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60 Cards in this Set
- Front
- Back
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Bove
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Forward planning trumps nuisance claims
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Hadacheck
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regulating uses is a valid exercise of the police power
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Euclid
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Forward looking zoning is okay as long as it is not arbitrary or capricious
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Nectow
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zoning regulations must be related to health, safety, morals, general welfare
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Udell
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Rezoning must be according to comprehensive plan
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Pierro
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cities can exclude some uses and include others, even if differences seem small
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Manalapan
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Zoning regulations will be presumed valid if:
1) rational basis 2) not overbroad |
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Form Based Zoning
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Height, lot size, and setback restrictions
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Overlay Zoning
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Allows overlays of restrictions on the zoning map without having those restrictions in descriptive text
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Buffer zoning
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creates a buffer in between traditional zoning classifications - like high density residential between low density res and commercial
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Performance Zoning
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Regulates effects of noise, dust, emissions
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Floating zone
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not fixed on the map, but described to allow for placement when the need arises - like airport, etc.
Allows for more deferential standard of review without having to the make the decision right away - substantial evidence standard |
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Legislative Acts Standard of Review
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Arbitrary & Capricious aka abuse of discretion aka rational basis
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What is a legislative act?
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Broad rules, applies to large areas or populations - even application. Examples - zoning ordinances, general plans, most zoning amendments
These acts have general application and are usually planning for the future as opposed to making the decision based on a particular case or situation |
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Adjudicative Acts standard of review
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Substantial Evidence
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What are adjudicative acts?
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acts of a quasi judicial/administrative nature that apply to single pieces of land or only a few parcels or a small population
These decisions are usually made on a case by case basis and do not have general application |
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Substantial Evidence Standard
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burden of proof is higher - must have an adequately detailed record of the decision making process - burden is normally on the decision making body.
Applies in cases of floating zones, variance, CUP, spot zoning, contract zoning - etc |
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Zoning Amendments
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Usually a zoning change that will benefit the entire community (if not, then may be subject to substantial evidence review) that is subject to rational basis review - Presumption of Validity
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Spot Zoning
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Will be valid only if:
1) in line with comprehensive plan 2) benefits the entire community or large portion thereof |
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Conditional/Special Use Permit
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Usually required for uses that are predictable for a zone, but present special problems; use that is not always permitted, but not always prohibited.
Non discretionary decision, if applicant meets specific criteria, permit must be granted Criteria is up to community, but must be related to health, safety, welfare, or morals. |
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Exactions
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Zoning change approval in exchange for a property interest to the city
Nollan/Dolan Rational Nexus/Rough Proportionality Test |
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Nollan Rational Nexus Test
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There must be a rational nexus between the adverse impact of the development and the property interest requested by the city
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Dolan Rough Proportionality test
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The property interest requested by the city must be roughly proportional to the adverse impact of the development - no more, no less - the city must quantify the nature and extent of the impact
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Vested Rights
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Right to complete construction is granted to a property owner if they have ARWM:
1) Assurance by government 2) Good Faith reliance on that 3) Substantial Work completed 4) Substantial money invested |
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Types of Vesting Rules
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Early vesting, late vesting, last discretionary act, piece meal vesting rule
Amortization of vested rights may occur, but still must be able to recoup substantial investment Main Question - should owner be allowed to continue even though the regulations have changed? |
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Equitable Estoppel in Zoning
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Different than vested rights
