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.)
Why are historic buildings/districts popular?
A legal tool against neighbors (ensure that neighbors keep up their properties) and exclusionary device (makes homeowning expensive and keeps out undesirables)
What do historic preservation laws protect:
Law focuses on the protection and enhancement of historic properties.
Does not regulate uses of land or lots.
In order for a building to be a historic building:
It must have integrity, be intact enough to coney significance.
Property must be a certain age (unless extremely special)
What is a certificate of appropriateness (CoA)
Property owners in a historic building/district must seek a certificate of appropriateness from the commission.
Designation challenges for historic sites
A city’s designation of property for historic preservation may be ignored only if it’s unreasonable, arbitrary, or capricious.
When can a city deny a certificate of appropriateness?
A city has to justify, with reasoning and evidence in the record, why the denial occurred.
What if a historic building’s upkeep cost are more than the building itself is worth?
Claim an economic hardship:
1) estimates of proposed construction allegation
2) estimated market value of property
3) estimate form licensed architect/appraiser
Historic areas vagueness standard
The law has to enable those who the law applies to. Those people must be reasonably able to know and understand what laws they need to follow. Architecture standards must be fairly specific
Transit-Oriented Development (TOD)
TOD is a compact medium to high density neighborhoods that centers around a fixed more of public transportation.
Transit Oriented Development (TOD) Goals
Reduce dependance on automobiles
Provide amenities near transit
Build a livelier, walkable community
Transit Oriented Development (TOD)
Streets must be lined with sidewalks and trees
Building entrances must face street
Calthorpe like narrow streets
Cities and states powers
Cities can’t exceed it’s power given to it by states
Developer’s challenges to city: City has exceeded it’s power categories
1) City doesn’t have authority to pass regulation.
2) City regulations are pre-empted by state rule
City doesn’t have authority to pass regulations categories (2 rules)
1) Dillon’s rule: cities can only do what states expressly say they can do. In a Dillon’s rule jurisdiction, check to see if there is enabling legislation
2) Home Rule: City has broad grant of authority to act. However, some things may still exceed power’s of home rule.
City has exceeded it’s power: City regulations are pre-empted by state rule
Common direct Preemption (expressly): state rule and local rule directly conflict. State rule trumps.
Field Preemption: State passes extremely extensive body of laws on one topic indicating that it has “occupied the field” and localities may not pass rules. When state law regulates in a pervasive way so that city cannot regulate.
Imposing fees
Imposing fees is NOT a part of zoning, and in the absence of enabling legislation, a municipality may not require payments for developers that are essentially taxes.
Tax versus fees
Tax: Benefit goes to the general public
Fee: benefit goes to fee payer
Vested Rights
a developer’s rights vest upon substantial expenditures made pursuant to the issuance of a valid permit.
Result of a vested right
If developers/builders have a vested right and the law changes, they are allowed to complete their project under the old rules. They become a non conforming use, subject to non conforming use laws. (no expansion or could put time limit)
Cam you lose vested rights
If the landowner abandons the project (doesn’t finish after getting vested rights), the vested rights are lost. If lost, the owner can only build things that conform with current zoning regulations.
Exceptions to Vested Rights
1) Decision was legally wrong
2) Improper purpose “bad faith exception.”
Establishing vested rights:
Rights are vested when there is a valid permit plus substantial expenditures (unrecoverable expenses)
Some states add in a good faith clause where you could not have known that the law would change
Vested Rights and bad faith
A city can’t turn you down due to bad faith. If the city had an improper purpose to deny you, such as appeasing neighbors, they are in the wrong.
Vested rights and taxes?
There are NO vested rights in tax percentages. Thus, your taxes can be changed.
Vested rights and Fees?
If deemed a fee, they will not have to pay since it was implemented after they received vested rights.
Keeping vested rights:
To keep having vested rights, use substantial efforts with property. This means make improvements and spend money.
