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17 Cards in this Set
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Order when evaluating ordinance |
ALWAYS GO IN THIS ORDER –Witten) Power? Preempt or conflict Void for vagueness (due process violation) (Think of standing) - sufficiently clear standards PDP (hold proper procedures) SDP (health safety or welfare) (Facial or as-applied?) Equal protection Takings |
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Growth Management |
Moratoria – city says no growth for a period of time (Mayordeclares moratoria of new sewer hookups for a one year period) – not a takingbecause it is temporary and has a rational basis (beyond one year – 18 monthsmay start seeming permanent to a court). for rational basis (1) something is wrong, (2) anddevelop a plan to fix it Growth caps Boca Raton– No population cap b/c #s are arbitrary, it is permanent. These cases willalways lose. IMPORTANT CASE Growth phasing – perpetual limitation on the timingof growth. Not a limit, about pace. Courts will always uphold a case where acity bases these limits on city not being able to pay for growth. Theseordinances meter out the timing of growth. Petaluma – cityputs cap on building permits every two years, ties it to a plan, and creates anallocation standard. Look to ordinance for example 17.26.050 Zuckerman townloses because didn’t have the reevaluation like in Petaluma. Witten thinks town could have won if there was areevaluation provision. Infrastructure limitations – ways of limiting expansion of municipality. Limitations oninfrastructure will always be upheld Is there a state statute that limits moratoria? |
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Vested Rights / NonConforming |
“you have to do something”; active – Witten Distinguished from preexisting nonconforming, which isconforming/lawful at the time it was constructed In jurisdictions, vesting can come either early (generallynonplan, MA), late (generally plan), or very late (CA) Early = plan filing states. Totally up to the developer totake the affirmative step to get vested. Bernstein. Late = file for a building permit. WA cases Very late = receive a building permit. Avco (IMPORTANT)developer can sign a development agreement to get vested in late vesting state the issue in late vesting states is that I can’tapply for, let alone receive, a building permit until the project is ready forthe same, in the case of a subdivision, the infrastructure is in place; in thecase of a commercial development not involving a subdivision, until all otherpermits and approval are in place. vesting is statutory—you’ve either achievedvesting or you haven’t—equitable relief is very, very rare; the burdens aresimply too high. Nonconforming uses Bjorklund if only one part of the property does not conform, the whole thing is “tainted” –witten, and you need to come for an adjudicative permit. Different rules for expansion or changes for residential usevs. non-residential use. (all states) pg 13-14 of Duxbury Deadrick introductionto new nonconformity on top of nonconformity would require a variance. IFexpanding altering or changing a nonconforming lot, but the new change is notnonconforming, you need a special permit. Monterey amortization - Stating that a provision of a zoning ordinance which provides for the eventual liquidation of nonconforming uses within a reasonable period of time commensurate with the investment involved is valid merger forces lots together into one if both lots are making it less nonconforming (state by state) |
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Development A/gs |
Result of Avco Creates a FREEZE upon approval preventing local gov to make changes in development regs that apply to project Not buying a zoning change, but buying protection for what Ialready have. For people who are entitled, but in a late vesting state. A K to preserve what I have got. Differs from preservingwhat I want Leroy – Nollan and Dolan do not apply b/c it’s a K. A K is bilateral. Thebilateral nature means that we are under K rules, not police power rules. Toll Brothersdistinction between a developer’s a/g and a development a/g; developer’s a/g isto fine tune the effectuation of a permit/how the permit is going to befulfilled. No freeze, but a K within the adjudicative approval. Development a/gmust be authorized by statute. Development a/gs are legislatively enabled, but approved bythe executive on particular a/gs FOR THE PROJECT, not the zoning Can be terminated if developer does not comply - governing body may modify if circumstances arise |
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Variance |
a 10!!!! Use or structure that is NOT allowed From a legal perspective, “it’s impossible”- Witten A variance is to be granted sparingly – some high courts But often granted pragmatically/politically – Witten Never see a use variance in a plan state. Only non planstates Area variances are allowed in all states, far less damaging Elements: (in all 50 states)(1) something wrong with the soil, shape, or topography withthe land or structure, (2) that causes substantial hardship (has to be to theland, not the person), and (3) there is no substantial detriment to the publicgood or derogating the intent or purposeof the ordinance (makes it impossible) Board can issues conditions. Watch out for Nollan and Dolan Cannot be conditioned on ownership, because it’s tied to theland Tell client you can either get a variance or go to thelegislature and change zoning |
