Lesson 3 - Application of Legal Principles

Question 1

First Amendment

Answer 1

Freedom of Speech, Freedom of Religion, and Freedom of Association

Within the framework of the First Amendment, freedom of speech applies to adult uses and signs. Freedom of religion applies to religious facilities. Freedom of association applies to group homes.

Question 2

Fifth Amendment

Answer 2

Just compensation for takings

This applies in cases of takings and eminent domain.

Question 3

Fourteenth Amendment

Answer 3

Due process, substantive due process, procedural due process, and equal protection

Due process can be applied to takings, eminent domain, and exactions. Substantive due process beyond the applications for due process includes aesthetics. Procedural due process applies to ordinances. Equal protection is applied to exclusionary zoning.

Question 4

Government’s two options when found to be a taking

Answer 4

Buying the land as it would under an eminent domain proceeding; or repealing the unconstitutional regulation and then compensating the landowner for the loss of use of the property while the regulation was in effect. That is the law today.

Question 5

SCOTUS has found takings in these four circumstances

Answer 5

1. where the landowner has been denied “all economically viable use” of the land;
2. where the regulation forced the landowner to allow someone else to enter onto the property (in this case a cable company, which wanted to attached its cables to an apartment building);
3. where the regulation imposes burdens or costs on the landowner that do not bear a “reasonable relationship” to the impacts of the project on the community; and
4. where government can equally accomplish a valid public purpose through regulation or through a requirement of dedicating property, government should use the less intrusive regulation, for example, prohibiting development in a floodplain property.

Question 6

APA stance on proposed takings legislation (compensation for any loss in value)

Answer 6

Strongly opposes most of the proposed “takings” legislation that its representatives have seen. Many of the bills introduced to date have the potential to bankrupt various entities of government. Many would add to bureaucracy and slow down the development process without really protecting private property.

Question 7

Essential Nexus

Answer 7

Must exist between the exaction and some legitimate governmental interest that would be grounds for denying the permit if the proposal were not mitigated by the exaction.

Permit condition or exaction must serve the same governmental purpose as the development ban. (Nollan)

Question 8

Rough Proportionality

Answer 8

Degree of exaction demanded by the city’s permit conditions bears the require relationship to the projected impact of the petitioner’s proposed development.
(Dolan)

Question 9

Exaction

Answer 9

Required dedication must be related both in nature and extent to the impact of the proposed development.
Permit condition that would almost certainly be a taking if the local government required it of a property owner outside of issuing a permit.

Question 10

Ordinances and regulations that impose conditions on the issuance or development permits–such as the reservation of land for a public greenway or beach access—but do not compensate the owner for the property must meet which conditions in order to be upheld as constitutional?

Answer 10

I. The condition must have some essential nexus with the public purpose it seeks to fulfill
II. The condition must bear some rough proportionality to the impact of the development for which the permit is sought
III. The condition may be satisfied by the payment of a fee in lieu of (FILO) compliance
IV. Not result in the temporary loss of use of property while the application for the development permit is undergoing review by government staff.