AICP_Legal Flashcards
1887 – Mugler v Kansas:
14th Amend/Due Process case which ruled that KS could prohibit sale of alcohol based on PP.
1912 – Eubank v City of Richmond:
A ZO establishing building setback lines was held unconstitutional and not a valid use of the PP; violates the due process of law and is therefore unconstitutional under the 14th Amendment.
1995 – Babbitt v Sweet Home Chap. of Communities for a Great OR:
Applied the Endangered Species Act to land development; Sec of Interior’s definition of harm is valid.
1987 – Nollan v California Coastal Commission:
Created the essential nexus takings test for conditioning development approvals on dedications & exactions. A relationship must exist between what a property owner wants (in this case, a building permit to add a second story) and what the local government wants (public access to beach). No relationship here.
1992 – Lucas v South Carolina Coastal Council:
Defined categorical regulatory taking. Compensation must be paid when all economically beneficial uses of land are taken unless uses are disallowed by title or by state law principles of nuisance.
1971 – Citizens to Preserve Overton Park v Volpe:
Established hard look doctrine for environmental impact review. Section 4(f) DOT Act of 1966 – park use ok if no “feasible and prudent” alternative and “all possible planning to minimize harm”.
1976 – Home Builders v. City of Livermore:
Growth policy that timed phasing of future residential growth until performance standards are met; upheld the use of a moratorium.
1971 – Calvert Cliffs’ Coordinating Committee v Atomic Energy Commission:
Made National Environmental Policy Act (NEPA) requirements judicially enforceable.
Calvert Cliffs’ Coordinating Committee v Atomic Energy Commission was a 1971 US court case that interpreted the National Environmental Policy Act (NEPA). The case was brought by a citizens group that was concerned about the impact of a nuclear power plant on the Chesapeake Bay.
What was the case about?
The Calvert Cliffs Coordinating Committee challenged the US Atomic Energy Commission’s rules, arguing that they violated NEPA. The Commission’s rules didn’t require a detailed environmental analysis and didn’t protect the environment.
What was the court’s decision?
The US Court of Appeals for the District of Columbia Circuit ruled that the Commission’s rules didn’t comply with NEPA. The court also ruled that the Commission must consider the environmental impact of projects before construction is complete.
1972 – Sierra Club v Morton:
Opened up environmental citizen suits to discipline the resource agencies.
The Court rejected a lawsuit by the Sierra Club seeking to block the development of a ski resort at Mineral King valley in the Sierra Nevada Mountains because the club had not alleged any injury.
Although the Sierra Club lost the case, as a practical matter they won the war. To assert standing in a natural resource manner, environmental groups simply need to find among their membership a single person with a particularized interest (e.g., one who hikes, hunts, fishes, or camps in or near the affected area). Mineral King was ultimately never developed and was absorbed into Sequoia National Park.
1973 – Fasano v Board of Commissioners of Washington Co., Oregon:
Required zoning to be consistent with comp plans, and recognized that rezonings may be judicial rather than legislative. Central issue was spot zoning, which must meet the two measures to be deemed valid: 1st, there must be a public need for the change in question; 2nd, the need must be best served by changing the zoning of the particular parcel in question as compared with other available property.
The plaintiffs, homeowners in Washington County, contested a zoning change approved by the Board of County Commissioners.
The Board had changed the zoning of a 32-acre parcel owned by A.G.S. Development Company from R-7 (Single Family Residential) to P-R (Planned Residential) to allow for the construction of a mobile home park.
The plaintiffs opposed the change, arguing it was inconsistent with the county’s comprehensive plan.
Issue
The primary issue in this case was whether the Board of County Commissioners’ approval of the zoning change was consistent with the comprehensive plan for Washington County and whether the standards for judicial review and burden of proof were properly applied.
Holding
The court held that the decision of the Board of County Commissioners to rezone the property was invalid. The court affirmed the lower courts’ rulings, finding that the Board had not demonstrated that the zoning change was consistent with the comprehensive plan and that there was no sufficient evidence to support the need for such a change.
Reasoning
The court reasoned that zoning decisions, while often considered legislative, can also be quasi-judicial when they involve specific parcels of land. In such cases, the burden of proof lies with the party seeking the zoning change to show that it conforms to the comprehensive plan. The court emphasized the need for zoning changes to be justified by demonstrating a public need and that the specific change in question was the best means to meet that need. Additionally, the court found that the evidence presented by the Board, which was largely conclusory, failed to meet the required standard of proof. The court noted the importance of adhering to comprehensive plans in zoning decisions to prevent arbitrary and capricious changes influenced by private economic interests
1976 – Hills v Dorothy Gautreaux:
The Chicago Housing Authority and HUD had to spread out concentration of public housing (scattered site housing), including into white suburbs that were not necessarily within Chicago. Argued under the Civil Rights Act of 1964.
1982 – Loretto v Teleprompter Manhattan CATV Corporation
Court held that any physical occupation is a taking, no matter how de minimus (landlords had been required under state law to allow cable company to install permanent cable TV facilities on their property).
1981 – Metromedia, Inc v City of San Diego
Ordinance that substantially restricted onsite and off-site billboards was ruled unconstitutional under 1st amendment.
1984 – Members of City Council v Taxpayers of Vincent:
1st amendment case which allowed the City Council to exert control over posting of election signs on public telephone poles.
1980 – Central Hudson v Public Service Commission:
1st Amendment case which overruled the NY State Public Service Commission’s total ban on an electric utility’s advertisements to increase electric usage.
To make their argument, the Court established a four-step analysis for commercial speech to the commission’s arguments in support of its ban on promotional advertising:
Is the expression protected by the First Amendment? For speech to come within that provision, it must concern lawful activity and not be misleading.
Is the asserted governmental interest substantial?
Does the regulation directly advance the governmental interest asserted?
Is the regulation more extensive than is necessary to serve that interest?
There must be a “reasonable fit” between the government’s ends and the means for achieving those ends.