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Overlay Districts |
can be more or less restrictive |
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Special Permit |
Steen Def ofSpecial Permit: allow for the additional use of land which the legislative bodyconsiders to be desirable, necessary, or convenient to the community althoughsuch use may conflict with the uses otherwise permitted in a zone or district Adj permit’s discretion is left to ordinance. NO TWO ARE THE SAME permit conditions are not likely takings giventhe authority to deny and therefore, the authority to impose rationally relatedconditions. |
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Transfer of Development Rights |
TDR’s are overlay districts. For example, areas in red aresending, areas in yellow are receiving. Sending and receiving districts. Receiving always has infrastructure. Typical for historical, agricultural, or environmental preservation Developer of sending sells rights to developer of receiving. Penn Central youcan’t build on Grand Central, but you can transfer those rights somewhere else. Not a taking because (1) nothings vested (2) there is somevalue Suitum Scalia inconcurrence makes a formula whether a mandatory TDR is a taking. If it is ataking, then we pay compensation. But the fact that there is compensationoffered, does not necessarily make it a taking. benefit to receiver is because you get “additional” rights. See it as a BONUS. New York, you keep going up. Idaho, keep expanding providing the ability to transfer developmentrights relieves government from a takings claim. The general answer is that it does not. The question as to whether a taking occurred isrelative to the parcel in question, not the possibility of developmentelsewhere. |
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Impact Fees |
Amount is in the bylaw. Developers love it because the feeis published and one time. Not subject to the discretion of an adjudicativepermit. Developers like impact fees, because it reduces thesubsequent adjudicative process to almost nothing – Witten (“I’ve already paidmy rational basis amount, so how can you add on to that?”) Question is, is there an enabling authority for impact fees?If so, then does not matter if fee or tax Fees are for reimbursement, taxes are to raise revenue (norational connection) Fees are by choice, taxes are mandatory Emerson College does not have to pay for the fire truck,because fees have to related to the particular use (a special fund, not ageneral fund) Emerson college criteria for nonimpact fee states = reimbursement particularity choice Pavilina if themoney is going to the general fund, it’s a tax Characteristics of a fee: (1) particularity, (2) paid bychoice*, (3) paid to reimburse the facility *do you really have a choice using the water or septicsystem? |
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Inclusionary Housing |
Someone building housing must include x amount of belowmarket units. Cases challenge ordinance as (1) a taking (not a take andwill never be a take, only if state takings law prescribed a bright line value(80% devaluation = take)) and (2) a due process violation For due process, municipality must show a connection betweenthe requirement and the harm (answer is the need for a balanced community ishealth safety and welfare – legislative power) (thus would be harder for an adjudicativepermit requiring x below market housing – watch out for nexus) There must be a trigger: suburb (a division of land), city(x # of units requires x # below market) see Duxbury 560.3 Triggers always (Witten) require an opt out MA/Rhode Island approach – difference between two states isthat Rhode Island is a plan state – municipality is not punished if providinghousing according to the plan MA cities and towns have to have set aside 10% of theirhousing as “subsidized.” If not, then subject to override of all local regulations. California approach – PRODUCTION if they do not conform with the plan, then the plan is void ab initio |
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Plan v. non plan |
The plan creates a rational basis Strict scrutiny in fundamental right (CAMPER, contraception,abortion, marriage, procreation, education through 12th grade, andrelations), first amendment, equal protection, right to vote, and right totravel (Burden on GOV) Everything else is rational basis (Burden on P) Rational basis test = arbitrary Plan requires vertical and horizontal consistency. Ifinconsistent with plan, zoning is void ab initio Vertical = see if ordinance and related regulations such as subdivision control conform to plan Non plan state “anything goes” because the bar is so low onrational basis (“anything short of flipping a coin goes”) Non-plan state = does not have to be consistent with anything(But to pass rational basis test, needs to protect welfare,safety, and health) Udell Noting that a key factor used by thecourts in determining whether the comprehensive plan requirement has been metis whether forethought has been given to the community's land–use problems, thecourt further said that the role of planning experts must be more than that ofrationalizing actions previously decided upon or carried out in haste.
