Final Flashcards
What are the three major players in land use
1) Developers
2) Neighbors
3) City and local government
Developers
Goals: make money, finish projects asap, and avoid litigation and delays. Time is a developer’s enemy (this is costly). Developer’s aim to preserve a good relationship. Leverage- if you borrow money to finance, it makes total profit drop but the rate of return is higher. Developers want to spend as little of their money as possible. Downside: when the economy tanks or project delay, you will risk losing money.
Neighbors
Cities hate kids (bad for budgets and unappealing)
There has been a free rider problem (my neighbors are complaining and I agree, but they can handle it so I won’t do anything)
City and Local Government
Members include: city council, planning committees (zoning, subdivision) and the Board of Zoning Appeals. City want’s to grow but don’t want apartments. City planners worry about the following: safety, economic, development, aesthetics, transportation, environment, and housing. Local government goals is to get re-elected.
Homeowner Hypothesis
Recognizes that for most Americans their home is where their wealth lies (can’t but insurance for equity of your home). Homeowners are essentially the most politically influential group in local politics. They are guided by concern for the values of their home.
Versions of City Government
1) Minimalist/ night walk: government defines property rights but doesn’t do any other planning
2) Basic grid layout: government plans street grid, designs public parks, and erects major public buildings, but government says nothing about what goes in what parts of the city.
3) Zoning city: Government through regulation says what kind of uses can go in which part of cities. An example would be every big city except Houston.
4) Totalitarian: Government owns, develops land, and chooses architectures.
Floor to Area Ration (FAR)
The ration of total amount of floor to area of the lot. An example of this: you have a 10,000 square foot lot. FAR imposes by the city is 2, thus the total amount of square feet in the building must not exceed 20,000 square feet. So they can make a 2-story building with 10,000 square feet on each floor or a 1 story with 20,000 square feet.
Village of Euclid principle:
Zoning is a constitutional, unless they are clearly arbitrary and unreasonable having no substantial relation to public health, safety, morals, or general welfare.
Police power allows the government to make zoning decisions (pass laws that help with the general welfare, safety, etc.)
Zoning compared to Nuisance laws
Nuisance requires a lawsuit after, while zoning prevents it in the first place.
Ways of getting around zoning:
Accessory Use:
Things that come with homes, such as sheds, pools, etc.
Conditional Use:
You can probably do this, but ask for permission.
Types of Zoning regulations
Building areas: what percentage of the lot you can build on
Building Height Regulations: How tall buildings can be
Setback requirements: Where developers can build. For example, your house must have 10 feet of yard around the side, front, and back.
Bulk ratio regulations: Lot requirements.
Density: How many units can be on the property per acre. For example, 4 single family houses per acre.
How to challenge zoning laws:
1) Request a variance (best choice)
2) Petition to change zoning law (change map to new zone, change text of zone.)
3) Bring a constitutional challenge (challenges are usually brought under due process, taking clause, or equal protection)
Variance
is an official sanctioned departure from a municipality land use rules.
Two types of variances:
Use variance
Area Variance
What is a use varianceand what must an applicant show:
Asking for a use that is not usually permitted under code. Applicant must show undue hardship.
What is an area variance
a request for an exception from a regulation of dimensional requirements
Examples: setbacks, building heights
Unnecessary Hardship Test (Use variance)
Not a balancing test, rather it requires the following:
1) If you don’t get the variance, you won’t get a reasonable return on property or you’ll suffer substantial loss (doesn’t matter if you could make 4 or 5 times more money; Only entitled to reasonable return, no max return)
2) Unique circumstances affecting this parcel. Something is going on your parcel that doesn’t affect neighbors
3) Can’t alter/undermine character of neighborhood. No adverse impact.
4) Hardship is not self-created
MUST SHOW ALL FOUR
Harder to get than an area variance
Practical Difficulty Test (Area variance)
Balancing the benefit to the owner/applicant vs. impact on the neighborhood.
1) Benefit to owner
2) impact to neighborhood
3) how big is the variance
4) can the benefit be achieved elsewhere?
Borderline: Is this reasonable? Compare benefit to owner compared to cost to neighborhood.
typically denied/accepted based on what neighbors think
What is a conditional use permit?
Permits that are for items that don’t quite fit into a zone, but is generally something wanted
(church, school, etc)
Are conditional uses permitted by right?
No, they are not permitted by right. but they are permissible if they meet a set list of requirements.
who has the burden of demonstrating substantial evidence it will comply with municipal standards?
the person seeking the permit
Legal standard of Conditional uses
The person seeking the conditional use permit has the burden of demonstrating substantial evidence of compliance with municipalities standard.
conditions for a conditional use permit
Conditions for a conditional use permit must be reasonable. Reasonable means they must be related. examples: schools, daycares, churches.
