Land Use Outline PDF

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Summaries of the concepts and doctrines studied in the course. ...

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Types of Arguments in this Course: · Takings · Incorrect Facts · Incorrect Procedure · Arbitrary and Capricious – unreasonable · Unconstitutionality Euclid -- zoning laws are valid exercise of authority Sasso v Osgood (pg 29) – Boathouse case. Area Variance: Practical difficulties Balance benefit to applicant against harm to the neighborhood; none are dispositive · Undesirable change in neighborhood · Alternative way to do the same thing · Substantial? · Adverse effect on physical or environment impact · Difficulty self-created? Use Variance: [In NYC this is the standard for both USE and AREA variations] Unnecessary hardship You have to satisfy all four: · Cannot realize a reasonable return · Unique to this property · Variance will not alter the “essential character of the neighborhood” · Not self-created Conditional Uses. · Increases flexibility · Ordinance writer cannot write for everything Skeen (pg 40) – daycare Satisfied the criteria on the statute so court said must issue conditional use 917 Lusk LLC (pg 45) 6 floor dormitory -- neighbor complains about parking -- wasn’t really on the agenda but because the zoning board didn’t consider it, the court sent it back – the height (above 35 feet) needed a Conditional Use Permit (CUP) Chrismon (pg 51) – contract zoning – quid pro quo – court said this wasn’t contract zoning because it was 2 steps, first it was rezoned and then he would have to apply for CUP and there was no guarantee he would get it. Basically the cases are a mess. Non-Conforming Uses · Unfair to remove them · Inefficient to remove them · Hard to say that we don’t want it—it has been here · Psychological – we are willing to give up prospective opportunities rather than give up what we have · Also we think that eventually the Non-Conforming will disappear (not so true) Cleveland MHC (pg 76) – pre-existing mobile home park

Trip Associates (Pg 80) – Adult entertainment You can intensify but not expand non-conforming use. End of non-conforming uses: · Abandonment or Discontinuance (must be active and actual) o NYC 2 years · Amortization o Limiting, in time, the non-conforming use can continue o Middle ground – let people recoup investments Modjeska Sign (88) – amortization case PUDsCluster Zoning – (pg 111) Subdivisions (pg 115) -Andrews (117) – forced developer to build roads attached to current town roads; regulation did not expressly state that such was necessary and they made no showing that it was necessary for public health bla bla so Court knocked it down Site Plan Review – · Essentially same thing as subdivision approval Derry Senior Development (129) – denial wasn’t supported by towns regulations Historic Preservation Billy Graham (136) – Historic District case · What are the criteria · Contributing and non-contributing buildings Norton (149) – front door case Types of Arguments in this Course: · Takings · Incorrect Facts · Incorrect Procedure · Arbitrary and Capricious – unreasonable · Unconstitutionality Aesthetics Anderson (156) -- must be clear in the code how to comply, if not violation of due process Developer Challenges (State) -- outline pg 18 City of Springfield (172) -- Home Rule City of Ocean Springs (176) -- Dillion’s Rule (Outlier Case) 520 Victor Street (184) – Unlawful Exactions; town just wanted 400k; it has to be in response to something created by the project Metro dev v Pinnacle (190) – Vested right (Sign on side of highway) “Substantial expenditures” Geisler (196) -- only lawful (with permits) expenditures count (subdivision permits may be enough of substantial expenditure see notes 201) Or town acted in bad faith New castle investments (202) – scope of vested rights Transport impact fee.. is not a land use ordinance more like a tax so doesn’t fall under vested rights

