Land Use Outline SECRET

7/29/2019 Land Use Outline SECRET

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Land UseBall, Fall 2009

THE PLAYERS IN LAND DISPUTESi. Developer ii. Neighborsiii. General-purpose local govt reconciles competing interests/seeks funding for local streets,

utilities, and other infrastructure from the developer. Uses four tools:a. comprehensive plans - statement of goals and maps;

b. zoning ordinances - control building bulks, size and shape of buildings, uses ofland/buildings;

c. subdivision regulations - control location and design of streets, sewers, parks, and otherinfrastructures; and

d. building and related codes.

I. ZONING & THE CONSTITUTIONAL RIGHTS OF LANDOWNERS ANDDEVELOPERS

A. 3 Major Types of Policy Arguments Underlying Claims:i. inefficient from social perspective

a. Due Process (14th Am.) - requires each zoning restriction be reasonably related to a legit

govt objectiveb. Takings Clause (5th Am.) - Some cts. used this to examine reasonableness of reg., until

Lingle foreclosed this optionii. unfairly burdensome or disruptive of settled expectations

a. Equal Protection Clause (14th Am.) / Takings (5th Am.) - prevent landowners fromshouldering unfair burdens

b. Due Process (14th Am.) / Takings Clause (5th Am.) - interferes w/ settled expectationsiii. violative of landowners or developers civil liberties

a. 1st Am. (free expression, free religious exercise, privacy, and association)B. Substantive Due ProcessStates Police Power to Regulate Land Use - Is zoning

constitutional? Is it consistent w/states zoning power? Does govt have auth. to regulate? Placeto start for constl analysis.

i. Judicial Deference - unless govt decisions seem totally arbitrary, local govt knows best; iszoning constitutional since it regulates the use of private property?

ii. Village of Euclid v. Ambler Realty Co. (U.S. 1926) - starting point for answer. Principle ofzoning okay, consistent with police power. Ps brought a facial challenge to an ordinancedesigned to stop expansion of city into residential neighborhood by zoning Ps land strictlyresidential.a. upholds validity ofseparating uses (strict zoning segregation - cumulative zoning),

including multi-unit from single-family residence. Results in cookie cutter development.b. presumption of constitutionality - deference to local govtc. constitutional if ordinance is fairly debatableor unless itsarbitrary and capricious

- very high standardd. rational basis review - ordinance must be rationally related to health, safety, morals, or

general welfare; as long as not arbitrary, then oke. Just b/c may be unfair in one instance, not completely invalid; claim of injury too broad. Ct.

wont invalidate the entire thing by going through piecemeal to ensure each provision valid.f. Note: in Euclid, ct. did not require this, but today P must exhaust all nonjudicial remedies

(i.e., submit specific proposal for development and seek any available variances) beforechallenging the validity of an ordinance in ct. - facial challenges very difficult to win

iii. Cost/benefit analysis - zoning restriction inefficient when burdens on restricted landownergreater than benefits of restriction to landowners neighbors and other interested parties.

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Determined by how much the people who gain from the policy value their gains vs. how muchthose who lose from the policy value their losses (Kaldor-Hicks test).a. Nectow v. City of Cambridge (U.S. 1928) - P wants to use entire land for industrial

purposes, but some of it zoned residential. Govt refused. Ordinance violates D.P. b/cconstitutes invasion of Ps property w/out nec. basis; wont promote (not related to)healthy, safety, morals, or general welfare - determinative.

1. As applied challenge (vs. Euclidfacial challenge)iv. Today - how far does police power go?

a. Stoyanoff(Mo 1970) (ugly house) - landowners try to build a modern house that didntmatch architectural style of neighborhood. Review bd. denied app.1. Statutory challenge: whether its in line with the State Zoning Enabling Act (SZEA)

A. IS consistent b/c authorizes reg. (auth. architectural review bd.)B. if falls w/in broad lang. of act, then argument would be that includes arch. review bd.C. could argue over the term reasonable - not a commercial property, still just a

house; matter of aesthetics, is that reasonable? Character different fromaesthetics.

2. Constitutional challenge: whether prohibition is constitutional b/c doesnt harm generalwelfare - is it consistent w/the police power (D.P. claim)?

A. IS consistent w/police power; ct. suggests that aesthetics alone may not be enough,but protecting prop. values consistent w/promoting general welfare of communityi. increase tax revenueii. protecting investments - general welfare of people already there who have

already builtB. Ask: is it proper police power (objective) or is it giving too much subjective power to

regulators (is standard too vague)?i. could argue that one can rationally assess value of prop. and put a hard no. or

dollar range - objective standard.ii. could argue ugly, grotesque and unsuitable entirely subjective

b. Kuvin (Fla. 2007) (truck) - man parks truck in ritzy neighborhood, ord. invoked to say no.1. No rational relation b/w ord. and protection of general welfare; no legitimate reason

2. City argued certain feel to neighborhood - parking truck ruins that. Trucks haveconnotation of lower class (govt doesnt really go there but implied)

3. Ban on commercial trucks overnight parking ok, but is ban on personal use trucks ok?Ct. says no. Commercial trucks serve diff. purp.; would change character of area (i.e.,takes away from residential character of municipality).

4. Ask: what review process is in place that will make these determinations? Are thereconcrete, objective standards?

A. difference b/w Stoyanoff& Kuvin (Stoyanoff: can call realtors and get a no.)B. house more stable, cars come and goC. could you establish that cars coming and going will affect prop. value?D. Stoyanoff: can you build (come) here? Kuvin: you are already here and may have

to leave.

c. Anderson (Wa 1993) (incompatible commercial development) - man makes proposal,denied 3 times (diff. feeling from surrounding buildings)1. facial AND as applied challenge2. closer question is facial challenge re: whether standards in ord. are too vague; is there

enough meat in the bones to give sufficient guidance to prop. owners for D.P.?v. Critical issue in D.P. is whether the challenged action is legislative or administrative

a. If legislative, purp. of policy is irrelevant for rational basis analysis; question only iswhether a rational basis exists b/w the policy and any conceivable legit. govt objective

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b. If administrative, ct. determines whether decision maker acted rationally based upon theevidence; will be set aside as arbitrary only if record contains no rational basis for decision

C. Equal Protection ClauseLine Drawing and Class of One Claims - how is govt regulating?Improper distinction b/w restricted owner and similarly situated owners? Restriction imposed b/c ofwho owner is - govt making some impermissible distinction that rises to level of discriminationunder Const.

i. Judicial deference - presumption of constitutionality; property owner has burden of showing norational basisa. Ask: intentional? Irrational? Some circuits: ill will? (Olech: retaliation for previous suit?)

Intentionality reqt - must establish govt intentionally discriminated against you.iii. Discriminatory line drawing

a. Layne v. Zoning Bd. of Adjustment(Pa 1983) - ord. distinguishing boarding house androoming house on basis of meal availability constitutional - presumption of validity, def.to govt1. Meal service invokes health codes (commercial activity) - sufficiently substantial

relationship to health, safety, morals and general welfare of community. Meal servicemakes it a commercial entity - legitimate distinction

b. Cant be merely debatable - lines must be drawn somewhere; must be clear showing of

abuse of legislative discretioniv. Class of one claims

a. Village of Willowbrook v. Olech (U.S. 2000) - conditioning permit on owners granting of a33 ft easement when all other neighbors had 15 was unconstitutional ; arbitrary.1. EPC does give rise to cause of action on behalf of a class of one where P did not

allege membership in a class or group. Here, retaliation alone basis of claim.2. Makes it more difficult for case to be dismissed on pleadings (prior to Olech, if D could

offer or judge could imagine a rational basis, no need for discovery); cts. confusedabout how to reconcile traditional rules of deference w/liberal rules of pleading, andintroduction of ill will creates a disputed fact re: state of mind of decisionmaker.

3. Ask: intentional? Irrational? Some circuits: ill will? Here, irrationality enough; ill will notreqd. But see Flying J.

4. Danger: every time someone alleges theyre being treated differently than others, youhave a fed. constitutional claim. Concern that fed. cts. would be overwhelmed w/gardenvariety zoning disputes. Reqing ill will or animus one way to protect against this.

b. Flying J. Inc. v. City of New Haven (7th Cir. 2008) - ord. not invalid just b/c adopted inresponse to one particular developt; must be irrational to violate Const.1. Even if amended out of animosity, if ratl basis, then ok (if ct. can hypothesize any

ratl reason for ord., then not invald). Presence of ill will alone not enough to make itirrational, w/class of one claims (though tends to be enough in group disc. claims; inthose cases, irrationality or ill will/animus enough).

2. Animus only comes into play when no conceivable ratl basis and animus isonly explanation.

3. Presumption of rationality - P must plead sufficient facts to overcome this

presumption4. Note: availability to govt to change its mind becomes more limited the farther along

developt is (nonconforming use - already being used). Vested rights doctrine alsorelevant.

v. Discrimination against a group - see section III; Race, socioeconomic class, disability, etc.Difft levels of scrutiny (race, gender, and religion require high level of scrutiny).

D. Takings Clause - how is govt regulating? Primary purp. to prevent govt from forcing somepeople to bear burdens which, in all fairness and justice, should be borne by public as a whole.

Allegation: on some level theres an impermissible targeting going on, but not what we would

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consider to be a pure disc. claim. No intentionality reqt. Police Power Reg. taking; EminentDomain Power Physical taking.i. If Due Process does not apply, proceed through Takings analysis:

a. Does reg. codify common law restriction?1. If yes, no taking, even if it deprives property of all EVU (economically viable use)2. If no, then does reg. deprive all property of all EVU?

