Marisa's Deck

Question 1

Cumulative Zoning (Euclid)

Answer 1

Cumulative Zoning is a method of zoning in which any use permitted in a higher-use, less intensive zone is permissible in a lower use, more intensive zone. For example: under this method, a house could be built in an industrial zone but a factory could not be built in a residential zone.

Question 2

Euclidian Zoning (Euclid)

Answer 2

The use of zoning as a means to divide property into use, height, and area districts.

Question 3

Variance (Gaffney)

Answer 3

allows a property owner to use his/her land or buildings in a manner that is prohibited by the ordinance.

Question 4

Can laws restricting the development of a property (i.e. landmark preservation laws) be considered a taking in violation of the 5th and 14th Amendments? (Penn Central-NY)

Answer 4

No.

Question 5

Development Rights

Answer 5

When development of a property is restricted by law (e.g., through designation as a landmark), special rights to develop a unique use on a property owned elsewhere are sometimes granted in exchange for these impositions. (See Penn Central.)

Question 6

5th Amendment’s Takings Clause

Answer 6

”. . . nor shall private property be taken for public use, without just compensation.”

Question 7

Rational Basis Test (Euclid, etc.)

Answer 7

Before a zoning ordinance can be declared unconstitutional, it must be said that its provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. Courts are extremely differential to the legislature regarding constitutional challenges to laws.

Question 8

What are the “ad hoc” factors for a Penn Central takings analysis?

Answer 8

1. What is the economic impact of the regulation on the claimant? (what was the prop worth before the reg - what was it worth after = econ impact)
2. To what extent has the regulation interfered with reasonable investment-backed expectations? (The property needs to be used in the first place for that use (or at least investments must have been made toward that use). Can’t have property zoned for something, do nothing to the property, then claim a taking occurred when the land is rezoned. If you sat on it, you could still claim economic impact if the value decreases. It is more likely for the gov’t to be found to be taking if you have a preexisting use and the regulations allow you to continue that use. If you do suffer a loss that doesn’t qualify as an investment backed expectation, the court will look at it under #1. One exception is if you started sufficient development/planning to develop and then the board changes the zoning laws.)
3. The character of the governmental action. (This is the most important factor. Here the court looks to the public benefit interest - if the health, safety, morals, or general welfare would be promoted by prohibiting particular contemplated uses of land, the court will uphold regulations related thereto.)
   * The only time the gov’t loses is when there’s a dramatic decrease in value and no good reason, or when the gov’t is trying to get free use of someone’s land but no good reason.

**A taking can more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.

***Usually what wins is big reduction of value + flimsy government interest.

Question 9

Takings (Penn Central)

Answer 9

A use restriction on real property may constitute a taking of not reasonably necessary to the effectuation of a substantial public purpose, or perhaps if it has an unduly harsh impact on the owner’s use of the property.

Gov’t actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions have often been held to constitute takings.

Question 10

In a Penn Central takings analysis, will the court look at the parcel in parts?

Answer 10

No. It looks at the property as a whole, and focuses on both the character of the action and on the nature and extent of the interference with rights in the parcel as a whole.

Question 11

What challenges are available to an unfavorable zoning law?

Answer 11

Answer: CONSTITUTIONAL, RECORD, LEGISLATIVE, QUASI-JUDICIAL, and MINISTERIAL

CONSTITUTIONAL

1. Takings
2. Substantive due process - A substantive due process violation occurs when an ordinance infringes upon a fundamental liberty interest or is arbitrary and unreasonable having no substantial relation to the public health, safety, morals, or welfare. To challenge the facial validity of a zoning regulation on substantive due process grounds, the plaintiff must allege that the regulation on its face deprives him of a constitutionally protected property interest and the regulation lacks any rational relationship to a legitimate government interest.
3. Strict Scrutiny - Difficult to win. Just use for takings.

RECORD
1. Does the record support the decision?

GO TO THE LEGISLATIVE BODY
1. Change the law - legislative acts

QUASI-JUDICIAL

1. Look to quasi-judicial approval.
   a. Try to meet their standard, give them reasons for permitting your use.
   b. If no factual basis for their decision exists, you can sue.

MINISTERIAL ACTS
1. As long as you follow the rules, the planning dep’t gives you the permits you need.

Question 12

Special Use Permit (Gaffney)

Answer 12

Authorizes land uses that are allowed and encouraged by the ordinance and declared to be harmonious with the applicable zoning district. If an applicant can demonstrate that no negative impacts will result, or that the proposal mitigates those impacts effectively, the special use permit will usually be granted.

**The quasi-judicial group looks at the conditions to make sure the use meets all the requirements.

Question 13

What is the difference between variances and special use permits?

