Joe's Deck Flashcards
Concurrency Requirements: What are they? What are the effects? Are they constitutional? (Golden v. Planning Board of the Town of Ramapo)
Explicit requirement that to be able to build you must be able to prove that there is infrastructure capacity for development at the time the development occurs.
It is not an outright limitation on growth, but can have the effect if the infrastructure capacity isn’t there. It winds up slowing things down until pay-ins to government or workarounds are found.
Golden: Town institutes plan to ensure adequate infrastructure exists before development plan is approved. No special use permits issued unless point value was achieved by developer, or the infrastructure improvements are completed by the developer himself. Court says phased growth is well within the ambit of enabling legislation. Similar to subdivision control process–reflects the legislative authority needed for determining the infrastructure adequacy of subdivision proposals.
Tempo Controls & Caps: What are they? Are they constitutional? (Construction Industry Assn. of Sonoma County v. The City of Petaluma)
Limit growth by capping the number of residential units that could be constructed.
Sonoma: City had rapid growth and implemented temporary freeze on development followed by a group of regulations that limited growth, creating a point system for following rules and building low-income housing, creating green zones. Single-family unit development was not included. Construction companies challenged on due process grounds on theory that growth controls are nothing more than an exclusionary device. Law upheld on rational relation test: public welfare includes preservation of small town character, avoidance of social problems caused by uncontrolled growth. Unlike Belle Terre, where the land use was for single family dwellings and they were trying to simply restrict population growth, here the city was ensuring thoughtful growth without restricting growth to market-value housing.
Property Tax Considerations: Wisconsin Rule
Wisconsin Rule: State and city raise property taxes proportionally across a city. Based on assessed value and mill rate. Local governments get property taxes directly. State gives city the total levy (aggregate amount of tax money you can raise), and burden shifts to city to levy that tax across the city.
Moratoria: What are they? What are the criteria? (Ecogen v. Town of Italy)
1) Freeze on construction for a certain period of time while a community completes or revises plan, or;
2) Doesn’t allow higher-impact decisions for a period while allowing lower-impact decisions.
Some states forbid moratoria unless it fits certain criteria, though most give that authority to local governments.
Ecogen: P wants to operate a wind farm, needs to span across 2 towns to do so. One of the towns was unfriendly to wind turbines and created a moratorium on wind installations. Town dragged its feet for 2 years, extending moratorium. P sued on facial and as-applied grounds. P’s letters to town go unanswered, but P still did not apply for a hardship permit. Court said P didn’t exhaust their administrative remedies, so the case was not ripe. Also found that P did not make a showing that city did not have rational basis for the decision.
Development Agreement Statutes: Why have them? What do they often include? (Sprenger, Grubb & Associates, Inc. v. City of Hailey)
Locks in the laws in place at the time of execution, but usually have a 10-20 year time limit.
-Public hearing requirements (satisfy open meetings laws and 3rd party involvement)
-Periodic review to see if developer is breaching the agreement.
-Later review can be anticipated and provided for in agreement (for flexibility)
-Breach (can give time to cure, can require only good faith compliance to account for unforeseen circumstances)
-Nollan/Dolan generally don’t apply to contractual agreements
-Dev. Agreements stand even after the elected officials that oversaw them are voted out of office
Sprenger: Area subject to development agreement was downzoned from Business to Limited Business after substantial political pressure to do so. Landowner challenged on K basis. Court said that the agreement had language that required substantial compliance with the general plan, and that it wasn’t a regulatory freeze. Court said that the rezoning was consistent with the general plan because the use did allow for business use, and also allowed for conditional use permits for other heavier uses.
Covenants, Conditions, and Restrictions: What are they? Why are they better or worse than Nuisance Law protections? (Turudic v. Stephens)
Restrictive covenants make property more valuable.
-Be careful when drafting legislation: courts look to statutes to determine what cultural norms are first
-Alternative to using nuisance law to restrict use (using nuisance alone to guide planning decisions can lead to bad decisions, plus only money damages are awarded and requires a lawsuit)
Turudic: Property owners owned cougars. Court held that the keeping of cougars was a permitted use under the agreement because they were family pets, not used for commercial purposes. Lower court held that they were not a nuisance.
Initiatives & Referenda: What are the differences? Is it constitutional to take power away from the legislative body and give it to voters? (City of Eastlake v. Forest City Enterprises, Inc.)
Referendum comes after legislative action is taken, voters will repeal or undo the legislative action. Experts work it out first, let people get pissed off about it enough to petition. Do it before the developer gets vested rights.