Agins v Tiberon (1980)
Agins v. City of Tiburon, 447 U.S. 255 (1980), was a United States Supreme Court case in which the Court held that the test for determining whether a zoning ordinance or governmental regulation will be considered a taking is whether such action “substantially advances†a legitimate state interest.The Court subsequently overruled this decision twenty-five years later in Lingle v. Chevron U.S.A. Inc., 554 U.S. 528 (2005).BackgroundCalifornia state law required the city to prepare a general plan governing both land use and the development of open space land.After Dr and Ms Agins acquired 5 acres (20,000 m2) of unimproved property zoned one house per acre, the city announced that it intended to acquire it, and issued bonds to finance the taking. It filed an eminent domain action, but on the eve of trial abandoned it. Instead, it amended the zoning ordinance placing the subject land in a zone that permitted construction of one to five homes, the exact number being discretionary with the city. The owners contended that the applying for permit(s) to construct seriatim of one to five home would be economically infeasible and that the city intended to convert their land into open space by preventing its development. They sued seeking just compensation for a regulatory taking.The owners alleged that their land had greater value than other land in California because of its spectacular views of San Francisco Bay, and the rezoning prevented economically feasible development, thereby completely destroying its value, and thus effecting its taking without just compensation in violation of the Fifth and Fourteenth Amendments.The California Supreme Court refused to recognize the existence of a regulatory taking cause of action, and held that the only remedy available to the owner would be a petition for a writ of mandate seeking to invalidate the regulation on grounds of denial of substantive due process.Court’s decisionThe question in this case was whether the ordinances took Agins’ property without just compensation.The complaint framed the question as to whether a state court’s decision to deny compensation for regulatory takings was constitutional, and whether a zoning ordinance that de facto forbade all development of their land effected a taking under the 5th and 14th Amendments. However, as noted, because the owners had not yet applied for a permit for development, the court found that the issue of whether an as-applied taking occurred, was not yet ripe for decision. Therefore, the only issue left was whether this zoning ordinance constituted a taking on its face.The Court held that a general 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 its finding of lack of ripeness, the U. S. Supreme Court affirmed the California Supreme Court’s holding that the zoning ordinances did not on their face effect an uncompensated taking.
1987 – First English Evangelical Church of Glendale v Co of Los Angeles:
Allowed damages (as opposed to invalidation) as a remedy for regulatory taking. Just compensation clause of the 5th Amendment requires compensation for temporary takings which occur as a result of regulations that are ultimately invalidated.
Berman v. Parker
Approval of urban renewal project planned as a whole, even though some properties taken were not blighted
1909 – Welch v Swasey:
Boston can impose different height limits on buildings in different districts.
Associated Home Builders of the Greater East Bay v City of Livermore
California Supreme Court upheld that a temporary moratorium on building permits was ok until certain performance criteria were met for the city as a whole
2005 – Lingle v. Chevron:
Case brought by Chevron based on an Agins-type claim that one of Hawaii’s statutes did not “substantially advance legitimate state interests”. Court ruled that even though Lingle could not be upheld on that issue, it did NOT overturn the 1980 Agins case in the whole.
1978 – TVA v. Hill (Secretary of Interior):
Court forced full implementation and enforcement of the Endangered Species Act. Halted the Tellico Dam, which was almost completely built, because the endangered Snail Darter — a fish — was found.
1928 – Nectow v City of Cambridge:
Court found for Nectow and against a provision in Cambridge’s ZO based on the due process clause. However, it did NOT overturn Euclid. This was the last zoning challenge to come before the SC until…
1985 – Williamson County Regional Planning Commission v Hamilton Bank:
Defined the ripeness doctrine for judicial review of takings claims.
2006 - Massachusetts v. EPA:
EPA must provide a reasonable justification for why they would not regulate greenhouse gases.
1954 – Berman v Parker:
Established aesthetics and redevelopment as valid public purposes for exercising eminent domain. Wash.DC took private property and resold to a developer to achieve objectives of an established redevelopment plan.
1977 – Village of Arlington Heights v Metropolitan Housing Development:
Established that discriminatory intent is required to invalidate zoning actions with racially disproportionate impact. Court overturned denial of rezoning to allow for multi-family residences in a previously single-family zoned area.
1926 – Village of Euclid v Ambler Realty Co.:
Established zoning as a legal use of PP by local government. The main issue in this case was “nuisance”, and that a certain use near a residence could be considered “a pig in a parlor”. Argued by Alfred Bettman, future 1st president of ASPO.
1994 – Dolan v City of Tigard:
Extended Nollan’s essential nexus test to require “Rough proportionality” between development impacts and conditions on development. (bike path/store/lessening overall traffic)
Village of Arlington Heights v. Metropolitan Housing Development Corp.
FactsA religious order operating in the mostly white, low-density suburban community of Arlington Heightsoutside of Chicago sought, with help from non-profit Metropolitan Housing Development Corp.(MHDC), to construct low- and moderate-income housing on some of its land. The Village’s Board ofTrustees denied MHDC’s application for a variance to construct 20 two-story buildings with a total of190 units on property zoned R-3 single-family housing, citing the community’s desire to preservesingle-family housing at the proposed location. MHDC filed suit against the Village, claiming racialdiscrimination and violation of the Equal Protection Clause.DiscussionCiting its 1976 decision in Washington v. Davis, the court recalled that “[d]isproportionate impact is notirrelevant, but it is not the sole touchstone of an invidious racial discrimination.” The court assertedthat “[p]roof of racially discriminatory intent or purpose is required to show a violation of the EqualProtection Clause. … When there is a proof that a discriminatory purpose has been a motivating factorin the decision, [] judicial deference is no longer justified.” Departures from normal proceduralsequences and legislative or administrative history may be “highly” relevant to determine whethersuch intent exists.HoldingBecause the rezoning request progressed according to the usual procedures, the property in questionhad been zoned for single-family housing since the Village first adopted a zoning map, and the publiccomments of the Plan Commission and Board of Trustees did not support inferences of invidiouspurposes, the zoning decision was rationally determined and the plaintiffs failed to carry their burdenof proving that discriminatory purpose was a motivating factor in the village’s decision.SignificanceEstablished that discriminatory intent is required to invalidate zoning actions with raciallydisproportionate impacts.
