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132 Cards in this Set
- Front
- Back
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5th Amendment
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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1]
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14th Amendment
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No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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Euclid v. Ambler Realty 1926
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The Court found that it was not a violation of Amber Realty's due process rights and that the zoning ordinance properly advanced a public purpose.
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Nectow v. City of Cambridge 1928
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The Court found that the zoning violated the plaintiffs due process rights and was constitutionally invalid because it did not substantially advance a legitimate public purpose.
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Lingle v. Chevron 2005
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It explained that due process claims are subject to a test it called the "substantially advances" formula.It asks in essence whether a regulation of private property is effective in achieving some legitimate public purpose.
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Pennsylvania Coal Co. v. Mahon 1922
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The US Supreme Court held that while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking. As a result, a land use regulation can be invalidated as a regulatory taking and compensation can be awarded to the regulated property owner for the damages caused.
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Agins v. City of Tiburon 1980
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The Court stated that a government regulation could be a taking if it does not substantially advance legitimate state interests or denies an owner economically viable use of his land.
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Lingle v. Chevron 2005
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The Lingle Court held that the AGINS "substantially advances" is not an appropriate test for determining whether a regulation constitutes a taking under the 5th Amendment. The "formula prescribes an inquiry in the nature of a due process, not a takings, test, and it has no proper place in takings jurisprudence.
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4 Categories of Regulatory Takings
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Permanent Physical Invasions
Total takings Forced Entry Exactions All Other Alleged Regulatory Takings |
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Permanent Physical Invasions
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Where government requires an owner to suffer a permanent physical invasion of their property- however minor-it must provide just compensation. This is defined as a PER SE taking.
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Total Takings
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Regulations that are so severe that they prevent the owner from using their property for any economically beneficial purpose are the equivalent of a direct appropriation, achieved through eminent domain. Some scholars call this "inverse condemnation"
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Forced Entry Exactions
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Imposition by a land use approval board of a condition requiring a landowner to dedicate an easement allowing public access to their property or to convey title portion of the subject property to the locality.
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All other alleged regulatory takings
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When the regulatory taking case falls outside of the three narrow categories (Permanent Physical Invasion, Total Takings and Forced Entry Exactions) then it is governed by the standards set forth in the case Penn Central Transp. v. New York City 1978. The Court presumes the constitutionality of the regulation, defers to the regulator and requires the challenger to carry a heavy burden of proof that the regulation runs afoul of the standards used to measure the validity of the regulations.
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Per Se Regulatory Takings
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Permanent Physical Invasions and Total Takings are classified as Per Se Regulatory takings. In these categories, much less proof is required from the challenging property owner.
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Loretto v. Telemprompter Manhattan CATV Corp. 1982
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This is a seminal Supreme Court Per Se case. Outside the context of application of land use approvals, once the landowner proves that the government requires that another party, even a licensed utility provider, enter the property without consent, the owner has carried its required burden of proof. This and no more, demonstrates a regulatory taking and requires just compensation to be paid.
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2nd Per Se Category
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Involves regulations that deny property owners all economically beneficial use of their property.
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Lucas v. South Carolina Coastal Council 1992
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The Court found that the state's Beachfront Management Act rendered the landowners 2 beachfront lots valueless. Regulations under the act prohibited development within a setback line established to prevent erosion along the beach. The regulations did not permit landowners any variance for hardship caused by the prohibition. The Court recognized that government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.
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Exaction Cases
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Where land use agencies, when presented with an application to develop property, impose conditions that require owners to allow the public on their land or the government to take title to a portion of the land, courts must determine whether there is an "essential nexus" and "rough proportionality" between the condition imposed and the impact of the proposed development on the public.
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Nollan v. California Coastal Comm'n 1987
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Nollan (P) applied for a permit to build a residence on a parcel of beachfront property located between two public beaches. Nollan originally leased the property with an option to buy conditioned on his promise to demolish a small bungalow on the property. To build on the lot the Nollans had to submit a plan to the California Coastal Commission (D) in order to obtain a coastal development permit. The plan called for the removal of the bungalow and the construction of a three-bedroom house conforming to other homes in the the neighborhood. The Commission conditioned approval for Nollan’s permit upon his allowing an easement for public passage across the property in order to make it easier for the public to pass between the two public beaches to the north and south of Nollan’s property.
Nollan sued, claiming that the Commission deprived them of their property rights without due process. Nollan contends that the condition could not be imposed absent evidence that their proposed development would have an impact on public access to the beach. The trial court ruled for Nollan, the court of appeals reversed, and the U.S. Supreme Court granted cert. |
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Dolan v. City of Tigard 1994
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The City Planning Commission conditioned approval of petitioner Dolan's application to expand her store and pave her parking lot upon her compliance with dedication of land (1) for a public greenway along Fanno Creek to minimize flooding that would be exacerbated by the increases in impervious surfaces associated with her development and (2) for a pedestrian/bicycle pathway intended to relieve traffic congestion in the City's Central Business District.