Initiatives are more grassroots, collecting signatures for proposed bill, it then goes on ballot. For use on unresponsive committees and councils. Allows you to combat overly powerful or disruptive politics.
Eastlake: Comprehensive zoning plan in Eastlake, but developer wanted to petition for zone change to build a high rise complex. Got approval, but then went back for a parking lot. In the meanwhile, voters amended city charter requiring zone changes to be approved by a 55% referendum vote. City denied because it was not put forward in referendum. Developer takes it to court challenging the constitutionality. Supreme Court held that power comes from the people, and the people may delegate or keep some of that power as they see fit. Referenda do not skip the judicial process to deem something arbitrary or capricious, it merely puts the decisions on a different body.
Environmental Justice: What is it? What can government do to combat discriminatory impact claims? (South Camden Citizens in Action v. New Jersey Dept. of Nvtl. Protection)
If local government actions are having a discriminatory impact, agencies can rebut the allegation, mitigate, or show a substantial government interest that overcomes the discrimination concerns.
Camden: Citizens group sued NJ DNR for approving a cement mixing company’s site permit. Trial court held that there was a private right of action under title VI. 3rd circuit said while there was a right of action under 601 for intentional violations, 602 did not have a private right of action, because it did not create a right. If you wanted to create a right, it has to come from Congress.
Siting Solutions: Preemption Model: Why would states preempt local decisionmaking? Is it constitutional? (Dunning v. Corrections Facility Siting Authority; Town of Warren v. Hazardous Waste Facility Site Safety Council)
- State preempts local land use planning. Can make decisions more political. Reduces accountability at the local level.
- Dunning: Oregon set up criteria for siting correctional facilities, based on those criteria they nominate certain sites. Created new state body that holds hearings and makes a selection.
- Warren: Issue before Sup. Court on the constitutionality of a Mass. statute that creates a partially preemptive process to force municipalities to not reject hazardous waste facilities outright by saying that hazardous waste facilities could go into similar industrial uses. Local govs can’t change the zoning to zone out these things once the law was put in place. Establishes a framework to force mandatory bargaining with binding arbitration.
Siting Solutions: Compensation Model
- Requires compensation to the community–essentially buys off the community to agree to siting an undesirable land use
- Tries to provide incentives so you don’t have to force something on a community that they don’t want.
- Throws money at something because there’s no political will to make hard decisions.
Dispersal Policy
- Everyone should take on their fare share of Locally Undesirable Land Uses (LULUs)
- Shouldn’t we preserve certain areas from undesirable land uses?
- You need to litigate every LULU decision you make as opposed to having one area that you’ve designated to be a wasteland.
NIMBYism and Improving Regulatory Responses: How do you satisfy NIMBYs in the planning process?
1) Information Enhancing regulations: Designed to facilitate information sharing, so parties will disclose, and so that it forces information out of parties that they may not normally disclose.
2) Process-Enhancing regulations: allows the state to get involved in the negotiation process and set parameters in how parties deal with each other. State pushes negotiation, but developers and community make the actual decision.
3) Market-substituting: States have heavier hand and makes decisions for local governments.
Commission for Racial Justice
Toxic waste sites tend to be located in areas with higher proportions of minorities, moreso than poor neighborhoods.
Clinton Executive Order: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations
Federal agencies need to come up with environmental justice strategies.
NIMBYs & Problem of Unwanted Sitings : What are the effects of LULUs and how do you deal with NIMBYs? (Eadie v. Town Board of the Town of North Greenbush)
Certain land uses place costs on the communities they’re in:
1) Land values decline
2) Health and safety concerns
3) Aesthetic concerns
4) Traffic
States can preempt NIMBYism.
-Takes away neighborhood participation, but neighbors know their community best.
-Legislature doesn’t want to preempt local governments because land use is the local gov’t’s greatest power.
-Decreases procedural fairness to community.
-State politicians don’t want to make controversial decisions
Eadie: 2 developers wanted to develop on their properties, but it wasn’t allowed. Rezoning proposal submitted, but the town had a protest provision that, if effective, required a 3/4 majority vote of town board to approve it. Protesters thought they had the required signatures of landowners owning over 20% of the land located within 100 feet of the parcels affected by zoning, but because a buffer zone was left between the rezoned portion of the property and the property line, the town determined the petitioners had not gathered the necessary signatures.
NIMBYs: What are they and why do they exist?
Why?
1) Dread: Fear of being affected or afflicted
2) Intrusion: If they’re there first, they should have a veto power.
- Homeowners get fired up because their biggest investment may decline in value.
- Apartment dwellers aren’t as invested, even though they have the most power (in numbers) to keep undesirable uses out.
