NOLON - LAND USE Outline filled in

Land Use - Nolon

LAND USE OUTLINEFall 2007

I. LOCAL CONTROL OF LAND USE AND ITS CONSTITUTIONAL LIMITS

A. THE LAND USE SYSTEM1. Intro to the land use system

i. Applicable regulations:a) Constitutionalb) Administrative c) Local government law

ii. 2 basic concepts:a) police powerb) takings clause

iii. 3 levelsa) Federal Constitutional Limits

Article 3 1st Amend 5th Amendment 10th Amendment 14th Amendmentinterstate commerce clause

Freedom of Speech

takings clause Reserved power clause

Due Process/Equal Protection Clause

Congress can pass any law that has an affect or relates to interstate commerce clause; Must be necessary and proper

Local regs can’t abridge freedom of speech, expression, and exercise of relgion

No person shall be …”deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use w/o just compensation.”

All powers not delegated to federal government are reserved to the states

Applies the 5th Am. to the states;≠Discriminate

b) State ↓

They give local legislatures the power to adopt laws to protect the public health, safety, morals, and general welfare of the people. **NY→ over 1600 villages, towns and cities have been authorized

↓c) Local :

can be regional, county, or municipal→ developing land use laws from the state’s authority*can only exercise powers delegated to them by the state legislature

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Specific Authority:Adopt comprehensive plans and zoning laws & to adopt subdivision and site plan regulations under Village, Town and City Law

General Authority:w/ regard to the public health, safety, welfare, and to the physical environmental is delegated to them under Municipal Home

General Municipal Law:Adopt laws relating to the protection of trees, preservation of historic districts and landmarks, and the creation of conservation advisory boards

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2. OVERVIEW OF GOVERNMENT SYSTEM

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LEGISLATIVE ACTIONSPres. of Validity DeferenceBOP on ChallengeFairly Debatable→ reserved for legislature

ADJUDICATORY ACTIONSSubstantial EvidenceBOP

STANDARDS

REMEDIESDeclaratory JudgmentInjunctionCertiorariMandamus $$ Damages

STATE CONSTITUTION

COURTSLEGISLATURE

“Police Power”Local Gov. may adopt a comprehensive plan/zoning

Enabling ActsPlanningZoningSubdivisionSEQRA

Town LawVillage LawGeneral City Council

AuthorizeLocal Legislatures

Creates Boards PlanningZoning Board of AppealsOthers

Comprehensive Plan Zoning LawZoning AmendmentsSubdivions & Site Plan Regulations

APPEALS COURTS

APPLICANTS

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3. Local Boards: procedures in reviewing and approving project proposals are contained in specific enabling statutes adopted by state legislature as supplements by the provisions of local law

4. Judicial Review: courts defer to local land use decisions particularly those of local legislatures declaring that those decisions are given a presumption of constitutionality and correctness

i. Heavy BOP→ decisions were unreasonable, arbitrary and capricious ii. Ambiguities→ deference to the property owners who challenge them

B. HISTORICAL OVERVIEW 1. Planning/Zoning

i. Zoning came b/f planningii. Zoning is the essential part of comprehensive plan; the precise

relationship among the comprehensive plan, zoning map, and the official map was never entirely agreed upon

2. Local Control of Land Development i. Planning Board: comprised of appointed (vs. elected members)

a) Less pressure of electorate n decisions 3. Codification of Land Use Control System

i. 1916→ NYC passed the first comprehensive zoning ordinance in the US; other cities followed

ii. 1922→ US Dept. of Commerce published a model statute, the Standard State Zoning Enabling Act, to promote zoning

a) Recommended that plans be adopted by planning boards while zoning ordinances were to be adopted by the local legislative bodies

4. What affects a land use plan? i. 6 principal, non-exclusive elements:

a) pattern of land usesb) mass-transportation systemc) public facilities for the fast movement of passengers and goodsd) street systeme) park and recreational systemf) location of public buildings