Writing for a majority of the Court in a 5:4 decision, Chief Justice Rehnquist answered this question by enunciating a new, two-part test for determining when an unconstitutional exaction has occurred. First, an "essential nexus" must exist between a legitimate government interest and the permit condition imposed by the local government. Second, there must be a "rough proportionality" between the exaction and the impact of the proposed development. Applying this new test, the Supreme Court found that the City of Tigard, Oregon had not justified its requirement that a store owner give up a portion of her development site for a public bicycle path and drainage improvements to an adjacent creek as a condition of a permit to double the size of her store. |
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Nollan and Dolan
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Involve a special application of the doctrine of unconstitutional conditions which provides that the government may not require a person to give up a constitutional right- here the right to receive just compensation when property is taken for a public use- in exchange for a discretionary benefit conferred by the government where the benefit has little or no relationship to the property.
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Penn. Central Station v. New York City 1978
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The owners of Grand Central Terminal wanted to build a high-rise office tower on top of the station. New York City’s Landmarks Preservation Commission refused to allow them to do so. The owners sued in New York Supreme Court, Trial Term, claiming that the application of the Landmarks Preservation Law was an unconstitutional uncompensated taking. The trial court granted an injunction. The city appealed and the intermediate appellate court reversed. The Court of Appeals of New York affirmed. The owners of Grand Central appealed to the United States Supreme Court. Supreme Court ruled that this did not constitute a taking.
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Palazzolo v. Rhode Island 2001
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Anthony Palazzolo owns a waterfront parcel of land in Rhode Island. Most of the property is salt marsh, subject to tidal flooding. The Rhode Island Resources Management Council's Coastal Resources Management Program regulations designate salt marshes as protected "coastal wetlands," on which development is greatly limited. After multiple development proposals of his were denied, Palazzolo filed an inverse condemnation action in Rhode Island Superior Court. Palazzolo asserted that the State's wetlands regulations had taken his property without compensation in violation of the Fifth and Fourteenth Amendments because the Council's action had deprived him of "all economically beneficial use" of his property. Ruling against Palazzolo, the court held that his takings claim was not ripe, that he had no right to challenge the regulations predating his acquisition of the property's title, and that he could not assert a takings claim based on the denial of all economic use of his property in light of undisputed evidence that he had $200,000 in development value remaining on an upland parcel of the property.
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NIMBY
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Not in My Backyard
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LULU's
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Locally Unwanted Land Uses
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BANANA's
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Build Absolutely Nothing Anywhere Near Anyone
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NIMTOO
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Not in My Term of Office
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1st Amendment
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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Guarantees freedom of expression, which includes sexually-oriented businesses and signs
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Young v. American Mini Theaters 1976
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American Mini Theaters opened two theaters that showed adult movies in the city of Detroit. Two city ordinances enacted in 1972 prohibited the opening of adult theaters within 1,000 feet of other buildings with "regulated uses" or within 500 feet of any residential district. American Mini sued city officials challenging the ordinances on two grounds: that the ordinances imposed an undue burden on First Amendment rights and that ordinances violated the Fourteenth Amendment's Equal Protection Clause. A federal district court ruled in favor of the city, a decision that was reversed by the United States Court of Appeals for the Sixth Circuit. The appeals court concluded that the ordinances posed a prior restraint based on content and that the ordinances ran afoul of the Equal Protection Clause.
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City of Renton v. Playtime Theaters Inc. 1986
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The city of Renton, Washington, enacted a zoning ordinance that prohibited adult motion picture theaters from locating with in 1,000 feet of "any residential zone, single- or multiple-family dwelling, church, park, or school." Playtime Theatres, Inc., challenged the ordinance and sought a permanent injunction against its enforcement.
In a 7-to-2 decision, the Court held that the zoning ordinance did not violate the First and Fourteenth Amendments. The Court held that the ordinance was a form of time, place, and manner regulation, not a ban on adult theaters altogether. The Court reasoned that the law was not aimed at the content of the films shown at adult motion picture theaters, "but rather the secondary effects of such theaters on the surrounding community." The Court found that the ordinance was designed to serve a substantial governmental interest in preserving the quality of life and allowed for "reasonable alternative avenues of communication." |
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Schad v. Borough of Mount Ephraim 1981
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When adult bookstores in a New Jersey borough added coin-operated mechanisms that permitted a customer to view live nude dancing, complaints were filed that such "entertainment" was not allowed in that particular zoning code. Rejecting whether live nude dancing, per se, is protected by the First and Fourteenth Amendments, the New Jersey courts considered solely whether there had been a breach of the zoning ordinance.
"As the Mount Ephraim Code has been construed by the New Jersey courts -- a construction that is binding upon us -- 'live entertainment,' including nude dancing, is 'not a permitted use in any establishment' in the Borough of Mount Ephraim. . . . By excluding live entertainment throughout the Borough, the Mount Ephraim ordinance prohibits a wide range of expression that has long been held to be within the protections of the First and Fourteenth Amendments. Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee." |
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Voyeur Dorm v. City of Tampa 2001
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Operator of Internet web site displaying transmitted camera images of residents in house on
property zoned for residential use brought action challenging city's determination that it was engaged in impermissible "adult use" because transmitted images included images of nude women. The United States District Court for the Middle District of Florida, No. 99-02180-CV-T- 24F, Susan C. Bucklew, J., granted summary judgment for city, and operator appealed. The Court of Appeals, Dubina, Circuit Judge, held that house was not "adult entertainment establishment" because consumers of such transmissions did not come to the premises to view the alleged adult entertainment. Reversed |
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Signs
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Zoning ordinances that regulate only and do not ban totally structures used for advertising may be considered a valid exercise of the states police power, so long as they are exercised within reasonable limits.