1) Promise by government 2) Substantial, good faith reliance 3) Works a substantial injustice Balance of private and public interests Asks: Should the government be allowed to change its mind? |
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Impact Fees
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Assigned in new developments
Dual Rational Nexus Test: 1) City must have a specific need caused by the development 2) Development must receive a specific benefit from paying the impact fee Fee should directly offset the impact and fee should benefit the development through the offset - like a traffic light at the entrance of a shopping center |
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Development Agreement
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City agrees not to change zoning int hat area for some amount of time and the developer agrees to make certain improvements - essentially giving the developer a vested right
May be seen as bargainin away the police power like contract zoning - but the city is really only suspending its right for a period of time - like freezing the zoning during the planning phase of a project |
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Subdivision Controls
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Prior approval required to subdivide, old maps not enough
Developers usually required to share costs of infrastructure that will be necessary as a result of the subdivision - like roads and utilities Major 4+; Minor 3- Preliminary approval to subdivide = vested right to subdivide - the final approval is not discretionary if the developer meets conditions - even if against CP - but not necessarily a right to build, just to have approval of the subdivision |
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PUDs
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Planned Unit Development
Allows for mixed uses, clustering of buildings and open space instead of spread evenly, large parcel developed as one community advent of new urbanism and mechanisms to curb sprawl - smart development |
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Official Map
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Records streets and setback lines
Recorded |
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Thoroughfare map
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County level, not to freeze land values, but to merely lay out the intended course of streets - a long range planning tool
Unrecorded |
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Maps of Reservation
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State level
Can be a taking if its a Lucas economic taking |
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Eminent Domain
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5th Amendment:
1) Public Use = Public Purpose 2) Just Compensation |
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Midkiff
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Private property can be transferred to other private owners if excessive concentration of property in few owners
Rational relation to public purpose |
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Kelo
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Must be designed to serve the public interest (coterminous with the police power)
Broad deference to local govt agency Oconner Dissent: purpose is to respond to harm - to cure it - Kelo essentially allows traditional traditional public use and private use Dissent Thomas: Public use = government takes title, public uses it |
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Physical Occupation Takings
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Permanent physical occupation = taking per se (Loretto)
Temp phys occupation = apply penn central balancing test requiring you to install something you own (smoke detector) = not a taking |
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Regulatory Takings
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Pennsylvania Coal
Penn Central Lucas |
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Pennsylvania Coal
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Regulatory Takings: government can only regulate to a certain degree, if it goes too far, its a taking
How far is too far? Can't entirely destroy pre-existing property and k rights |
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Penn Central Balancing Test
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Regulatory Takings:
1) Legitimate Public Interest 2) Character of Govt Action 3) Reasonable Investment Backed Expectations 4) Economic Impact on the Land: degree of loss v. whats left; still make reasonable econ use of the land?; able to continue present use? |
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Lucas
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Regulatory Takings:
When a regulatory action denies ALL (100%) economically beneficial or productive or viable use of the land it is a taking per se Look at background principals of law - must be something they were actually allowed to do (old regs, prohibited under common law, nuisance, enviro regs, indian graveyards |
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Palazollo
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Can Challenge regulations even if you acquire title after the regulation passed - no bar to bring regulatory claims
Notice doesn't matter (notice is considered in balancing test, not lucas claims) Whole parcel rule Ripeness issue even if regulation is cured, can still bring a claim |
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Remedies for Regulatory Takings
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Ripeness Issue:
1) final definitive decision (applied for variance - denied) 2) state remedies have been exhausted 3) difficult to get takings claims into fed ct |
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Substantive Due Process Claims
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14th Amendment:
Challenges arbitrariness must pursue variance first Govt action must: 1) serve legitimate public interest 2) have a rational basis To win, plaintiff must show that the govt action is so egregious that it can't be done even with just compensation public outcry against the action is insufficient Entitlement Theory - must show that you were entitled to the right that has been deprived = it was ministerial act (not discretionary) that was denied. |
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Equal Protection
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Govt must show rational basis