A. If yes, then per se taking (Lucas)B. If no, then does it result in permanent physical occupation?

i. If yes, then per se taking (Loretto)ii. If no, is there a taking underPenn Central? Most open-ended, categorical, fact-

sensitive analysisii. D.P. analysis precludes Takings analysis (antecedent to it): if impermissible, then no

compensation could rectify the wrong.

a. Lingle separates the two: D.P. analysis comes first; if no proper relationship b/w meansand ends, thats it - reg. is unenforceable, injunction will be issued. Comp. will not be atissue, b/c doesnt matter how much govt willing to or forced to pay.

b. Look at it through remedies: what is prop. owner after? Invalidation of the reg. (D.P.challenge), or comp. (Takings challenge)?

iii. Nuisance Regulations(Never a taking) - complicated byLucasa. Mugler v. Kansas (U.S. 1887) - NOT A TAKING: prohibition simply upon the use of prop.

for purposes that are injurious to health, morals, or safety of community (selling liquor) notdeemed a taking; physical seizure compensable, but not reg. re: use of prop.1. creates a nuisance exception to the taking guarantee (not a regulatory exception) -

applies only to the noxious uses of property.A. could argue it wasnt a noxious use the day before law was passed (not spewing

odors or pollution to neighboring properties)2. Times change - doesnt mean const. right to be compensated every time something

changesA. Could argue unfair to apply law retroactively - could say that from now on its illegal

to use prop. in such a way, but any existing uses ok

iv. Ad Hoc Analysis (Balancing Test) - physical taking of property reqing comp. vs. regulatoryactions aimed at preventing harma. Pennsylvania Col Co. v. Mahon (U.S. 1922) - TAKING: govt goes too far. Govt reqd to

comp. coal mine owners for reg. prohibiting them from mining under private home.1. Matter of degree of reg. (extent of dimunition of prop.) - here regulated to such an

extent as to render prop. worthless. No general rule, depends on degree; here, akin tophysical taking.

A. Focuses on support estate only - support estate loses all value. Dissent:conceptual severance - should we sever prop. and look at diff. types of estates(support, surface, and mining) individually, or should we look at them as a whole. Iflatter, could say that while value of one goes down, value of another goes up, so nota taking.

2. Line drawing vs. balancing test - is ct. drawing a line (regs. that cross a line indiminishing too much value of the prop. reqs comp.), or is it employing a balancing testwhere extent of dimunition weighed against importance of govts interest?

3. Look at what is being regulated (liquor vs. coal); coal mining not a nuisance. Doesnot fall under nuisance reg. exception.

4. Reversing a harm vs. extracting a benefit: govt shouldnt have to comp. for abatingharm, unless govt is extracting benefit from reg. to Ps detriment

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5. Average Reciprocity of Advantage: if benefits coming back to owner, less likely it willbe considered a taking (Plymouth Coal(U.S. 1914)). Look at benefits conferred toentire comm.

b. Penn Central Transportation Co. v. City of New York(U.S. 1978) - confirmed that ownermust be deniedall economic use of land before a taking has occurred and comp. reqd;diminution in value doesnt mean taking per se. Applied balancing test re: dim. in value

vs. economic impact. Factors considered:1. economic impact on property owner

A. Is this is a temporary taking?B. Is there some portion of the prop. that can be developed? (i.e. Palazollo could still

develop upland portion of land.) Will still make a profit; doesnt have to be full profit.C. Average reciprocity of advantage - owner benefited by reg. along w/all other

NYers (entire city benefits from reg. preserving a landmark).D. Anything short of a 100% dim. in prop. value must be decided w/in Penn

Centralframework (cf. Lucas: a 100% dim. of value falls outside Penn Centralbalancing test and will always require comp. unless reg. simply codifies alreadyinherent limitations on owners title).

2. interference with reasonable investment backed expectations (RIBEs)

A. What were the laws in place at the time? The history of govt action? Nature of theland?

B. S.C. said city didnt prevent them from using Penn as it was; nor did it prevent Pennfrom ever using air rights, just couldnt build a 50 story building.

C. Transferable Development Rights (TDRs) - still has ability to use pre-existing airrights b/c transferable to other parcels in vicinity. NOTE: TDR goes to whetheradequate comp., not to whether theres been a taking (Suitum v. TahoeRegional Planning Agency(1997)).

3. character/nature of the govtal action - taking more readily found when interferencew/prop. characterized as physical invasion by govt than when interference arises froma public program adjusting to benefits/burdens of economic life to promote commongood. Accounts forimportance of the govt interest. 2 prongs: 1) akin to physical

taking? 2) extent/degree of public interest.A. Penn claimed city had taken away their air and land rights and wanted just comp.

S.C. said no partial takings - taking jurisprudence doesnt divide a single parcelinto discrete segments and attempt to determine whether rights in particularsegment have been entirely abrogated. Instead, focuses on both character of actionand on nature and extent of interference w/rights in parcel as a whole.

4. distribution of the burden - how many prop. owners affected?v. Per Se Takings (Always a taking) - Exceptions to Penn Central

a. Condemnationb. Permanent physical occupation

1. Loretto v. Teleprompter Manhattan CATV Corp. (U.S. 1982) - perm. physicaloccupation (cable on side of Ps townhouse) of prop. by 3rd party auth. by govt reg.

always a taking, regardless of whether action achieves important public benefit or hasonly minimal economic impact on owner.

A. Occupations qualitatively more severe than a reg. of the use of prop.c. Depravation of all viable economically beneficial use

1. Lucas v. South Carolina Coastal Council(1992) - after P bought land on coastline,govt enacted law prohibiting P from building any permanent structures, rendering landtotally useless. Ct. established total takings test:preventing owner from building onland a taking b/c he could do nothing else w/it; was this reg. a guise to push land backinto public domain?

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A. A 100% dim. of value falls outside Penn Centralbalancing test and will alwaysrequire comp. unless reg. simply codifies already inherent limitations on owners title

B. No nuisance exception: not a nuisance b/c not prohibited by common lawi. fact that a particular use has long been engaged in by similarly situated owners

and theyre permitted to continue use denied to P lack of any common-lawprohibition

C. Factors in total takings test:i. degree of harm to public lands/resources, or adjacent priv. prop., posed by Ps

proposed activitiesii. social value of Ps activities and suitability to locality in questioniii. relative ease w/which alleged harm can be avoided through measures taken by

P and govtD. Categorical rule: if reg. prohibits all economically viable use of prop., taking,

unless reg. consistent w/or arises from common law nuisance principles. Ifso, Mugleris still good law, even when application of reg. deprives prop. of allEVUs.

vi. Tensions b/w Penn Centraland Per Se Rules (Loretto and Lucas) - following cases seemto backtrack from per se tests ct. embraced in Lucas.

a. Palazzolo v. Rhode Island(U.S. 2001) - Fact that ownership came after reg. does notprevent takings claim. Sued underinverse condemnation; had standing despitepurchasing land w/reg. Dont want to make constitutionality of reg. contingent uponpassage of time; would impair a persons ability to pass land off/do what they want w/it, andwould create 2 distinct classes of people (old owners v. new owners or buying vs.inheriting).1. Not aLucasclaim, butremanded for analysis underPenn Central.

A. owner not deprived of all economic use of prop. b/c value of upland portionssubstantial (so Lucas WONT work).

B. BUT lower ct. erred in ruling that acquisition of title after effective date of reg. barredtakings claim. Shouldve analyzed pre-acquisition notice issue underPenn Central.

2. NOTE: If reg. first, apply Penn Central. If ownership first, reg. second, apply

Lucas.b. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency(U.S.

2002) - Moratorium on developt imposed during process of devising comprehensive landuse plan not a per se (Lucas) taking. 8-mo. moratorium was to work out plans b/c Tahoewas becoming over-developed. Temp. taking, not a categorical taking.1. Temporary moratoriums are not per se takings b/c: 1) eventually get back economic

value of land; and 2) would force govts to make decisions quickly - would result in poorplanning

2. Fails underLucas b/c regs. had only a temporary impact on Ps interest in prop. - nocategorical taking. If govt had temporarily USED prop. for public use, wouldrequire comp. But since only a temp. reg. re: private use of prop., no taking.

3. Where govt regulates, better analyzed underPenn Centralframework; starting point

should be to ask whether there was a total taking of the prop. (Lucas) - if not,Penn Centralapplies.

A. Rule inLucascarved out for extraordinary cases in which reg. permanentlydeprives prop. of all value; the default rule remains that, in reg. taking context,fact specific inquiry (Penn Central) appropriate.

B. Lower ct. found fails underPenn Centralb/c (Penn Centralfactors): 1) temp.nature of regs.; 2) avg. holding time of lot in area 25-years (significantly longer thanmoratorium); and 3) Ps failed to offer specific evidence of harm. S.C. did notaddress this issue.

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vii. Takings Analysis - substantially advances test no gooda. Lingle v. Chevron U.S.A., Inc. (U.S. 2005) -Agins test: taking if reg. does not subst.

advance leg. state interest. Ct. said test NO GOOD: different remedy - injunction v. comp.(inj. should be issued, stopping the reg., not comp. which would allow reg. to continue).Fine forS.D.P. claims, but D.P. clause should not be incorporated into a takingsanalysis.

