AICP Legal Concepts

Question 1

Planning and Zoning Legal foundations

Answer 1

-US Constitution
-State Constitutions
-Federal Laws
-State Statutes
-Local Ordinances
-Case Law

Question 2

Procedural Due Process

Answer 2

Notice and an opportunity to be heard in a fundamentally fair hearing by an impartial tribunal.

Question 3

Eubank v. City of Richmond (1912)-

Answer 3

(Procedural Due Process)-ordinance giving one set of property owners ability to impose setbacks through petition deprives other owners of due process. Holding: invalid. Violates due process and equal protection, favoring one group over another.

Question 4

Washington ex. rel. Seattle Trust Co. v. Roberge (1928)-

Answer 4

(Procedural Due Process)- ordinance allowing location of home for aged and poor only with consent of neighbors was unlawful delegation of authority- violates due process. Violates due process and delegates power to other property owners. Use is not a nuisance.

Question 5

Lordship Park Association v. Board of Zoning Appeals (1950)-

Answer 5

(Procedural Due Process)-reliance on draft plan never formally adopted and lacking public review or determination of public interest in denying appeal violates due process.

Question 6

Welton v. Hamilton (1931)-

Answer 6

(Procedural Due Process)-Statute giving unbridled discretion to board of appeals and lacking rules or criteria for decision-making unlawfully delegated legislative authority of City Council.

Question 7

Substantive Due Process-

Answer 7

“Rational relationship” to a “legitimate governmental purpose.”
-Legitimate Governmental Purpose- Protection of health, safety, welfare, morals, property values, quiet enjoyment, etc.
-Rational Relationship- a conceivable, believable, reasonable relationship.

Question 8

-Cusack v. City of Chicago (1917)-

Answer 8

(Substantive Due Process)-ordinance requiring consent of homeowners for billboards in residential areas did not violate due process- protects against fires, “unsanitary accumulations,” “immoral practices,” “loiterers and criminals.”

Question 9

Village of Belle Terre v. Boraas (1974)-

Answer 9

(Substantive Due Process)- ordinance strictly defining “family” for purposes of restricting land uses to “single-family dwellings” did not violate due process. SCOTUS holds that defining family as blood relatives or no more than two unrelated people IS constitutional. No deprivation of a fundamental right. Goal of regulation permissible under Berman, where public interest extends well beyond health, safety, and welfare.

Question 10

Equal protection-

Answer 10

Treating those that are similarly situated the same, or making distinctions only on legitimate grounds.
-Distinctions based on “fundamental right” or “protected class” status are unconstitutional unless compelling reason for differing treatment exists-usually fail.

Question 11

Eubank v. City of Richmond (1912)-

Answer 11

(equal protection) setbacks imposed by petition of neighbors violated equal protection.

Question 12

Thomas Cusack Co. v. City of Chicago (1917)-

Answer 12

(Equal protection)-Nuisance and Due Process. Context: Ordinance that requires owners to obtain permission from block neighbors for signs over a certain size, when block is over 50% residential. Holding: Valid. Protects public health (from fire). Residents are waiving a requirement rather than imposing one (Eubank).

Question 13

Moore v. City of East Cleveland (1977)-

Answer 13

(equal protection)-ordinance strictly defining “family” for purpose of limiting household size to avoid traffic congestion, overcrowding, and undue financial burdens on school system violated equal protection because it impacted fundamental right of families to live together.

Question 14

Southern Burlington County NAACP v. Township of Mount Laurel (Mount Laurel I) (1975)-

Answer 14

(equal protection)-NJ Supreme Court holds that clear economic discrimination exists in Mount Laurel’s ZO. Town ordered to provide for low-income housing, as are all NJ communities that are growing in population. Violation of equal protection clause.

Question 15

-Village of Arlington Heights v. Metropolitan Development Corp. (1977)-

Answer 15

(equal protection)-SCOTUS holds that while ARlinton’s ZO may be unintentionally discriminatory, Metro did not show intent to discriminate and so the ZO is constitutional. However, intent to discriminate based on race, immigration status, or national origin IS unconstitutional. And, discrimination based on gender or illegitimacy must substantially advance a state interest and be passed without an intent to discriminate.

Question 16

Southern Burlington County NAACP v. Township of Mount Laurel (Mount Laurel II) (1983)-

Answer 16

(equal protection)- NJ Supreme court rules that all NJ municipalities must build fair share of affordable housing, even if not in a growing area. Leads to NJ Fair Housing Act (1985) and has been called most important civil rights case since Brown v. Board of Education (1954).