If a city adds conditions, the conditions must be tied to reasons we have conditional use permits in the first place.
Examples of a conditional use
Schools, daycares, churches
why do we have conditional use permits
Conditional use permits are for things we want, but first need to show they meet certain conditions
If an applicant meets a zoning ordinance requirements to acquire a conditional use permit
Then the applicant has a right to the permit. Skeen says Neighbors complaints are NOT enough to overcome this.
Board’s have discretionary authority to create conditions above the legal minimums
Board’s have discretionary authority to create conditions above the legal minimums – Lusk
Incentive Zoning
form of zoning that allows developers to increase density of development in exchange for certain amenities to the community.
Community benefits = extra density
How does a city make incentive zoning work?
A city must zone fairly quickly restrictively or downzone to create demand for developers to want to do incentive zoning.
Downside of incentive zoning?
Developers will build the incentives as cheap as possible and city planners don’t know values like an economist would.
Examples of incentive zoning
Downtown office can add extra floor if they make a public viewing deck
example of how to do incentive zoning
reduce the amount of development that is allowed by right. If a city decides 10 stories is an approximate max, then it will usually reduce the height max to 8 and then make the developers pay for the extra stories.
How to zone restrictively
When a city is growing and needs to zone outwards, it is smartest to zone the area restrictively (probs ag 1 land) so as it grows out, whoever builds has to ask for permission.
restrictive zone benefits
Community at large: because the developer agrees to a community benefit
Neighbors: localized benefits like parks
Local officials: campaign donations
Landowners and developers: value of land increases.
Critiques of incentive zoning:
1) Arguably extortion
2) City may engage in sneaky down zoning to stimulate demand
Pall
3) Planning committees have little idea of costs (they do not know how “much” a park is worth exactly)
4) the amenities aren’t thoughtfully built and there’s little incentive for developers to pay for upkeep
5) Amenities don’t actually lessen the externalities on the people
Transferable Developer Rights (TDRs)
The government restricts what you can do with land and in exchange owners of restricted land are permitted to exceed restrictions in other locations
How do transferable developer rights (TDRs) work
1) Begins by restricting development in a conservation zone, such as instead of 4 houses per acre, you can only have 1 house per acre.
2) the ability to have 3 more houses doesn’t completely disappear. Landowner’s are given “credits” for the restrictions.
3) Landowners can sell these credits on the open market. (credit’s can’t be used in the conservation area, only certain predefined areas– generally where cities want development.
Are TDRs voluntary or mandatory
Can be both.
To get credits, rural landowners generally need to:
Place a conservation easement or covenant on their property. There private agreements often outlast zoning changes.
TDR’s types of parcels:
1) Sending parcels: those burdened by the restrictive land use regulations. The owners of these are given the right to exceed land use restrictions elsewhere in the jurisdiction on eligible, so called received parcels.
2) Receiving parcels: parcels where exceedance of land use restrictions are allowed to use the exceed. Must pay the sending parcels to be able to do this
Zoning lot merger
Permits one landowner to transfer unused development rights from one parcel to an adjoining parcel
Accessory Uses
Uses that by themselves would not be permitted but are permitted when they are attached to a permitted principle use of the parcel. These uses are so common and so ordinary, attached to the principal uses, that the zoning code could not have intended to prevent its use.
When is something considered an accessory use?
A use of property is a permissible accessory use if it is conducted on the same lot as the principal use, is clearly incidental to and customarily found in connection with the principal use, and there’s a unity of ownership between principle and accessory uses. – NY Botanical garden case (tower at university case)
Accessory Use Elements
1) Incidental to the principal use
2) Customarily found in connection with the principal use
** You must look at the context. Has to be defined in reference to primary use and incidental use and substantial use..
Accessory use Prong 2: Customarily found in connection with the principal use
Often the empirical question about prevalence question about prevalence doesn’t need to show that majority of similar properties engage in the same use. But can’t be rare either. (shouldn’t get shocked it’s getting built)
Accessory Use prong 1: Incidental to the principal use
–Generally interpreted to be seen as subordinate
–Can’t be the main thing, but just comes with the main thing. Look at the size, etc.
When can someone do when the city passes a regulation that creates a non-conforming use?
1) Tell them to close it now (can create a constitutional issue within the due process and equal protection. However, if the use amounts to a common law nuisance, then you can say shut down)
2) Allow it to continue, but with no expansion.
3) Amortization
Non-conforming use
Typically, newly enacted ordinances do not prohibit landowners from operating pre-existing, non-conforming uses, but they do prohibit expansion of those uses. If the new ordinances causes your use to no longer be legal, apply for a non-conforming use.