Koontz v. St. Johns River Management District
FactsCoy Koontz, Sr. owned 14.9 acres of land in Florida containing wetlands. He applied to the St. JohnsRiver Management District to develop 3.7 acres. To mitigate adverse environmental impacts, Koontzoffered to restrict future development on the remaining 11 acres with a conservation easement. TheDistrict considered the conservation easement for the 11 acres inadequate. The District Court statedthat it would approve Koontz’s development proposal only if he either: (a) reduced the size of hisdevelopment to one acre and deeded a conservation easement on the remaining 13.9 acres, or (b)built on the 3.7 acres, deeded a conservation easement to the District on the remainder of property,and agreed to hire contractors to make improvements to District-owned land several miles away.Koontz sued because he believed that the District’s demands for mitigation were excessive.DiscussionThe Court began its opinion by discussing the doctrine of unconstitutional conditions, which preventsthe government from coercing individuals into giving up Constitutional rights. The Court discussed thisdoctrine as relating to its decisions in Nollan v. California Coastal Commission (1987) and Dolan v. Cityof Tigard (1994), noting that the land use permitting process leaves permit applicants particularlysusceptible to coercion from governments, but that proposed land uses often invoke costs on thepublic that dedications of land can offset. For instance, the Court noted that a development may causemore traffic congestion which can be offset by the permit for development being conditioned on theowner’s agreement to deed land to widen the adjacent road. The Court then reiterated the principlesestablished by Nollan and Dolan that the government is allowed to condition the approval of a permiton the dedication of property, so long as the property the government demands and the social costs ofthe development share a “nexus” and “rough proportionality.” The Court wrote that the principlesof Nollan and Dolan apply regardless of whether the government approved a permit on the conditionthat the applicant turn over property or denied a permit because an applicant refused to do so.Further, the Court discussed the rising trend of monetary exactions (such as those imposed on Koontzby the District) in land use, noting that they are a commonplace alternative to common alternatives toeasements.HoldingGovernment’s demand for property from a land use permit applicant must satisfy the requirementsof Nollan and Dolan even where (a) the government denies the permit, and (b) the demand is formoney. The Court remanded for further proceedings on the merits of Koontz’s claims.SignificanceRecognized that monetary exactions are subject to the per se takings test of Nollan and Dolan
Kelo v. City of New London
FactsDecades of economic decline and job losses had left New London, Connecticut, a “distressed municipality,” as defined by the state. In the 1990s, the New London Development Corporation (NLDC)was reactivated to promote economic development in the city. NLDC devised a plan calling forconstruction of a research facility for the pharmaceutical company Pfizer on a site then containing 115privately owned properties. As a means of creating jobs, generating tax revenue, and sparkingdowntown revitalization, NLDC proposed to use eminent domain to acquire the private properties,most of which were non-blighted single-family homes. Susette Kelo and eight other petitionersprotested the city’s use of eminent domain to acquire their properties.DiscussionThe court reviewed basic propositions of takings law, positing that the government “may not take theproperty of A for the sole purpose of transferring it to another private party B, even though A is paidjust compensation,” while it may “transfer from one private party to another if future ‘use by thepublic’ is the purpose of the taking,” such as when land is condemned for construction of a passengerrailroad. The court believed that the case hinged on whether the development plan served a “publicpurpose,” and looked to the precedents of Berman v. Parker (approval of urban renewal projectplanned as a whole, even though some properties taken were not blighted) and Hawaii HousingAuthority v. Midkiff (special case of taking to eliminate an oligopoly) to find the answer.Holding”Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption,and the limited scope of our review, it is appropriate for us … to resolve the challenges of theindividual owners … in light of the entire plan. Because that plan unquestionably serves a publicpurpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.” Thewell-researched nature of the city’s “integrated development plan” further justified deference to localdecision makers, in the court’s opinion.SignificanceUpheld the use of eminent domain for economic development purposes
Southern Burlington County NAACP v. Township of Mt. Laurel [Mount Laurel II]
FactsDespite the 1975 Mount Laurel decision, the New Jersey Supreme Court felt that the township hadcontinued its exclusionary housing policies, and that not enough legislative action had been taken tomandate provision of affordable housing on a regional level throughout the state. This second caseconsolidated six exclusionary housing cases.DiscussionIn a lengthy discussion, the court reviewed the criteria for “fair share” housing distributions describedin Mount Laurel I within the context of the new (1980) State Development Guide Plan (SDGP). This Planprovided “a statewide blueprint for future development” and its “remedial usein Mount Laurel disputes will ensure that the imposition of fair share obligations will coincide with theState’s regional planning goals and objectives.” In particular, the SDGP defined “growth areas”throughout the state, which the court asserted should be held to the Mount Laurel doctrine.HoldingAmong several rulings, the court concluded that:1. “every municipality’s land use regulations should provide a realistic opportunity for decenthousing for at least part of its resident poor who now occupy dilapidated housing.”2. SDGP-defined “growth areas” must “provide a realistic opportunity for fair share of a region’spresent and prospective low and moderate income housing.”3. Litigation should reference specific numbers of units needed in a municipality, both immediatelyand for a reasonable period of time in the future.4. A special three-judge panel would hear all Mount Laurel exclusionary housing cases.5. Beyond elimination of obstacles to affordable housing, municipalities should use affirmativepolicies such as density bonuses and mandatory set-asides.6. “Builder’s remedies” may allow developers, given judicial approval, to circumvent local zoningdecisions and build affordable housing units if a need has been established.SignificanceCreated the model fair housing remedy for exclusionary zoning.
