefield Land Co. v. Detroit*** (pg. 247): P was mad that the city conditioned their plat approval on them giving up portions to widen the narrow streets. Argued that the city had no authority to require greater width as a condition for the approval of a plat. ***HOLDING*:** A city can refuse to approve and record a plat that does not comply with the road-width requirements outlined in its general street plan. They also **have the power to impose conditions on the request for plat approval**. 1. **It's a privilege to divide your property, not a right**! f. **Final plat approval**: signing of a plat 5. Approval of Preliminary plats -- approval by the town board if they are designated this authority g. Submission of preliminary plats h. SEQRA coordination i. Receipt of preliminary plat j. Planning board as lead agency for SEQRA ii. Public hearing Required k. Planning board not as lead agency for SEQURA iii. Public hearing required 6. Approval of final plats 7. Approval and certification of final plats 8. Default approval of preliminary or final plat 9. Filing of decision on final plat 10. Notice to county planning board or agency or regional planning council 11. Filing of final plat; expiration of approval 12. Subdivision abandonment **§277**: Subdivision Review; approval of plats; additional requisites 1. Purpose 2. Additional requirements 3. Compliance with zoning regulations 4. Reservation of parkland on subdivision plats containing residential units a. Parks suitably located for playground or other recreational purposes b. May not be required until the board has made a finding that a proper case exists for requiring that a park or parks be suitably located 5. Character of the development 6. Application for area variance 7. Waiver of requirements 8. Installation of fire alarm devices 9. Performance bond or other security 10. Provision of improvements by town 11. Suffolk county **Town of Wawayanda Chapter 162 on Subdivision of Land** - **§3**: Definitions - **Subdivision, Casual**: Any subdivision of land containing no more than two (2) lots. (including remaining parent parcel) - **Subdivision, Major**: Any subdivision not classified as a casual subdivision or a minor subdivision. 5 or more lots, including remaining parent parcel, they basically get the book thrown at them - **Subdivision, minor**: Any subdivision containing not more than four lots (including remaining parent parcel) **Town Law §274-a**: Site Plan Review 1. **Site plan**: A rendering, drawing, or sketch prepared to specifications and containing necessary elements as set forth in the applicable zoning ordinance or local law, which shows the [arrangement, layout, and design of the **proposed use** in a single parcel of land]. 2. **Approval of Site Plans**: Town may authorize the planning board or another administrative body to review and approve plans. 3. Application for area variance 4. **Conditions** can be attached to the approval of site plans 5. **Waiver of requirements** -- when reasonable 6. **Reservation of parkland** on site plans containing residential units 7. Performance bond or other security 8. **Public hearing** and decision on site plans a. Required if the town ordinance or local law says they are required 9. Notice to county planning board or agency or regional planning council 10. Compliance with SEQRA 11. Court Review: Any person aggrieved by a decision of the authorized board or any officer, may apply to the S. Ct. for review. 12. Costs 13. Preference **[Reconceiving the Sub-Division: Cluster Zoning and the Planned Unit Development]** **NY Town Law §278:** ***Subdivision Review; Approval of Cluster Development*** 1. Definitions a. **Cluster development**: Subdivision plat or plats approved pursuant to this article to provide an alternative permitted method for layout that preserved the natural and scenic qualities of open lands. Cluster development cannot allow for more units, it's just shrinking the size of the footprint of all the units. 2. Authorization; purpose b. The town board may authorize the planning board to approve a cluster development simultaneously with the approval of a plat or plats c. Cluster development enables and encourages flexibility of design and development of land in such a manner as to preserve the natural and scenic qualities of open lands i. ***Chrinko v. South Brunswick Twp*** (pg. 265): Town was growing rapidly, and suggested density zoning (cluster zoning). P objected the validity of cluster ordinances. ***HOLDING*: A municipality can use cluster or open space zoning to preserve lands for public purposes**. Even though the NJ zoning law does not expressly empower for cluster zoning, cluster zoning is an attempt to solve the problem of land shortages. 3. Conditions d. The **procedure** may be followed at the discretion of the planning board if... e. A cluster development shall result in a permitted number of building lots which **cannot exceed the number that can be permitted** f. Planning board can establish conditions g. The plat **may include other dwelling units** at the discretion of the planning board. 4. Notice and Public Hearing 5. Filing of Plat 6. Effect **NY Town Law §261-c**: ***Planned Unit Development***: A **town legislative body is authorized to enact procedures and requirements for the establishment and mapping of planned unit development zoning districts.