Answer 13

The difference between variances and special use permits is that variances allow the landowner to do something that is prohibited by the zoning law. Whereas, a special use permit is issued for a use that the zoning law expressly permits in stipulated circumstances, and the conditions have to be related to the problems that the owner is bringing about by getting their conditional use permit

variance - yeah, i know I’m not allowed to do this in the zone but i want an exception to do it.

special use or cond use - allows owner to do s/thing that is contemplated in the ordinance, but you still have to apply for a permit to do so.

Question 14

As Applied vs. Facial Challenges

Answer 14

A FACIAL attack is typically described as one where “no application of the statute would be constitutional.”

In contrast, courts define an AS APPLIED challenge as one “under which the plaintiff argues that a statute, even though generally constitutional, operates unconstitutionally as to him or her because of the plaintiff’s particular circumstances.

An AS APPLIED challenge says, in effect, “my speech is protected by the First Amendment.” A FACIAL challenge, on the other hand, says “my speech might or might not be protected by the First Amendment, but nonetheless the law under which I’m being punished reaches too much speech that clearly is protected and therefore must be struck down.”

Question 15

Nonconforming Uses

Answer 15

When local governments pass zoning ordinances or amendments, the pre-existing land uses that are not authorized under the new laws are deemed nonconforming uses.

Nuisances may be shut down immediately, but other nonconforming uses may be given an amortization period.

Question 16

What is the 4 factor test for an AMORTIZATION PERIOD for a nonconforming use?

Answer 16

1. What’s the owner’s investment in the use? More $ = longer time.
2. What’s the nature of the nonconforming use? If it’s innocuous = longer time. The more problematic the use = the shorter the amortized life.
3. What’s the actual use and what’s the remaining useful life of it? Something that is winding down on its useful life (obsolete, not beneficial, or dated) = limited to a shorter period.
4. What’s the potential harm to the community? If low = longer time. If a nuisance, you can shut it down immediately (in any state).
   * Some (minority of) states say you can never limit them (see it as a constitutional issue of a taking).

Question 17

What changes can or can’t you make to a business during an amortization period?

Answer 17

Some (minority of) states say you can never limit them (see it as a constitutional issue of a taking)
• Stopping the use ends period, but NOT a change in ownership

Some states allow for changes to non-conforming use
• Depends on the level of change
• Natural evolution/expansion of business (even size) but NOT something new or different

Some states will let you change the non-conforming use so long as it is a DOWNGRADE
• Increased volume of traffic is fine ONLY if you don’t change what you’re doing (physically or operationally)
• Can make repairs

Question 18

Spot Zoning (definition)

Answer 18

Spot zoning consists of zoning that ‘single[s] out a small parcel or perhaps even a single lot for a use classification different from the surrounding area and inconsistent with any comprehensive plan, for the benefit of the owner of such property,’ rather than for the good of the community. (p. 73)

Trigger Facts: This usually happens when we see rezoning happen.

Question 19

What is the 4 factor test to determine spot zoning? (Covington)

Answer 19

1. Size of the tract in question – Does this single out and reclassify a relatively small tract?
2. Compatibility of disputed action with existing comprehensive plan (USE, not the zoning plan)
3. Benefit v. detriment to both landowner and community.
4. Relationship of uses envisioned by new zoning with the existing zoning (ZONE, not the usage)

• Know that the use and the zone are different things!
• • Impermissible per se in some jurisdictions (because rezoning must be legislative)
• **Trigger Facts: This usually happens when we see rezoning happen.

Question 20

What do you do for a client who wants zoning undone?

Answer 20

A. Amend the zone
B. Rezoning
C. Initiative of referendum (only some states allow for this)

Question 21

Area (Bulk) Variances

Answer 21

Area (a.k.a. Bulk) Variances concern a deviation from specific requirements such as height limitations, setback lines, size regulations, and the like, but do not involve prohibited uses. The test for an area variance is the lesser standard of practical difficulties. (p. 51-52)

Question 22

Use Variances (Janssen & Drews)

Answer 22

Use Variances permit a use of land for purposes other than those proscribed in the zoning ordinance. In many states, the applicant for a use variance must show unnecessary hardship. (p. 81-82)

Question 23

Unnecessary Hardship (Definition)

Answer 23

Unnecessary hardship (to get a use variance) is established by evidence that the physical features of the property are such that it cannot be used for a permitted purpose or that the property can be conformed for a permitted use only at a prohibitive expense. Unnecessary hardship may also be established by evidence that the property has no value for any purpose permitted by the zoning ordinance. (p. 82)

*In WI, the practical difficulties test is indistinguishable from the unnecessary hardship test.