Estoppel
If the government says you can do something and you go and do it, can’t go back and say you didn’t mean it.
Elements of estoppel
1) Landowner must reasonably rely on some government actor or omission (mere erroneous representation by the gov is not enough)
2) Landowner must incur expenses based on the reliance to such a degree that it is unfair to deny them (Detrimental reliance)
How to show detrimental reliance
Used in vesting rights– Landowner has substantially changed positions or incurred expenses
Based on the gov act to such a degree that it’s unfair to say landowner can’t proceed (show you can’t get your money back unless allowed to build)
NOT ALL RELIANCES ARE EQAUL
two constitutional limitations on takings:
1) Just compensation
(based on appraisers and fair market value)
(doesn’t take into account subjective market value)
2) Using land for public use
(examples are for gov building or road, or give land to common carrier who makes services available to all)
What does public use mean?
Public use does not mean “use by the public” It means public purpose (helping community with jobs and taxes, etc)
Takings and private parties
You can’t take property from one private party to benefit another private party (even for just compensation)
In determining whether something is a taking, the court considers:
1) Character of government action involved in the regulation
2) Economic impact of regulation on the owner
3) Extent to which the regulation interfered with owners reasonable investment back expectations. (more likely to meet this if gov is preventing you from something you were able to in the past or spent a lot of money on)
Less likely to be a taking:
– Regulation under traditional police power
– regulating nuisance or noxious use (prevent harm)
– Choosing between incompatible uses
– Reciprocity of advantage
Takings test: Economic impact
Economic effect of property owner
Go off percentages of value
Takings test: Reasonable investment backed expectations
are the landowners expectations about the future that their ideas are crystalized. It’s worse that we have to tell you to stop doing something (or stop plans that are really really far along) you have been doing
Takings test: Character of the government regulation
Does what the government is doing look like a physical taking of property or does it look like a rule that incidentally affects a property (not a taking, nuisance)
Who wins under penn central?
Landowner almost always losses if penn central balancing is applied
Takings and notice: running with the land
A landowner who acquires land after regulations take effect can still raise regulatory takings claim. “Landowners are NOT barred from challenging regulations adopted prior to moment of purchase”
A takings claim can run with the land, Note, however, that O’Connor’s concurrence holds that even though “coming to a taking” claims aren’t barred, courts can consider the full circumstances of Penn Test.
Community Benefit agreements
ensure that those affected by a redeveloper projected get something in the return (amenities or beneficial actions.) Example of this are Road upgrades, first hire agreements, or cash.
Public shows support of development (which can sometime be a pre-requisite for regulatory approvals) and the community promises to refrain from entering into litigation against developers.
Takings Per Se rules
Loretto/Cedar Point test: a regulation is generally considered considered a per se taking when it forces landowners to endure a physical occupation for appropriation of their land. Example: The permanent physical presence of cable lines or forced entry of union organizers.
Lucas: It is a per se taking when the state deprives you of 100% of the economic value of their land for some public purpose.
BUT if state is using a principal law, such as police power, no taking.
Takings: LUCAS exception:
When the state deprives a property owner of 100% of the economic value of their land for some public purpose, it is a per se taking
however, if the taking is codified in traditional property or nuisance laws, can reduce value to zero without it being a taking.
Takings and deprivation of land:
In Lucas, if the regulation denies landowner of all economic value of property, it constitutes a taking.
In Lucas, you look at the parcel as a whole to determine.
Takings and self creation
You can not self create a taking. Look at the parcel when the regulation drops.
takings and physical occupation
In Loretto and Cedar Point: Per se taking occurs when the gov forces landowners to endure a physical occupation or appropriation, this compensation is needed.
NO NEED TO DO PENN CENTRAL TEST
Moratoriums
In moratoriums cases, the Penn Central test will be used.
A moratorium can not be used to prevent development. Must show a record why it’s necessary for the moratorium to go on for so long.