1. Agins formula suggests a means-ends test - whether reg. of private prop. is effective insubst. advancing some leg. public purp. Not valid for discerning whether private prop.has been taken (doesnt look to impact on prop.) Cts. would have to determineefficacy of regs. - suitable for leg., not cts.

2. Appears to say that Takings Clause shouldnt be used (outside of exactions context) togive prop. owners the benefit of greater judicial scrutiny of leg. decisions.

3. Takings analyses focus on vertical burden (burden to land) and horizontal burden (howmany people are affected? Distribution of burden?). Problem w/Agins: reveals nothingabout magnitude/character of burden; provides no info re: how burden dist. amongprop. owners.

viii. Exactions - requires developer pay for or provide some public facility or other amenity ascondition for receiving permission for otherwise prohibited land use; need some nexus b/w

exaction and developt. Govt can ban developt altogether, wields power over developers -however, ceiling on govts prop. rule protections, so exaction functions as liability ruleprotection.a. Developer pays for some public good . Problem: govt permitting developt w/condition

attached, akin to a bribe?b. Adjudicative vs. Legislative - see Ehrlich (below)

1. Adjudicative: higher burden on owners, requires individualized assessment2. Legislative: applies across the board, easier for govt to apply3. When legislative body is acting adjudicatively, less deference to leg body; court will

scrutinize more closelyc. Reasons for exactions :

1. More efficient use of infrastructure by requiring developer pay for it (shifts initial cost)

2. Mitigate neg. effects developt may have on neighborhood, efficient to have developerand customers internalize costs

3. Growth enablers: developers can pay for infrastructure in areas that are growing rapidly,but govt cant pay for it

4. Can use to discourage growth5. Redistribute wealth from developer to others, or to prevent developer from appropriating

wealth created by activities of the local govt6. Note: makes sense for govt to condition a benefit that the govt is not required to permit

on the recipient of the benefits agreeance to waive constitutional rightsd. Ask of govt?

1. Require connection b/w exaction and developt or exaction and neg. externalitiesof developt. See Nollan and Dolan

e. Nollan v. California Coastal Commission (U.S. 1987) - Essential nexus test. Govtconditioned grant of building permit for a beach house on landowner granting towneasement to beach. Not ok. Ct. says govt should have either rejected altogether, orpermitted w/out condition. Needessential nexus between the means (exaction, i.e. theeasement) and the ends (i.e. preventing psychological barrier to beach); none found, butct. indicated broad range of possibilities; lang. suggests more than a reasonable connection

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1. Exaction Analysis:means/end test appropriate when dealing with exactions.Here, condition (easement) does not do what it purports to do; not reasonably relatedto subst. advance leg. state interest (Agins standard (pre-Lingle)).

f. Dolan v. City of Tigard(U.S. 1994) - govt failed to meet standard for relationship b/wimpact of developt and condition on permit. City could not condition granting of Psextension of her store on her dedicating portion of land to storm drainage and bike path

(exaction:public dedication of land reqt). Higher burden: need to show roughproportionality and more factual basis. Went further, adds extra step; 2-step analysis(1-2 below):1. Essential nexus b/w permit condition and legit state interest? Yes (bike path to

eliminate congestion) - Nollansatisfied. Now, if yes, then must decide2. Degree of connection b/w exactions demanded by citys permit and projected

impact of proposed developt? Not ok, P lost right to exclude others from propertyw/bike path

A. Rough proportionality standard - city has burden to prove (Dolan) (underNolan,wasnt clear). Cant rely on tentative findings; must quantify findings. Here,findings not constitutionally suff. to justify conditions imposed

B. Govt needs sound factual findings (must quantify findings); higher burden after

Dolan; i.e. Goss - reqing dedication for highway development not proportional3. Nollan looks at nexus relationship b/w means and ends. Dolan looks at impact of

developt and nature and extent of exaction. In Nollan, impact of developt does notplay a role at all -- what developer is adding in terms of problems to community doesnot matter. In Dolan, in addition to an essential nexus b/w means and ends, has to bean analysis about impact of developt and nature and extent of exaction; adds an extrastep.

4. NOTE FOR ANALYSIS: If no nexus, need not go on to rough proportionality. Ifno nexus, may have a taking if govt goes ahead and demands exaction. If nexus,go on to determine whether rough proportionality test met.

g. Monetary Exactions - Issue of whetherNollan and Dolan apply to fees (monetaryexactions) has never been decided by S.C. -- cases below are state cts grappling w/issue

1. Ehrlich v. City of Culver City (Cal 1996): P asks permission from city to buildrecreational facility on prop. City amends ordinances, allows permit. Later, P realizesfacility not financially feasible, asks permission to build condos. City says need for recfacilities. Finally allows condos w/condition that owner pays exaction fee. Alsoimposed an art exaction fee.

A. Should difference b/w impact fee and dedication of land make a difference? Higherscrutiny b/c afraid of extortion?

B. For ct., doesnt matter if its a fee or land, as long as they are applied on anindividual discretionary basis then higher scrutiny, and Nollan and Dolanapply. Not a matter of land vs. money, but rather the distinction b/w anexaction that is adjudicative (discretionary burden to individual prop.) and onethat is legislative (non-discretionary, arbitrary reg. of prop. rights)

C. Does not take into account severity of exaction -- only matters how its applied. Avery severe, nondiscretionary exaction may be more permissible than a very soft,discretionary exaction

D. Land MoneyAdjudicative(discretionary)

Dolan andNollan

Ex.: Recreational fee(Ehrlich)

Legislative(nondiscretionary)

Ex.: Art fee (Ehrlich)

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E. Ct. finds that the art in public places fee is a legislative exaction, so its notsubject to Nollan/Dolan analysis. Ok, b/c applies across the board, to everyoneF. Rec. fee meets Nollans essential nexus test. But city incorrectly measuredmagnitude of its loss (i.e., the rec. exaction) by incorporating value of facilities it hadno right to appropriate w/out paymentt (Ps rec. facility). There is a possible

justification for rec. fee (possible impact re: rezoning to allow rec. developtelsewhere, and difficulty finding developers of rec. facility due to Ps condo). Butremanded to determine proper valuation of exaction underDolan so as to notinclude value of Ps rec. facility as part of loss due to Ps app. for a permit to buildcondos.G. Note : Why is Dolan adjudicative? Ct. says easement was requested of ALLowners on that shorefront. Gray area -- hard to say what is adjudicative and what islegislative. Ct. found Dolan adjudicative regardless

2. St. Johns River Water Management District v. Koontz(Fla 2009) - P requestedpermit to develop prop. Govt conditioned permit if he performed certain off-sitemitigation involving prop. a considerable distance from Ps prop. P brought inversecondemnation claim; argued a taking reqing comp. P argued not that he cannot geteconomically viable use of property b/c of denial (notLucas orPenn Centralclaim),but instead argued underNollan/Dolan that no essential nexus b/w off-site mitigationsto protect the value of that prop. (end) and exaction (means), and that exaction notroughly proportional to impact. Issue: taking? Holding: Yes.

A. Does it make sense to apply Nollan/Dolan to this situation where exaction wasnever actually realized b/c property owner refused?

B. Nollan/Dolan applied here may create incentives for govt to just say no (instead ofyes, but), to pass legislation to make it non-discretionary, or to refuse tonegotiate out of fear of being sued, and therefore forcing P to bring to the tablepotential conditions he would be willing to fulfill

C. Dissent: ironic to punish govt for saying yes, but instead of just saying no. Ifgovt had just said no, P would not have a taking claim at all most likely (would haveto apply Penn Centraltest, but it is doubtful hed have a claim). P may have a dueprocess claim if conditions arbitrary and capricious, but not a takings claim b/c noactual taking

D. Also odd b/c govt didnt actually receive anything here. Govt took nothing, gotnothing. The claim is essentially a preemptive taking claim.

ix. Ripeness Doctrinea. Williamson County Regional Planning Commission v. Hamilton Bank(U.S. 1985) -

fed. lawsuit that goes to S.C., which decides they cant reach the ultimate taking issue b/ctheres a ripeness issue; lawsuit is not ready for cts b/c every other option has not yet beenexhausted.1. 2 prongs to ripeness test:

A. Final determination reqd: There was an option to seek a variance which was notsought;

i. Need a final no from whatever entity has power to say no for at least the firsttime. Does not mean you have to appeal that decision (finality of admin.action vs. admin. remedies). Ex.: zoning regs often explicitly allow a waiver oftheir enforcement if you meet certain criteria. If P had applied for variance andbeen denied, final determination. But would not have to appeal initial denial.

B. Comp. sought and denied (state remedies (inverse condemnation) must beexhausted): If state has mechanism in place that allows prop. owners to sue state in

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reverse condemnation claim then prop. owner must take advantage of thoseremedies before going to fed. ct.i. Cant claim taking w/out comp. if didnt seek comp. - 5th Am. doesnt require

preemptive or contemporaneous comp.2. Purpose: to insulate - protects fed. cts from prop. owners who try to go to fed. ct. too

early, before a final decision made by local govt.

3. NOTE: neither prong applies to facial takings challenges - facial challenge assertsthe mere enactment of reg. deprives landowner of all economically viable use of prop.

b. Braun v. Ann Arbor Charter Township (6th Cir. 2008) - T1: Ps request rezoning. T2:Rezoning denied. T3: Ps sued in state court, takings claim. T4: State ct. rules claim notripe (under state ripeness rules, not Williamson County). T5: Ps apply for variance. T6:Variance denied. T7: Ps sue in fed. ct. Issue: Inverse condemnation (2nd) prong. Ct. foundtakings claim not ripe. But what about constitutional claims (D.P., S.D.P., and E.P.)? Arethese also not ripe?