NationalAmusements Non-plan stateThere must be a showing of somesubstantial relation between the zoning code amendment and the generalobjectives of the enabling act. Every presumption is made in favor ofzoning amendment. Nevertheless, a zoning ordinance or by-law will be heldinvalid if it is unreasonable or arbitrary, or substantially unrelated to the public health, safety, convenience, morals or *310 welfare. RandoSpot zoning = Singling out fordisparate treatment Neither the master plan itself nor thelaw requires that zoning be in strict accordance with a master plan. The mostthat can be thought required is an analysis by town officials before the zoningdecision of land use planning considerations Cityof San Jose Why is this not anexaction? This is not something being taken, butjust a condition of a zoning ordinance.If it’s an exaction, the test iswhether the muni has rationally taken with the harm it is causing.If it is a zoning ordinance, then itmust only pass the rational basis to the plan. Lesher Thetail does not wag the dog. The general plan is the charter to which theordinance must conform.
A zoning ordinance that conflicts witha general plan is invalid at the time it is passed. |
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Remedies in Land Use |
Declaratory Judgment – facial challenge to ordinance As opposed to as an “as applied” challenge aka an Appeal(an Appeal can also be a DJ) Temporary Restraining Order – when there is irreparable harm Mandamus court order a ministerial official to dosomething (often in Land Use, to issue a permit; or rescind a permit); does notapply to an adjudicative body (if adjudicative, you need to appeal) |
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DP & EP Claims |
Due process = anyone can be plaintiff Equal protection = someone can be plaintiff if in aprotected class Strict scrutiny on DP and EP claims if regarding fundamentalright (burden on GOV to show compelling governmental purpose) Rational basis on DP and EP claims if not regarding fundamental right (burden on P) Suspect class (at federal level) = race, alienage, ornationality (given stricter scrutiny) Fundamental rights (for the most part) are first amendment,travel, voting, and privacy rights of CAMPER (contraception, abortion,marriage, procreation, education, and relations) We deal w/ relations a lot (# of related people livingtogether) There are two exceptions to Power: (1) preemption (no roomfor regulation) and (2) conflict (direct conflict with higher reg) Void for vagueness = maps are void if they are vague. Ifthey are vague they are not fail and violate substantive due process. Procedural due process: notice of a public hearing(newspaper ad at lease x # of days prior), or abutter notification (by x # offeet nearby), entitled to speak, written decision filed w/ clerk, appeal Gianfrancesco toprevail on SDP you need to show shock the conscious (outrageous). Selective zoning may not violate equal protection b/c ofTIMING ISSUES (maybe you were just first in line for that inspection) Gianfrancesco's equal protection claimis similarly deficient. Under the class-of-one rubric, an equal protectionplaintiff may press a claim “that [he] has been intentionally treateddifferently from others similarly situated and that there is no rational basisfor the difference in treatment,” even where he does “not [show] membership ina class or group. aclass-of-one plaintiff bears the burden of showing that his comparators aresimilarly situated in all respects relevant to the challenged governmentaction. Witten – to be a class of one, you need animus and animusshocks the conscious. Hadacheck if landhas no real value, then the reason to make it residential is arbitrary or w/oreason and thus is a substantial due process violation It may be that brickyards in otherlocalities within the city where the same conditions exist are not regulated orprohibited, but it does not follow that they will not be. That petitioner'sbusiness was first in time to be prohibited does not make its prohibition unlawful. SDP needs an entitlement – mere expectation is not enough(Shock the conscious test) Belmont “would beunlawful every where else in the country” - Witten |
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Intervenors |