C. THE NATURE OF PROPERTY RIGHTS

1. Balancing Property Rights and the Public Interest: Limiting Doctrines i. Local land use decisions affect the right of landowners to use their land

in the interest of protecting the health, safety, welfare, and morals of the public as a whole

a) Substantive Due Process: requires that land use regulations serve a legitimate public purpose

b) Procedural Due Process: administrative process by which regulations are adopted and enforced

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Comprehensive plan : master plan used as a guide

Localities must avoid improperly discriminating

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1) Must follow the procedural requirements of state statutes and meet the fairness requirements

ii. Ultra Vires: land use regs ≠ be beyond the scope of local authorityiii. Local Authority

a) Action of municipality must be pursuant to the power delegated to it

b) ≠ permitted if regulation has been preempted by the state legislature

iv. Public Purpose: land use regulation must ≠ effect a taking of private property for a public purpose w/o just compensation→ takings

2. When does a landowner have vested rights? i. Doctrine of Vested Rights: limits the authority of municipalities in

certain cases to impose significant new regulations on existing investments in land, such as completed structures or projects under construction

ii. CL Vested Rights: judicially created; when ct finds vested rights, its effect is to immunize the approved project from all changes in zoning or other land use regulations

iii. Statutory Vested Rights: adopted by state legislature; immunized approved subdivision plats from changes in dimensional or area requirements of zoning for a period of 1-3 yrs

3. Euclidian Zoning: Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)

i. F: Ambler Reality purchases some land and after the purchase the town council passed a regulation making it residential. ∏ sued against the statute as a whole (“facial challenge”) b/c there was no comprehensive plan

ii. Rational Basis Test: in order for a statute to be unconstitutional then it must be arbitrary and have no substantial relation to the public health, safety, morals or general welfare

a) BOP: ∏ iii. H: valid

4. Nectow v. Cambridge, 277 U.S. 183 (1928)i. F: town rezoned a 100’ strip of the ∏’s land from general use to

residential; as applied to this particular person ii. A: applied the analysis of Euclid iii. R: the determination of public officers in matters such as land use

regulations, should not be set aside unless it is clear that their action has no foundation in reason, and is merely an arbitrary and irrational use of power baring no substantial relationship to the public health, safety and general welfare.

iv. H: reversed dismissal; will probably be held arbitrary and capricious

5. NY Town Law: p.30 in supplement

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Euclidian Zoning: most fundamental means by which zoning accomplishes its purpose is the separation of conflicting uses—classified on a scale from “highest” use to “lowest” use

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i. § 261: Grant of Powera) for purpose of promoting health, safety, moral of the general

welfare of the community

ii. § 262: Districtsa) “town board may divide town … into districts”b) town bard may “regulate and restrict the erection, construction,

reconstruction, alteration or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings, throughout such district but regulations in one district may differ from those in other districts

iii. § 263: Purposes in Viewa) “such regulations shall be made in accordance w/ a

comprehensive plan … and encouraging the most appropriate use of land through the municipality”

6. Wawa Zoning Ordinance: i. Article I – General Provisions ii. Article II – Definitions iii. Article III – Establishment of Districts and Zoning Map iv. Article IV – District Use, Lot and Bulk Regulations

D. REGULATORY TAKING1. NY Constitution: Art. 1, §7

i. “private property shall not be taken for public use w/o just compensation”

ii. see also 5th Am. (above)

2. What is a taking? i. when impact of a regulation on private property rights is so burdensome

that it violates the constitutional guarantee that property shall not be taken for a public use without just compensation.

ii. Regulatory Taking : a) sometimes a land use regulation can be invalidated as a

“regulatory taking” and compensation awarded to the regulated property owner for damages caused.

b) sometimes referred to as inverse condemnations or de facto takings

iii. both types of takings are allowed under U.S. Const. but validity of public purpose must be demonstrated & just compensation paid to owner of condemned property.

3. Challenges: i. when a govt. reg has effect of a public condemnation, owner may allege

that reg is a regulatory taking, a de facto taking, or inverse condemnation of the affected parcel.