1. P.D.P. claim : ancillary to takings claim - essentially same claim, cant separatethem. W/out takings claim, no D.P. claim (and vice versa); if takings claim not ripe, D.P.not ripe

A. Reason: 1) cant say why taking occurred (i.e., D.P. violation) if unable to determine

whether a taking occurred; and 2) Ps could bypass ripeness reqt by attachingancillary D.P. claims to takings claims

2. S.D.P. claim : Can distinguish b/w claims that are ancillary and those that are not byremedy P seeking. If seeking comp., takings; if seeking injunction, another type ofclaim (Lingle). Insofar as remedy sought is same (money), S.D.P. claim subsumed bytakings claim (not ripe if takings claim not ripe). Since also sought injunction underS.D.P, ct. applied S.D.P. analysis and found no violation.3. E.P. claim : If really alleging a bias, doesnt sound like a takings claim. If bias ismain thrust of claim, and that claim would disappear if they won the takings claim, thenthat claim is not yet ripe until takings claim is ripe.

c. Insomnia Inc. v. City of Memphis (6th Cir. 2008) - no takings claim, but ct. says wont hear1st Am. claim b/c its not ripe - applies Williamson County1st prong (finality reqt) to 1st Am.

claim arising from land dispute.1. Ps argue 1st Am. claim ripe as soon as adverse decision made (diff. from Takingsclaim)2. Ds argue w/out finality, ct. lacks subj. matter jd. - Ps proposal may still be approvedif resubmit revised plan for prop. developt, rendering claim moot3. Ct. considered 3 factors:

A. likelihood that harm alleged by Ps will ever come to passB. whether factual record sufficiently developed to produce fair adjudication of the

meritsC. hardship to parties if judicial relief denied at this stage in proceedings.

x. Nonconforming Uses and Vested Rightsa. Amortization Periods

1. Retroactive application of land use regulation - when that use which is being prohibitedis already being carried out prior to the enactment and implementation of the ordinance,everyone agrees that taking action to preclude that use is unconstitutional b/c violatesdue process (so presumed unconstitutional)

2. Prospective application of land use regulation - presumed constitutional (Euclid)3. Amortization provisions fall somewhere in the middle - whether a ct. upholds seems to

come down to whether they put them more on the side of the divide w/retroactive orw/prospective.

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4. PA Northwestern Distributors v. Moon (Pa 1991) - prop. owner opened adultbookstore; ord. passed shortly thereafter that adult stores not allowed in certain areas,including Ps location. 90 days from ordinance to comply.

A. Lower ct. finds distinction b/w prospective application and amortization provisions ismerely one of degree (relies on Sullivan). W/time comes change, and need toallow for flexibility to account for that change.

B. PA S.C. overrules Sullivan (case-by-case analysis re: reasonableness) andcreates per se rule against amortization provisions.

C. Amortization and discontinuance of a lawful pre-existing nonconforming useis per se confiscatory and violative of PA Const. (Taking); faciallyunconstitutional. A lawful, nonconforming use establishes in the prop. owner avested prop. right which cant be abrogated or destroyed, unless its a nuisance, itsabandoned, or its extinguished by eminent domain. If govt wants to interferew/lawful use which is not a nuisance, must compensate. Zoning laws should bedesigned to protect prop. owners reas. expectations.

D. Substantial minority of states take this approach to amortization provisions.E. Proponents of reasonableness test consider following factors:

i. Adequate notice to landowner?

ii. Length of amortization provision in relation to nature of noncomforming useiii. Future development prospectsiv. Public gain vs. private lossv. Nature of present use in relation to other uses in area

5. Valatie v. Smith (NY 1994) - Village enacted a law that forbade mobile homes.Allowed amortization period that ended when ownership of home transferred. Enoughnotice. Amortization period presumed valid - not facially violative. Burden onowner to prove irrational. Doesnt need to be tied to land use objectives - indeed,opposite is true; should be related to owners needs (otherwise would eliminatenonconforming use immediately). Here, tied to user, since use is the same.

A. Validity depends upon reasonableness; reasonableness test applied on case-by-case basis (see Sullivan, above). Following factors are considered:

i. Adequate notice to landownerii. Length of amortization provision in relation to nature of noncomforming useiii. Future development prospectsiv. Public gain (benefit to comm.) vs. private loss (burden on owner to conform)v. Nature of present use in relation to other uses in area

6. Greater Harrodsburg v. Romero (KY 2008) - cts will not invoke nonconforming-usedoctrine when use of prop. has transformed inherent nature of pre-existing primary use.Resolution of what constitutes an existing use is defined on a case-by-case basis.Here, Bd. could not legally require a condal use permit for activities conducted.Owners permitted to expand permissible accessory uses of prop.

A. Reactive leg.: cts. caution against reactive local leg. Should activities or use ofprop. escalate to level of nuisance, surrounding prop. owners can seek appropriate

legal remedies. But such a result cant be accomplished through zoning anddeprive owners of otherwise legal nonconforming use of prop.

7. Alteration and expansion of nonconforming uses: A zoning ordinance that authorizesthe continuation of nonconforming uses may sometimes be construed to allow suchuses to expand. Moreover, some cts hold that a prop. owner has a const. right toexpand a lawful nonconforming use to meet natural business expansion so long ashealth, safety, and welfare of comm.. are not jeopardized. Public welfare v. rights ofind. prop. owner.

8. 2 ways to end nonconforming uses:

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A. Abandonment - intentionalB. Dis-use - dont use for period of time, intent not reqd (implied)

b. Vested Rights1. Late vesting rule -Allows for greater flexibility but lacks predictability. Ad hoc

analysis. Majority rule.A. Critical variables in analysis:

i. how far developer had progressed in obtaining nec. govt approvalsii. amt. of unrecoverable expenses incurred in good faithiii. whether expenditures were for preliminary activities or for construction

B. H.R.D.E. v. Romney(WV 1993) - Non-profit org. wants to build housing for elderly.Gets support from city. Retains architect, begins to build storm sewers/culverts,then loses subsidy. Deeds part of prop. to city. City changes zoning ord.i. Case-by-case determination:

a. good faithb. notice of contemplated zoning changec. expenditures: substantial? Construction or preparation?

ii. Ct. decides in favor of the land ownera. architecture 95% done and therefore full fees had to be paid

b. architecture work specific to this cause (elderly home); couldnt be used foranother building

c. assurances from city council and mayoriii. How to improve this: Vested rights kick in when final determination on part of

mun.C. NOTE CASE: Amt. of money by itself not enough; ct. will look to HOW the

money is used and whether it is specific to this application or can be utilizedfor other purposes (i.e. gravel would have to be laid no matter what type ofconstruction is being done and therefore will not be a significant monetary input).

2. Intermediaryvesting ruleA. Western Land Equities v. Logan (Ut 1980) - T1: Subdivision permit denied. T2:

Lawsuit. T3: Ord. changed -- as of right special use permit

i. Rejects substantial reliance test (H.R.D.E.) - not predictable.a. set quantum test - used by maj. of cts.; determines owner entitled to relief

from new, prohibitory zoning if changed position beyond a certain point,measured quantitatively. Fails b/c no predictable pt. short of adjudicationseparating reliance that is less than substantial from that sufficient to resultin a vested rt.

b. proportionate test - determines % of money spent or obligations incurredbefore zoning change as compared w/total cost. Fails for same reason asabove.

c. balancing test - weighs owners interest in developing prop. andreasonableness of proposed use against interests of public. Fails b/c littlepredictability.

ii. Holding: applicant for subdivision approval or a building permit is entitled tofavorable action if application conforms to zoning ord. in effect at time ofapplication, unless:a. changes in zoning ord. are pending which would prohibit use applied for;

orb. mun. can show compelling reason for exercising police power

retroactively to date of applicationiii. Protects owners while recognizing that municipalities can change their mind

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3. Early vesting rule - just requires builder submit plans according to zoning at time.Most protective, easy to apply; local govts hate this rule b/c limits their ability to addressproblems before use. Counter to rule in most states.

A. Per se rule - does not address factors that might make ind. case more or lesscompelling; right vests when party, prop. owner or not, applies for building permitand permit thereafter is issued

B. Valley View v. Redmond(Wash 1987) - Ps land down-sized from light industrial toagricultural in response to pressure from various groups, and P had alreadysubmitted building plans in compliance w/then-zoning ords.; P won right tocontinue w/plansi. Developers right to build vests if building permit app.:

a. is sufficiently complete;b. complies with then existing ordinances/building codes; andc. is filed during effective period of zoning ord. under which developer seeks to

develop.4. Need for certainty v. need for change: at what pt. is local govts need to respond to new

learning and changed circumstances appropriately balanced against prop. ownersneed for certainty?