Non-Conforming use: No expansion
they can operate in perpetuity and be reasonably repaired, but they can’t be expanded or enlargened (can have intensification)
Non-Conforming use: Amortization
A span of time where an owner of a non-conforming use can recoup their investment, but must stop at the end of the amortization period (period must be reasonable
Is the amortization period reasonable factors:
Length of period
Amount of money invested (initial capital outlet, life expectancy of investment, and avoid substantial losses)
Nature of non conforming use
Public Benefit
If a non-conforming use is a common law nuisance
the city can shut it down immediately
How to preserve the right to your non-conforming use
Typically must use at least 50% of the building for the non-conforming use
Can not abandon the property for more than 6 months
How long do non-conforming uses run in the no expansion theory
In perpetuity (new owners can use it for the same use)
Can use extend hours of non-conforming use?
Increasing the frequency of a valid, non-conforming use of property is permissible intensification of the use rather than an unlawful expansion. – Tripp Associates
Why does the nature of the non-conforming use matter?
Non conforming structures usually get longer.
A use is typically shorter.
Enabling act
Every state has passed this act that allows local government to regulate how a property owner can subdivide a single parcel into many parcels
Tract Housing benefits and harms
Benefits: cheaper, sense of community, place people with similar financial backgrounds together, creates a bonding social capital, safe, close to schools
Harms: quality can vary, negative environmental impacts, lack of diversity, no privacy, ugly, boring, soul sucking
New Urbanism’s guiding principle
Walkability
What all does new urbanist want?
Walkability (sidewalks and narrow streets)
Mixed use (makes it possible to do fun things like walk to a bar)
Traditional neighborhood structure
Reinforcement of community life (porches vs back decks)
Metro Planning (looks at aesthetics, doesn’t care what’s inside.)
Planned Unit Development (PUD)
Process allowing developers to come up with their own zoning district. This allows developers to write their own section of the code. Developer driven.
Why do cities like Planned Unit Developments (PUD)?
It gives cities bargaining power
Why do we use Planned Unit Developments (PUD)?
Good for large, complicated projects. Vastly increases flexibility, developers can increase density, mixed use, or alter building requirements.
Planned Unit Developments (PUDs) process:
1) Developer submits application (very burdensome, detailed, and expensive)
2) Goes in front of planning commission (makes suggestions)
3) Goes in front of city developer (Enormous opportunities to get denies)
Application –> planning committee –> city council
Cluster Zoning
Baby brother of PUD. Method by which density is determined by large area rather than zoning each individual lot. Allows to push houses very close together, creating a way to preserve nature.
Subdivision Regulations
Not zoning regulations, but can work with/in addition to zoning laws. Covers things like street layout, utilities, piping, etc.
Makes sure up front that developers are following regulations.
3 step process for subdivision regulation
1) Submit sketch plan
2) Preliminary plat approval (CRUCIAL STEP)
3) Final Plat approval
Subdivision regulation process: Submit sketch approval
First step in subdivision regulation process. Civil engineer sketches out generalized idea for proposed subdivision and presents it to the planning staff or adds revisions
- informal meeting
- no legal weight
Subdivision regulation process: Preliminary plat Approval
MOST IMPORTANT step: Usually a public hearing is held where the developer has the burden of showing they meet all zoning requirements. Committee may impose conditions.
Includes in precise details: topography of site, lot boundaries, street layout, etc.
Planning office –> others as needed –» local planning commission –> public hearing –> decision
ONCE THIS IS APPROVED, DEVELOPER HAS VESTED RIGHT TO START BUILDING SUBDIVISION, EVEN IF RULES CHANGE
Subdivision regulation process: Final Plat Approval
Permanently filed in city map records
Once approved, the clock begins ticking for completion for final plat approval. You can only sell lots once they have received this final approval
Can follow your plans for 2 years according to what you submitted, even if law changes.
Exceeding Authority: Subdivision Regulation
In order to determine whether the regulation in question was within the authority of the commission to enact, we do no search for a statutory prohibition against such an enactment; rather we must search for statutory authority for the enactment
Site Plan Review
A site review plan is a form of regulations that ensures that all development of a certain type of size to make sure they are not imposing too much on neighbors.
CANT BRING UP ZONING ISSUE
Site plan review burdens
The initial burden rests on the party seeking the site plan review to show that they comply with regulations.
If they do, they are entitled to a permit.
For the derry case, the developer introduced evidence that it met the specific regs the city put forth. Now the burden back is back on the city to show either Derry’s evidence is wrong or Derry issues are concern of healthy and safety.
How local government creates a historic place
1) Make a provision for nomination/designation of area or property as historic.
2) Set standards for what counts as historic.
3) Set up restrictions on property owners ability to make alterations, destruction, or new construction.(basically cannot change anything without applying for a certification of appropriateness (CoA))
(but sometimes there is an out if the building is dangerous or has no monetary use.)