Interveners usually worried about the case settling (ALWAYS ON EXAM, give advice on interveners) Land Use – intervention is always permissive – needs to show same standing grounds as if plaintiff PLUS party already in the case that is on their side is not going to represent her interests. |
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Contract Zoning |
Contract zoning –contract w/ municipality for the result of zoning I want Witten says whenever there is an inducement in a zoningchange, it is illegal (MA court disagrees) because there is no nexus betweenthe $ and the zoning. There is no project (so not a special permit), but only azoning change. Zoning change does not specify how the land will be developed(Walmart says I’ll build walmart with zoning change for $1M, then after zoningchange Walmart could flip the land which could be developed into somethingelse). legislative bodies cannot contract away thepolice power as it is not theirs to sell. Adjudicative bodies aren’t selling anything, they are simply reviewing aparticular application and applying rational basis review of the same andimposing conditions where appropriate. This isn’t bargaining, it is adjudicating. The legislative body being asked to changezoning isn’t adjudicating—there is not project—so imposing conditions ofapproval is not applicable or relevant. Spot zoning = singling out for disparate treatment, thisparcel of than from everyone else (could be either way) Contract zoning = quid pro quo with consideration for azoning change (always pro developer) (bilateral illegal, unilateral legal wherepromise is Police powers: Eminent domain, regulation, taxation Tax breaks are different because they are not permanent. Contract zoning is different because future legislatorscannot do anything about it and is irrevocable. Zoning ordinances allow for more than one use (almostalways). You cant adjudicate something you don’t know the facts of Stone cannotbargain away police powers. Sylvania Even if the restrictions had been madea part of the zoning ordinance, they would not have created spot zoning.The site was all the land in the neighborhood which wasproposed for reclassification. The private restrictions in no way made thelocus less appropriate for classification as a limited manufacturing district.It is inconsequential that other areas elsewhere in the city, in, or to be putin, such a zoning district, would not have those restrictions. *famous dissent Whatever the action of Newton may ormay not be called, it (1) in fact results in the imposition of restrictions bya city (Newton is the party that can and would enforce these restrictions) (2)for the purposes set out in c. 40A, §§ 2,3,(3) upon the use of land by the power (4) by the contract method (5) whichmethod is prohibited by the Legislature (6) which alone can prescribe themethod, and (7) hence is illegal. Durand *always onthe examBecause we conclude thatthe voluntary offer of public benefits beyond what might be necessary tomitigate the development of a parcel of land does not, standing alone,invalidate a legislative act of the **364 town meeting, we reverse McLean/ICB not K zoning b/c the consideration wasn’t extraneous (bag of cash) were related to impact of hospital conversion. As long as ratioale we are not going to look behind motives of municipality. Could you have done this without the bag of cash? |
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Standing |
*Very different from environmental law context If everyone’s harmed, then remedy through legislature Also standing is strict for pragmatic reasons (courts wouldbe flooded) (1) particularizedinjury to a (2) cognizable interest that is (3) not speculative. Particularized = selfish (just me, not the community) Common law nuisance are ALWAYS grounds for standing (waterrunoff, dust, fumes, light, vibration, loss of or creation of wetlands) – theyrequire proximity Also if the bylaw provides for the grounds for standing Speculative = to a reasonable degree of professionalcertainty Degree of harm does not affect “speculative” Cognizable is found in Duxbury bylaw section 104 (also canlook to plan in plan states) (also look in policy, regulations) Abutters have presumption, can lose presumption afterrebuttal, but abutter can get presumption back after rebuttal, if not motion todismiss. Abutters means touching, but often (depending on state) notonly touching at the corners Standing can be raised at any time Brooks if there isno rebutting or if P puts forth credible evidence when presumption is gone, youmust grant standing Entergy weak case,but at motion to dismiss stage Standerwickproperty devaluation is not cognizable under this particular statutePuts burden on P to find harm in the ordinance Standing does not change on the type of permit issued(building permit, special permit, variance, etc) |