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These statutory provisions delegate authority to adopt zoning maps districts, and a variety of other things

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ii. When land use regs are challenged as takings, court presumes constitutionality.

iii. challengers carry a heavy burden of proof; all doubts resolved in favor of the regulator

iv. property owners must produce dollars & cents evidence that all but a bare residue of property’s value has been destroyed by regulation.

4. Types of takings: i. Broadly Applicable Regulations: ii. Particularized Regulations: iii. Forced Conveyances: iv. Total Takings v. Preexisting Regulations:

5. General Rule: Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) i. Holmes: “while property may be regulated to a certain extent, if

regulation goes too far it will be recognized as a taking

6. Confiscatory: i. To take private property w/o just compensation; to transfer property from

a private use to a public use

7. Analysis: i. FIRST, establish if it was a legitimate public purposeii. SECOND, what kind of taking is it?

PER SE TAKINGSTotal Taking Physical Invasion Land Use All Others

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)

Dolan v. City of Tigard, 512 U.S. 374 (1994) (citing Nollan , 483 U.S. 825 (1987)

Penn Central Transp. Co v. New York City, 438 U.S. 104 (1978)

F: ∏ bought oceanfront property in SC; regulated saying that ∏ could not build any permanent structures

∏ sued for just compensation

F: Previous landowner allowed ∆ to put crossover cables over building; ∏ didn’t know about ∆ until after ∏ purchased building; ∏ sued ∆ for trespass and 14th Am. taking

NYC is also a ∆ b/c they granted Teleprompter right to be a cable provider

F: ∏ wanted to do some construction on their store; city approved their expansion plans on the condition that they would dedicate a section of property to be used for a bike path

F: ∏ owned GCS and wanted to build 50 stories for shopping above GCS, which is designated as a landmark under the landmark preservation law. ∏ applied for a bldg permit. ∆ denied b/c it wasn’t consistent w/ character of GCS and ∏ sued as a taking

A: Could use for other purposes → renting out beach use, etc.

A: in Dollan the dedication satisfied the essential nexus prong but wasn’t roughly proportional→ they needed a reasonable relationship /w traffic

A: They weren’t being restricted from building new levels, just not 50; Income from terminal and possible sale of development rights provided Penn w/

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and lessening traffic reasonable return on their investment

Rule: in order for just compensation to be paid for a regulatory taking, there ALL economic value must be taken

Exception: if CL nuisance then state doesn’t have to pay

Rule: any governmentally authorized permanent and physical occupation or invasion of private property, no matter what the governmental benefit and no matter how minor the invasion requires just compensation, no matter nominal

2 prong Test: 1) essential nexus- there must be reasonable relationship b/w what they want to do and the good for the community2) Nollan Rough Proportionality test-weigh good of community vs. detriment to landowner

**Must be related by both the nature and extent to the impact of the proposed development

Multi-Factor Balancing Test:*Character of government action (reciprocity of advantage)

*economic impact of reg on ∏

*extent to which reg interfered w/ investment-back expectation (IBE) (i.e., the extent which the regulation frustrates the IBE. Time-bound analysis)

H: ≠ taking→ There was economic value left

H: Should receive just compensation and sent to state court to decide how much

H: ∏ won. It was a taking

H: Wasn’t a taking

8. Lingle v. Chevron U.S.A, Inc., (2005) i. F: regulation putting price (or rent) cap on gas stations in Hawaiiii. A: this is not an instance where you use the “substantially advances a

state interest; use the analysis in Penn Central and Dolan/Nollan iii. R: don’t apply substantially advances test to takings

9. Damages i. Monetary damages may be awarded to property owners who win

regulatory takings suitsii. Paid for injury done to them from time reg. imposed until invalidated by

court

10. Ways localities can avoid the Regulatory Challenge i. adopt a comprehensive plan, keep it up to date, back it up by studies.ii. be sure all similarly situated properties are similarly regulated. “principle

of generality”iii. where land use regs may prevent all economically beneficial use of land

owned by a particular individual, be sure that there is a readily available mechanism for owner to prove no reasonable use of land allowed and to obtain hardship exemption