Dolan v. City of Tigard
FactsDolan owned a plumbing and electrical supply store in Tigard’s Central Business District (CBD). Thetown’s Community Development Code required property owners in the CBD to reserve 15 percent oftheir property for open space and landscaping, and its Master Drainage Plan called for mitigation offlood damage around a creek that runs through the CBD. When Dolan applied for a permit to nearlydouble the size of her store, the local planning commission approved the application on the conditionthat she dedicate roughly 10 percent of her property, located in the creek’s floodplain, toward a flooddrainage system and a public pedestrian and bike path. Dolan appealed this exaction.DiscussionThe court evaluated the proposed conditions using the Nollan standard, and determined that a nexusdid indeed exist between the city’s dual goals of minimizing development in the creek’s floodplain andreducing traffic congestion in the CBD, and its proposed conditions dedicating a portion of Dolan’sproperty to open space and a public pathway, respectively. However, the court sought to “determinewhether the degree of the exactions demanded by the city’s permit conditions bear the requiredrelationship to the projected impact of [the] petitioner’s proposed development.” Reviewing severalstate laws regarding exactions, the court agreed that “the dedication should have some reasonablerelationship to the needs created by the [development].”Holding”No precise mathematical calculation is required, but the city must make some sort of individualizeddetermination that the required dedication is related both in nature and extent to the impact of theproposed development” — a “rough proportionality” between the proposed dedication and thedevelopment’s potential impact. In this case, because the city used vague standards to justify itsconditions on development (the proposed landscaping could have been private, and traffic studies didnot prove that the public pathway would alleviate traffic), taking 10 percent of Dolan’s property wasexcessive compared to the potential harm of the building expansion.SignificanceEstablished a higher standard for takings by extending Nollan’s “essential nexus” test to require “roughproportionality” between development impact and conditions.
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)
FactsIn 1878, Pennsylvania Coal Company granted a deed to homeowner Mahon for all surface property rights, but expressly reserved the right to mine coal beneath the surface, with Mahon waiving all rights to any damages caused. Mahon sued under Pennsylvania’s Kohler Act (1921), which forbade mining activities that caused any homes to subside.DiscussionThe court focused on the constitutionality of the Kohler Act. Reviewing property rights broadly, itmaintained that “[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” However, the court argued that since Mahon was only a single property owner, “A source of damage to such a house is not a public nuisance. … The damage is not common or public.” Therefore, “the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the defendant’s constitutionally protected rights.”HoldingThe court held that the Kohler Act did not constitute an exercise of legitimate police power, because it would prevent the property owner (in this case, Pennsylvania Coal, the subsurface property owner) from its right to gain profit from the use of its property (by mining coal). In other words, “To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it.” According to the court, “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”SignificanceFor the first time, the U.S. Supreme Court indicated that regulation of land use, including regulation that destroys the economic value of a property, might constitute a taking.
Village of Euclid v. Ambler Realty Co.
FactsIn 1922, Euclid, a suburb outside of Cleveland, adopted “a comprehensive zoning plan for regulatingand restricting the location of trades, industries, apartment houses, two-family houses, etc., the lotarea to be built upon, the size and height of buildings, etc.” Ambler Realty claimed that the zoningordinance as applied to its individual property (which would mostly allow only residential, as opposedto industrial, uses) violated its constitutional property rights, and constituted an attempt to restrict andcontrol the lawful uses of its land by confiscating and destroying much of its value.DiscussionThe court reviewed the history of nuisance law and zoning ordinances, the latter of which had been ineffect throughout the country for about 25 years. Asserting that “[a] nuisance may be merely a rightthing in the wrong place, like a pig in the parlor instead of the barnyard,” the court supporteddeference to the legislative, arguing that generally “[i]f the validity of the legislative classification forzoning purposes be fairly debatable, the legislative judgment must be allowed to control.” Although azoning ordinance that is intended to restrict the location of nuisances may in fact also restrict nonnuisance properties, the court said that it is difficult to define what exactly constitutes a nuisance (e.g.,an apartment building can be considered a nuisance if it causes increased traffic and noise), and thisregulation of uses generally falls within the police power.HoldingFor a zoning ordinance to be declared unconstitutional, it must be clearly arbitrary and unreasonable,having no substantial relation to the public health, safety, morals, or general welfare. For claims suchas Ambler’s, which protest the general validity of the zoning ordinance, the court will defer to thelegislature, although complaints about specific provisions of an ordinance may prove unconstitutional.SignificanceEstablished zoning as a valid exercise of police power by local government that in general does notviolate the constitutional protection of the right to property.
Southern Burlington County NAACP v. Township of Mount Laurel [Mount Laurel I]
FactsIn 1964, the suburban community of Mount Laurel, New Jersey, adopted an ordinance zoning 29.2percent of all land as industrial, 1.2 percent retail, and the remaining nearly 70 percent residential.Residential zones permitted only one detached, single-family dwelling per lot, with large minimums forlot size and building floor area. In 1968, a private nonprofit sought to build a subsidized multifamilyhousing development in a residentially zoned area of Mount Laurel, but zoning that required 20,000-square-foot lots effectively killed the project. The NAACP argued that the town’s zoning ordinancediscriminated against low-income families.DiscussionThe court asserted that the township had restricted multifamily housing in order to reduce the numberof school children in its jurisdiction, and thus keep property taxes low by not paying for additionalschool facilities. This type of land use planning exhibited a “selfish and parochial interest” in attracting”sizeable industrial and commercial ‘ratables’” to increase municipal revenues. Concerning the case athand, the court sought to answer the question of “whether a developing municipality can validly, by asystem of land use regulation, make it physically impossible to provide low and moderate incomehousing in the municipality for the various categories of persons who need and want it and thereby, asMount Laurel has, exclude such people from living within its borders because of their limited incomeand resources.”HoldingThe court held that every “municipality must, by its land use regulations, presumptively makerealistically possible an appropriate variety and choice of housing … it cannot foreclose the opportunityof the classes of people mentioned for low and moderate income housing and in its regulations mustaffirmatively afford that opportunity, at least to the extent of the municipality’s fair share of thepresent and prospective regional need therefore.” The Mount Laurel ordinance “is presumptivelycontrary to the general welfare and outside the intended scope of the zoning power,” and as such “nomunicipality may exclude or limit categories of housing” for fiscal purposes.SignificanceFormalized the concept of a regional “fair share” affordable housing burden