Question 17

Presumption of Validity

Answer 17

Legislative actions are presumed valid and constitutional, and the burden is on the person challenging the action to prove otherwise.

Question 18

Munn v. Illinois (1876)-

Answer 18

(business licenses). Chicago. Licensing grain storage facility. Holding: Valid. Statutory provisions (such as licenses) constitutional when property is in the “public interest” and affects the community at large. Special Note: Court establishes the principle of public regulation of private businesses in the public interest.

Question 19

Lionhead Lake, Inc. v. Township of Wayne, N.J. (1962)-

Answer 19

minimum house size.

Question 20

Hadacheck v. Sebastian (1915)

Answer 20

(nuisance)-Los Angeles. Nuisance. Context: Existing brickyard annexed to LA which prohibits use. Holding: valid. For the good of the community and doesn’t deny full use of the site (clay can be quarried).

Question 21

First Amendment Issues:
-Freedom of Speech.

Answer 21

Especially important for sign regulations and adult entertainment.

Question 22

Coleman Young Mayor of Detroit v. American Mini Theaters, Inc. (1976)-

Answer 22

(1A)-holding that local ordinance placing distance requirements between adult theaters and other “regulated uses” or residential areas did not violate Equal Protection Clause or serve as a prior restraint on First Amendment rights of free expression.

Question 23

City of Renton v. Playtime Theaters (1986)-

Answer 23

(1A)-SCOTUS upholds a ZO that limits adult uses to 5% of land area. Renton used a Seattle study showing negative effects of adult uses. Did not have to show that reasonable alternative locations existed. ZO also passed Central Hudson test. No 1st or 14th Amendment violations.

Question 24

Metromedia, Inc. v. City of San Diego (1981)-

Answer 24

(1A)-SCOTUS holds that an ordinance that bans all off-premise signs violates 1st Amendment because it effectively bans non-commercial speech on billboards/ off-premise signs.

Question 25

Reed v. Town of Gilbert (2015)-

Answer 25

(1A)-Before this regulated time, place and manner of sign - not content. Reed regulated temporary signs. Temporary signs were regulated as billboard (political signs were able to be bigger and up longer). You can’t treat this sign differently than other temporary signs. Unreasonable distinction. If you have to read the content of a sign to understand its purpose. Invalid.

Question 26

Freedom of Religion.

Answer 26

Often based on Religious Land Use and Institutionalized Persons Act (RLUIPA) (prohibits “substantial burden” on religious exercise unless regulation is least restrictive means furthering a compelling government interest). Ordinary zoning is not (usually) a substantial burden. Can regulate religious facilities, signs, and adult entertainment, but carefully.

Question 27

Larkin v. Grendel’s Den (1982)-

Answer 27

(religion) Law that favored religion. Schools and churches could veto alcohol permits. Law violates Establishment Clause by delegating Police Power to church.

Question 28

Cohen v. Des Plaines (1990)-

Answer 28

(Religion)-SCOTUS holds that zoning cannot give churches an advantage over commercial uses. Strikes down an ordinance allowing church daycares where commercial ones are not permitted.

Question 29

San Jose Christian College v. City of Morgan Hill (2002)-

Answer 29

(Religion)- US District Court. Claim under RLUIPA not successful. RLUIPA is not an exemption from land use regulations. Burden is allowed if it furthers a compelling state interest and is the least restrictive way of furthering that interest. SJCC gave no evidence showing it was burdened, or that Morgan Hill treated churches unequally.

Question 30

Takings

Answer 30

-Arises out of 5th and 14th Amendments to U.S. Constitution
-Regulations effect a taking of property without compensation if they “go too far” Pennsylvania Coal v. Mahon (1922). Kohler Act as applied to this case constitutes an act of eminent domain. (Wanted to mine underneath property with lease stating they could-Kholer Act prohibited).
-How far is too far?

Question 31

Pennsylvania Coal v. Mahon (1922)-

Answer 31

(takings)- Exercise of Police Power. Context: Holding: Invalid. A regulation can create a “regulatory taking.” Before this, only physical invasion of property considered a taking. However, this case does NOT establish compensation as a remedy.