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City of Ladue v. Gilleo 1994
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Margaret Gilleo placed a 24-by-36-inch sign calling for peace in the Persian Gulf on her front lawn. The original sign disappeared and a subsequent sign was knocked down. She reported these incidents to the police who advised her that such signs were prohibited in Ladue. She sued the city and the District Court ordered a preliminary injunction. Ladue repealed the law and replaced it with a new one which also banned window signs. Gilleo then placed another anti-war sign in her second-story window and amended her complaint to challenge the new ordinance.
Question: Does the Ladue ordinance violate Gilleo's right to free speech as protected by the First Amendment? Conclusion: Yes. Although acknowledging Ladue's police power to minimize visual clutter associated with signs, the Court ruled that the law "almost completely foreclosed a venerable means of communication that is both unique and important." The Court held a "special respect" for an individual's right to convey messages from her home. |
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Metromedia Inc. v. City of San Diego 1982
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The city of San Diego banned most outdoor advertising display signs in order to improve the city's appearance and prevent dangerous distractions to motorists. Only "onsite" billboards with a message relating to the property they stood on would be permitted. Upon petition by a coalition of businesses owning advertising signs, a trial court ruled that the ban was an unconstitutional exercise of the city's police powers and hindered First Amendment rights of the businesses. The California Court of Appeals affirmed that the city had exceeded its police powers, but the California Supreme Court reversed this judgment.
Question: Does a city ban on "offsite" outdoor advertising signs violate First and Fourteenth Amendment provisions for free speech? Conclusion: Yes. Justice Byron White wrote the opinion for a 6-3 court. The ban's exception allowing "onsite" advertising discriminated against noncommercial speech. It allowed businesses in commercial properties to interrupt city motorists so long as it was with their own messages yet barred noncommercial advertisers from causing the same level of interruption. Chief Justice Warren E. Burger dissented and viewed the "onsite" exception to the ban as "essentially negligible" rather than unconstitutional favoritism. However the Court held that affording "a greater degree of protection to commercial than to noncommercial speech" reversed the long-standing Court precedent to show greater deference to noncommercial speech. Decisions Decision: 6 votes for Metromedia, Inc., 3 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly |
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Americans with Disabilities Act 1994
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Prohibits public entities from discriminating against individuals on the basis of their disability.
Prohibits municipalities from discriminating against individuals on the basis of their disability when enacting and implementing zoning ordinances. |
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City of Cleburne v. Cleburne Living Center 1985
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The Supreme Court held that municipalities could not require a special operating permit for a proposed group home that would house mentally disabled individuals.
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Federal Fair Housing Act (FHA) and the Fair Housing Act Amendments (FHAA) of 1988
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The FHAA makes it unlawful to refuse to sell, rent or otherwise make unavailable or deny a dwelling to any person because of race, color, religion, sex, familial status, disability or national origin.
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Village of Arlington Heights v. Metropolitan Housing Development Corp. 1977
"Discriminatory Intent" |
The Supreme Court held that evidence showing a "discriminatory effect" was insufficient to invalidate a zoning regulation under the Fourteenth Amendment and that under normal circumstances, a "discriminatory purpose" or intent would be required.
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Huntington Branch NAACP v. Town of Huntington 1988
"Disparate Impact" |
The Second Circuit Court applied the disparate impact test of Title VII employment discrimination cases to strike down a refusal to rezone for multifamily housing. Pursuant to this test, discriminatory effect, not intent, is the appropriate standard.
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Religious Land Use and Institutionalized Persons Act. (RLUIPA) 2000
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Prohibits the government from taking action that will create a "substantial burden" on the right of an individual to exercise religion freely, absent a showing that the action is the "least restrictive means" of furthering a "compelling government interest".
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RLUIPA
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Only applies where a substantial burden is imposed:
1. In connection with a federally funded activity 2. Where the burden affects interstate commerce 3. With respect to land use decisions, where the burden imposed in the context of a scheme whereby the government makes "individualized assessments" regarding the property involved. The general Prohibition prevents governments from implementing a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless it can be demonstrated that the action is the least restrictive means of furthering a compelling governmental interest. |
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First Covenant Church of Seattle v. City of Seattle 1992
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The church sued the city, alleging that the cities ordinance designating the church as a landmark structure, and placing specific controls on the church's ability to alter its exterior facade, violated its right to freely exercise its religion, as guaranteed by the federal and state constitutions.
The court concluded that the regulations violated the constitution by impermissibly infringing on its free expression. |
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Land Uses That Are Subject To First Amendment Protections
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Sexually Oriented Businesses (SOBs)
Billboards and Signs Religious Uses |
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SOBs (or Adult Entertainment)
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Adult entertainment is protected speech subject to 1st Amendment considerations
Under the strict scrutiny test, the State must establish that it has a compelling interest that justifies and necessitates the law or regulation in question, and the “least restrictive means” must be used to further that interest (a pretty high hurdle); used for content-based speech. This applies to classifications such as race, and fundamental rights such as free speech. |
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Intermediate Scrutiny and Rational Basis
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Intermediate Scrutiny – the regulation or law must be substantially related to an important government objective; used for content-neutral speech
Rational Basis – a law or regulation will be upheld if it bears a reasonable relationship to the attainment of some legitimate governmental objective (a pretty low hurdle) |
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Questions to Consider
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Putting aside the 1st Amendment for a moment, where should SOBs be permitted?