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iv. when imposing conditions that require owners to allow public access to their properties, individual studies must be conducted

v. In NY, projects that are likely to have substantial adverse impact—required to file an EIS. Properly conducted environmental review studies are likely to meet essential nexus & rough proportionality tests.

vi. Instead of greatly limiting uses, community should explore innovated tools & techniques to encourage public objectives and minimize burden on landowners

II. PLANNING LAW

A. Zoning Maps: 1. Constitutes a blueprint for the development of a community overtime

B. Can be amended Comprehensive Plan1. Def: a written document formally adopted by the local legislature that contains

goals, objectives, and strategies for the future development and conservation of the community

i. Creates a blueprint of the community2. GR: statutes require that all land use regulations must be made in “accordance

w/ a comprehensive plan” i. Courts look at “all relevant evidence” when a zoning reg is challenged

including whether land use regulation conforms to a comprehensive plan3. Steps to Creating a Comprehensive plan

i. Information gatheringii. Set forth a statement of objectives

a) Intermediateb) Long-term

iii. Determine what specific land use techniques can be utilized by the municipality to achieve each of its objectives

a) Overlayb) Clusterc) Incentived) Agriculture zoninge) Designating critical environmental areasf) Floating zonesg) Transfer of development rightsh) Planned unit developments (PUD)

iv. Local citizens should be included→ allow community opportunity to create a shared vision for the future and strategy to accomplish that goal

a) Surveysb) Public hearingsc) Town meetings

v. Planning board can be given an opportunity to review the proposal and make recommendations prior to action by the local legislature

4. Review:i. Comprehensive plan should be reviewed every 5 yrsii. Update as necessary

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iii. Local legislatures are authorized by statute to prepare or amend the comprehensive plan

a) Legislature can direct through resolution, the planning board, or a special board to prepare and amend the plan

iv. When provisions are first adopted, a zoning commission must be established to recommend zoning district boundaries, use and dimensional requirements

5. Planning should precede any adoption or amendment of a land use regulation6. Applying for application for a ∆ in zoning provisions:

i. Discretionary legislative actsii. Legislative body may simply refuse to consider it UNLESS the question

is confiscatoryiii. Amendments of use provision of the law that apply to particular parcels

must be attended by amendments of the zoning mapiv. Landowners who wish to develop their parcels in conformance w/

applicable zoning provisions must apply to the local building inspector or zoning administrator for a building permit

a) Inspector/administrator reviews and then either approves or denies

1) Whether proposed project and its construction conform w/ the se and dimensional reqs

b) Determinations reviewable by the ZBA7. Judicial Standard:

i. Demonstrate that regulations fails to “substantially advance a legitimate public objective”

ii. Zoning amendments are presumed by the courts to be constitutional valid, but their provisions are restrictively interpreted b/c they are deemed to be in derogation of the landowner’s CL property rights

iii. An owner is allowed to continue development under a duly issued permit only where the owner has undertaken substantial construction and made substantial expenditures prior to the effective date of the amendment

C. Historical Development of Land Use Planning 1. Standard State Zoning Enabling Act

i. Promulgated by the US pt of Commerce in 1992ii. Gave the power to adopt zoning provisions to the towns, villages, and

cities by this model national actiii. By giving this power to local governments the authority to enact zoning

regulations, the state legislature is exercising its police power→ the authority to “promote the public health, safety, morals, and general welfare

2. Standard City Planning Enabling Act

3. Timelinei. 1922→SZEA Zoning §261-264ii. 1928→SPEA Planning §272(a)iii. 1930’s→Depressions

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iv. 1945→WWIIv. Baby boom→ New Euclidean Zoning

4. Analysis

D. Udell v. Hass , 288 N.Y.S.2d 888 (Ct. App. 1968) 1. F: Village of Lake Success passed an ordinance ∆ing a commercial zone to a

residential zone the vary same day a/f receiving proposal from ∏ to expand commercial activity (i.e., ∏ wanted to construct a bowling alley and supermarket)

2. GR: zoning ordinances must be in compliance with the comprehensive plani. I.e., Zoning ordinances must be accomplished in a proper, careful, and

reasonable manner, conform w/ general developmental policy, and be consistent w zoning law and map

ii. “the comprehensive plan is the essence of zoning. Without it, there can be no rational allocation of land use.”