Eminent Domain: How is it used as a tool for economic development?
- Have the stick as well as the carrot to spur development
- Why should one or two holdouts halt a project?
- The longer you wait, the more the chance the developer walks away (time is a valuable commodity)
- Court costs for taking by eminent domain
- States can impose higher standards of protection from eminent domain takings.
Eminent Domain policy considerations
Should it be limited to blighted areas, or anywhere?
- ->Why redevelop non-blighted areas? Shouldn’t it be left to thrive on its own?
- ->Limiting to blight may hinder development
- ->Some blighted areas are blighted for good reason (crime rate, poor infrastructure, etc.)
Eminent Domain: Can government take property when it is certain to benefit a private party? (Kelo v. City of New London, CT)
Depressed city contracted with nonprofit development group to redevelop a particularly depressed area and jump-start the area an old naval base occupied. Part of the properties were private residences and investment properties and rejected being bought out for the development. No blight on these properties. NLDC condemned the properties and took them by eminent domain, property owners sued.
Rule: Property can not be taken for the sole purpose of benefiting another private party, but it is ok for another private party to benefit on a governmental taking. The primary motivation of the government must be public use. Incidental benefit to private party is OK.
Court rejects proposed bright line rule that economic development can never be public use, because part of the state’s role is to develop state economy. This rule is just a federal baseline–states can pass laws that were more restrictive.
Court looked to Berman and Midkiff:
Berman: Blighted area in DC was condemned and taken. One business owner in the blighted zone opposed to taking because his lot was not blighted.
-Court said you take the area as a whole. The buisiness was in a blighted zone and therefore it could be taken to redevelop the area.
Midkiff: State wanted to eliminate land oligopoly and break it up into fee simple estates. Law passed there said if you’re a tenant, you can buy the FS. Forced sale to the tenant if the tenant wanted to buy it from you at FMV.
-Court upheld because it was a legit public purpose, better for free market than leaving it as is. Legislative deference was key consideration.
-Transfer of property to one private entity to another was OK so long as there was a public purpose.
Eminent Domain: Where is the line between public purpose and private benefit? (Southwestern Illinos Development Authority v. National City Environmental, L.L.C.)
SWIDA used its eminent domain authority to take property away from NCE and sell it to Gateway to build a larger parking lot.
Court didn’t like the fact that SWIDA took by eminent domain land for a parking lot before looking at alternatives, such as building a parking ramp.
Also looks at public use requirement of takings clause, though Kelo made that point moot since developing the state economy is a public purpose. This was different because the parking problem was the problem of a private party, not the public.
Tax-Increment Financing (TIFs): What are they and what are the requirements? (Castel Properties, Ltd. v. City of Marion)
Municipal bonds are sold to finance acquisition of property. When the property is later resold for redevelopment, the taxes previously paid to taxing entities are frozen at that level. Development then occurs, enhncing the tax base and generating larger revnues. The tax “increment,” that is, the tax revenues in excess of the “frozen” tax obligation, is used to pay off the bond indebtedness. The funds constituting the increment are then available for making public facility improvements within the project for the rent or mortgage subsidies to generate affordable housing. The use of the tax increment also subsidizes the project, allowing a “write down” on the costs of the acquired land so as to make privately sponsored redevelopment more attractive. “Write down” connotes the sale of land at below the cost of acquisition and administration, often below market value, as a means to attract developers to redevelopment property.
-Goal is to fill a gap in the market where a private market isn’t able to develop in that zone.
-Most states require the area to be blighted in order for a city to create a TIF district.
-TIFs are generally carved out of general plan compatibility considerations.
Castel: City created a TIF district in a non-blighted area because they claimed that diversity of ownership was an impeding factor to development, and that flooding was a blight factor. Court found no evidence that diversity of ownership impeded development, insufficient evidence to show flooding constituted a blight factor, and that the development in the area would have likely occurred without TIF treatment.
Empowerment Zones: What are they and what are the criticisms?
Program where HUD designated certain areas where businesses could get employment wage credits (20% of qualified wages) and increased depreciation tax credits.
- Requirement: Employers had to employ people who lived and worked in the zone.
- Floated bonds and allocated grants for development and redevelopment
- Model for incentivizing businesses to locate and spurring development by synergizing business development and job creation energies.
- Criticisms:
- ->Doesn’t grow new busniess, just shifts business into the zone.
- ->Doesn’t create good paying jobs in the zone, it just subsidizes cheap labor
Disability Discrimination & Housing: What is a reasonable accommodation? (Advocacy Center for Persons with Disabilities, Inc. v. Woodlands Estates Association Inc.)