Penn Central Transportation Co. v. City of New York
FactsIn 1965, two years after the demolition of historic Pennsylvania Station in Manhattan, New Yorkadopted its Landmarks Preservation Law. The law established a Landmarks Preservation Commission,which among other duties regulated alterations to landmarked buildings, and included a provisionallowing historic property owners to sell air development rights to owners of nearby parcels. PennCentral, owner of the historic landmark Grand Central Terminal, leased the building to a developer in1968 in order to increase its income by building a 50-plus story skyscraper on top of the terminal. TheLandmarks Commission denied building permits for the project, citing impact both to the historicresource and the surrounding viewshed. Claiming that the denial constituted both a taking and aviolation of due process, Penn Central sought compensation from the City equal to the fair marketvalue of the property’s air rights.DiscussionTo decide whether the Landmark Commission’s action had effected a taking, the court focused on the”economic impact of the regulation … [and] the extent to which the regulation [] interfered withdistinct investment backed expectations,” as well as “the character of the governmental action”, i.e.whether the action “can be characterized as a physical invasion” versus “some public programadjusting the benefits and burdens of economic life to promote the common good.” Citing Euclid, thecourt argued that diminution in property value alone cannot establish a taking, which must apply to anentire property, not just a “discrete segment” (in this case, air space). In addition, because thelandmarks program, which benefited the public, applied to hundreds of properties, Penn Central wasnot solely burdened by the law. The court thus concluded that the Landmark Commission’s action didnot constitute a taking, that the Landmarks Law did not interfere with the “present uses” of theterminal, and that Penn Central could still obtain a reasonable return on its investment by selling itsdevelopment rights.Holding”The restrictions imposed [by the Landmarks Law] are substantially related to the promotion of thegeneral welfare and not only permit reasonable beneficial use of the landmark site but afford …opportunities further to enhance not only the Terminal site property but also other properties.”SignificanceIntroduced a means-end balancing test for regulatory takings and validated historic preservationcontrols.
Metromedia, Inc. v. City of San Diego
FactsIn 1972, San Diego enacted an ordinance prohibiting all off-site outdoor advertising display signs, i.e.any signs not identifying the use, facility, or service located on the premises where a product wasproduced, sold, or manufactured. Under the ordinance, all existing signs had to be removed after anamortization period ranging from 90 days to four years, depending on the location and depreciatedvalue of the sign. Metromedia, Inc., owner of many off-site billboards in the San Diego area, filedseveral complaints against the city, centering on the financial consequences of the ban for billboardcompanies. The Supreme Court considered the case after the Supreme Court of California held that thebillboard ban fell within the police power of San Diego.DiscussionThe court began its analysis by discussing the communicative and non-communicative aspects ofbillboards, e.g. their publicly beneficial uses from political campaign ads to promotion of charities, andthe difficulty posed by their size and immobility. Addressing the lesser Constitutional protectionof commercial speech, the court then reviewed its 1980 Central Hudson Gas & Electric Corp. v. PublicService Communication decision, which established a “four-part test for determining the validity ofgovernment restrictions on commercial speech as distinguished from more fully protected speech.”The ordinance passed the Central Hudson test because it followed substantial public interests —increasing traffic safety and improving the appearance of the city — and did not limit all speech via themedium of billboards.HoldingAlthough San Diego met the constitutional requirements of Central Hudson, the court held that theordinance violated First Amendment free speech protections by restricting noncommercial speech viabillboards to a similar degree as its commercial restrictions. The court asserted that “[t]he city does notexplain how or why noncommercial billboards located in places where commercial billboards arepermitted would be more threatening to safe driving or would detract more from the beauty of thecity.”SignificanceEstablished a high standard for aesthetic regulation of billboards by providing First Amendmentprotection to commercial firms that advertise goods or services not available at the location of thesign.
Lucas v. South Carolina Coastal Council
FactsIn 1986, Lucas paid $975,000 for two residential lots on the South Carolina coast, intending to buildsingle-family homes. In 1988, the state enacted the Beachfront Management Act, which barred Lucasand other coastal property owners from erecting any permanent habitable structures, in order toprevent erosion. Lucas claimed that the regulation constituted a taking. The state trial court awarded$1.2 million compensation, but the South Carolina Supreme Court reversed, contending that the statecould take property without compensation in order to prevent serious public harm.DiscussionThe court reviewed its previous rationales for takings requiring compensation: (1) any degree ofpermanent physical invasion, or (2) the denial of all economically feasible or beneficial use of property.While previous cases “suggested that ‘harmful or noxious’ uses of property may be proscribed bygovernment regulation without the requirement of compensation,” in this case the line between”harm-preventing” and “benefit-conferring” regulation was too blurred to justify a nuisance exceptionto these rules, requiring the creation of a new standard for regulatory takings.Holding”Where the State seeks to sustain regulation that deprives the land of all economically beneficial use …it may resist compensation only if … the proscribed use interests were not part of [the] title to beginwith.” In cases where property owners’ titles included such interests, “Any limitation so severe [as toremove all economically beneficial use of the property] cannot be newly legislated or decreed (withoutcompensation), but must inhere in the title itself, in the restrictions that background principles of theState’s law of property and nuisance already place upon land ownership.” To determine whether sucha “total taking” of economic value has occurred, courts must examine: (1) the degree of harm to publiclands and resources, (2) the social value of the claimant’s activities and their suitability to their locality,(3) the relative ease with which the alleged harm can be avoided, and (4) how long the use has beenengaged in by similarly situated owners. The case was remanded to allow the state to determine”background principles of nuisance and property law” applicable to the case.SignificanceDefined categorical regulatory takings and an exception for regulations rooted in background principlesof law; compensation to be paid to landowners when regulations deprive them of all economicallybeneficial land use unless uses are disallowed by title or by state law background principles of privateand public nuisances.