Why should nightclubs with strippers be treated differently than other nightclubs? What sort of “secondary effects” might these businesses generate? |
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Young v. American Mini Theaters
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The US Supreme Court upheld a zoning ordinance that prohibited any “adult” movie theater, book store, or similar establishment within 1,000 feet of any other such establishment, or within 500 feet of a residential area.
Municipalities have the power to place reasonable time, place, and manner restrictions on adult material, if the regulations are necessary to further some significant government interest. |
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Young v. American Mini-Theaters (1976)
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“In the opinion of urban planners and real estate experts who supported the ordinances, the location of several such businesses in the same neighborhood tends to attract an undesirable quantity and quality of transients, adversely affects property values, causes an increase in crime, especially prostitution, and encourages residents and businesses to move elsewhere.”
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Renton
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Secondary effects studies have become an essential condition precedent to the enactment of local adult use ordinances to support a legitimate government interest in regulating these uses.
Municipalities may rely on similar studies in other jurisdictions (“foreign” studies) to support their regulations; however, the municipality’s evidence must fairly support their rationale for the ordinance The court concludes that the ordinance was “a valid government response to the serious problems created by adult theaters” and was within the city’s police power to regulate adult theaters by dispersing them throughout the city, or by concentrating them in one geographic area, so long as they are not prohibited entirely from the city. |
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Schad v. Mt. Ephraim
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The ordinance in question, as construed by the New Jersey courts to exclude live entertainment, including nude dancing, throughout the borough, prohibits a wide range of expression that has long been held to be within the protection of the First and Fourteenth Amendment. An entertainment program may not be prohibited solely because it displays a nude human figure, and nude dancing is not without its First Amendment protection from official regulation.
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Schad v. Borough of Mt. Ephraim
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The First Amendment requires sufficient justification for the exclusion of a broad category of protected expression from the permitted commercial uses, and none of appellee's asserted justifications withstands scrutiny. Its asserted justification that permitting live entertainment would conflict with its plan to create a commercial area catering only to the residents' "immediate needs" is patently insufficient.
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Voyeur Dorm v. Tampa
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Voyeur Dorm operates an internet based web site that provides a 24 hour a day internet transmission portraying the lives of the residents of 2312 West Farwell Drive, Tampa, Florida.
Issue: Is this an “adult entertainment facility” subject to Tampa’s zoning restrictions for these facilities? The court said no. |
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Hypothetical Situations with SOBs
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What happens when a protected use moves within the prohibited perimeter of the SOB? Does the SOB have to move?
What if a town is so small that, when taking into account all the buffers, there is no place for an SOB? |
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Signs and Billboards
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The regulation of signs is very complicated largely due to variety of sign types:
Attached or detached to buildings On-site or off-site Large or small Affixed or portable Print or digital Commercial or Non-commercial |
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Signs
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Generally speaking, sign regulations will be upheld where there is sufficient evidence to show that the ordinance was enacted to further some significant public interest, making it a valid exercise of the local police power. Significant interests include health, safety, and welfare of the public. In some jurisdictions, aesthetics is enough.
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City of Ladue v. Gilleo
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An ordinance of petitioner City of Ladue bans all residential signs but those falling within one of ten exemptions, for the principal purpose of minimizing the visual clutter associated with such signs. Respondent Gilleo filed this action, alleging that the ordinance violated her right to free speech by prohibiting her from displaying a sign stating, "For Peace in the Gulf," from her home.
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Ladue v. Gilleo
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The court finds that the City had no authority to enact “content-based” sign ordinances, and noted that “an exemption to an otherwise permissible regulation of speech may represent a governmental attempt to give one side of a debatable public question an advantage in expressing its view to people.”
A zoning regulation enacted for such a purpose is clearly beyond the scope of the state’s police power. |
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Metromedia v. San Diego
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Appellee city of San Diego enacted an ordinance which imposes substantial prohibitions on the erection of outdoor advertising displays within the city. The stated purpose of the ordinance is "to eliminate hazards to pedestrians and motorists brought about by distracting sign displays" and "to preserve and improve the appearance of the City."
The ordinance permits on-site commercial advertising (a sign advertising goods or services available on the property where the sign is located), but forbids other commercial advertising and noncommercial advertising using fixed-structure signs, unless permitted by 1 of the ordinance's 12 specified exceptions, such as temporary political campaign signs. Because, under the ordinance's specified exceptions, some noncommercial messages may be conveyed on billboards throughout the commercial and industrial zones, the city must allow billboards conveying other noncommercial messages throughout those zones. The ordinance cannot be characterized as a reasonable "time, place, and manner" restriction. |
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Village of Arlington Heights v. Metropolitan Housing
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Respondent Metropolitan Housing Development Corp. (MHDC), a nonprofit developer, contracted to purchase a tract within the boundaries of petitioner Village in order to build racially integrated low- and moderate-income housing. The contract was contingent upon securing rezoning as well as federal housing assistance.