ACPD: ACPD argued that allowing the disabled to reside in the home was a reasonable accommodation under the FHA. Court granted ACPD motion for SJ on grounds that the association did not reasonably accommodate the disabled people in violation of the fair housing amendment act when it failed to waive the enforcement of its restricted covenant. The group home operated like a functional family and that there was little turnover in the group, as four of the six individuals had lived together for the past 13 years. Not enforcing the covenant restriction did not impose an undue financial burden or undermine the basic purpose of the restriction.
-Courts are split on what “reasonable accommodations” are.
Prima Facie Case Under Title VIII: What is the No Less Discriminatory Alternative Standard? (Huntington NAACP v. Town of Huntington)
Huntington has 200,000 people, 95% white, 3% black. Most of the minorities lived in an inner-city urban area, and there was a shortage of low income rental housing. City permitted multi-family low income rental unit development only in its urban renewal zones.
District court looked at the absolute numbers (poor whites vs. poor minorities) and found that white are more negatively impacted than minorities by this permit denial. This was erroneous because the court didn’t look at the percentages of total populations those actual numbers represented.
Effects test: use percentages,not actual numbers to determine the level of effect on an entire community.
Disparate Impact: case could have been based on the impact of segregation that would have been perpetuated based on the denial of the rezoning. By not rezoning it, the city missed an opportunity to help integrate a very segregated community.
-Court demanded that to justify a decision that would have a discriminatory effect, the 2nd Circuit says that that town must meet the “No Less Discriminatory Alternative Standard:” If there is a less discriminatory alternative, then it doesn’t stand. Looks to the justification of no other options by plan specific and site specific justifications:
Plan-specific Justifications: Mitigated through redesign or modification of the project plan.
Site-specific Justifications: More serious; Appropriateness of the place you want to put the proposed plan
Equal Protection & Discrimination Challenges: Overview of a claim (Village of Willowbrook v. Olech; Village of Belle Terre v. Boraas)
Olech: You can be a "class of one" in an Equal Protection Clause challenge. Belle Terre: College town on long island, 220 single-family dwellings housing 700 people. Zoning code limited occupancy to related persons by blood or marriage, excluding live-in servants. Explicitly excludes multi-dwelling houses, frat houses, etc. Litigation arose after there are leases and subleases that created a college house. Challenged the zoning ordinance on fundamental rights. Court does Euclid application and broadly endorsed zoning as both social and economic legislation. Rejected arguments of Right to Travel, Expression of Individuality, Privacy, etc. Not aimed at transients, nor did it exclude cohabitating couples. Best practice: go with rational basis, say zoning is supposed to preserve this type of neighborhood. Rational basis test doesn't require it to be the most rational explanation, it just has to be rational. Marshall dissent: it is over-inclusive because it can allow a 12-person family there with the same problems the Majority mentions as externalities of a college house. Laws should get at the impacts you're trying to manage, not by way of family status.
Housing and Discrimination: Requirement for racial discrimination claim (Village of Arlington Heights v. Metropolitan Housing Development Corp.)
Race must be the MOTIVATING or PRINCIPAL factor in denying rezoning request. However, you can prove a discriminatory intent either through direct OR circumstantial evidence.
Arlington Heights: Suburb of Chicago had almost no minorities despite rapid growth. Owner wants to develop 80 acre parcel with low and moderate income housing. Currently zoned R-3 single family home with relatively small minimum lot size requirements. Neighbors opposed the development with thinly veiled objections based on race. Village denies development based on the policy that they only build affordable housing as a buffer zone between single family homes and higher density uses.
Circumstantial evidence to help prove prima facie case:
-Historical background (sequence of events or pattern of discrimination)
-Departure from normal procedure
-Was it a substantial departure? (did it establish a buffer only after the rezoning application?)
-Legislative or administrative history (what was said, and does that show a discriminatory intent)
-Does it impact one race moreso than others?
-Is it unexplainable on any other grounds other than race?
-Impact: denial affected minority groups much more than white. Most applicants for housing were minority.
What evidence can be used to prove a prima facie discrimination suit?
Must prove discriminatory intent either through direct or circumstantial evidence.
Circumstantial evidence to help prove prima facie case:
-Historical background (sequence of events or pattern of discrimination)
-Departure from normal procedure
-Was it a substantial departure? (did it establish a buffer only after the rezoning application?)
-Legislative or administrative history (what was said, and does that show a discriminatory intent)
-Does it impact one race moreso than others?
-Is it unexplainable on any other grounds other than race?
-Impact: denial affected minority groups much more than white. Most applicants for housing were minority.