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency
FactsNevada and California established the Tahoe Regional Planning Agency (TRPA) to study the impact ofgrowth on Lake Tahoe and to create moratoria, one lasting two years and another for an ensuing eightmonths (for a total of 32 months), on all development in the Lake Tahoe Basin. The petitioners, theTahoe-Sierra Preservation Council, Inc., representing about 2,000 owners of about 400 individualowners of vacant lots in the basin, filed suit in federal court, alleging that the moratoria faciallyviolated the takings clause of the Fifth Amendment to the Constitution.DiscussionThe Court reviewed its historical treatment of takings issues, with particular focus on the distinctionbetween physical takings, where a government physically acquires land, and regulatory takings, wherea government restricts the use of a property so much that it renders the property economically orpractically useless for a landowner. Relying on Lucas v. South Carolina Coastal Council, the petitionerscontended that the Court should establish a bright line rule that a regulation that imposes a temporarydeprivation of all economically viable use of property — no matter how brief — is an unconstitutionaltaking. The Court refused to do so, and found that claims of temporary deprivation are regulatorytakings claims that should be analyzed under the multi-factor framework of Penn CentralTransportation Co. v. New York City. The Court observed that creating a categorical rule that temporarydeprivations always constitute a taking would run afoul of important planning principles advancedthrough moratoria.HoldingThe Court held that the moratoria did not constitute a taking. The Court noted that its ruling wasnarrow in that the petitioners had brought only a facial challenge, and that the petitioners did notchallenge the moratoria under the Penn Central factors.SignificanceRecognizes that partial, temporary deprivations of property may constitute a taking under the FifthAmendment, but must be analyzed on a case-by-case basis under the regulatory taking frameworkof Penn Central
City of Edmonds v. Oxford House
FactsThe City of Edmonds, Washington, enacted a zoning ordinance that required single-family dwellingunits to be inhabited only by a “family,” which was defined as “an individual or two or more personsrelated by genetics, adoption, or marriage, or a group of five or fewer persons, who are not related bygenetics, adoption or marriage.” Oxford House-Edmonds, located in a single-family neighborhood andsubject to the family definition, operated a group home for 10-12 persons recovering from alcohol anddrug addiction. After learning of Oxford House’s operation, the City issued criminal citations to theowner and a resident of the house on the ground that the occupants did not constitute a family.Oxford House requested a reasonable accommodation under the Fair Housing Act, 42 U.S.C. §3604 etseq. (a change in rules, policies, or practices when necessary to afford handicapped persons an equalopportunity enjoy the housing of their choosing) allowing it to operate as, but the City denied therequest. The City sued Oxford House seeking a declaration that the FHA was inapplicable to the City’sdefinition of family under the FHA’s maximum occupancy exemption. The FHA exempts any”restriction[s] regarding the maximum number of occupants permitted to occupy a dwelling.” 42 U.S.C.§2607(b)(1). Oxford House filed a counterclaim, alleging that the definition of family was not exemptunder the FHA, and that the City violated the FHA by denying Oxford House’s request for a reasonableaccommodation.DiscussionThe court distinguished between ordinances capping the number of individuals who may occupy adwelling and ordinances limiting who may occupy a dwelling. Capping ordinances are meant to limitthe total number of occupants in order to prevent overcrowding and generally do so in relation to floorspace or the number and type of rooms. Ordinances defining family composition are intended topreserve the family character of a neighborhood rather than the total number of occupants.HoldingThe Court determined that the family composition ordinance does not cap the number of individualswho may occupy a dwelling. Rather, it describes who may live in the dwelling. The Court noted that theCity had a separate ordinance which limited the number of occupants of a dwelling based on floorarea. Accordingly, the ordinance was subject to the requirements of the FHA. The Court remanded thecase to the lower courts to determine whether the ordinance was unlawful under the FHA.SignificanceRecognizes that definitions of “family” contained in zoning ordinances that limit who may occupy adwelling are subject to the requirements of the FHA.
Lingle v. Chevron USA, Inc.
FactsThe difficulties presented by travel between the continental United States and the large number ofislands comprising the state of Hawaii resulted in a small concentration of oil refineries and distributorsin Hawaii. The unique circumstances in Hawaii led to most gasoline stations in the state operatingunder an independent lessee-dealer model. Chevron operated in the area predominately on theindependent lessee model, charging monthly rent for lessees and stipulating that all gasoline from thestations under contract use Chevron oil. Concern that the concentration of industry under this modelcould inflate gasoline prices prompted the Hawaii state legislature to enact a law that capped theamount of rent that an oil company could charge lessee-dealers at 15 percent of a dealers gross profitfrom sales. Chevron sued the state, alleging that this law constituted a regulatory taking of its propertyunder the Fifth Amendment. Chevron argued that the rent control statute was a regulatory takingbecause it failed to advance Hawaii’s goal of protecting consumers against high gasoline prices.According to Chevron, the rent control statute failed to substantially advance a legitimate stateinterest and thus constituted an unconstitutional regulatory taking under Agins v. City of Tiburon, 447U.S. 255 (1980).DiscussionThe Court reviewed its holdings in previous takings cases, noting that there were two situations wherethe government must compensate a landowner: (1) where government physically invades alandowner’s land, no matter how small the intrusion; and (2) where regulations deprive a landownerof all economically viable use of the property. The Court noted that outside of these two setcategories, regulatory takings claims should be evaluated under Penn Central Transportation v. NewYork City (1978). The Court found that the test established in Agins was more appropriate to dueprocess claims, as whether a regulation substantially advances a legitimate state interest is irrelevantto whether that regulation affects a taking of property without just compensation.HoldingThe court overruled Agins’s “substantially advances a legitimate state interest” test to determinewhether there has been a regulatory taking. The Court clarified that such a test is more appropriate indue process challenges. Instead, regulatory takings challenges that do not deprive a landownerof all economically viable use or property must be analyzed under Penn Central.SignificanceRecognizing that regulatory takings claims that do not deprive an owner of all economically viable useof land or property must be evaluated under the factors set forth in Penn Central.