** (***Death of Euclidean Zoning***) - ***Campion v. Board of Aldermen***, pg. 270: DelMonacos requested the creation of a planned development under the State Enabling Ordinance that allowed for Planned Unit Developments. The proposal sought development of a new district that would be **carved out** of the existing zoning district (goodbye strict compliance under Dillon!). The neighbor didn't like this. ***HOLDING*:** With the **appropriate enabling authority**, municipalities may approve plans for Planned Unit Development Districts that propose alterations to existing property zones. - **PUDs are similar to floating zones**, which are special use districts with pre-approved structure types. Creation of floating zones has traditionally been a judicially authorized practice. - Distinction between floating zones and PUDs is almost entirely procedural, because **[PUDs allow consolidation of the steps]** of obtaining approval. **Vested Rights & Development Agreements** ------------------------------------------ These are **flexibility techniques,** other examples of flexibility techniques include: conditional zoning, variances, special permits, accessory uses and home occupations, clustered subdivisions, Planned Unit Development, Development Agreements, Incentive zoning **Vested Rights**: Several states have **vesting statutes intended to protect the legal status of rights obtained at various points in the development review process**. These statutes **create criteria for determining when a landowner has acquired a right to develop that cannot be abolished or restricted**. - Vesting statutes are **NOT** the same as development agreement statutes. - **New York Vested Rights Rules** - **Common law**: Rights in an approved development are vested if: 2. Owner has undertaken **substantial construction under a valid permit**; 3. Made **substantial expenditures**; and 4. The **improvements are not equally useful to development allowed under changed rules** (half acre development v. quarter acre development, the infrastructure structures would be usable) - **Statutory: Town Law 265-a** -- legislation vests rights for time periods of 2-3 years. - ***Dawe v. City of Scottsdale***: Predecessors of the Ps recorded the Palo Verde Terrace subdivision plat at a time when the county did not have a zoning ordinance in effect. The plat provided for 120 lots of a maximum 10,000 square feet each. The county changed the zoning to require 35,000 sq. ft. lots. The lot was rezoned through annexation after the city annexed an area that included the Palo Verde Terrance. The lot was vacant and unimproved until 1975 (after the city passed the ordinance). ***HOLDING*: The recording of a plat does not immunize a parcel of land from subsequent zoning enactments**. - **When the amount of work done to construct a building is not substantial, a building permit holder** **does not acquire a vested right to complete the construction of a building if the property is rezoned and the building permit is revoked.** - ***Avco Community Developers, Inc. v. South Coast Regional Commission***: The California Coastal Zone Conservation Act of 1972 required that on or after February 1973, anyone desiring to perform any development within a designated coastal zone obtain a permit from the Coastal Zone Commission. Exemption for developers who had vested rights. Avco Developers (P) owned land and had an approved subdivision map with a permit that did not refer to any specific building or building site. Avco just prepped the area for development. Wanted to argue that they had a vested right to develop. ***HOLDING*:** A vested right to continue construction under the California Coastal Zone Act does not exist if the developer has not obtained permits relating to any identifiable buildings. - But also, **until you actually start doing work, you cannot have vested rights**. - **Under NY law, you must define what you've got (building permit), have substantially spent on the project, and substantially constructed for the project.** **Estoppel** -- "**it just never works**" - ***Parkview v. City of NY***: 31 floors under permit -- 19 allowed under zoning. - Permit was invalid, no estoppel even after construction of excessive floors. - ***Town of Sullivans Island v. Byrum*** (pg. 229): "generally, estoppel does not lie against the government to prevent the due exercise of its police power or to thwart the application of public policy (*Parker*). **The acts of government agencies acting within the scope of their authority can give rise to estoppel against the government, but unauthorized conduct or statements do not give rise to estoppel**. " - ***To prove estoppel***, must show: - A **lack of knowledge** and the **means of knowledge about the truth** of the **matter in question** - **Justifiable reliance** on the **government's conduct** and - A **prejudicial change in position** **Development Agreements** - **Development Agreement**: A statutorily authorized, **negotiated agreement (contract)** between a local government and a private developer that **establishes the respective rights and obligations** of **each party** **with** **respect to certain planning issues or problems related to a specific proposed development or redevelopment project**. - **Allows for flexibility and certainty** - **Flexibility** by allowing terms and conditions that are different from and more detailed than the requirements of land development regulations and the statutes authorizing them - **Certainty** by **making all elements of the agreement enforceable against the local government and the developer**. - State statutes authorize development agreements in about 20 states - Can also get development agreement authority through the broad interpretation of a zoning enabling law. - Also, through home rule statutes or constitutional provision - **Statutes**: "Local governments can adopt regulations related to property affairs and government" - ***Bollech v. Charles County, Maryland***: Ps entered into a development agreement with the county and failed to act within the prescribed and agreed upon timeline. When they failed, this constituted a breach of the development agreement, and this excused the county's obligation to issue a building permit. ***HOLDING*: If a property owner enters into a development agreement with a county and fails to meet his obligations under the agreement the county is discharged from its obligations**. - **Vested rights can be acquired and lost under development agreements**. 