**Trigger Facts: This happens when you have a diff’t sized lot from everyone else, or when its hilly (strange topography) or wetlands, etc., that palces a unique burden on you.

Question 24

To meet the unnecessary hardship test to get a variance, what must the applicant show with substantial evidence? (Janssen)

Answer 24

1. The property cannot reasonably be used in a manner consistent with existing zoning
2. The landowner’s plight is due to unique circumstances and not to general conditions in the neighborhood that may reflect the unreasonableness of the zoning
3. A use authorized by the variance will not alter the essential character of a locality
4. The hardship is not the result of the applicant’s own actions
5. The court may or may not look at economic returns. (they did in Drews).
6. often, courts declare that a variance must be in the public interest (p. 82)

**Trigger Facts: This happens when you have a diff’t sized lot from everyone else, or when its hilly (strange topography) or wetlands, etc., that palces a unique burden on you.

Question 25

What is the easiest way to satisfy the unnecessary hardship test?

Answer 25

The unnecessary hardship test is most easily satisfied by a showing that the applicant’s property has significant physical differences from other similarly situated properties. (p. 82)

Question 26

What is the big picture to think about in spot zoning?

Answer 26

When you give someone a higher intensive use in a sea of less intensive use , the one property owner gets a benefit that is a detriment borne by those around them - issue spotting - then go through 4 factors to figure out if its spot zoning.

Question 27

Which branch of local gov’t looks at special/conditional use permits?

Answer 27

The quasi-judicial group looks at the conditions to make sure the use meets all the requirements.

Question 28

What is the procedure for appealing a decision on a conditional/special use permit?

Answer 28

It requires notice and hearing. The appeal from the decision of the quasi-judicial group
first goes to city council. Then any appeal of decision of council goes to suit.

Question 29

Floating Zones (definition) (Rodgers)

Answer 29

Floating zones are contemplated in zoning code, defined in it (generally–but often details are defined by the person), they just don’t know where

i. The “where” is determined by who applies for it and whether or not it makes sense to put it there
ii. Not spot zoning because it’s already planned for/contemplated in zoning code
iii. Once it is placed, you can’t move it

Question 30

What is the difference between Planned Unit Developments (PUDs) and Floating Zones?

Answer 30

The big difference is that PUDs allow for multiple uses, and you can have more than one PUD per zone, where as once you place a floating zone it is set.

Question 31

What must remain the same in the zone no matter how you develop the zone? (per Peters v. Spearfish ETJ Planning Commission)

Answer 31

Denisty (unless you change the zoning ordinance).

Question 32

Planned Unit Developments (PUDs) (Peters v. Spearfish ETJ Planning Commission)

Answer 32

A PUD allows for multiple uses in a zone on this property that otherwise wouldn’t be allowed to be together. They’re compatible if they go into the planning of the zone itself.

A PUD should be in the zone that a PUD is permissible, special use permit required to get it.

PUDs are not necessarily right for every area. Don’t put it on a zone with an underlying density limitation.

Question 33

What does clustering do? (Peters v. Spearfish ETJ Planning Commission)

Answer 33

Clustering allows you to spread out the density across the entire zone, i.e. have a dense cluster, but have lots of open space.

Question 34

What is the city’s most powerful discretionary tool when justifying land use regulations? (Summa Humma)

Answer 34

Aesthetics are the city’s most powerful discretionary tool, federal law can’t preempt local government aesthetic decisions or ordinances generally. (This is a good point to raise from a policy perspective.)

Question 35

Exactions (definition)

Answer 35

Exactions may consist of land, infrastructure, a fee, or any combination thereof that a municipality requires from a developer in return for subdivision or development approval. Exactions may also include a requirement that the developer connect water and sewer lines to the municipal system. Municipalities rely on exactions as a method of ensuring that new sevelopment “pays its own way” for certain infrastructure necessitated as a direct result of the development. Developers often view exactions as a public or taxpayer responsibility that is being shifted to the private sector.

Exactions must somehow be related to the land use, and deal with safety and aesthetics.

Question 36

What are some limitations on the planning board?

Answer 36

They have to have some basis for denial (safety and aesthetics) if the zoning code technically allows it, but they can create conditions, requirements, and limitations.

Exactions: conditions and requirements still have to be related to the land use, and deal with safety and aesthetics.

Question 37

Which branch of local gov’t conducts site plan reviews?

Answer 37

Site plan reviews are done by the quasi-judicial branch. Planning boards or commissions are normally assigned the task of approving landowner applications for subdivision or site plan approval and the issuance of a special permit therefor. These reviews require notice and a hearing. They address aesthetic and safety concerns.