E. Public Use Clause - Govt as Landowner, Developer, and Financieri. Eminent Domain

a. Govts can compel an owner to transfer land to it in return for just comp.b. Especially nec. when many parcels must be assembled to complete a large project; if priv.

firm attempted such an assemblage, some owners might recognize advantages of holdingout for an exorbinant price; would-be land assembler lacking power of E.D. therefore mightbe discouraged from pursuing a socially worthwhile land consolidation.

c. Must be for public use; govt cant simply act as agent of private entity (look out for Kzoning)

d. Which comes first, economic plan or identifying entities? If the former, more likely ok; if thelatter comes first, problematic

e. Both constitutional and statutory provisions limit govt exercise of the power of E.D.

f. Public Use appears in Takings Clause of 5th Am.; D.P. clause of 14th Am. makes publicuse limitation applicable to the states

ii. Federal Constitutiona. Kelo v. City of New London (U.S.) - city purchased prop. from willing sellers and proposed

to use E.D. power to acquire remainder of prop. it needs in exchange for just comp. Publicuse does not require that the govt retain title; can give to a private party (i.e., arailroad) so long as the use qualifies as public use. Argument fails if only theprivate party benefits.1. Govt arguments: one parcel vs. entire parcel; plan for developt first, then picked

beneficiaries of plan; public gain outweighs private benefit; needs of comm..:unemployment, pop. loss; increase tax base -- at same time, reduction in social ills asresult of economic redevelopt, which reqs govt to spend less money and which

advances gen. welfare of comm..; part of area will be accessible by public2. Landowner arguments: slippery slope - no boundaries; unlike Berman and Midkiff,

here, not preventing a harm (area not blighted) -- may be creating a benefit, but notpreventing a harm (no harm arising from current ownership); taking from ordinarycitizens to benefit large corp.; risk of capture of political process; demand reasonablecertainty reqt that expected public benefits will accrue

3. Even though private facility (Pfizer research facility) economic benefit to city that is indisrepair (distressed mun.), and so sufficiently serves a public purpose (Midkiff-fee title taken from landowners and given to lessees (for just comp.) to reduce

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concentration of land ownership - upheld). Promoting economic developt qualifiesas public purp.

4. Cant determine constitutional validity on piecemeal basis; must look at plan as awhole (Berman). Ct. says development plan part of comprehensive plan already inmotion.

5. Judicial deference to city that wants to cure rampant economic harm of city -

presumption of validity. (Midkiffand Berman). Wont require govt to show areasonable certainty that expected benefits will actually accrue; wont second-guess govts determinations re: what land it needs to acquire in order to effectuateproject.

6. States can place further restriction on exercise of takings power; provides enough of acheck

7. When primary motivation is just to benefit priv. party, and public benefit is justancillary, no good; fact that members of public can come on to prop. and use it maynot help argument ifintent is to benefit the private party

8. OConnor dissent: wants public use to eliminate only public harms; otherwise you canessentially take land away from those who use it less productively. No harm here fromcurrent ownership; area not blighted. Economic developt does not qualify as

public purpose - too broad of a def. of public use; govt can now take anything.Those w/$ and power will get the land; creates an imbalance.

b. Limitations required for the taking afterKelo1. Plan must be comprehensive2. Thorough deliberation preceding the adoption3. Serves a public purpose4. Background facts that would show that city needs some economic revitalization

ii. State Constitutions - state cts have typically been more aggressive than fed. cts. in policingagainst abuses by local policymakers.a. Southwestern Illinois Developt Auth. v. Natl City Enviro. (Ill. 2002) - govt cant just act

as rep. of private entity and call it public use to further private entitys expansionist goals.1. Govt arg.: literal public use -- parking lot -- anyone can come and use facility

2. Landowner arg.: not blighted; other options available here for racetrack that they did notlook into b/c cost more money; quick-take application is problematic - particularly itidentifies the entity first then the economic plan

3. Revenue expansion not enough to justify improper expansion of E.D. power4. E.D. for economic developt not ok5. City may not take prop. and give to priv. party for a profit when prop. not used for public

use; priv. party used govt agency as way to get around market and expand profitsb. County of Wayne v. Hathcock(Mich 2004) - govt wanted to use E.D. to construct

business and tech. park. Intended to reinvigorate struggling economy by attractingbusinesses.1. Ct. found not a public use2. Overrules Poletown: 1) should not give so much deference to leg.; and 2)

economic benefits do not justify transfer of prop. to priv. entities - every businessdoes this, would render useless the constitutional limitations

3. Transfer to priv. entity only justified in 3 instances, none of which applicable here:A. condemnations involving pub. necessity of the extreme sort otherwise impracticable

- i.e., in which collective action nec. to acquire land for vital instrumentalities ofcommerce (ex.: highways, railroads, canals, etc.)

B. priv. entity remains accountable to public in its use of prop. - must be devoted to useof pub., independent of will of corp. taking it; pub. must maintain measure of controlover prop.

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C. when selection of land to be condemned is itself based on public concern - prop.must be selected on basis of facts of ind. pub. significance (i.e., underlying purp.for resorting to condemnation, rather than subsequent use of condemned land, mustsatisfy Const.s pub. use reqt). Ex.: condemnation of blighted housing resale forpriv. use, but condemnation itself is a public use

c. Goldstein v. NY Urban Devlopt Corp. (NY 2009) - interpretation of public use under

NY law not more restrictive than under fed. Const. ; P did not succeed on fed. claim,wont succeed on state claim. Standard not more restrictive. Ct. found proposal to bringprof. basketball team to Brooklyn a public use not incidental to priv. benefits. 5 of 8blocks affected are blighted1. Ps argue distinction b/w use and purpose - must look to framers intent when used

use - fed. cts. interpret use to mean purp. but state should be more restrictive ininterpretation.

2. Narrow def. rejected; public use cant be precisely defined - evolving concept, mustnot remain static in time. Must interpret public use as quest. presents itself on facts atpresent time in present case

3. Any use which contributes to public welfare = public use/purp.; prop. owner hasburden to prove no ratl relation

F. Religious Land Usesi. Free Exercise Clause - 1st Am.: Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof.a. Until fairly recently, state cts. was skeptical of land use regs. that zoned rel. uses out of

subst. portions of city or imposed reqts that made it costly for a religion to establish use onchosen site.

b. 1980s - important lower fed. ct. decisions broke from tradl state ct. view. Ex.: constructionof church building in a residential district has no rel. or ritualistic significance.

c. 1990 - S.C. decides Smith: right of free exercise does not relieve an ind. of obligation tocomply w/valid and neutral law of gen. applicability on ground that law proscribes (orprescribes) conduct that his religion prescribes (or proscribes). A gen. app. crim. law thathas incidental effect of burdening particular rel practice need not be justified by a

compelling govtal interest, but need only met the usual ratl basis standard.1. Denounced by many rel. groups: decision would allow communities to zone all rel. uses,

or disfavored religions, out of their jds.d. 1993 - Congress enacted Religious Freedom Restoration Act (RFRA) providing that govt

shall not subst. burden a persons exercise of rel. even if burden results from a rule of gen.app. unless govt demonstrates that its: 1) in furtherance of a compelling govtal interest;and 2) the least restrictive means of furthering that govtal interest. Overruled Smith andreinstated compelling state interest test.

e. 1997 - S.C. declared RFRA an unconstitutional restriction of the states - found Congresshad exceeded its enforcement powers under 14th Am.

f. Congress passed Religious Land Use and Institutionalized Persons Act (RLUIPA) (2000).g. Lighthouse Inst. v. Long Branch (3d Cir. 2007) - Ord. did not list church as permitted

use but listed several secular uses as permitted. Ord. strictly limited use of prop. w/in area.Purp: to achieve redevelopt of segment of city (wanted vibrant downtown - state statuteprohibits liquor w/in 200 ft. of house of worship). Also prohibited schools and govtbuildings.1. Unlike RLUIPA, Free Ex. Cl. does not define land use as a rel. ex.2. Would not hinder ability to practice rel. - could move elsewhere. Indirect, financial, or

aesthetic burden not an imposition - if can go elsewhere w/out unnec. hardship, not aviolation

3. Subject to strict scrutiny only if not neutral and generally applicable

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A. Neutral: no ev. govts plan for area developed w/aim of infringing on rel. practices(no rel. animus) and no value judgment that rel. reasons for assembling less imp.than secular reasons. Even if incidentally burdens right to free ex., still only ratlbasis review.

B. Generally applicable: govt pursued aims evenhandedly; generally allowed kinds ofuses that would further leg. goals and prohibiting those that would interfere w/them.

Not discriminatorily enforced.C. Note: Do not apply strict scrutiny merely b/c no waiver or amendment provision

4. Survives ratl basis review; burden on P, didnt show unreasonable or arbitrary andbears ratl relationship to some conceivable permissible obj.

ii. Religious Land Use and Institutionalized Persons Act (RLUIPA) - addresses only land use regsand the rel. rights of institutionalized persons. 2 sections/primary claims:a. Substantial burdens provision: RLUIPA prohibits govt from imposing or implementing

land use reg. in manner that imposes subst. burden on rel. exercise of a person, including arel. assembly or institution, unless govt demonstrates that imposition of the burden on thatperson, assembly, or institution A) is in furtherance of compelling govtal interest; and B) isleast restrictive means of furthering that compelling govtal interest.1. Religious exercise defined as any exercise of religion, whether or not compelled

by, or central to, a system of religious belief. Goes beyond 1st Am. Free Ex. Cl.2. Using, building, or converting real prop. for rel. exercise purp. is a religious

exercise3. Acts aim of protecting rel. ex. to be construed broadly and to maximum extent

permitted by terms of statute and Const.4. Once determined rel. ex. burdened, burden shifts to govt to prove compelling govt

interest and least restrictive means furthering that interest. Must show compellinginterest in particular case, not in general.

b. Discrimination and Exclusion provision:1. Equal terms - no govt shall impose/implement a land use reg. in a manner that treats a

rel. assembly/inst. on less than equal terms w/a nonrel. assembly/inst.2. Nondiscrimination - no govt shall impose/implement a land use reg. that discriminates

against any assembly/inst. on basis of rel. or rel. denomination3. Exclusions and limits - no govt shall impose/implement a land use reg. that:

A. totally excludes rel. assemblies from a jd.; orB. unreasonably limits rel. assemblies/insts./structures w/in a jd.

c. Westchester Day School v. Mamaroneck(2d Cir. 2007) - Orthodox Jewish day schoolsubmitted expansion plans and application for special permit; zoning bd. denied application.1. Proposed developt must do more than just enhance overall experience of students;

must be rel. exercise. Just b/c rel. inst., not enough to constitute rel. ex. In this caseenough b/c all proposed buildings would be used at least in some part for rel. teachings.Project is a use of prop. for purp. of rel. exercise, so is a rel. ex. (every classroom usedfor rel. ed.)