Question 32

Penn Central Transport. Corps v. City of NY (1978)-

Answer 32

(takings)-Rejection of plans for modern office tower atop Grand Central Station not a taking because of among other things, rejection was consistent with comprehensive historic preservation plan and allowed for air rights’ transfer.
-Penn Central Factors:
-Economic impact on plaintiff.
-Extent regulation interferes with “distinct investment-backed expectations.”
-Character of government action.

Question 33

Loretto v. Teleprompter Manhattan (1982)-

Answer 33

(takings)-Regulations that mandates permanent physical invasion of property violates 5th Amendment, even if it’s just a thin television cable. The right to exclude others is one of the most fundamental property rights.

Question 34

Keystone Bituminous Coal v. De Benedictis (1987)-

Answer 34

(takings)-Must look at entire parcel’s value impact, not just the part that was “taken.” Regulations that merely lower value are NOT takings. Focus on what remains, NOT what was taken. SCOTUS dramatically alters the regulatory taking theory in Penn Coal v. Mahon as it applies to coal subsidence. Court upholds a statute quite similar to the one it overturned in 1922. Difference in how each act defined property- Keystone uses much broader scope for defining property value.

Question 35

Agins v. CIty of Tiburon (1980)

Answer 35

(taking)-Court held zoning law can be a taking if the ordinance does not substantially advance a legitimate state interest or denies an owner economically viable use of his land. In spite of a lack of ripeness, SCOTUS says zoning ordinances did NOT on their face effect an uncompensated taking. 1980 case the appellants acquired 5 acres unimproved land for residential development. ZO placed their land in SFH per acre. Alleged a taking had occurred. Court upheld right of city to zone. NOTE: portions of case overturned with Lingle v. Chevron.

Question 36

First English Evangelical Lutheran Church v. County of Los Angeles (1987)-

Answer 36

(takings)-holding that monetary damages (initial remedy) must be paid where regulation results in a taking of all use of property (overruling Agins v. Tiburon which said that monetary damages are a remedy only if government continues restriction which causes the taking)- but, Court remanded to lower court to make the determination of whether taking had occurred here- it had not.

Question 37

Williamson County Regional Planning Commission v. Hamilton Bank (1985)-

Answer 37

(Takings)-SCOTUS addresses ripeness of takings claim. Hamilton Bank did not attempt to get variances from the zoning provisions creating the takings no had they attempted to get compensation from TN state statutory provisions. SCOTUS has continued to apply this case to equal protection and substantive due process claims. Two-pronged test: 1. has a final decision been reached by government agency, and 2. have all state-provided procedures for compensation been tried and denied?

Question 38

Nollan v. California Coastal Commission (1987)-

Answer 38

(Takings)- established “rational nexus” test for exactions. SCOTUS requires that any condition imposed (an exaction) must have a rational nexus to a legitimate state interest.

Question 39

Lucas v. South Carolina Coastal Council (1992)-

Answer 39

(Takings)-compensation required where regulation takes all economic use of land. SCOTUS holds that a taking categorically occurs when all economically beneficial uses of the land is denied- does not even need to consider whether the regulation advances a legitimate state interest.

Question 40

Dolan v. City of Tigard (1994)-

Answer 40

(Takings)- extends “rational nexus” test through rule of “rough proportionality” to ensure extent of exaction is proportional to project impacts. SCOTUS holds that even if there is a rational nexus between exaction and state interest, it may still be a taking if the regulation is not roughly proportional to the impact of the development. In this case, requiring dedication of flood plain goes far beyond impact of the development.

Question 41

Palazzolo v. Rhode Island (2001)-

Answer 41

(Takings)-SCOTUS holds that a takings analysis is not irrelevant simply because new owner acquired property after regulations became effective. Palazzolo claimed inverse condemnation, after being denied permit to fill 18 acres of coastal wetlands.

Question 42

Lingle v. Chevron (2005)-

Answer 42

(Takings)-SCOTUS holds that the “substantially advances” test created by Agins is actually a test for due process, not a takings test.

Question 43

Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency (2002)-

Answer 43

(Moratoria and Takings)-“Mere enactment” of moratorium does not effect a taking of property. MOratorium imposed during preparation of comprehensive land-use plan is not “categorical” taking of property requiring compensation under Federal Takings Clause.

Question 44

Recent Development in Federal Takings Analysis

Answer 44

Agins rule that law impacting property rights must “substantially advance” legitimate state interest is essentially irrelevant to 5th Amendment takings analysis. Lingle v. Chevron (2005)- Plaintiffs must allege:
-A physical taking (Loretto);
-Lucas-type total regulatory taking;
-A Penn Central regulator taking; or
-Exactions violating Nollan or Dolan standards.