Unequal treatment is enough Entitlement is not necessary (can be from a discretionary act) Class of One 1983 Actions - state actor, constitutional violation, unconstitutional action has to implement or execute an unconstitutional policy, statement, ordinance, reg, or decision officially adopted by the municipal body's officers |
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Sexually Oriented Businesses
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1st Amendment claims - the law regulating SOBs must be aimed at controlling secondary effects, not the speech of the SOB itself. Once this has been established, the reg is subject to Intermediate scrutiny:
1)substantial govt interest 2) ample alt locations available Renton Case |
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Signs
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Govt reg of noncommercial speech in the form of residential signs is unconstitutional even if content neutral - too broad
1st Am prohibits content based regs Commercial signs can be regulated to a certain degree - think commercial signs in neighborhoods, billboards at freeways, size and character of signs, etc. HOA's can regulate |
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Aesthetic Controls
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Can regulate aesthetics if concerned about character of community and prop values because it is in the public interest and welfare
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Freedom of Religion - Federal Claims
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Employment Div. v. Smith:
Land use laws must be generally applicable and neutral - not religiously oriented or singling out St Bart Church: exterior of a church can be landmarked because it doesn't affect the freedom of religion on the inside |
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Freedom of Religion - State Claims
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Can only regulate religion when it disturbs the peace or disrupts the worship of others
Landmarking of church interior goes too far |
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RLUIPA
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Threshold Test - if a landuse reg:
1) affects commerce 2) is fed funded 3) consists of individual determinations THEN 1) Govt reg cannot impose a substantial burden on religion UNLESS 2) there is a compelling govt interest and the reg is narrowly tailored to achieve that interest Compelling govt interest is difficult to satisfy Compare to state statutes like the Dover Amendment - unreasonableness of the reg is about whether enforcing the law would impede the character of the structure, Not about whether the building can be used for the intended purpose Broad deference to religion about what is essential |
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Affordable Housing & Fair Share Obligations
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All cities must bear their fair share of low income housing
Mt Laurel: Remove zoning restrictions and take affirmative steps to provide realistic opportunity to meet fair share: BIMIF Builders remedy Incentive zoning Mandatory set aside restrictions Inclusive zoning Fed subsidies Burden falls on city to prove they meet fair share Affordable Housing - income based Fair Housing - type of building based Fair Housing Act - no discrimination in housing - compare BYU restrictions |
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Characteristics of Urban Sprawl
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Single Zoning: large residential and commercial areas
Low Density development Leapfrog Car Dependant |
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Criticisms of Urban Sprawl
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Pollution & Health hazards
More auto accidents increased obesity erosion and run off - water and soil white flight and segregation animal habitat lack of community education issues infrastructure can't keep up prohibitively expensive homes mass consumption of open space |
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Positives of Urban Sprawl
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People want to live this way
American Dream Commute times decrease as land is less congested Better health because room to breath and live less violence and crime cleaner and happier neighborhoods |
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Timing and Infrastructure Controls
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Regs that require public resources be available concurrently w/ dev are constitutional if:
1) clear that existing infrastructure is inadequate 2) substantial population increase anticipated 3) restrictions have a definite term in which improvements will be installed Urban growth boundaries have also been upheld - Portland, Oregon |
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Enterprise Zones
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Purpose is to revitalize the urban core
1) Tax credits 2) relaxed zoning regs 3) effort to lure businesses 4) certain conditions must be met - specific regs |
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Business Improvement Districts
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Purpose is to revitalize the Urban Core
1) Partnership between public and private 2) One governin body approves arch, street sweeping, lighting, security and all changes Like an HOA for business - but partnered with gov Might be seen as double taxation for owners fees |
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Enviro Protection
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ESA: flatly bans anything affecting habitat of endangered species
Wetlands: nav waters cannot be filled or polluted, wetlands count as nav waters, doesn't extend to water of mig birds Right to farm Laws: keeps land undeveloped and available for ag, some RTF laws have been held uncon if try to exempt farms from nuisance laws - but can structure it as preventing development from encroaching on the farm and then declaring nuisance which is okay |
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Regulating Living Arrangements
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Zoning regs that deal with living arrangements do not violate the EP clause if its reasonable, non-arbitrary, and bears a rational relationship to a permissible state objective
Legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate govt purpose regs that authorize a govt entity to confiscate privately owned abandoned dwelling w/o compensation must be reasonable under circumstances - valid exercise of the police power |