Some states allow for Site Plan Review as a second layer of review; other states say that if there is a permitted use, that permitted use establishes a conclusive presumption that what goes on around the permitted use is ok.

Question 38

What is the point of subdivision regulation/review? (Loftin)

Answer 38

Subdivision regulation aims to determine adequacy and design of infrastructure and development, as well as the use, and consistency with what’s around the subdivision. The point of subdivision review is to make sure a subdivision comports with safety, aesthetics, and the community plan. Part of approval process is to determine whether there is sufficient infrastructure available.

Question 39

What is a subdivision? (Loftin)

Answer 39

A subdivision is a larger lot divided onto smaller lots, as well as streets, sidewalks, infrastructure, etc. Can be mixed use (parks, churches, schools, etc.), but generally residential. The developer has to pay to build the infrastructure, but HAS to give them to the city (gated communities are different).

Question 40

What are the 5 essential components to subdivision review?

Answer 40

1. Discretionary review to allow disclosure and mitigation of environmental harm
2. Assurance of the adequacy of infrastructure
   a. Schools and libraries (and other community services)
   b. Fire and police
   c. Water and streets
3. Opportunity to shift the cost of development and infrastructure to the developer through the imposition of conditions on subdivision and permit approval
4. Review to ensure compliance with planning and subdivision standards
5. Assurance that the site is well planned, attractive, safe, and compatible with adjacent development (aesthetics and safety)

Question 41

Can a planning board reject a plan based upon off-site factors? (Garipay)

Answer 41

Yes it can in some states (for e.g., in New Hampshire, per Garipay) even if everything on-site is fine, insofar as off-site factors render subdivisions “scattered or premature.”
These factors would have required an excessive expenditure of public funds to supply the needed infrastructure. In Garipay,
the court looked to state law, but normally courts look to local ordinances.

However, some states don’t allow for off-site infrastructure inadequacies as basis for denial of subdivision.

Here, one would need to look to whether there is substantial evidence on the record to support the position of the board. If not, the decision is arbitrary or capricious.

Question 42

What test is used to determine whether development is premature? (Garipay)

Answer 42

A balancing test is used in Garipay to determine whether development is premature. To do so, the board weighs the amount of development against the amount of services available, and if this creates a danger to the health, safety, or prosperity of a community due to a lack of public services, the development is deemed premature.

Question 43

When will the court overturn a planning board’s denial of a project (during the planning approval process)? (Burrell)

Answer 43

The court will only overturn a board’s decision if the conclusions of a planning board/commission were “clearly erroneous.” To be upheld, the board’s decision merely needs to be reasonable and have some basis on evidence. (This is a very differential standard).

Question 44

What is an issue over which there is a circuit split relating to the project approval process (as seen in Burrell)?

Answer 44

In many states, the fact that the devopment had tentative tract approval at first stage would render final approval merely ministerial.

However, in Burrell,the court says must get approval at all stages:
tentative–>preliminary–>final. (The Burrell method is very controversial.)

Question 45

Vested Rights (definition)

Answer 45

Vested rights lock in the applicable fees, rules, and regulations related to the developer’s project application.

In Utah (see Western), rights are vested at the time of project approval, however, you must proceed with the project with reasonable diligence.

This is a very front-loaded way to go about vested rights—usually they occur later in the process.

Question 46

When can vested rights be revoked?

Answer 46

Vested rights can be revoked if there is a serious enough public health problem, nuisance, fraud, a waiver of the rights, or if a developer didn’t follow the rules and regulations under which the project was approved.

Question 47

What are the goals of the vesting process?

Answer 47

The goal is certainty for developers
The goal is flexibility for government, however, they can’t foresee all problems, so they want to be able to make sure the project meets the community’s needs for health and safety

Question 48

How do you get vested rights (in most states)?

Answer 48

To get vested rights in most states, you need: (1) approval of preliminary tract or later (tentative, preliminary, or final tract approval)

(2) with substantial construction
(3) in good faith reliance on a bldg permit.

Question 49

What is the minority rule for vested rights in Utah (as laid out in Western Land Equities v. City of Logan)?

Answer 49

The minority rule for vesting in Utah (see Western Land Equities v. City of Logan) is that if the developer comports with the zoning at the time they apply, they should get vested rights except if there are pending zoning changes, or there is a compelling countervailing public interest.

What constitutes a “compelling interest” varies from state to state.

The court in Western felt that the law favored government too much, so it created a rule that better balanced private developer’s interests vs. public gov’t interests.

Question 50

What is the rule for vested rights in California (as laid out in Avco Community Developers v. South Coast Regional Commission)?