Nollan v. California Coastal Commission
FactsThe Nollans owned beachfront property in Ventura County, California, bordered on either side bypublicly accessible beaches. Their lease required that upon purchase of the property, an existingbungalow on the lot be demolished. Similar to its decisions in other beachfront property cases, theCalifornia Coastal Commission (CCC) conditioned the Nollans’ building permit application to demolishthe bungalow and build a new home upon their allowing the public an easement to pass across aportion of their beachfront. The Nollans appealed the California Court of Appeal decision that the CCCaction did not constitute a taking.DiscussionThe court asserted that a permanent physical occupation had occurred since the public wascontinuously allowed to pass through the Nollans’ property without compensation. But does requiringthe public easement as part of a condition still constitute a taking? Analyzing the CCC’s motives, thecourt determined that in fact the legitimate state interests leading to the conditional approvalcentered on providing the public with visual access to the beach so as to reduce the psychologicalbarrier against beach use — not on the physical use of the beach on the Nollans’ property by thepublic.HoldingThe constitutionality of a building permit condition “disappears … if the condition substituted for theprohibition utterly fails to further the end advanced as the justification for the prohibition.” In otherwords, “the lack of [an essential] nexus between the condition and the original purpose of the buildingrestriction converts that purpose to something other than it was” — a taking for a legitimate stateinterest, but without compensation. The building permit condition thus constituted a taking, andcompensation must be paid.SignificanceCreated “essential nexus” takings test for conditioning development approvals on dedications andexactions. There must be a strong relationship between the problem created by proposeddevelopment and the proposed exaction (or mitigation), or else compensation may be required.
Reed v Gilbert
FactsThe Town of Gilbert, Arizona, had a sign code that imposed different requirements on ideological signs,political signs, and temporary directional signs. Ideological signs included any “sign communicating amessage or ideas for noncommercial purposes that is not a Construction Sign, Directional Sign,Temporary Directional Sign Relating to a Qualifying Event, Political Sign, or a sign owned or required bya governmental agency.” Of the three categories, the sign code treats ideological signs most favorablyin terms of allowable size, location, and duration. Political signs included any “temporary sign designedto influence the outcome of an election called by a public body.” The sign code treated political signsmore restrictively than ideological signs in terms of allowable size, location, and duration. Temporarydirectional signs relating to a qualifying event included any “temporary sign intended to directpedestrians, motorists, and other passersby to a ‘qualifying event.’” A qualifying event is any”assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable,community service, educational, or other similar non-profit organization.” The sign code treatedtemporary directional signs more restrictively than political signs.Clyde Reed is the pastor of Good News Community Church. As a small, cash-strapped entity, the churchholds services at a variety of locations. The church relies on temporary directional signs to inform thepublic about where it will hold services. The Town of Gilbert issued two citations to the church forviolating the sign code’s durational limits and for failing to include the date of the events on the signs.The church and Reed sued to challenge the Town’s sign code as an abridgment of their freedom ofspeech.DiscussionThe Court began by discussing the concept of content-neutrality, a central tenet of First Amendmentlaw, that requires the government to regulate speech without regard to its content, subject matter, ormessage. If a law is considered content-based, it triggers strict scrutiny, under which government canprevail only if it the challenged law furthers a compelling interest that is narrowly tailored. A law canbe content-based either on its face or, if facially neutral, with respect to its governmental purpose. Butgovernmental purpose cannot be used to justify a law that is content-based on its face. Content-baseddiscrimination occurs where the speech regulations target specific subject matter, even if they do notdifferentiate among viewpoints within that subject matter. Finally, the Court stated that sign codesmay regulate many aspects that have nothing to do with a sign’s message, including size, buildingmaterials, lighting, moving parts, and portability.HoldingThe Court held that the sign code was content-based on its face because it targeted specific subjectmatter: temporary directional signs were treated worse than ideological or political signs. The signcode failed strict scrutiny because it was underinclusive. While the Town of Gilbert argued that the signcode was meant to advance the compelling governmental interests of aesthetics and traffic, politicalsigns and ideological signs affected these alleged interests the same as temporary directional signs butwere treated better.SignificanceRecognized that subject matter distinctions are facially content-based and subject to strict scrutiny,and clarified the relevance of governmental purpose in enacting the challenged law.
Golden v. Planning Board of Ramapo
FactsThe Town of Ramapo, New York, enacted a concurrency ordinance prohibiting any proposeddevelopment unless developers obtained a special permit. Permits were awarded based on a pointsystem that took into account available municipal facilities in the development area, includingsewerage, drainage, roads, firehouses, park and recreation space, and public schools. The ordinancewas designed to phase development over time — as long as 18 years — although developers couldaccelerate the approval process by constructing their own infrastructure. Golden protested the denialof a special permit to construct a residential subdivision.DiscussionAfter confirming that the ordinance was permissible under the local zoning enabling act, the courtasserted that the “restrictions conform to the community’s considered land use policies as expressed inits comprehensive plan and represent a bona fide effort to maximize population density consistentwith orderly growth.” Furthermore, the court argued, the temporary nature of the growth controlsallowed properties to be put to profitable uses within a reasonable time, meaning that the permitsystem did not qualify as a form of confiscation. In addition, property owners could develop their landif they provided their own infrastructure.Holding”…where it is clear that the existing physical and financial resources of the community are inadequateto furnish the essential services and facilities which a substantial increase in population requires, thereis a rational basis for ‘phased growth,’” validating the Ramapo ordinance.SignificanceRecognized growth phasing programs as valid exercises of police power.
Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection
FactsUnder Florida law, littoral owners have the right of access to the water, the right to use the water forcertain purposes, the right to an unobstructed view of the water, and the right to receive accretionsand relictions to the littoral property. In Florida, the littoral owner takes title to dry land added to hisproperty by accretion, but formerly submerged land that has become dry land by avulsion continues tobelong to the owner of the seabed (usually the State) because the property abutting the water belongsto the State. The mean high-water line is the ordinary boundary between private beachfront, or littoralproperty, and state-owned land. In 1961, Florida passed the Beach Shore Preservation Act whichestablishes procedures for “beach restoration and nourishment projects,” under which a fixed erosioncontrol line replaces the fluctuating mean high-water line as the boundary between privately ownedlittoral property and state property. When accretion to the shore moves the mean high-water lineseaward, the property of littoral owners is not extended to that line (as the prior law provided). In2003, the City of Destin, Florida, and Walton County, Florida, applied to the state to add a largequantity of sand to beach that had been eroded by several hurricanes. Beachfront property ownerswere upset by the decision and incorporated a nonprofit organization known as Stop the BeachRenourishment, Inc. to halt the action. The petitioners argued that the additional sand deprived theowners of their rights to accretion and a water boundary, and that the government action amountedto a taking of their land in violation of the Fifth Amendment.DiscussionThe Court began the opinion by reviewing the overarching principles of takings jurisprudence, includingthe principle that states effect a taking if they recharacterize private property as public property. TheCourt noted that state law defines property interests and therefore looked to Florida property law todetermine whether beachfront landowners had a perpetual right for their property to touch the water.Under Florida law, the State has the right to fill its own seabed and that filled land will belong to theState.HoldingThe Court held that there was no taking because the submerged land at Florida’s shoreline continuedto belong to the State even after the State added new sand to extend the beach.SignificanceRecognizes that states may fill submerged land without constituting a taking on the rights of littoralproperty owners.
Standard State Zoning Enabling Act and Standard City Planning Enabling Act
Failed to define the relationship between planning and zoning.Sanctioned piecemeal adoption of a comp plan’s components
1976 – Young v. American Mini Theaters:
First sexually-oriented business case, which held that zoning for adult businesses does not automatically infringe on 1st amendment rights.
2006 - SD Warren v. Maine Board of Environmental Protection:
Hydroelectric dams are subject to Section 401 of the Clean Water Act
1968 – Cheney v Village 2 at New Hope:
Legitimized planning unit development (PUD) process.
2005 – Kelo et al. v City of New London:
Like Berman v. Parker in 1954, involved the City taking private property by eminent domain and transferring it to a private entity for redevelopment The Court held in a 5-4 decision that the general benefits a community enjoyed from economic growth qualified such redevelopment plans as a permissible “public use” under the takings clause of the 5th Amendment. New London was aided by existence of well-documented redevelopment plans.
1975 –Construction Industry of Sonoma County v. Petaluma:
Limited the # of residential building permits per year to 500 & placed a population cap of 55,000. The purpose was to make sure that the growth rate did not exceed the City’s ability to fund capital improvements. Court upheld.
1975 – South Burlington County NAACP v Township of Mount Laurel I:
NJ Supreme court held that in developing municipalities in growing and expanding areas, provision must be made to accommodate a fair share of low and moderate income housing.
1972 – Golden v Planning Board of the Town of Ramapo:
NY State Court of Appeals case that upheld a growth control plan based on the availability of public services. Case further emphasized the importance of the Comp Plan and set the scene for nationwide growth management plans.
1978 – Penn Central Transportation Company v The City of New York:
Restrictions on the development of Grand Central Station did NOT amount to a taking, since Penn Central could use TDR and secure a reasonable return on the property. Validated historic preservation controls.
1980 – Agins v. City of Tiburon:
Ruled there is a takings when 1st, deprives property of all economically viable use; and 2nd, when it fails to enhance a legitimate government interest. Court found that the Open Space ZO of Tiburon does NOT result in a taking w/o just compensation.
1968 – Jones v Mayer:
Ruling that discrimination in selling houses was not permitted based on the 13th Amendment and Section 1982 abolishing slavery and creating equality for all US citizens.
2002 – Tahoe-Sierra Preservation Council v Tahoe Regional Planning Agency:
Sanctioned the use of moratoria & reaffirmed the “parcel-as-a-whole” rule for takings review. Moratoria on development not a per se taking under the 5th amendment, but should be analyzed under the multi-factor Penn Central test.
1985 – City of Cleburne v Cleburne Living Center:
SC decision which ruled that the City had illegally denied group homes special use permits based on neighbor’s unfounded fears.
1922 – Pennsylvania Coal Company v Mahon:
SC indicated for the first time that a regulation of land use might be a taking if it goes too far.
2005 – City of Rancho Palos Verde v Abrams:
SC ruled that a licensed radio operator who was denied a CUP for a “commercial” antenna cannot seek monetary damages because it would distort the congressional intent of the Telecommunications Act of 1996.
1994 – City of Ladue v Gilleo:
SC ruled that the display of a sign by a homeowner was protected by the 1st amendment under freedom of speech. v
1915 – Hadacheck v Sebastian:
SC upheld Los Angeles case prohibiting establishment of a brick kiln within a recently-annexed 3-mile area.
1974 – Village of Belle Terre v Boraas:
SC upheld the restrictive definition of a family as being no more than two unrelated people living together.
1972 - Just v Marinette County:
Significantly integrated public trust theories into a modern regulatory scheme. Shoreland zoning ordinance along navigable streams and other water bodies upheld.
Hawaii HousingAuthority v. Midkiff
Special case of taking to eliminate an oligopoly
2006 - Rapanos v. United States:
The Army Corp of Engineers must determine whether there is a significant nexus between a wetland and a navigable waterway. This pulled back the ACOE’s jurisdiction regarding wetlands.
Nectow v City of Cambridge
The Court used a rational basis test to strike down a zoning ordinance that rezoned an owner’s land because it had no valid public purpose. Governments do not have unlimited power to restrict the rights of landowners if the regulation does not serve a public purpose.
1983 – South Burlington County NAACP v Township of Mount Laurel II:
This finding cured the deficiencies of Mt. Laurel I, and created the model fair housing remedy for exclusionary zoning. Municipalities must provide their fair share of low and moderate income housing in their region. A special 3-judge panel was set up to rule on exclusionary zoning cases.
Golden v Planning Board of the Town of Ramapo (1972)
Upheld that ordinance for adequate facilities for development permit issuance was legal
Construction Industraty Association of Sonoma County v City of Petalum
upheld that Petaluma could set a quota of 500 building permit in 1971, as a slow growth model
1986 – City of Renton v Playtime Theaters:
Upheld the requirement of minimum distances between SOBs.