2. Subst. burden on rel. ex. b/c coerced P to continue teaching in inadequate

facilitiesA. Must be close nexus b/w coerced/impeded conduct and rel. ex. to be subst.

burdenB. Effects-driven tests dangerous; thus, gen. app. burdens, neutrally imposed, not

subst.; restrictions arbitrarily, capriciously, or unlawfully imposed are subst. burdensC. No quick, reliable, and financially feasible alternativesD. Subst. burden less likely to be found when denial of app. not absolute (where

P has reas. opp. to resubmit app.); conditional denial may be subst. burden,however, if condition itself is burden on free ex., reqd modifications are

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economically unfeasible, or zoning bd.s stated willingness to consider a modifiedplan disingenuous.

4. RLUIPA is constitutionalA. 3-prong analysis - govt action interacting w/religion must:

i. have secular purpose (YES - to lift govt-created burdens on priv. rel. ex.)ii. have principal effect that neither advances nor inhibits religion (YES - merely

permits rel. practitioners free exercise w/out being burdened unnecessarily bygovt)

iii. not bring about excessive govt entanglement w/religion (YES - entanglementbecomes excessive only when it advances/inhibits religion; merely reqing statesnot to discriminate against/among rel. institutions does not advance rel.)

d. Westgate Tabernacle v. Palm Beach (4th Cir. 2009) - church activities as homelessshelter not fundamental to rel. ex.; just b/c inconvenient to change locations of shelter,not a subst. burden on rel. ex. Merepermit reqt not a subst. burden; must exhaustadmin. remedies, cant predict permit would be denied if applied.

e. Lighthouse Inst. v. Long Branch (3d Cir. 2007) - See above. RLUIPA - Equal Termsclaim:1. P need not show subst. burden for equal terms claim

2. Must show secular comparator that is similarly situatedas to reg. purp. of reg.(not same uses); determination hinges on comparison of how it treats entities/behaviorthat has same effect on reg.s objectives

A. P need not show a sec. comparator that proposes same combo ofuses/functions

B. If neutral and gen. applicable, presumed valid; does not cease being neutral andgen. app. simply b/c it allows certain sec. behaviors but not certain rel. behaviors.Impact of behaviors must be examined in light of purp. of reg.

C. If would exempt for secular use that would have similar impact, must exempt for rel.use. But if impact on reg. not similar, then not comparable (and no violation)

D. Heightened scrutiny warranted only when principled distinction couldnt bemade b/w religious vs. secular comparators effects on reg. objectives

E. Govt must have a clear objective, and explain why rel. enttites excluded but sec.uses that seem to have a similar impact permitted.

F. Here, wide range of activities prohibited, not just rel. activities3. Strict liability standard; not strict scrutiny. No burden shifting; if P can show

unequal app. of terms to a secular user vs. religious one, end of analysis; statute hasbeen violated.

4. P asserting equal terms claim must show:A. it is a rel. assembly/inst.B. subject to a land use reg., whichC. treats the rel. assembly on less than equal terms withD. a nonreligious assembly/inst.E. that causes no lesser harm to interests reg. seeks to advance

G. Free Speechi. Sexually-Oriented Businesses

a. Renton v. Playtime Theatres (U.S. 1986) - ord. prohibited any adult motion picture theaterfrom location w/in 1000 ft. of any residential zone, single- or multiple-family dwelling,church, park, or school. Issue: whether ordinance (even when prospectively applied)violates free speech clause.1. Content-based vs. content-neutral - look to intent

A. Content-based: apply highest level of scrutiny - govt must show compellinginterest and means least restrictive

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B. Content-neutral: time, place, and manner reg. Standard: intermediary scrutiny -ok so long as designed to serve subst. govt interest and doesnt limit reas.means of comm.2 inquiries:i. whether predominant concerns motivating ord.. were secondary effects (not

content)

ii. whether mun. can demonstrate a connection b/w speech regulated andsecondary effects motivating ord.

2. Owners argument - content-based: but for the type of movie, theater would bepermitted

3. Govts argument - not banning them, just saying where we want (or dont want)4. Ct. asks: Is censorship primary motivation or not? What were predominant concerns of

govt when it enacted the leg.? Was it to go after the speech, or counter the secondaryeffects?

5. Ct. determined predominant concerns were to combat crime, loitering, decrease inprop. values, etc. (secondary effects). Not banning altogether; not intended tosuppress expression.

6. Content neutral analysis:

A. Subst. govt interest: to preserve quality of urban lifei. May rely on studies of other cities to satisfy that there are neg. secondary

effects; need not conduct new studies so long as ev. relied upon is relevant toproblem

B. Reas. means of comm.: left plenty of space in town open for use as an adulttheater site. Fact that those areas not open irrelevant; must deal with the priv. realestate market. Constitution not violated b/c there arent as many sellers as P wouldlike there to be.i. Question: is over there practical? Are the theaters being shoved to only those

areas where they cannot possibly develop (i.e., on an airport runway)?b. LA v. Alameda Books (U.S. 2002) - prohibition of operation of businesses that are too

close (1000 ft.) to other similar uses; city did study in 1977 showing concentration of

businesses associated w/higher rates of crime in surrounding neighborhoods. Mun. wentfurther to say that no more than one of these uses in same structure permitted. P rentsvideos and has booths; qualified as two uses, thus violating ord.1. Content-neutral - burden on P to case doubt on rationale. If P does so, burden shifts

to city to provide ev. supporting theory/justifying ord.2. Evidentiary reqt: even though have not studied effects of concentration w/in one

structure, ok as long as its reasonable to believe that when you have these businessesconcentrated in one structure, youre more likely to experience the secondary effects(reasonably believed to be relevant).

A. Need not show empirical data that ord. will be successful; must give mun.reasonable opportunity to experiment w/solutions to address secondary effects ofprotected speech. Balance b/w 1st Am. analysis and def. to citys studies re: local

problems.3. Merely an attempt to drive out adult businesses? Splitting them up would result in 2

operations instead of 1 -- hardly likely to achieve purported goals. Is it really content-based?

c. Majority of cts. uphold retroactive application of provisions reqing existing businesses tophase out or come into compliance as long as amortization period is reasonable.

ii. Billboards and Signsa. Reasons for regs:

1. Promote beauty/discourage ugliness

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2. Promotes property values/encourages investment3. Fewer distractions4. Certainty

b. Problems w/regs.:1. Could affect freedom of expression2. High degree of subjectivity

3. Legit exercise of police power? Substantive due process?4. Too much burden on owner w/o corresponding benefit? Retroactive?5. Interferes w/ commerce (billboard regulations)

c. Metromedia v. San Diego (Ca S.C. 1981) - ord. prohibited all off-site advertising displays;on-site commercial ok. Non-commercial not allowed either off-site or on-site, w/exceptions.

Amortization period calculated using balancing approach (public benefits vs. private loss).1. Ps claim:

A. D.P. claimB. 1st Am. claimC. Facial challenge to the amortization provisions (too short)

2. Govt reasons:A. Aesthetic purposes

B. Traffic safety3. D.P. claim: Proper app. of police power - promotes safety and welfare of public (proper

objectives)A. Reasonably relates to traffic safetyB. Aesthetic appeal alone can justify ord.; enough economic impact to make it

legitimate (modern trend)4. 1st Am. claim : Leaves open adequate means of alternate communication

A. Possibility that ord. may impede an advertiser from communicating message topublic not sufficient to invalidate ord. on its face, but as applied claims still availableto ind. Ps (case-by-case basis)

5. Amortization period challenge: ok b/c ct. has found in prior cases that 1-5 years ok, sothis period is alright. May be able to strike the period for individual cases, but not

facially unreasonabled. Metromedia v. San Diego (U.S. 1981) - reversed CA S.C. (above). Certain features of

ord. violated 1st Am. - exemptions discriminate on basis of signs messages. Reaches toofar into realm of protected speech.1. Commercial vs. noncommercial speech: Const. accords less protection to

commercial speech than to other constitutionally guaranteed expression. 4-part test fordetermining validity of govt restriction on commercial speech:

A. 1st Am. protects comm. speech only if concerns lawful activity and not misleading. Arestriction on otherwise protected comm. speech valid only if it:

B. seeks to implement subst. govt interestC. directly advances that interest, andD. reaches no further than nec. to accomplish the given obj.

2. Valid reg. of commercial speech: Only (C) at issue here - city has chosen to valueone type of comm. speech (onsite advertising) over another (offsite advertising),reflecting that former interest, but not latter, is stronger than citys interests in trafficsafety. Ct. says ok - city could reasonably conclude that comm. enterprise has strongerinterest in identifying place of bus. and advertising products/services available therethan it has in using or leasing its available space for purp. of advertising comm.enterprises located elsewhere.