Answer 50

California follows a later vesting rule than Utah. In California, you have to get farther along to get vested rights (get building permits, do substantial work, and incur substantial liabilities in good faith reliance on the building permit).

Question 51

Streamlining Statutes (definition)

Answer 51

Streamlining statutes set deadlines for public agencies to act, and they can prevent later changes in the rules governing a development. Most states have passed permit streamlining legislation designed to speed up the delay caused by development review. However, when cities violate their own streamlining statutes, the courts are reluctant to punish them beyond a scolding.

Trigger Facts: Streamlining laws often arise in the subdivision review process, however, these laws also apply more broadly to a wide variety of development approvals.

Question 52

What does a streamlining statute supposed to guarantee?

Answer 52

Streamlining statutes only guarantee that a decision on a permit will be rendered within s specified period of time. Should the city take longer than the specified time, they do not guarantee vested rights or an automatic approval. Courts are reluctant to punish cities beyond a scolding for exceeding these time limits.

Question 53

What is a vesting tentative map?

Answer 53

In states that have late vesting (like CA), a vesting tentative map offers an alternative to waiting for late vesting by allowing a developer to file a vesting tentative map (usually some sort of architectural plan requiring a lot of work ahead of time). If a developer gets approval under vesting tentative map, then the rest of approval is ministerial provided they follow the rules. A vesting tentative map has a much higher requirement (that requires much more of an investment) up front (earlier in process). But once this is filed, the developer may proceed with a project in substantial compliance with the ordinances, policies, and standards that are in effect when the map application is deemed complete (similar to getting vested rights).

Question 54

What are the advantages to contracting with a development agreement?

Answer 54

Often fees are contracted in advance through development agreements (this requires negotiation with the city and the city usually wants something). Developers might prefer this as an alternative to having to go through the approval process, which is more uncertain. However, agreeing to a development agreement usually makes the city immune from exaction challenges because the developer contractually agreed to them.

**Keep in mind, freedom of contract is being upheld more and more.

Question 55

Consistency Laws (definition)

Answer 55

Consistency laws require that all developments and zoning be consistent with the general plan.

When general plans are not written (majority), courts look to see if the city council looked at the various interests/issues that go on with planning, and did so with a consistent viewpoint on how to move forward. If they find these things, they will find the action consistent with the “general plan” even if there is no written general plan.

For those states that do require a written plan (minority), the plan must have consistency within the elements in the plan, for example, if the housing element contemplates a lot of growth, the circulation element must have a plan that contemplates that growth.

Question 56

General Plan

Answer 56

A general plan provides a blueprint for the future development and preservation of a community. It is the essential foundation upon which communities are built. A good plan guides not only the physical and economic development, but also accommodates social, environmental, and regional concerns. The plan may, but is not required to be written. General plans are usually done through a planning commission (quasi-judicial), not through the city council (legislative). General plans usually run for 20-30 years.

Question 57

How do general plans add an extra layer of process?

Answer 57

An extra layer of process is added by general plans because zones must be consistent with general plan, and development needs to be consistent with the zone.

Question 58

Why do property rights advocates dislike general plans?

Answer 58

They don’t like general plans because these plans take away landowner’s common law rights.
Plans focus too much on the concerns of public, environment, and devalues the property owners’ rights.

Question 59

What one thing might allow a plaintiff to win a case against the city? (Wolf v. City of Eli)

Answer 59

Consistency with the general plan is one thing that might permit you to win a case against the city (can be substantive grounds for getting a decision overturned).

Consistency is key - this is the best way to attack an ordinance. Constitutional grounds are hard to win on. Review of quasi-judicial decisions are heavily evidence/record focused.

Question 60

How must comprehensive plans measure density? (Twain Harte)

Answer 60

Density must be represented in numbers (e.g. how many people may be in each dwelling unit?).

Question 61

How must comprehensive plans measure circulation? (Twain Harte)

Answer 61

Exact calculations aren’t required, but the plan must contemplate how people are going to get around/how traffic patterns will be affected.

Question 62

How do you challenge a consistency statute?

Answer 62

Challenges to consistency must be tied to your suit, unless it’s fatally flawed (for example, don’t challenge consistency of recycling plan element when your use has no impact on recycling).

There is no requirement for plans to be based on significant fact or evidence—it just needs to be visionary and consistent. It doesn’t need to be totally realistic.

Each state requires different levels and modes of consistency. NJ allows for inconsistency with the majority vote of the governing body (therefore, lobbyists are heavily influential in NJ). In RI, it must be”in accordance”; in Maine, it must be “pursuant to and consistent with.”