Official action will not be held unconstitutional solely because it results in a racially disproportionate impact. "[Such] impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.“ A racially discriminatory intent, must be shown. |
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Village of Belle Terre v. Boraas
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A zoning ordinance in the Village of Belle Terre restricted one-family dwellings to single family, which was defined as “[o]ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit” or a maximum of two people who were not related by blood or marriage.
Boraas leased his house to five college students. Supreme Court held that the ordinance was constitutional as a valid police power restriction on land use. No fundamental right infringed |
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City of Cleburne v. Cleburne Living Center
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Respondent Cleburne Living Center, Inc. (CLC), which anticipated leasing a certain building for the operation of a group home for the mentally retarded, was informed by petitioner city that a special use permit would be required, the city having concluded that the proposed group home should be classified as a "hospital for the feebleminded" under the zoning ordinance.
Accordingly, CLC applied for a special use permit, but the City Council, after a public hearing, denied the permit. CLC and others (also respondents here) then filed suit against the city and a number of its officials, alleging that the zoning ordinance, on its face and as applied, violated the equal protection rights of CLC and its potential residents. Requiring a special use permit for the proposed group home here deprives respondents of the equal protection of the laws. The record does not reveal any rational basis for believing that the proposed group home would pose any special threat to the city's legitimate interests. |
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RLUIPA (42 U.S.C. § 2000 seq.)
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Prohibits government from taking action that will create a “substantial burden” on the right of an individual to exercise religion freely, absent a showing that the action is the “least restrictive means” of furthering a “compelling government interest.”
Prevents government from implementing a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless it can be demonstrated that the action is the least restrictive means of furthering a compelling governmental interest. |
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The Religious Land Use Act of 2000
and Institutionalized Persons |
Unfair burdens imposed upon, and discriminatory treatment of, religious groups by local land use laws
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ACTIVITIES PROTECTED UNDER
RLUIPA |
The term "religious exercise" includes any exercise of religion, whether or not compelled by a system of religious belief, [and the] use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise
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Application of RLUIPA
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Only applies where a substantial burden is imposed:
In connection with federally-funded activity Where the burden affects interstate commerce, or With respect to land use decisions, where the burden is imposed in the context of a scheme whereby the government makes “individualized assessments” regarding the property involved. |
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Civil Liberties for Urban Believers
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An association of churches challenged a Chicago ordinance requiring a special use permit to operate a church in commercial and business areas, alleging that the regulation violates RLUIPA and the 1st A.
The court said the restrictions did not render the use of real property for religious purposes in the city “impractical” or discourage the construction of churches within city limits. Because the record showed the regulation was motivated by legitimate considerations involving land use, and that the ordinance placed churches on equal footing with non-religious assembly uses, no violation of free expression was found. |
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5th Amendment
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Due process clause – prohibits the federal government from passing any laws that do not substantially advance legitimate state interests.
In land use perspective, a regulation is invalid if it does not further a legitimate public purpose (substantive d.p.). Also, due process requires notice and an opportunity to be heard (procedural d.p.) |
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Euclid and Nectow
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In Euclid, the plaintiff claimed that zoning, on its face (“facial challenge”), did not accomplish a legitimate government purpose (violation of due process rights).
The Supreme Court said what? In Nectow, the owner claimed that, as applied to his particular parcel of land, a zoning ordinance was unconstitutional because it failed to accomplish its objective (an “as applied” challenge). The Supreme Court said what? In this case, the law was ineffective in achieving a legitimate public purpose. |
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Police Power
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The inherent and plenary (complete) power of a sovereign to makes all laws (or restrictions) necessary and proper to preserve the public health, safety and welfare.
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Pennsylvania Coal Co. v. Mahon (1922)
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“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in in the general law. As long recognized some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits….”
“…while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” |
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Berman v. Parker (1954)
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The issue was whether the owner’s non-blighted department store could be condemned by the D.C. renewal authority to carry out its urban renewal plan for a blighted neighborhood.
Relying on police power principals, the U.S.S.C. said the power to condemn to stem blight and deterioration, redevelop underdeveloped areas, and increase economic productivity are all legitimate police power objectives. Some argue that this is where “public use” was written out of the constitution. |
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Penn Central Transportation v. City of New York (1978)
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“A ‘taking’ may more readily be found when the interference with the property can be characterized as a physical invasion by Government…., than when interference arises from some public program adjusting the benefits and burdens or economic life to promote the public good.”
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Penn Central Factors
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The economic impact of the regulation on the claimant
The extent to which the regulation has interfered with distinct investment-backed expectations The character of the government action These factors are to be determined as an “ad hoc” factual inquiry (case by case basis) |
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Loretto v. Teleprompter Manhattan CATV Corp. (1982)
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“past cases uniformly have found a taking to the extent of the physical occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.”
Here, a law required a private cable company to install a small (1/8 cubic foot) cable box on owner’s building. |
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Lucas v. South Carolina Coastal Council (1992)
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A land use regulation that prevents all economically beneficial uses of the land is a per se regulatory taking and requires the payment of just compensation.
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Exactions
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An exaction is a condition imposed on the issuance of a development permit or approval that requires the owner or developer to dedicate land to the public, to allow public access to his private land, or to pay a fee in lieu of such requirements.
