AICP Misc. Flashcards
Three generations of Zoning and Growth Management Law
1916-1970 Order Comp plans, zoning, subdivisions 1970-present Efficiency Concurrency, capital budgeting, adequate public facilities 1990-present Community New urbanism, smart growth, sustainability
1st Amendment
Free Speech and Sexual Expression
Free speech is a fundamental right but public obscenity may be prohibited
Is all speech of equal constitutional value
Create an impact zone or use dispersal strategy with distances from protected uses like churches or schools
Civil Rights Act of 1968
Statutory expansion of constitutional rights
City of Edmonds v Oxford House
Drug rehab facility, drug addiction is a disability protected be FHA
SCOTUS: sided with Oxford House; ordinance is subjected to FHA, not a maximum occupancy/public safety requirement, based on trying to affect a certain character in the community, not health and safety
Civil Rights Act of 1871
Statutory expansion of constitutional rights
If you can prove intentional discrimination that affects a fundamental right, you may be able to sue the individuals personally who is involved in the decision making, and get money damages from them
City of Rancho Palos Verdes v Abrams (2005)
NIMBY case
Affluent community; property owner had radio tower, wanted to build another neighbors opposed
SCOTUS: ruled against Abrams because he didn’t use alternative dispute settlement, didn’t get to the SCOTUS properly
Equal protection and discrimination
Government should treat likes alike and avoid illegitimate distinction
Discrimination affects fundamental rights or a protected class (race, religion, etc.)
Levels of scrutiny
Highest level—does regulation have a compelling state interest (a law specifically based on race, religion, national origin, etc.), this is rarely justified
Intermediate/heightened—does law further an important governmental interest
Lowest level—rational basis or fairly debatable
Does discrimination affect other classes or groups (e.g. handicapped or sexual minorities
Due process
You don’t get compensation, you just get the law overturned
Procedural—how does govt implement or apply law to individual
Must avoid being arbitrary and capricious or confiscatory
Most provide reasonable notice and opportunity to be heard by an impartial tribunal (applies to zoning process)
Substantive—when does court examine content or motives behind law
Not major issues in land use cases
Courts defer to legislature for economic issues
Applies more to personal liberty issues
City of East Lake v Forest City Enterprises (1976)
Due process case
NIMBY situation
Popular referendum overturned unpopular zoning decision by city council. Is a zoning referendum an invalid delegation of legislative authority to the public that violates federal due process clause?
SCOTUS: no; at least not in this case. Because zoning in Ohio defined as a legislative action; state constitution of Ohio reserves right of referendum for any matter of legislation
BUT NOTE: Fasano c Board of Commrs Wash Co (1973); zoning is quasi-judicial, not legislative, state laws vary. In those states (FL and OR), people don’t have the right by referendum to overturn a zoning decision
5th Amendment
Takings clause
No taking of private property for public use without just compensation
Not deprived of life, liberty, or property without due process of law
Eminent Domain
direct physical invasion and seizure of property
AKA per se or categorical taking
Government sues you
Regulatory taking
government imposes burden on your right to maximize highest and best use of your property
You sue government
Sometimes called inverse condemnation (government action forces property owner to sue)
Exactions—conditions burdening permits and development orders requiring contributions of property or money to offset impacts (limits full exercise of property rights, i.e. Bundle of sticks)
Police Power
State governments all have it
Inherent in state sovereignty
Does not need to be expressly stated in state constitution
State may preempt locals and retain or take powers back
Federal government does not
Limited to powers specifically enumerated in the US Constitution, all other powers reserved to the states (10th Amendment)
Federal regulatory power has been broadly implied
Local government it depends
If the state chooses to delegate power to local government
Dillon’s Rule: local governments have no power unless legislature gives them a specific power
Home rule: municipal government has all powers except those specifically reserved to the state (more common)
General purpose: cities, counties, school districts
Special purpose: special districts, public authorities
The Power to Plan
Protect public health, safety, and welfare (police power)
Inherent invasive power of a sovereign government to protect its members from harm
Legislative actions are presumed to be valid and constitutional. Burden is on the complainant to prove otherwise
SCOT: Munn v. Illinois (1877)—regulation of business does not violate 14th Amendment (railroad hauling rates), later extended to zoning
Nuisance
= a common law tort
General rule: my home is my castle and I have right to quiet enjoyment of my land
Private nuisance—my neighbor’s conduct interferes with quiet enjoyment
Public nuisance—a person’s unreasonable conduct interferes with the public’s right to health, safety, peace, morals, comfort/convenience
Hadacheck v. Sabastian (1915)—LA annexes and divides city into 27 districts, including one big residential zone, preexisting brickyard declared a public nuisance and no right to maintain a nuisance and no compensation for abatement. SCOTUS upholds
Bundle of sticks
Each stick is a right
They can be separated
Partly through statute and partly through case law
Practical and emotional value
Response to freedom from European serfdom, where wealth and freedom where defined through land
Freedom of conscience: ability to mouth off to state and church without fear of reprisal, resulting a litigious environment
Cultural and religious identify is tied to property ownership