Question 63

What will state courts never allow general plans to do?

Answer 63

What state courts will not allow cities to do is to focus on land use only while ignoring the effect it will have on other aspects of infrastructure.

Question 64

Is the fact that a general plan is incomplete fatal to it? (Haines v. City of Phoenix)

Answer 64

No. You shouldn’t preclude preliminary plans just because they’re not complete, at least you know the general direction of where the general plan is going.

The general rule is that whatever parts of your plan have been adopted must be consistent with your zoning ordinance.

In Haines, an AZ court found that ordinances were consistent with an incomplete plan because they were in “basic harmony” with each other.

Question 65

Why is an injunction the preferred remedy when litigation arises around a development?

Answer 65

An injunction is the preferred remedy when litigation arises around a development because otherwise, the developer has all the advantages. Damages might not be effective because the cost could be built into business plan, and the project built anyway.

Question 66

What are some ways to make procedural challenges to land use decisions?

Answer 66

Courts are very deferential to finders of fact in decisionmaking — the standard of proof for challenges to land use decisions is the clearly erroneous standard.

Your best shot for overturning a land use decision is on procedure. Another way is to challenge the factual record. Another is to sue, but you have to prove that the decision was arbitrary and capricious.

Yet another option is to challenge in federal courts: usually constitutional grounds (usually takings, but can be due process and equal protections claims). Procedural violations can be brought in federal court. But that doesn’t mean approval, it just means it goes back to the committee.

Question 67

How do courts tend to feel toward cities who violate their own procedural rules? (Frito Lay)

Answer 67

Usually courts are pretty unsympathetic when looking at cites who violate their own rules, especially when they have city attorneys there or on the payroll.

Question 68

What is the intent behind open meeting laws?

Answer 68

Deals shouldn’t be made behind closed doors; to hold gov accountable, decisions should be made public.

Question 69

Which government meetings must be open to the public?

Answer 69

Aside from limited exceptions, all government meetings must be open to the public. Whenever a group makes a decision or acts on business, the public should have access, and be allowed to participate.

The only exceptions are when someone will be disadvantaged by information being leaked early (e.g., money negotiations, discipline/employment matters, or when discussing pending litigation strategy).

Question 70

How are open meeting laws generally interpreted by the courts? (Kearns Tribune)

Answer 70

Open meeting laws are broadly interpreted to further the declared statutory purpose of openness.

Question 71

Who has standing to bring a suit to challenge a land use decision?

Answer 71

An aggrieved person or persons who suffered injury can challenge a local land use decision. The term “injury” is broadly defined/interpreted. Usually people who live by or in the area affected by regulation can claim injury. Any economic damage is usually sufficient for standing (but not the only injury you can conceivably have).

Question 72

When does a case become ripe?

Answer 72

A case is only ripe after final decision. Furthermore, a court will not review the decision until P has exhausted all administrative remedies.

Question 73

Why in Kearns Tribune was the closed meeting found to be acceptable?

Answer 73

The court in Kearns found the meeting closure met the exception to the open meetings act because it was adversarial like litigation and analogous to a strategy session for potential litigation. (It was a pending adversarial hearing that would have an adjudicative outcome.)

Question 74

What is the standard of review when appealing a city council decision on a special use permit? (Sunderland Family Treatment Services v. City of Pasco - Washington State)

Answer 74

The court must view the evidence in the light most favorable to the party who prevailed at the highest fact finding level (city council). (This is a deferential standard.)

Question 75

Which branch of local gov’t grants or denies special/conditional use permits?

Answer 75

The grant or denial of a special use permit by local gov’t is adjudicatory in nature (quasi-judicial).

Question 76

What does the court mean when it says it requires “substantial evidence”?

Answer 76

“Substantial evidence” means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. If the evidence is mixed, with some substantial evidence supporting the gov’t’s conclusion and some contrary to it, the court will uphold the decision. Under the substantial evidence test (which is a staple of admin. law), the local factfinder resolves conflicts in the evidence, and the court does not undertake a de novo review.

Question 77

Can neighbor’s fears be offered as evidence in support of a zoning restriction?

Answer 77

No. Neighbor’s fears alone cannot justify zoning restrictions. Their opposition must be fact based.

Question 78

How does NIMBYism effect poor and minority communities?

Answer 78

NIMBYs say no to any change in their immediate neighborhood. Poor and minority communities get all the changes because they have the least political power of any group, insofar as they tend to be the least proactive and vocal in this regard.

Question 79

What is a regulatory taking?

Answer 79

If a land use regulation “goes too far,” it can rise to the level of a “compensatory taking”
Normally, if there is a legitimate state reason for the taking, they must give you just compensation.
No exact precise example of this — it depends on tests.