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Nollan v. California Coastal Commission (1987)
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Nollan’s sought permission to demolish and rebuild a residence on their beachfront lot in Ventura County, California
The CCC said OK if they agreed to donate a public easement for pedestrian “beach-traffic” between their seawall and the mean high tide line |
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Nollan Rules
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When dedication conditions are imposed on a land use permit, they must bear an “essential nexus” to a legitimate public objective.
A governmental agency may not condition a property use on an act unrelated to the problem caused by the permitted use. |
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Dolan v. City of Tigard (1994)
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The City of Tigard (Oregon) required an owner wishing to expand her existing commercial business to dedicate a portion of her property lying within the 100-year flood plain for the improvement of a storm drainage system along a nearby creek and an additional 15-foot strip of land adjacent to the floodplain for use as a pedestrian and bicycle pathway.
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Dolan Rules
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The Court requires the regulator to conduct project-specific impact studies to show that the public benefits obtained by the condition imposed on the property are “roughly proportional” to the adverse impacts of the development on the community.
Here, the Court found that the City had not shown why a dedicated public greenway, rather than a private one, was required in the interest of flood control. |
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Exactions Tests
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Specifically and Uniquely Attributable
Reasonable Relationship Essential Nexus (Nollan) – an “essential nexus” must exist between the asserted legitimate state interest and the permit condition imposed by the government Rough Proportionality (Dolan) – the degree of connection between the exaction and the projected impact of the proposed development Together, known as the Nollan/Dolan Test |
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Palazzolo v, Rhode Island (2001)
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The issue was whether a buyer who takes title to land subject to restrictive land use standards is prohibited from claiming that such pre-existing regulations constitute a taking. (Presumably, buyer pays a price for land based on what is allowed on the land by government regulations when they purchase).
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Palazzolo
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The court said that such a rule would be “…too blunt an instrument to accord with the duty to compensate for what is taken.”
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Kelo v. City of New London, Connecticut (2005)
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Here, modest homes (not blighted) were taken by eminent domain and given to a private entity for redevelopment
“our public use jurisprudence has wisely eschewed rigid formulas and intensive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power.” |
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Florida Statutes
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Notwithstanding any other provision of law, including any charter provision, ordinance, statute, or special law, taking private property for the purpose of preventing or eliminating slum or blight conditions is not a valid public purpose or use for which private property may be taken by eminent domain and does not satisfy the public purpose requirement of s. 6(a), Art. X of the State Constitution.
History.—s. 2, ch. 2006-11. |
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Four Categories of Regulatory Takings Cases
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A. Permanent Physical Invasions – where government requires an owner to suffer a permanent physical invasion of their property –however minor – it must provide compensation.
B. Total Takings – regulations that are so severe that they prevent the owner from using their property for any economically beneficial purpose are the equivalent of a direct appropriation achieved through eminent domain (also called “inverse condemnation”) C. Forced Entry Exactions – the imposition by a land use approval board of a condition requiring a landowner to dedicate an easement allowing public access to their property or convey title to a portion of the subject property to the local government. The effect is to oust the landowner from a portion of their domain. All Other Regulatory Takings – are governed by an analysis of the following (from Penn Central): The economic impact of the regulation on the claimant The extent to which the regulation has interfered with distinct investment-backed expectations The character of the government action |
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Aesthetic, Historic and Cultural Interest Protection
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In Berman v. Parker (1954), the Supreme Court said “…the concept of public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy…”
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Penn Central
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The United States Supreme Court specifically recognized historic preservation as a valid police power objective
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Historic Preservation
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The public welfare aspect of the police power has also been relied upon by municipalities to justify the need for historic preservation district regulations.
These laws have generally been upheld as a valid and reasonable use of the police power to achieve a legitimate end: the preservation of a community’s historic treasures. |
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HP in Florida courts
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In Florida, preservation have fared well in the face of takings challenges,. The most important factor being is whether a reasonable and economic use of the property remains despite the restriction(s).
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A-S-P Associates v. City of Raleigh
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A-S-P challenged two historic preservation ordinances in Raleigh as invalid on constitutional grounds.
The test of reasonableness necessarily involves a balancing of the diminution in value of an individuals property and the corresponding gain to the public. Ordinances were found to promote the general welfare and afforded due process. |
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One problem with regulating aesthetics
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Aesthetics are in the eye of the beholder; whose eyes should dictate what is appropriate.
Can change over time: the Golden Gate Bridge was criticized as spoiling the view of the San Francisco Bay, and the Eiffel Tower was initially described as the “dishonor of Paris.” |
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Religion and HP
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In St. Bartholomew’s Church v. Ney York (1990), the church challenged HP controls that prevented the demolition of a church building to make way for construction of a 60-story skyscraper. The Court ruled that the free exercise clause had not been violated; no showing of discrimination, no coercion of religious practice, and no showing of the inability to carry out its religious mission in its existing facilities.
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First Covenant Church v. Seattle
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Seattle’s Landmarks Preservation Ordinance, which required First Covenant to get a certificate of approval before it made certain alterations to the church’s exterior, violated the church’s right to free exercise of religion under the state and federal constitutions. The church building itself is an expression of religious belief and message. The City’s interest in preserving historic structures was not compelling enough to justify infringement on free exercise.
