Land Use Legal Issues

Question 1

Takings

Answer 1

Many cases where property has claimed govt has in effect “taken” their property by enforcing certain regs.

Question 2

5th Amendment

Answer 2

prohibits govt from taking property for public use wo/just compensation.

Question 3

14th Amendment

Answer 3

prohibits taking of private property wo/due process of law.

Question 4

Eminent domain

Answer 4

Right of govt to acquire private property from unwilling seller for public use
Govt must compensate property owner fairly according to 5th Amendment
Use of ED may involve condemnation of deteriorated property
Court must determine that use is public and must decide on compensation.

Question 5

Freedom of speech

Answer 5

1st Amendment
Many cases where people claim that a regulation denies them this freedom
Signage and adult uses

Question 6

Ripeness doctrine

Answer 6

Claim is ready for judicial review only after a property owner has sought all possible relief through variance or condemnation procedures
Est by 1985, Williamson County Regional Planning Comm v Hamilton Bank.

Question 7

Takings cases

Answer 7

1910, Boston Chamber of Commerce v. Boston
1915, Hadacheck v. Sebastian,
1922, Pennsylvania Coal Co. v. McMahon
1926, Village of Euclid v. Ambler Realty Co. –(Alfred Bettman successfully defended)
1978, Nollan v. California Coastal Commission
1992, Lucas v. South Carolina Coastal Commission
1994, Dolan v. Tigard
1997, Suitum v. Tahoe Regional Planning Agency

Question 8

Growth Management cases

Answer 8

1968, Cheney v. Village 2 at New Hope
1971, Construction Industry Association of Sonoma County v. City of Petaluma. Petaluma
1976, Associated Home Builders of the Greater East Bay, Inc. v. City of Livermore

Question 9

Aesthetics Cases

Answer 9

1954, Berman v. Parker

1963, People v. Stover

Question 10

Signage Cases

Answer 10

1981, Metromedia v. City of San Diego
1984, City of Los Angeles v. Taxpayers for Vincent
1994, City of Ladue v. Gilleo

Question 11

Adult uses

Answer 11

1976, Young v. American Mini-Theaters

1986, City of Renton v. Playtime Theater

Question 12

Coming to the Nuisance/Right to Farm

Answer 12

1972, Spur Industries, Inc. v. Webb Development Co.

Question 13

Moratoria cases

Answer 13

1972, Golden v. Planning Board of the Town of Ramapo
1990, Lesher Communications, Inc. v. City of Walnut Creek
2002, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency

Question 14

1915, Hadacheck v Sebastian

Answer 14

Restricting certain nuisance land uses was a legitimate exercise of police power
Supreme Court (SC) upheld ordinance in LA prohibiting operation of brickyard.

Question 15

1922, Pennsylvania Coal v Mahon

Answer 15

Land use restriction constituted a taking. SC: “property may be regulated to a certain extent, but if regulation goes TOO FAR it will be a taking” = REGULATORY taking
Est concept that regulation of land use might be a taking.

Question 16

1926, Village of Euclid v Ambler Realty Co

Answer 16

SC upheld validity of zoning as a legitimate exercise of police power and emphasized need to separate land uses, particularly single family homes, in order to protect public health, safety and welfare
Est ZONING as valid police power by local govt

Question 17

1954, Berman v Parker

Answer 17

SC upheld redevelopment program that shifted public property to private lands and stated that public ownership of property was not the sole way to promote public purposes
Est AESTHETICS and REDEVELOPMENT as valid public purposes for eminent domain
Opened door for Kelo v New London ruling that condemnation of property needing economic imp is a public purpose = constitutional

Question 18

1963, People v Stover

Answer 18

NY Court of Appeals ruled that Rye, NY aesthetics ordinance prohibiting a clothesline in front yard is a viable exercise of police power even if enacted for aesthetic reasons alone. Ordinance initiated in protest of Stovers’ continual hanging of rags as a way to protest taxes. Court made clear that ordinances enacted for AESTHETIC reasons were allowed.

Question 19

1968, Cheney v Village 2 at New Hope

Answer 19

SC of PA found PUD process did not violate municipal comp plan and did not extend legislative authority to planning commission
Est legitimacy of PUD PROCESS

Question 20

1971, Construction Ind of Sonoma Cty v City of Petaluma

Answer 20

Petaluma was experiencing rapid growth and development largely in single family homes. City wished to limit this type of development and adopted a limit on number of BUILDING PERMITS for SFHs/year. City sued on grounds that plan for development was arbitrary and capricious. 9th Circuit Appeals Court upheld Petaluma’s plan on grounds that it sought to preserve small town character/open space and promote growth at an orderly rate.

Question 21

1972, Spurr Industries v Del Webb Development

Answer 21

Pre-existing cattle feedlot became NUISANCE for residential area more recently est by Del Webb
AZ Court of Appeals ruled large cattle operation should move to accommodate additional urban development. However, developers req to pay damages and expenses to feedlot owners.

Question 22

1972, Golden v Planning Board of Rámapo

Answer 22

Town adopted ZONING ordinance that required timed growth. Developers could not obtain permits until facilities and services in place.
NY Court of Appeals ruled local govts could control growth based on provision of facilities
Landmark case supported local govts to regulate subdivision of land as means to manage and ctrl municipal growth.