Question 80

When are permanent physical invasions a taking? (Loretto v. Teleprompter Manhattan CATV Corp.)

Answer 80

Whenever there’s a law that requires that you allow a 3rd party to put their stuff on your property permanently (like when NYC mandated that apartments allow cable companies to run lines in each unit), then it is always a taking, because it’s taking away your right to exclude the 3rd party from your property.

Question 81

What is eminent domain?

Answer 81

Eminent domain is when the gov’t physically takes your land.

Question 82

What is the Lucas “Wipe Out” (“per se takings”) rule?

Answer 82

In Lucas, the court found that any time a law wipes out all economic value, it is always a taking “per se.”

When a regulation completely deprives an owner of all economically beneficial use of his/her property, a taking “per se” has occurred and the payment of just compensation is required.

In Lucas, the court said that when regulations that leave the owner of land without economically beneficial or productive options for its use—typically, by requiring land to be left substantially in its natural state—carry with them a heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm.

Question 83

What is never considered a taking?

Answer 83

If land use laws are seeking to regulate a common law nuisance, it is NEVER a taking.

Question 84

What is the current law regarding coming to a preexisting nuisance?

Answer 84

It used to be that when you came to a preexisting nuisance, you had no recourse. Now, the law is that when you come to a preexisting nuisance, knowing that the nuisance already existed doesn’t prevent it from becoming actionable. Nuisance can be dealt with through remedies of injunction or damages.

Question 85

What is the difference between the Penn Central and the Lucas tests?

Answer 85

Penn Central uses an “ad hoc” factor test, Lucas uses a “per se takings” test.

Question 86

Which test is used to judge temporary moratoria? (Tahoe)

Answer 86

Temporary gov’t moratoria are subject to the Penn Central test: the character of government action after a year becomes flimsy (after a year courts will look at the gov’t actions with much more skepticism). Therefore, temporary moratoria CAN be a taking, so long as the delay is unreasonable and doesn’t serve a legitimate public purpose.

Question 87

What is the exception to Penn Central’s insistence on viewing the “parcel as a whole”?

Answer 87

When looking at a large parcel that has since been divided and partially developed, the court will look at:

1. the timing of acquisition
2. the timing of the development, and
3. when the regulation came into place (In Palm Beach Assoc., the FL court found it inappropriate to look at environmental regulations that weren’t in place until well after the owners bought the land.)

Question 88

Can a landowner recover damages from:

a) when the law that made it a regulatory taking was passed, or
b) when the court declared the law a taking?

(First English Lutheran Church)

Answer 88

a) When the law that made it a regulatory taking was passed.

People should get paid from the moment their property is taken, not when the court finds that it is a taking, because the city could just change the law and never have to pay.

Question 89

Once a regulation is found a taking, a city must pay damages, but if you’re a city, what are your options?

Answer 89

The city can:

1. amend it
2. withdraw it
3. take the parcel by eminent domain (needs a good public use), or
4. it could keep the ord. and pay out the damages (regulatory takings aren’t illegal as long as they’re compensated).

Question 90

Are compensated regulatory takings illegal?

Answer 90

No. Regulatory takings aren’t illegal as long as they’re compensated

Question 91

What are some examples of on-site and off-site infrastructure, which of these are most commonly upheld?

Answer 91

On-site infrastructure requirements (i.e. streets, utilities, sewer lines—stuff on the actual proposed developed site will be approved) are usually upheld.

Off-site requirements are trickier (in particular, impact fees).

Question 92

What is the essential nexus test? (Nollan)

Answer 92

The essential nexus test from Nollan—the test for challenging conditions being imposed as a taking)—is:
1. There must be an “essential nexus” between the public purpose and the condition imposed. (The condition imposed must meet a substantial gov’t interest.); AND

2. Even if it does this, it might still be a taking if it fails to advance the public interest.

** If you’re making more problems (needing more sewer capacity because of your development, or more schools are needed because you’re bringing more kids into the town), the gov’t can make you do it, but if it’s just something that the gov’t would like to have, you shouldn’t have to pay for it.

Question 93

Can the city put a condition on a permit? (Nollan)

Answer 93

In Nollan, the court said that it depends on whether there’s a substantial gov’t purpose that’s being advanced by the condition.

Question 94

What is the rough proportionality test (Dolan)?

Answer 94

The Court held that there must be:
1. an essential nexus existing between the legitimate state interest and the permit condition by the respondent; AND

2. if a nexus existed, then exactions imposed by respondent must be roughly proportionate to the projected impact of the proposed development. (If the conditions are not reasonably related to the impact of the proposed development, the court will rule that they are illegal.)