1. Definitions a. **Incentives or bonuses**: Adjustments to the permissible population density, area, height, open space, use, or other provisions of a zoning ordinance or local law for a specific purpose authorized by the town board. b. **Community benefits or amenities**: open space, housing for persons of low or moderate income, parks, etc. c. **Incentive zoning**: The system by which specific incentives or bonuses are granted. 2. Authority and Purposes 3. Implementation. A system of zoning incentives or bonuses may be provided subject to the conditions hereinafter set forth. 4. Invalidations. Nothing shall be construed to invalidate any provision for incentives or bonuses heretofore adopted by any town board. - ***Giger v. City of Omaha***: Midlands purchase a development and applied to the City to have it rezoned to permit the construction of a mixed-use development consisting of retail, office, and residential buildings. Midlands submitted a final development plan and entered into four agreements with the city that incorporated the plan (development agreement). There was a voluntary dedication of 36 acres for park and provided for more restrictive ceilings and development regulations than the underlying zoning. Neighboring property owners didn't like it. ***HOLDING*:** A city can incorporate a development agreement by reference into the rezoning of land if the agreement **constitutes conditional zoning that imposes stricter standards on a developer than the zoning itself.** - This is not invalid contract zoning, instead this is conditional zoning within the authority of the municipality - To **successfully challenge the validity of conditional rezoning, a plaintiff must prove that the conditions imposed by the city in adopting the rezoning ordinance were unreasonable, discriminatory, or arbitrary and that the regulation bears no relationship to the purpose or purposes sought to be accomplished by the ordinance**. - "The **court gives great deference to the city's determination of which laws should be enacted for the welfare of the people**" - "**We find in the enabling act an implied grant of power to enact all necessary zoning regulations, including conditional rezoning, as long as they are within the proper exercise of the police power**." **Exactions and Impact Fees** ----------------------------- Lessons in statutory interpretation and ultra vires -- ***does the community have the power to impose costs and conditions on the developer***? The answer is **yes if there is a statute**. **No if there is not a statute or at least isn't implied in a statute**. Legislative exactions, required under the law. (not adjudicatory like with takings discussed in more detail below) - Focus on: - New York Exaction Statutes - New York case: *Guilderland* - Diversity of statutory and judicial approaches in other states - The importance of the provisions of state enabling acts in all the cases assigned - Ultra vires cause of action - **Development exactions and impact fees** have become **one of the most common techniques for local governments to obtain funding for infrastructure and other improvements**. - Examples of conditions - Street grading, street surfacing, sanitary and storm sewars, street trees, street signs, etc. - §§274 and 277 also require streets, sidewalks, and utilities to be adequate. - Town is allowed to take ownership of the on-site utilities but not parks (*Kamhi* case) - Otherwise, property owners pay for upkeep a. Before the planning board may approve a subdivision plat containing residential units, such subdivision plat shall also show, when required by such board, a park or parks suitably located for playground or other recreational purposes b. Land for park, playground or other recreational purposes may not be required until the planning board has made a finding that **a proper case exists** for requiring that a park or parks be suitably located for playgrounds or other recreational purposes within the town. Such findings shall include an evaluation of the present and anticipated future needs for park and recreational facilities in the town based on projected population growth to which the particular subdivision plat will contribute. - ***City of Corpus Christi v. Unitarian Church of Corpus Christi***: (TX) The Church applied to the City for a building permit. City conditionally approved the church's plat, contingent on the church dedicating a strip so that an existing street could be extended. ***HOLDING*: A municipality cannot condition the approval of a building permit on the property owner dedicating a portion of land for public use if such a requirement is not established in the municipal charter**. - This is **ultra vires**, **[because it was not delegated to them]**. - This city charter did not delegate the authority, only when the tract was going to be divided into two or more parts for the purpose of *subdivision.