Exactions
a requirement developers pay something as a condition for receiving permission for a land use permit the government would otherwise prohibit
Test for exactions
Nollan/Dolan test
Essential nexus test
ESSENTIAL NEXUS
there must be an essential nexus between the stated government interest and permit conditions imposed by government. The ask must mitigate some problem that is caused by development.
Rough Proportionality test (use for exactions)
After finding an essential nexus, you then have to measure the degree of connection of projected impact of project and the things asked for by the city roughly proportional.
Key: Is the size/amount of the thing the government is asking for roughly legitimate to harm that will be imposed?
Remedies for takings and moratoriums
For a moratorium, as long as you can justify the timeline, no remedy.(tahoe sierra)
remedies and takings
If a taking is found due to regulation (where you thought you would never be able to use your land again) then you should get a remedy
Monetary damages are a remedy for takings, even temporary takings. However, a temporary moratorium is probably not a taking and thus will not get remedies.
government’s two options for taking’s remedies
- 1) May compensate with permanent damages and keep regulations
- 2) May remove regulation and pay damages for the temporary taking ( First English)
how to measure damages for taking’s remedy
- Difference between equity values with and without restrictions multiplied by rate of return during restriction
- Rental value of property
- What would the developer charge if developed
due process
The government has to offer and give fair procedures (notice and the opportunity to be heard) . If you are making a due process claim, you are saying “the government’s actions are arbitrary or unreasonable.”
what is the test for substantive due process in land use for federal courts
Many use a test that requires conduct of officials to “shock the conscious” because otherwise everything would/could go to federal court systems (united artist)
how to pass rational basis review
you must show the regulations “bear a substantial relation to the public, health, safety, morals, or general welfare.
whathappens when there is no permitted uses by right
when there is no use by right, it is considered arbitrary.
Gov must make an argument of public, health, safety, morals, or general welfare.
strict scutiny
use if the government regulation is intended to exclude a certain class of protected people
If so, the government must show:
(1) A compelling state interest (Important,essential, or necessary, rather than a choice or preferrrance)
(2) Must be narrowly tailored (law written only for it’s purpose, not broad)
rational basis
Can’t pass stuff that is arbitrary or irrational.
upheld if it is rationally based on a legitimate government interest. (generally upheld).
As long as the government can offer a rational relationship to a conceivable, legit purpose (not necessarily one it articulated when it passed the law) it will win.
equal protection claims
Equal protection claims look very similar to substantive due process claims. Typically you bring both.
two broad types of equal protection claims:
- 1) Government drew an unfair line between people who are similarly situated “I am the same as the person over there but I am being treated differently.”
- 2) City is singling me out because of who I am.
Discrimination and the equal protection clause
Such government action only violates the equal protection clause if it is motivated by discriminatory intent and has a discriminatory impact (only doing the action because they don’t like specific group) (village of Arlington heights)
Can non profits bring a equal protection claim
non profit and thus doesn’t have a racial identity and thus can’t be racially discriminated against
If discriminatory intent is shown
apply strict scrutiny.
Discriminatory intent must have been a motivating factor, but doesn’t have to be the sole factor or even primary factor. (hard to prove)
Discrimination and competition
as long as primary purpose is not to protect a favored business, the anti-competitive is okay.
How to infer discriminatory intent
Things legislative says
Historical context
Departures from normal procedures
Impact of the decision.
** This is extremely hard to prove
Fair Housing Act FHA
FHA claims can be against private actors and the government. The FHA seeks to prohibit discrimination in renting, selling, ads, and financing of real estate based on: Race, Color, National origin, Religion, Sex, Familial status (having kids under 16 in house), and Handicap
FHA allows for two broad categories for suit:
1) Disparate treatment
2) Disparate impact
FHA suits: Disparate treatment
suits about intentional discrimination. need smoking gun evidence
How does a disparate treatment case work under the FHA
1) make a prima facie case: show you are a member of a protected class, applied for a permit and was denied even though qualified, and the city has approved this or would approve this for others in similar situations
2) If a prima facie case is made, burden shifts to landlord or city to show a legitimate non-discriminatory intent for their actions.