3. Invalid reg. of noncommercial speech: ord. gives more protection to comm. speechthan noncomm. speech - violates 1st Am.

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A. Ok to ban all offsite advertising. But if going to allow onsite comm. speech, mustallow onsite noncomm. speech as well. Restricts too little speech -impermissibly underinclusive.

B. Exceptions permitting various kinds of onsite noncomm. speech invalid - essentiallycontent-based reg. City may not distinguish b/w relative value of differentcategories of noncomm. speech (though may do so for comm. speech). No

compelling interest for distinctions.4. Note: What if mun. got rid of exceptions, thereby prohibiting ALL non-comm. speech?

Then problem becomes prohibiting too much protected speech; not that youreregulating too little, but too much - no subst. govt interest and no suff. alternativemeans of communication.

e. Ladue v. Gilleo (U.S. 1994) - ord. prohibits signs; has exceptions (residential identification,church signs, commercial signs in properly zoned districts, on-site advertising for gasolinedrilling, and for sale signs). Ct. found both underinclusive and overinclusive.1. Exemptions problematic: underinclusive. Exemptions from otherwise legitimate reg. of

a medium of speech may diminish credibility of govts rationale for restricting speech infirst place (cf. Metromedia: exemptions from otherwise permissible reg. of speech may= content discrimination). If remove exemptions, problem solved. Still problem of

overinclusiveness.2. Time, place and manner analysis: content-neutral - goes after an effective means of

communication, not targeted toward particular types of speech, which would be content-based

A. Not a subst. govt interest - reducing clutter no more compelling than precedentcases where found no subst. govt interest

B. No suff. reas. alt. means of comm. - dangerous to foreclose an entire medium ofexpression. This part. type of comm. extremely affordable & convenient, &reaches people in a diff. way; identifies speakermore so than posting a flyer on atelephone pole. No practical substitute.

f. NJ v. DeAngelo (NJ 2009) - Ord. prohibited all portable signs, balloon signs or otherinflatable signs except grand opening signs. Various temporary (non-inflatable) signs

permitted w/out permit. Purp.: aesthetic (to attract economic developt), safety, and prop.values. Invalid - unconstitutional and overbroad.1. 1st Am.: speech re: public issues afforded widest room for discussion; any restriction on

public issue picketing subject to strict scrutiny2. Content-based: prohibition applies to all inflatable signs except for grand opening

signs; no diff. b/w effect on health/safety b/w different types of inflatable signs. Sameharm for both categories, yet one is allowed and one is prohibited. Highest level ofscrutiny.

A. Content-based b/c: 1) ord. favors comm. over noncomm. speech, and 2)violation of ord. based on purp. for which sign is displayed

3. 3 types of forums (character of property):A. traditional public forum (public streets, parks, and sidewalks) - govts ability to

restrict very limitedB. public forum created by govt designationC. non-public forum

3. Toenforce content-based reg. in traditional forum, must show reg.:A. nec. to serve a compelling state interest (NO), andB. narrowly drawn to achieve that goal/to prevent no more than the exact source of

evil it seeks to remedy (NO)4. Ord. also overbroad - prohibits too much speech. Even if got rid of exception for grand

opening balloons, reg. would be struck down b/c limits availability of balloons or

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inflatable signs as a means of communication; left no ample alt. channels forcommunication.

A. Test for prohibition of entire medium of expression: will be upheld only ifnarrowlydrawn to accomplish a compelling state interest.

II. ZONING CHANGES/FLEXIBILITY DEVICES & THE RIGHTSOF NEIGHBORS- prop. owners + govt vs. third parties (neighbors)

A. Actions by Administrative Bodiesi. Administrative or quasi-judicial bodies involved in different types of mechanisms:

a. Bd. of Adjustment/Zoning Appeals - responsible for variances (issuing or denial); also hearappeals on denial of zoning permits

b. Planning Commission - consist of appointed members (real estate agents, lawyers, etc.).Sometimes hear variances, but usually more involved in hearing special use applications.Will also hold hearings in anticipation of a rezoning and make recommendations to leg.body re: whether a particular rezoning proposal should be adopted.

c. Zoning/Land Use Dept. - depending on jd., very often involved in issues related to specialuses or conditional uses. Diff. b/w this and Planning Commission: this is a branch of local

govt -- made up of govt officials that work for mun., instead of being a group of peoplenamed. Will often make a recommendation to Planning Commission re: rezoning.

d. Note: Very common for leg. body to have ability to hear appeals on denial or granting ofvariances or special uses. Depending on jd. and how regulatory system set up, may have asituation where variance first goes to Bd. of Adj. and is denied; may then appeal to leg.body. If denied by leg. body, then can go to ct. Same works in reverse -- if Bd. grantsvariance and neighbors dont like it, can go to leg. body. If leg. body affirms, can go to ct.

ii. Variancesa. Matthew v. Smith (Mo 1986) - owner wanted to get variance to have two single-family

residences on lot, in area zoned for only single-family residences. In propercircumstances, use variances permitted; must meet 3 conditions to prove unnec.hardship, not met here.

1. Use variance vs. area variance: diff. standard appliedA. Use variance permits a use other than one prescribed by zoning ordinance inparticular district; permits use ord. prohibits

B. Area variance authorizes deviations from restrictions which relate to a permitteduse, rather than limitations on the use itself (i.e., restrictions on bulk, height, size,density (extent of lot coverage), min. habitable area therein, or setbacks)

2. To obtain a use variance, must demonstrate that an unnec. hardship would resultfrom denial of variance:

A. Land will yield no reasonable return w/out variance - if dont allow reas. return,might be a taking underPenn Central.i. Must show loss of all beneficial economic use of prop.; must show actual

proof(dollars and cents)

ii. Ct. concludes that not sufficient ev. to establish unnec. hardship - only evidencewas owners opinion, but ct. wants actual figures.B. Plight of owner due to unique circumstances, not general conditions of

neighborhoodC. Use will not alter essential character of localityD. Note: where owner has been contributing cause for resulting hardship, will

not help to meet unnec. hardship standard and wont help getting variancei. Divided land in such a way to make it difficult to conform w/existing zoning lawsii. Develops property in violation of existing zoning laws

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iii. Purchases prop. knowing land will not be economically viable unless variancegranted

E. Note: personal hardships (i.e., poor health) not taken into consideration inunnec. hardship analysis

3. To obtain an area variance, must demonstrate a practical difficultyA. Ct. not very explicit as to what is reqd - elements might be similar; though first

element will be different.B. Slightly less rigorous standard than unnec. hardship.

i. May mean you dont need to show there is no reas. return on prop. unlessvariance is granted - need not rise to that level. Maybe there can be a few morearea variances granted before run into problem for element 2, and can be morerelaxed with element 3. Not necessarily that elements different, just less strict.

4. Note: Some cts. treat unnec. hardship and practical difficulty as interchangeableb. Driehaus v. Walworth County(Wisc 2009) - Owner wanted to convert upper level of

garage into SFR, but didnt meet 20-ft. setback reqt for residences. Applied for conditionaluse permit (CUP); zoning committee approved but conditioned that P obtain variance forsetback reqt. Zoning comm. held own proceedings re: variance (did not refer matter to Bd.of Adj.); voted to grant variance. Neighbors filed decl. judgmt, lost. On app.,

reversed/remanded b/c zoning comm. had no jd. to hear application for variance, andD failed to establish unnec. hardship in absence of variance. D submitted app. for varianceto Bd. - denied. D appeals.1. Presumption of validity when reviewing admin. agency decision; review decision

itself, not decision of ct.2. Use variance vs. area variance:

A. D argues variance shouldve been granted b/c Bd. incorrectly applied use variancestandard instead of area variance standard; claims shouldnt have looked at use atall, since conditional permit had been granted and was therefore settled. Alsoargues Bd. prohibited from granting use variances, so outside of Bd.s jd.i. Problem: CUP not equivalent to use variance. Conditional use is a permitted

use in a specified zoning district that may be granted under special

circumstances if use not harmful, offensive, or otherwise adverse toenvironment. Variance allows nonconformities that are otherwiseprohibited by ord.

B. Ct. agrees that no reasonable use standard should not apply to areavariances. However, says owner exaggerates scope of precedent - use may be afactor for consideration in the area variance determination. It may notoverwhelm the other considerations, but may play a role in analysis. More relaxedstandard - cant require owners to show no reasonable use of prop. unlessvariance granted, but doesnt mean that use is irrelevant in analysis .

3. Oppressive and arbitrary argument: D claims met burden to show unnec. hardship,so Bd.s decision opp. and arb.

A. Burden of showing unnec. hardship falls on prop. owner

B. Bd. must evaluate hardship in light of purp. of ord. Here: to reg. lot coverage,pop. density and dist., and location and size of all structures w/in area, and tostabilize/protect natural beauty and prop. values of county.

C. Ct. weighed both sides: found Bd. not unreasonable in finding that proposed usewould have a significant and detrimental effect on neighbors. Not opp. or arb.

c. Use variances can undermine Euclidean efforts to segregate diff. activities. Can limitincidence of use variances in following ways:

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1. can interpret statutes modeled after Standard Enabling Zoning Act (SZEA) to bar awardof use variances on theory that use variance is rezoning and power to amend ord. hasnot been delegated to BZA.

2. can construe relevant statutes and ords. to impose tougher criteria for award of usevariances (undue hardship) than for area variances (practical difficulties) (Matthew).