* - ***Building permit v. subdivision*** - ***New Jersey Shore Builders Ass'n v. Township of Jackson***: (NJ) Ps challenged the authority of the Town to condition development approvals on the developer either setting aside land to be used for common open space or recreation or paying an assessment. ***HOLDING*:** The Municipal Land use Law **does not empower governments to require developers to either set aside land for common space or recreational areas and facilities or make payments**. - The MLUL **makes recreation and open space important considerations in land use planning, but it does not provide the authority to require developers to set aside land**. - Another instance where the authority is not delegated, but in NY it is. - ***181 Inc. v. Salem County Planning Bd.*** (NJ): 181 allowed a dedication of its border to be used to widen the street. The county's site-plan review resolution required that the planning board condition the approval of a site plan on the requirement that an additional right of way is dedicated. 181 objected the condition precedent to approval of a site plan. ***HOLDING*:** A municipality cannot take land without compensation if the municipality does **[not have a specific and imminent use for the land]**. For a county to take land, it must make its position clear and specific. - **Cannot bank the land for undetermined future use**. - Resolution is unconstitutional because there are no site-plan standards. It's a blanket policy without considering present need or future use. c. In the event the authorized board makes a finding under paragraph b and a suitable park or parks of adequate size cannot be located on the site plan, the board can require a sum of money in lieu thereof (**impact fee**). The board shall assess the size and suitability of the lands shown on the site plans as well as practical factors including whether there is a need for additional facilities in the immediate neighborhood. *The payment exacted would have to be rationally related to the reason for wanting the park. It must be reasonable (rational basis review)* - ***Albany Area Builders Association v. Guilderland*** (NY): Town Board adopted a law that required the payment of a transportation impact fee when the project would generate additional traffic. ***HOLDING*: A local law enacted by a municipality is invalid if it regulates subject matter in a field preempted by the state**. - The State had its own Town Law and Highway law, which regulated how roadway improvements were budgeted and how improvements were financed. - Authority of a municipality can only be exercised to the extent delegated by the state. - ***Home Builders Association of Central Arizona v. City of Mesa*** (AZ): AZ St. law provided municipalities with the *authority to assess development fees to offset costs associated with providing necessary public services to a development*. The City required an impact fee for cultural facilities. ***HOLDING*:** A **municipality is authorized to impose a development fee to offset the costs associated with necessary public services if the serviced have been traditionally provided to residents and are rationally related to the power granted to the municipality by the legislature**. - Court read Arizona law to permit city to require developers to pay fees for the provision of tourism related improvements as necessary public services. - **Impact fees in NY State** - **Recreation set aside or fee in lieu of is legal but constrained by state law requirements**. - **Transportation impact fees are void** bc preempted by comprehensive state transportation law - Should authority be specifically delegated? Still waiting...TBD. \(4) Conditions attached to the approval of site plans \(6) Reservation of parkland on site plans containing residential units. **Discrimination and Free Speech** ================================== **Race, Nationality, Exclusion & Property** ------------------------------------------- - ***Dorsey v. Stuyvesant Town Corp***: NY Housing discrimination. The private developers got public funding for their project but were discriminating against black people. ***HOLDING***: **Housing is not a recognized civil right**. Obtaining government assistance does not transform this project into state action. - ***Buchanan v***. ***Warley*** (US) (1917): Ordinance preventing white people and black people living in the same area. Separate blocks for residents. ***HOLDING*: A state's police power does not authorize it to prevent the sale of property on the basis of race**. - ***Corrigan v***. ***Buckley***: Restrictive covenant with 30 neighboring lot owners. ***HOLDING*: Contracts between private individuals are not subject to the constitution, and racial covenants are okay**. - ***Shelley v***. ***Kraemer*** (1948): Another restrictive covenant on race. ***HOLDING*: State court enforcement of racially restrictive covenants violates the EPC of the 14^th^ Amendment**. **Inclusionary Housing Ordinances & Fair Housing** -------------------------------------------------- - ***California Bldg. Indus. Assn. v. City of San Jose***: Cal passed several laws promoting affordable housing at the municipal level. San Jose conducted studies and enacted an inclusionary housing ordinance that required developers seeking permits for development

Land Use Outline Finn PDF Fall 2024

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