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Federal Regulation
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Top federal agency to enforce most major environmental regulations is the Environmental Protection Agency (EPA)
Regulations the EPA enforces include the CAA, CWA, CERCLA, RCRA, FIFRA, and CZMA The Endangered Species Act (ESA) is administered by the U.S. Fish and Wildlife Service (FWS) 10 regional EPA offices; Florida is in Region IV (Atlanta) |
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Endangered Species Act (ESA)
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Purpose is to provide a means whereby the ecosystems (habitats) upon which endangered and threatened species depend may be conserved, to provide a program for the conservation of such endangered and threatened species, and to take steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in the act.
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ESA
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Threatened species – a species likely to become endangered within the foreseeable future throughout all or a significant portion of its range.
Endangered species – a species in danger of extinction throughout all or a significant portion of its range. Habitat protection is essential; no use protecting a plant or wildlife species if that species has no place to live. |
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TVA v. Hill (1978)
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The Tennessee Valley Authority (TVA), a federal agency, began constructing a dam on the Tennessee River. "When fully operational, the dam would impound water covering some 16,500 acres-much of which represents valuable and productive farmland-thereby converting the river's shallow, fast-flowing waters into a deep reservoir over 30 miles in length."
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TVA v. Hill (1978) part II
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After the dam was essentially constructed and ready for operation, a university professor "found a previously unknown species of perch, the snail darter," which is a "three-inch, tannish-colored fish.“ Four months after the snail darter's discovery, Congress passed the ESA, and in 1975, this species was listed as endangered. In listing the snail darter, the Secretary of the Interior also concluded that operating the dam would completely destroy its habitat.
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TVA v. Hill (1978) Part III
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Subsequently, a local citizen group sued to enjoin completion of the dam. Summing up the significance of the case, the Court began its analysis as follows: "It may seem curious to some that the survival of a relatively small number of three-inch fish among all the countless millions of species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million. . . . We conclude, however, that the explicit provisions of the Endangered Species Act require precisely that result."
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TVA v. Hill (1978) Part IV
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"One would be hard pressed to find a statutory provision whose terms were any plainer than those in § 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies “to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence” of an endangered species or “result in the destruction or modification of habitat of such species . . . .” This language admits of no exception."
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TVA v. Hill Part V
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Concluding that enjoining completion of the dam is the proper remedy under the ESA, the Court emphasized that “[t]he plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.”
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Florida Key Deer
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The Florida Key Deer in one word is tiny. It's the size of a medium-sized dog, confined to a small area of the Florida Keys, and numbers in only about 700-800. These numbers make it an endangered species
Plaintiff environmental groups filed a motion for a permanent injunction to enjoin the Federal Emergency Management Agency (FEMA) from issuing flood insurance for any new development in the suitable habitats of eight endangered and threatened species, including the Florida Key Deer, until such time as the court concluded that defendant governmental officials had complied with the requirements of the Endangered Species Act (ESA) and the Administrative Procedure Act (APA). Under § 11 of the ESA, a court may enjoin any person, including the United States and any other governmental instrumentality or agency, who is alleged to be in violation of any provision of the ESA or regulation issued under the authority thereof. There are no exemptions in the ESA for federal agencies. |
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Florida Key Deer Part II
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FWS notes that the contraction in range [due to habitat loss and fragmentation] has decreased the overall viability of the Key deer population . . . . The main threat to the continued existence if the Key deer is the alteration of habitat caused by residential and commercial construction activities.
Accordingly, Defendants' own administrative record clearly illustrates that any habitat loss or fragmentation jeopardizes the continued existence of the Listed Species. |
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Florida Key Deer Part III
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Holding: FEMA is hereby enjoined from issuing flood insurance for new developments in the suitable habitats of the Listed Species in Monroe County, Florida from the date of this Order until such time as the Court concludes that Defendants have complied with the March 20, 2005 Order, the ESA and the APA.
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Critical Habitat
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(i) the specific areas within the geographic area occupied by the species, at the time it is listed . . . on which are found those physical or biological features (I) essential to the conservation of the species, and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by the species at the time it is listed . . . upon a determination by the Secretary that such areas are essential for the conservation of the species.
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Clean Water Act
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The Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters.
The CWA makes it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit is obtained. EPA's National Pollutant Discharge Elimination System (NPDES) permit program controls discharges. |
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TMDLs and Clean Water
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Total Maximum Daily Loads (TMDLs) define the specified maximum amount of a pollutant which can be discharged or “loaded” into the waters at issue from all combined sources, either point sources or non-point sources.