3) If the city does that, the Plaintiff could show that landlord or city’s stated intent is just a pre-text for discrimination
Disparate impact claim under FHA
facially neutral policy that has disproportional impact of protected class
No intent; but must show statistics
How to show a disparate impact claim under FHA
1) Plaintiff establishes a prime facie case: Policy + causation + statistical evidence showing disparity
2) If disparate impact is shown, defendant has opportunity to show a the practice is necessary to achieve a substantial, legitimate, non-discriminatory purpose
3) If defendant shows a non-discriminatory purpose, the plaintiff has the opportunity to prove substantial interest could be served by another practice with less discriminatory effects
FHA and Private groups
FHA does have a carve out that private groups can give preferential treatment to members. (like an HOA)
FHA and disabilites
the FHA also required additional rules for people with disabilities.
What is the rule for disabilities under the FHA
There is an affirmative duty to make reasonable accommodations to the disabled.
Under the FHA, it’s discrimination to refuse to make reasonable accommodations in rules, polices, or services when such accommodations are reasonable and necessary.
Under the FHA, who do they consider disabled
People with physical impairments
People with mental impairments
Alcoholics
Drug addicts
What counts as a reasonable accommodation?
Rule: accommodation must be necessary and reasonable
Necessary: means the accommodation is needed to grant the disabled equal access to housing
Reasonable: Reasonable unless it requires a fundamental alteration of a program or imposes
How to show equal opportunity
Plaintiff must show that “but for” the accommodation, they wouldn’t be able to live here.
Reasonable unless it requires a mental alteration of program or imposed undue burdens
Discrimination against the poor
The poor are not a protected class and the FHA doesn’t protect the poor, so they must resort to finding relief under the constitution (can show the motive of policy was to exclude poor and have rational basis)
Discrimination and housing caps
As long as laws are reasonable, you don’t have to make reasonable accommodations for zoning laws that have housing residential caps.
Example: “building can have X number of people or X amount per bedroom is common”
Has to be reasonable, has to pass rational basis. 2 people for a bedroom is common
Discrimination against unconventional households
Carving out an exception for local and state laws regarding max number of occupants in a building (exception to reasonable accommodations)
stating what a family is
Yes, the government can draw lines, but there are limits. Cities can define what a “family” is when talking about unrelated persons
HOWEVER-A city can’t place limit on people related by blood or marriage.
free speech
Protected by the first amendment and that includes signs
Type of speech
Non-Commercial
Commercial content neutral
Commercial content based
Commercial speech
Apply intermediate scrutiny.
Intermediate scrutiny
significant governmental interest and narrowly tailored (reaches only as far as necessary)
Non-commercial speech: content based
speech regulation is content based if it singles out a specific subject matter for differential treatment
Picking one view over other. Privileging speakers or views or stopping debates
Non-commercial –> content based –> strict scrutiny
IN Austin: , judges are stating if regulations are discriminatory against certain viewpoints or ideas over others. If speech restrictions are broad enough, they aren’t content based. As the court suggests, rules about off premise advertisement affect all viewpoints and messages.
Non-commercial speech: Content neutral
INTERMEDIATE SCRUTINY
Speech restrictions that draw BROAD subject matter distinctions are content neutral
Sign regulation and free speech
An ordinance can’t cut off all forms of communication. Must leave ample areas common notification.
Commercial versus Non commercial speech
Commercial speech: speech pertaining to commerce
Non-comerical speech: messge that has idealogical or political content.