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Takings |
With legislative lens = Pen Central (bright line test) With adjudicative lens = Nollan and Dolan (balancing test) Adjudicative, takings issue is if denial of permit or toomany conditions on permit Always reg taking under 2 circumstance (1) zero economicvalue or (2) a physical invasion Loretto If not then look to 3 factors from PennCentral balancing test (witten says 1 and 2 are just the other categorical ones before) (1) Economic impact of ordinance, (2) character of gov action, and(3) investment backed expectations (IBE must be raised always even though ithas been rendered meaningless – Witten – equitable principles makes the linemore squishy between expectation and entitlement) A physical taking is always compensable. A temporary taking maybe compensable if, asyou note, the “temporary” is more than “temporary”. But a moratoria that lasts “too long” isn’t aphysical taking, but rather serves to render the property valueless (e.g. aneconomic wipeout). Pallazolo nostatute of limitations on a constitutional deprivation (but was not a takings) St. John’s we nowknow that Nollan and Dolan analysisbeyond real property, but to land, money, and things (all are fungible) Witten sees it as a pragmatic response, not a constitutionalresponse. In theory if you add money and things, that expands the meaning of taxationetc. The principles that undergird Nollanand Dolando not change depending on whether the government approvesa permit on the condition that the applicant turn over property or denies a permit because the applicant refuses to doso. This Court's unconstitutional conditions cases have long refused to attachsignificance to the distinction between conditions precedent and conditionssubsequent. Lingle inoverruling Agnis (declaredthat government regulation of private property “effects a taking if [it] doesnot substantially advance legitimate state interests”)– a regtaking requires a Penn Central violation, not a substantive due processviolation (due process violation is a do-over, not compensation) – SDP claimsan be argued with Takings claims Moreover, the Aginsformula's application as a takings test would present serious practicaldifficulties. Reading it to demand heightened means-ends review of virtuallyall regulation of private property would require courts to scrutinize theefficacy of a vast array of state and federal regulations-a task for which theyare not well suited. Gove “wholeparcel” doctrine – we don’t measure what’s been taken, we measure what’s left(one exception IF state has pass legislation for bright line aka if devaluationgreater than X is de facto reg taking) (rejecting theory of“conceptual severance” and concluding “we must focus ‘on the parcel as awhole’) – Gove was left w/ $23,000 in value Loretto does notmatter how insignificant the invasion is, if it is a permanent invasion then itmust be compensable (never balance the harms – Witten; no matter how importantthe government mission is compared to how minimal the taking is) – Compare w/ temporarytrespass (both time and context) Look to Duxbury ordinance on pg 33 and 34 Not about not being able to do what YOU want to do, but ifthere is something you can do NO RATIONAL BASIS on legislative takings (AKA constitutionalviolation) use strict scrutiny Special Permits on pg 137 in ordinance 906.2 in ordinance – “a 9” on the scale because burden in onapplicant to show benefits to town outweigh any adverse effectsNollan and Dolan is “an ingredient” to substantivedue process – Witten Nollan and Dolan says yeah you can deny, but youcannot do whatever in approval *If ordinance provides that ALL entities shall contribute topublic education, then WalMart having to provide a library would not be aviolation. If we can deny, then we can impose conditions, and the onlylimit on conditions is the nexus/proportion Ask in this order: (1)If nexus, (2)then proportionate? Investment backed expectation is unrealistic because itrequires RELIANCE, but reliance on who? The city. But who’s the city? Themayor, no because of sep of powers. So who? |