** The city doesn’t have to be precise, but ultimately the City must make an individualized determination of what impacts the development is creating, and the condition has to be roughly proportional to mitigating those. Furthermore, the burden is on the gov’t to quantify its findings (which can be done through an individual assessment or evidence gathering, for example).

Question 95

What are some differences between impact fees and traditional land exactions? (from my supplement book)

Answer 95

differences between impact fees and traditional land exactions include:

1. a) Traditional exactions are paid at the time of subdivision plat approval, whereas
   b) impact fees are paid at the time of issuance of a building permit or certificate of occupancy;
2. a) traditional extractions are assessed primarily on subdivisions, whereas
   b) impact fees are generally assessed on all new development;
3. a) traditional extractions are based upon a percentage of the total average of the proposed development, whereas
   b) impact fees are are based on the individual characteristics of each parcel (i.e. sq footage, # of bedrooms, or # of living units) and, therefore, they provide a closer correlation between impacts and assessments;
4. a) traditional extractions are limited to open space, parks, and infrastructure within a development, whereas
   b) impact fees are used to fund a greater variety of services and facilities.

Question 96

What is the Strict Scrutiny test?

Answer 96

The strict scrutiny test requires that there be a compelling state interest and that the gov’t uses the least restrictive means to implement the interest.

The strict scrutiny test is applied to hybird cases that dovetail with a fundamental right, and for laws that are not generally applicable, but targets a protected group (e.g. a religious group) specifically.

Question 97

Can a public art fee be a valid impact fee? (Elrich v. Culver City)

Answer 97

In Elrich, the court held that an art fee is part of police powers because it is aesthetic in nature, and is valid.

Question 98

How are impact fees assessed?

Answer 98

Impact fees can be legislatively determined or assessed on a ad hoc (random) basis.

Some states have moved to all legislatively assessed fees because they’re more reliable and offer more certainty.

Question 99

Does Nollan/Dollan apply to impact fees?

Answer 99

Nollan/Dollan gets applied to impact fees that are done on an individual ad hoc basis in a discretionary permit porcess, but not to legislatively regulated impact fees.

Therefore, if there’s legislation (like the law about 1% for art), then it’s not a concern under Nollan/Dolan and its constitutionality could be challenged using the rational basis test.

Question 100

Must there be a reasonable connection when imposing impact fees? (Volusia County v. Aberdeen at Ormond Beach, L.P.)

Answer 100

In Aberdeen, the court held that an ordinance that imposed impact fees upon an age restricted community was unconstitutional because it did not satisfy a dual rational nexus test. A retirement community did not contribute to the need for new schools, as no minors were allowed to live in the community. As such, the payers won’t get a benefit from it.

Despite being a legislatively adopted impact fee in this case, the court still applied a Nollan/Dolan-esque test. Generally, this is not a test used for legislatively adopted impact fees.

Question 101

What is the dual rational nexus test? (from St. John’s County via Aberdeen)

Answer 101

The dual rational nexus test requires that there be a relationship between

1. the need for the assessed fee, and
2. the enjoyment of benefits by those subject to the fee.

Question 102

What is an assessment district?

Answer 102

For the special needs of an area, assessment districts are tools set up by state law that allow for the creation of a geographic region to pay a fee to pay for the expansion of infrastructure. They can get tax exempt bonds that get floated to build the infrastructure, and then pay it back through yearly fees paid by those in the geographic region.

They don’t pay money up front, they don’t pay interest on bonds, and they pay it back on yearly tax bill.

Question 103

What is the test used when making an equal protection claim for an unfair special assessment fee? (Strauss v. Township of Holmdel)

Answer 103

Rational basis.

In Strauss, a group of homeowners who contested a special assessment fee for the installation of sewer lines/hookups were told by the court that there was no equal protection violation because a rational basis existed for not requiring installation of sewer lines and for levying a special assessment against plaintiffs, who benefited from the sewers. Also, the city’s decisions were neither arbitrary nor capricious.

Question 104

What’s a Business Improvement District (BID)?

Answer 104

BIDs create a nice, safe, comfortable shopping environment, led by non-governmental groups, paid for by area businesses. Some businesses may not want to participate, problem arises here because even if a business doesn’t pay, it receives the benefit of the beautification project.

Question 105

What must the gov’t do with legislatively adopted impact fees?

Answer 105

1. There needs to be a relationship between the need for the assessed fee, and the enjoyment of benefits by those subject to the fee.
2. Must be earmarked for benefit of the project/the infrastructure need that it creates
3. Expenditures of fees must be made within a reasonable amount of time