The city can’t have more permissive speech in commercial versus non-commercial
If the government says you can have commercial speech, you can also have non-commercial speech
Adult uses
Adult uses cannot be banned because to do so would be banning content-based speech
Two types of broad regulations for adult uses
Concentration: zoning all the stuff they dislike in one play (like a red light district)
Dispersal: regulating so that adult uses cannot be next to each other (more favorable/used more)
Adult use regulation
If the regulation is aimed at the secondary effects of adult uses and not the content, it is content neutral and gets intermediate scrutiny.
Municipality has to present some evidence it’s actions advance it’s state interest. If they do, the burden shifts to the challenger to introduce evidence municipalities interference is not well supported
religion and zoning
Religious places are usually zoned as conditional uses, but there is a fear that small unpopular religions may be discriminated against during the zoning process
RLUIPA mandates
1) Equal terms provision- government must treat religious places on equal terms as secular places and requires land-use plans to make reasonable attempts to accommodate religious assemblies
2) Strict Scrutiny for individualized Land Use Assessments (applying for permits, variances, etc.)– the government has to allow you to do it of you can show by not letting you do so has a substantial burden on your religious exercise.
What is a religious exercise?
Building or conversion of real property for religious use falls within this
How to bring a religious substantial burden claim (RUILPA):
1) Individualized assessment?
2) Part of religious exercise/uses?
3) substantial burden on religious exercise? Super fact intensive. Need the government to be exerting significant pressure on religious organization to modify their behavior. Look at:
Size/resources, Alternative properties available?, More than a MERE inconvenience
4) If yes, apply strict scrutiny: does the government position advance compelling state interest? and Is it narrowly tailored?
NOTE—if a city could show a health/safety risk, it is likely enough to overcome this claim, but traffic and parking alone is likely not
How to have standing:
Must show three things:
1) Injury in fact
2) Causation
3) Redressability (Court will be able to do something to fix harm)
Standing: Injury in Fact
Plaintiff must show special injury, different in kind and degree from community at large
(Close neighbors will almost always have standing)
Must allege something zoning is designed to protect. (example- So here, there was no standing because zoning is not meant to protect business competition which is what they rested their complaint on)
SOME jurisdiction require participation in the public hearing in front of the board
Spot Zoning
Cities get wide latitude to draw lines, but one exception is spot zoning. Spot zoning is singling out small parcels of land for different treatment than that of surrounding area generally to benefit the owner and to the detriment of neighbors
Spot Zoning Test
Evaluate the following factors (balancing test):
1) Size of parcel
2) Consistency with comprehension plan
3) Reasonable basis to make distinction between spot zoning and surrounding law
4) Is this related to police power or just benefitting landowner?
What is RLUIPA
Does not allow land use laws that substantially burden religious exercise, unless the government can pass the strict scrutiny test (Compelling state interest and narrowly tailored)
Challenges to zoning amendments/ conformity with plan issues
Procedural approach and substantive approach
Challenging zoning amendments: procedural approach
Compliance with plan if they follow the procedures. Doesn’t have to substantially comply, just state on the record that the decision complies with the comprehensive plan
Challenging zoning amendments: Substantive Approach
Can’t undermine comprehensive plan with a zoning decision.
Must have basic harmony: generally consistent with the comprehensive plan.
(other approaches for min jsx are co exist with plan or be totally consistent.)
Standard of Review
Board of Zoning appeal decisions are administrative, not legislative.
Standard of review: “some evidence standard”
However, a full rezoning amendment is legislative, and thus it will not get the lower standard of review.
Standard of review: Court will only overturn legislative decision if arbitrary or capricious (strict scrutiny)
What does an Administrative Body Decision Require:
1) Hearing where people have an opportunity to be heard
2) Notice of hearing
3) The person asking for the thing has the burden on presenting evidence
4) Records of proceedings
5) The decision maker must articulate reasons for the final decision
Standard of review for courts: “some evidence standard” by looking at the record of the court
Exactions:
a requirement that developers pay something as a condition for receiving permission for a land use permit
Test for exactions:
Nollan/Dolan test
Essential Nexus and Rough Proportionality Test