Fountain village (208) – Terminating vested rights Permit but did not start construction. Abandonment Zoning Estoppel West End v DC (213) -- (FoBoGro) test pg 215 Town of W Hartford v Rechel (217) -- rare case -- remanded to determine if inequitable to enforce Parkview (note 222) -- had to rip down 12 stories -- proceeded in bad faith Takings Mugler – (235) wasn’t a taking, it was an exercise of the police power (took away brewery stuff). Penn Coal (239) – had to leave a pillar so house above doesn’t fall in... court agreed that it is considered a taking (if a regulation goes too far it will be recognized as a taking (241)). → Would be totally ok in 1. nuisance case (preventing a public harm) and 2. Where it secures an average reciprocity of advantage (do any of the burdened parties get a benefit). Penn Central -- (247) Who pays – distributional impact – the regulated entity or the regulatory beneficiary Rehnquist dissent: fails distributional impact…. Developer is paying for the whole thing and not fair. Majority opinion—3 factor balancing test: · Economic impact on the claimant (TDRs; reasonable return) · Interference with “distinct investment-backed expectations: ● How much interference with existing uses? ● How economically viable is operation under the challenged constraint · Character of government action ● How like a physical invasion? ● How much does this promote public health safety and welfare Per Se Rules: · Physical invasion = taking (lorretta) (272) (however de minimis it may be) · Loss of all economically beneficial uses (lucas 262) Murr - (canvas) Application of penn central (?) Nolan (300) – were the reasons for the exactions reasons that the municipality would have denied the permit – is there a nexus between the burden imposed and the permit request “Essential nexus” Dolan (305) – rough proportionality Koontz (318) – permit denied, they offered a deal but Koontz didn’t take it so town denied permit and then Koontz sued. Nolan and dolan should apply even if permit is denied (and not just approval conditioned upon it as in nolan/dolan .. scotus was unanimous about that And in lieu fees are an exaction as well What is Just Compensation:

First English (327) – the old notion that the obligation to pay just compensation only occurs/matures/is perfected at the time that a court says so, is rejected. And Scotus says that it happens at the time the regulation was adopted. So P would get compensation from time of enactment to time of rescission. Due Process This law on whomever it operates United Artists (360) – Shocks the conscience Rationally related to a legitimate state interest/purpose Equal Protection -- Difference in treatment -- “Classifications”

Hernandez (376) – Small Furniture store. Couldn’t sell furniture. 1.Strict Scrutiny 2.Intermediate Scrutiny – gender based classification 3.Rational basis – no fundamental rights; no protected classes Arguments Is it a legitimate purpose? Is it rationally related?

Arlington Heights v. Metropolitan Housing Development Corp (399) – court says this is a disparate impact case – when s/t hits one group more than another even though it is neutral on its face. Cites Washington v Davis that imposes an intent requirement.

Texas DoH v Inclusive (408) Fair Housing Act – by refusing to rezone, Arlington made unavailable a dwelling “otherwise make unavailable” that’s about outcomes/about the effect, textual argument that there is an effect argument / (disparate-impact claims -- remedy from the statute ) minority-- “because of race” because denotes intent (alito) Prima facie case of disparate impact shifts burden to govt (under FHA) RLUIPA Westchester Day School (469) – 1 Religious Exercise – includes any exercise of religion 2 Substantial Burden – a. Any quick reliable economically feasible alternatives? (see pg 476 for this shit) b. Absolute denial (see pg 39 outline) 3 Is there a compelling government interest? 4 Is this law the least restrictive means of achieving that interest?

See note 2 after case Elijah (481) – Neighbor Challenges Standing (Federal) Now, Chapter 6 is what can neighbors do once the zoning has been approved. 1. Obviously, if there is one, the person can go to their local town meetings. Lets say you did that already, and the town granted it. Now what can the neighbor go to court over in order to fight the approved zoning grant. Does the neighbor have standing? Need to have injury in fact. Causation and redressability. No third party standing Must not be a generalized grievance Must be within the zone of interests. Judge is high manipulative. If a judge wants a guy to have standing then he’ll say that the person does. If the judge doesn’t want them too, then they don’t. Sun brite (488) – car wash Griswold (494) – conformity with comprehensive plan Little – spot zoning -DiRico – court deference Clayman (517) – change/ mistake rule...