The TMDL shall be established at a level necessary to implement the applicable water quality standards. |
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State Regulation
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Top state agency to administer environmental regulations is the Florida Department of Environmental Protection (FDEP)
Water supply and management, most wetlands permitting, as well as flood control, are administered by five water management districts (WMDs) T&E Species rules in Florida are administered by the Florida Fish and Wildlife Conservation Commission (FWC) |
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Local Regulation
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The FDEP has delegated some environmental regulation to local regulatory agencies (e.g. Orange County Environmental Protection Division)
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Permitting an Undeveloped Parcel in Central Florida
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20-acre “undeveloped” parcel
Potential wetlands on site Other parts of site are high and sandy Some “scrub” areas |
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Environmental Permits required for Development
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Environmental Resource Permit (ERP)
First required in 1995, the ERP combines the former wetland dredge and fill permit issued by FDEP and the management and storage of surface waters (MSSW) permit issued by the individual WMDs. The ERP program regulates activities such as dredging and filling in wetlands, construction of drainage facilities, stormwater treatment and attenuation, and other activities affecting state waters. |
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ERP
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Anyone proposing construction of new facilities, including governmental agencies, developers building new residential or commercial areas, and anyone who wants to fill in wetlands, must have an ERP.
In general, an ERP will be issued by the respective WMD for residential and commercial projects, and the FDEP will issue the ERP for power plants, mines, wastewater treatment plants, and single-family home projects. |
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Wetlands
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Wetlands are important for may reasons, including flood control, water purification, slowing erosion, and provide habitat for unique flora and fauna
Over 50% of the nations wetlands have been lost (destroyed) since the country was inhabited by Europeans |
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ERP Wetlands Permitting
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Florida Wetlands are defined as: those areas that are inundated or saturated by surface water or ground water at a frequency and a duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soils.
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Indicators of Wetlands
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Hydrologic Indicators (surface and groundwater)
Soils (typically rich in organics and saturated) Vegetation (e.g. cypress trees) In Florida, if 2 of 3 of the indicators are present, then it’s a wetland. |
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Desktop” Evaluation for Wetlands
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USDA SCS Review Soil Survey Maps
Florida Land Use, Cover and Forms Classification System (FLUCFCS) Map National Wetlands Inventory (NWI) Maps |
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Field Evaluation for Wetlands
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Marked by scientists using best judgment as to soil types (core samples taken and evaluated), vegetation (plants inventoried and noted) and hydrologic conditions (standing water noted and seasonal high water table estimated by looking at soil profile or marks on trees).
Typically “flagged” in field for further confirmation by regulatory agencies. Standard is “reasonable scientific judgment |
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Mitigation of Wetland Impacts
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Typically no mitigation required if:
A minimum 15 foot buffer or 25 foot average buffer is maintained from the development Wetland is isolated and less than 0.5 acres in size (however, permit still required by WMD/FDEP) |
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Mitigation
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It is the intent of the state’s environmental resource permitting program that there be a “no net loss” in wetland and other surface water functions (note: this is different from acreage). Furthermore, protection of wetlands and surface waters is preferred to destruction and mitigation.
Mitigation may be considered only after practicable modifications have been made to eliminate or reduce otherwise unpermittable adverse impacts. The environmental resource and wetland resource permit rules recognize that, in some cases, mitigation may not be able to offset impacts sufficiently to yield a permittable project. |
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Evaluation for T&E Species
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Florida Natural Areas Inventory (FNAI)
U.S. Fish and Wildlife Service (USFWS) Endangered Species Florida Fish and Wildlife Conservation Commission (FWC) |
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Common T&E Species in Central Florida
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Gopher Tortoises
Scrub Jays Sand Skinks Bald Eagles (recently de-listed, but still protected under other laws) |
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Gopher Tortoises
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Recently uplisted from “species of special concern” to “threatened” (Florida only – not federal)
No more incidental takes (entombments) If burrows observed on site, then an extensive, quantitative survey must be performed. If 5 or fewer tortoises are found, and tortoises are to be kept on site, then a simple on-site relocation permit is required. If more than 5 tortoises, or if any are to be relocated off-site, then a standard permit is required. |
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Gopher Tortoise Relocation
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Either “bucket-trapped” or excavated
Moved to “recipient” site approved by FWC Conservation easement Management plan Tortoise density stipulated Fees about $750 per tortoise New regulations may include permit fees by FWC (non currently in place) |
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Scrub Jays
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Both federally and state listed
Surveys can only be performed from March to October (in central Florida) If impacting their habitat, much purchase at a ratio of 2:1, at about $10,000 per acre (probably will increase) Much lengthier permitting process (1-2 years) |
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Sand Skinks
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Federally and State listed
Labor Intensive survey process Lengthy permitting process |
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Bald Eagle
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Recently taken off the T&E list
Still a 660’ buffer Can be reduced if development nearby |
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Environmental Justice
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Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. EPA has this goal for all communities and persons across this Nation. It will be achieved when everyone enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work
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Environmental Justice Part II
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Environmental justice advocates make the argument that minority populations often undertake environmentally hazardous activities because they have few economic alternatives and are/or not fully aware of the risks involved. A combination of this lack of awareness coupled with their relative lack of political and economic power makes poor minority communities a frequent target for environmentally hazardous activities.
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Environmental Justice Part III
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One study revealed that three out of four waste sites were located in predominantly poor African-American communities.
Race has been shown to be more significant than socioeconomic status in siting of hazardous waste facilities, and three out of five of African American and Latino residents lived in communities with uncontrolled toxic waste sites. |
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Environmental Justice Part IV
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Under Presidential (Clinton) Executive Order 12898, federal agencies are to make achieving environmental justice part of their mission. Agencies are required to identify and address any “disproportionately high and adverse human health or environmental effects of its programs….on minority and low income populations in the United States.”
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