Question 45

Berman v. Parker (1954)-

Answer 45

(eminent domain)-Concept of public welfare is broad and inclusive, includes “spiritual values as well as physical, and aesthetic values as well as monetary.” Once question of public purpose is settled, legislature has discretion to take all parcels needed to avoid “piecemeal approach” to implementing redevelopment plan. SCOTUS upholds use of eminent domain for aesthetic purposes and for eventual private end use. Very broad interpretation of police power: spiritual, physical, and aesthetic values as well as health, safety, welfare, and morals.

Question 46

Kelo v. City of New London (2005)-

Answer 46

(eminent domain)-City’s exercise of eminent domain power in furtherance of economic development plan satisfies the “public purpose” interpretation of the “public use” requirement of the takings Clause of the Fifth Amendment even though the city does not intend to open land for use by general public. Affirms Berman v. Parker. Bad political reaction has led to many states limiting eminent domain use to strictly public end uses.

Question 47

U.S. v. Gettysburg Electric Railway (1896)-

Answer 47

(eminent domain)- SCOTUS. Eminent Domain. Context: Purchase of battlefield. Holding: Valid. Eminent domain to buy a battlefield is a public use and benefit. Special Note: First significant legal case dealing with historic preservation.

Question 48

Village of Euclid v. Ambler Realty (1926)-

Answer 48

(validity zoning/ police power)-holding that the mere enactment and threatened enforcement of a general zoning ordinance that creates various geographic districts and excludes certain uses from such districts is a valid exercise of police power and does not violate due process or equal protection.

Question 49

Nectow v. City of Cambridge (1928)-

Answer 49

(validity zoning/ police power)- holding: Invalid. An arbitrarily placed zoning line (that was actually drawn in error) is invalidated. With Euclid, establishes concepts of reasonable use and regulations that have to be rationally tied to a valid public purpose- the lower level scrutiny of the rational basis test.

Question 50

Mugler v. Kansas (1887)-

Answer 50

(validity zoning/ police power)-Ordinance based on the concept of nuisance (brewery). Liquor sales a nuisance reduced the value of property. Ordinance upheld, application of state police powers uphold health.

Question 51

Cochran v. Preston (1908)-

Answer 51

(validity zoning/ police power)-Exercise of Police Power. Context: Height limit. Holding: valid. Height limits are a valid exercise of police power because the regulations are related to fire suppression ability. Special Note: Required a substantial relationship between objective of regulation and means of obtaining it.

Question 52

Golden v. Town of Ramapo (1972)-

Answer 52

(validity zoning/ police power)- NY Appeal Court upheld growth management system that awarded points to development proposals based on the availability of public utilities. Case adds timing and sequencing to two existing dimensions of zoning: type and location of land uses. Marks first time in the U.S. that a town was legally approved to control its own growth.

Question 53

Fasano v. County Commissioners of Washington County (1973)-

Answer 53

(validity zoning/ police power)- OR Supreme Court. Holds that zoning must be consistent with comprehensive plans. Also shifts burden of proof to the party seeking a change in zoning, since this is an exercise of judicial authority instead of legislative. Makes rezonings an exception to the general rule of presuming a general zoning ordinance is valid.

Question 54

Construction Industry Association of Sonoma County v. City of Petaluma (1975)

Answer 54

(validity zoning/ police power)-US District Appeals Court. Leading CA case upholding growth management regulations. Petaluma fixed-rate of growth at 500 units per year for 5 years.

Question 55

Sierra Club v. Morton (1972)-

Answer 55

(environmental)- SCOTUS issues ruling on standing in environmental cases. Sierra Club lost the case, but won the war as environmental groups only need to find one member with a personal interest in the threatened area to have standing to sue.

Question 56

Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon (1995)-

Answer 56

(environmental)- SCOTUS defines Section 9 of the Endangered Species Act to include loss or modification of habitat in the definition of “harm” to an endangered species.

Question 57

Associated Builders of Greater East Bay v. City of Livermore

Answer 57

City of Livermore enacted an ordinance prohibiting issuance of new residential building permits until local educational, sewage-disposal, water supply complied with specific standards. Plaintiffs said ordinance was unconstitutional. California Supreme Court said ordinance is reasonably related to public welfare and a valid use of police powers.