Question 23

1973, Fasáno v BCC of Washington County

Answer 23

Concerned rezoning to permit large mobile home park
Court in OR determined that burden of justifying change to zoning falls on party seeking change and that party must show change = consistent w/comp plan.

Question 24

1976, Home Builders of East Bay v City of Livermore

Answer 24

CA SC upheld city ordinance that prohibited further development until school, sewer and water facilities complied with stds

Question 25

1976, Young v American Mini Theaters

Answer 25

US SC upheld Detroit “adult zoning” ordinance that prohibited location of adult movie theater within 1K ft of another such theater or within 500 ft of residential area
Court argued that ordinance did not intend to restrain speech or violate 1st Amendment but only neighborhood character

Question 26

1981, Metromedia v San Diego

Answer 26

US SC struck down ordinance that banned billboards yet permitted onsite commercial signage as an unconstitutional violation of free speech
Today communities regulate signage by reg size, location, lighting and req permits.

Question 27

1982, Loretto v Teleprompter

Answer 27

Existing state law req property owners to permit installation of cable TV facilities on property
US SC held that this constituted a taking because it was a permanent physical invasion of private property

Question 28

1984, City Council v Taxpayers of Vincent

Answer 28

US SC ruled City of LA violated the 1st Amend provision of free speech by banning noncommercial signage on public property.

Question 29

1987, Nollan v California Coastal Commission

Answer 29

US SC held that the takings clause of the constitution was violated when a public agency would grant the Nollans a permit to build a house only if they provided a PUBLIC EASEMENT on their beachfront property.

Question 30

1987, First English Evangelical Lutheran Church of Glendale v County of LA

Answer 30

Flood destroyed church’s campground buildings. In response, LA County passed interim ordinance prohibiting reconstruction in that area
US SC found flood had destroyed all reasonable economic use of land = TAKING

Question 31

1992, Lucas v SC Coastal Council

Answer 31

Landowner who had been denied permission to build a house on a developed shorefront successfully challenged coastal zone protection law. US SC held that regulations that deny ALL ECONOMIC USE of property = TAKING unless existing state property and nuisance law prohibits such use.

Question 32

1994, Dolan v City of Tigard

Answer 32

Storeowner wanted to expand business but would be granted permit only if dedicated a portion of land to public greenway
US SC held that permit conditions that require deeding portions of property to govt are justifiable if required dedication = ROUGHLY PROPORTIONAL to impact of proposed development. Court ruled no reasonable relationship between granting of a permit and the requirement of public land dedication.

Question 33

1994, City of Ladue v Gilleo

Answer 33

US SC ruled that city could not ban someone from posting a noncommercial window sign at residence
Ex, anti-war

Question 34

1997, Suitum v Tahoe Regional Planning Agency

Answer 34

Whether or not property owner must ATTEMPT to sell development rights before claiming regulatory taking wo/just compensation
Suitum owned undeveloped lot. Regional Planning Agency determined lot to be ineligible for development according to agency regs. However, a TDR program had been est, giving owner the option of selling development rights. Rather than attempting to sell the rights, Suitum sued agency claiming agency’s determination = regulatory taking wo/just compensation
Lower courts ruled case not ripe for adjudication because Suitum had not attempted to sell development rights. US SC decided to the contrary and determined that the claim of a regulatory taking was ripe for adjudication.

Question 35

1999, Del Monte Dunes v City of Monterey

Answer 35

US SC recognized right to a jury trial in a regulatory taking case.

Question 36

2002, Tahoe Sierra Preservation Council v Tahoe Regional Planning Agency

Answer 36

US SC upheld use of development moratoria and said that moratorium is not a taking of property requiring compensation.

Question 37

Four 2005 SC decisions that affirmed planning process/good planning principles

Answer 37

kelo, lingle, abrams, san remo
In each case, court rejected attempts to take away established planning/development tools
In each case, court acknowledged development decisions are best made locally

Question 38

2005, Kelo v City of New London

Answer 38

City economic development plan included property owned by Kelo for an economic development project to improve the city
Legal question = whether ED is a public use for which eminent domain may be used
US SC = yes
Public ownership of land is not the only acceptable method of promoting public purposes; govt’s pursuit of public purpose may depend upon individual private enterprise

Question 39

2005, Lingle v Chevron (reverses Agins)

Answer 39

US SC provided clarity for takings cases by removing “substantially advances” test (Agins v Tiburon) to identify regulatory takings
Decision reaffirmed legal principles that when govt takes property, it must pay, and that a taking occurs when regulations destroy all econ value of property
Argument in this case indicates that planning process which involves the participation of all segments of the community works to refine public interest

Question 40

2005, City of Rancho Palos Verdes v Abrams

Answer 40

Case asked what remedies are available to property owner if municipality violates Telecommunications Act of 1996
TCA prohibits local govts from discriminating among providers of equivalent services, from taking actions that prohibit provision of wireless services, and from limiting placement of wireless facilities on basis of environmental effects of radio freq emissions

SC decision means property owners who successfully challenge municipalities and counties on violations of the TCA can ask court to remedy violation and issue permit but cannot obtain money for damages.

Question 41

2005, San Remo Hotel v City of San Francisco

Answer 41

What court should decide what? And when?

SC concluded that state courts are fully competent to adjudicate constitutional challenges to local land use decisions.