3. some cities have adopted zoning ordinances that prohibit grant of use variances. (If

state enabling act confers auth. to grant them, this method may be rejected)4. state legs. have amended enabling acts to either eliminate or toughen standards for use

variancesiii. Special Exceptions/Special Uses/Conditional Uses - Flexibility devices designed to meet

problem where certain uses, although generally compatible w/basic use classification ofparticular zone, shouldnt be permitted to be located as a matter of right in every area includedin zone b/c of hazards inherent in use itself or special problems which proposed location maypresent.a. 3 kinds of uses:

1. Use as of right2. Use allowed, but only if3. Use prohibited (reqs variance)

4. Note: Unlike variance, which permits particular prop. to be used in manner forbidden byord. by varying terms of ord., special use/exception/conditional use provision permitsprop., w/in discretion of governing body, to be used in a manner expressly authorizedby ord.

5. Note: neighbors challenges to grant of variances succeed more often than challengesto grant of special exceptions. Cts. presume variances should be granted rarely(Matthew), but presume special exceptions are too frequently denied.

A. Cts. greater solicitude for special exceptions threatens to deprive local govts ofdiscretion, and thus take away leverage to exact tribute from landowners. So, manylocal govts make it difficult for applicant to prove compliance w/ord. reqts byadopting vague standards for special exceptions (i.e., variant of promote thegeneral welfare). Ords. of this type may be challenged as providing inadequate

guidance. Cts. require that if leg. body delegates power to grant/deny specialexceptions to admin. body, leg. must provide standards to guide admin.bodys discretion. Reqd precision varies by ct.

b. Issues when considering special uses/exceptions:1. Due process2. Favoritism3. Improper delegation: If legislature gives too much discretion to the zoning bd., ct. may

say giving leg. auth. to an admin. bodyc. Gladden v. D.C. BZA (D.C. 1995) - neighbors upset b/c think youth rehabilitation home will

have adverse effects on the neighborhood; already a lot of group homes in area.1. Zoning regs. give BZA discretion to grant special exception as long as meets reqts of

reg. Thus, limited discretion. Here, met both reqts.

2. Leg. deference - BZA decision will be upheld if:A. rational basis (is it legally consistent w/regs.? arbitrary/capricious?)B. decision accompanied by facts sufficient to enable a decision, decision follows

as a matter of law from those facts, and factshave substantial support in ev.3. Ps challenge findings - claims not adequately supported/addressed/explained

A. rate of abscondence not an issue - when the run, they run farB. no ev. home will have neg. affect on neighborhoods

d. Fairfax County v. Southland Corp. (Va. 1982) - Landowners objection to special useregime: other commercial uses permitted by right - exempt from special exceptions

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process. Smaller establishments (quick service food stores) unfairly singled out. E.P.argument (apply rational basis review).1. 22 other categories of commercial enterprises that also must apply for a special use

permit2. Distinction county relies on: traffic per square foot3. As long as meets ratl basis test, then can be as underinclusive or overinclusive as it

wants -doesnt matter if other commercial enterprises that are similar are not included inspecial exception reqt; does not in and of itself invalidate reqt

4. Exercise of right of power to grant/deny special exceptions/special use permits belongsto leg.; presumed valid unless reasonableness challenged, then must provereasonableness.

e. Crooked Creek Conservation & Gun Club v. BZA (Ind. 1997) - ord. reqts for granting ofspecial exceptions: 1) whether injurious to public safety, health, etc.; 2) whether willadversely affect use and value of other prop. in immediate area; 3) whether will beconsistent w/character of district. Ct. makes distinction b/w those criteria that includeobjective standards and those that do not:1. 1 & 3 are subjective - inherently gives discretion to BZA to determine whether reqts

met

2. BZA may factor in other considerations (objections) to determine whetherexception should be granted, even if evidence introduced to prove that reqtsmet.

3. Problem: must be careful - cant give Bd. too much discretion (improper delegationissue).

4. If meet all reqts undeniably (BZA determines meets reqts), then specialexception grant is mandatory. P has burden of proving reqts met. If P fails to meetburden, BZA may deny, even where remonstrators dont present ev. to negateexistence of reqts.

5. Standard of review for admin. decisions: whetherlacks reasonably sound evidentiarybasis. Ev. will be considered subst. if its more than a scintilla and less than apreponderance.

A. Bd. not obligated to give more weight to Ps than to remonstrators ev.; may usediscretion

f. Strengthening of Judicial Review; cts still defer to local leg. unless:1. Danger signals (spot zoning)2. Suspicious of rezoning inconsistent w/comprehensive plan3. Leg. body acting adjudicatively

B. Actions by Legislative Bodies - only elected officials of mun. in question can change zoninglaws. Where an admin. or quasi-judicial body attempts to rezone, reason enough to strike downlaw.i. Rezoning, Spot Zoning, and Comprehensive Plans

a. Spot Zoning - term is at best but a description of a process of singling-out a particularpiece of prop. for treatment/use classification that differs from that accorded neighboring

props. If /when cts declare such zoning invalid, they must base this declaration on one ormore of three grounds: 1) lack of connection to a police power purp., 2) lack of conformityto a comprehensive plan, or 3) unreasonable inequality in treatment of similarly situatedlands (for benefit of some prop. owners and to detriment of others). Ct. will invalidate ifprejudice, arbitrary, or improper motives. Claim brought by neighborwho feels he isbeing treated unfairly.1. Ask: is the primary motivation to help the private ind. or to advance interests of

community? What is the mun. after in creating the zoning ord.? Is rezoning consistentwith Master Plan?

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2. Griswold v. Homer(Ak 1996) - After auto garage grandfathered in asnonconforming use, stopped using for a year; request for rezoning granted. P broughtsuit alleging spot zoning.

A. 3 questions to ask to determine whether spot zoning (must have reasonablerelationship to legitimate govt purp.):i. Cost/benefit analysis: does this benefit owner to detriment of others? Not

primary motivation.ii. Consistent w/comprehensive plan? Yes.iii. Size of rezoning? Legitimate.iv. Note: case-by-case analysis; criteria flexible and provide guidelines for judicial

balancing of interestsB. Holding: no spot zoning. There are benefits, but there are also detriments, so

must keep it to the 13 parcels. Not primarily about helping particular owner;primary motivation for doing it in this way was to allow car dealerships to do so onlyin a very limited part of zone. If landowners benefit incidental to comm.sbenefit, zoning amendment ok.

C. Other ways it couldve been done: special use variance, amend Master Plan,couldve allowed auto-services anywhere w/in zone, etc.

D. Role of leg., not cts., to decide whether statute/ord. is wise; presumption oflegitimacy, burden on P to show S.D.P. violation (no ratl basis) .

3. Some cts. separate inquiry into 2 steps:A. Treat factors such as size of parcel or consistency w/comprehensive plan as

triggers. If so, then:B. Engage in cost/benefit analysis to determine whether spot zoning justified.

4. Other factors to consider for spot zoning:A. Spots vs. slops: cts. more likely to find spot zoning where newly implanted zone

entirely surrounded by other zones than where rezoning slopped over byextending perimeter of existing zone to include rezoned area.

B. Neighborhood character: whether surrounding lands devoted to uses compatiblew/new uses rezoning would permit. Cts. more likely to protect stable residential

areas than areas of mixed uses or in transition.C. Procedural irregularities

b. Inverse Spot Zoning - owner being unfairly and improperly singled out for imposition ofburden not imposed on neighboring properties (vs. benefit to owner that is not being givento neighboring properties (spot zoning)). Claimbrought by ownerwho feels hes beingtreated unfairly.1. Riya Finnegan v. South Brunswick(NJ 2008) - P applied to build drug store;

neighbors challenged, said not allowed, but Planning Bd. and Zoning Bd. said permitteduse in zone. Neighbors asked twnshp council to rezone parcel; argued surroundingparcels in area largely developed already, would increase traffic, noise, pollution, etc.

A. Arbitrariness - standards for sufficiency of mun.s reasoning to rezone prop. in away inconsistent w/Master Plan (not arbitrary):

i. Mun. Land Use Law (MLUL) gives broad power to mun. to adopt/amendzoning ord., but reqs that all provisions of change in ord. must be subst.consistent w/master plan; if not, that alone grounds for striking provision down(though still must determine whether rezoning substantially inconsistent (not justany inconsistency - must be subst.))

ii. May adopt ord. inconsistent w/M.P. if have an affirmative vote from majority ofgoverning bd. and set forth reasons for inconsistency in resolution

iii. Even though mun. abided by procedural reqts of statute, not enough to shield itfrom making arbitrary rezoning decisions.

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iv. City must provide experts, cant rely on info from neighbors; otherwise,decisions will be made based on which neighbors complain the loudest. Mayhear testimony from citizens, but must be grounded in facts.

v. Policy: if all it took were neighbors complaining, developers would race todevelop to avoid being the last parcel.

B. Inverse spot zoning analysis - test: whether zoning change made w/purp. or effect

of establishing/furthering M.P. calculated to achieve statutory objectives or ifdesigned merely to relieve a lot or lots from the burden of a general reg. If latter,essentially a special exception/variance, circumventing Bd. of Adj. (leg. actingadjudicatively).i. Inquiry: whether in view of purposes of zoning act the action represents sound

judgment based on policy of statute to advance public welfare or whetherarbitrary and unreasonable and furthers purely priv. interests.

ii. Fact that: 1) zoning changed and now more difficult for owne

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