3. A: master plan in city was to continue commercial development and ↑ tax base4. H: discriminatory → Example of spot zoning; ordered a declaratory judgment 5. if the court declares rezoning ultra vires and enjoins from enforcing, the ∏ can

reapply to build a bowling alley and cannot be tuned down based on that law; or, the town can rezone the conformance

E. Enterprise Partners v. County of Perkins , 619 N.W.2d 464 (2000) 1. F: hog confinement case and there were zoning reg2. R: reiterates that we must be in compliance w/ the comprehensive plan

F. Town Law 1. § 272(a): Town Comprehensive Plan

i. gives the authority and responsibility to undertake town comprehensive planning and to regulate land use for the purpose of protecting the public health, safety and general welfare of its citizens

2. §271: Planning Board: i. Town board not mandated to create a planning board→ “may”ii. planning board may recommend to town board regulations; may review

and make recommendations on a proposed town comprehensive plan or amendment; make investigations, maps, reports, and recs in connection to planning & dev. of town.

G. Bone v. City of Lewiston , 107 Idaho 844 (1984) 1. F: ∏’s property was zoned low-density residential and the comprehensive plan

had it zoned commercial. ∏ applied for rezoning 2. R: must ∆ zone where it complies w/ the comprehensive management plan

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Ultra vires claim →beyond scope of authority

SEMINAL CASE

PEOPLE State constitution (police power)

Legislative Town’s village law§261-3; §272(a)

WawaCode

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H. Osieki v. Town of Huntington , 565N.Y.S.2d 564 (1991) 1. F: ∏ had property zoned for low-density residential use2. R: if a town is going to go against the master plan then it has to have a good

reason3. H: zoning was arbitrary

III. THE BASICS OF ZONING

A. ZONING PRACTICE1. Purpose of Zoning:

i. Prevents landowners from using their properties in ways that are injurious to the community

ii. Appropriate method of creating a balanced and efficient pattern of land development and avoiding the multiple perils of haphazard growth

2. Generally: i. As-of-Right and their accessory Use

a) “As of right”→ As-of-Right Uses and Their Accessory Uses 1) Certain land uses are permitted as the principal and primary

uses of the land. b) “Accessory” → must be customary, subordinate and incidental to

the residential use 1) Accessory uses are also found in association with as-of-right

usesii. Nonconforming uses

a) A land use which was in existence when a zoning restriction was adopted and that is prohibited by that restriction is a non-conforming use

iii. Variances a) If the use of the property does not conform to the zoning restrictions, it

can be authorized by a use or area variance iv. Special Use Permits

a) The zoning law can authorize other uses but only if they receive special or conditional use permits

1) They must be harmonious with as-of-right uses b) A.k.a.: special exception use, special permit, conditional use

permits, and special exceptionsc) Def:

1) authorization of a particular land use which is permitted in a zoning ordinance/local law,

2) subject to requirements imposed by zoning ordinance/local law,

3) assures that the proposed use is in harmony with such zoning ordinance/local law & will not adversely affect the neighborhood if requirements are met.

d) Ex: church or gas station in a residential district e) Town Law §274(b): Approval of Special Use Permits

1) Special Use Permit:

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i.) an authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with such zoning use or local law and will not adversely affect neighborhood.

f) Administrative authority1) town board “may” authorize planning board or other adm.

body that it shall designate to grant special use permits.2) If so, then the legislature must adopt standards to guide

the body in reviewing, conditioning, and approving special uses

i.) Ex: provide adequate safety, parking, landscapeg) authorized board shall have the authority to impose such

reasonable conditions and restrictions as are directly related to and incidental to the proposed special use permit.

h) Once special permit is issued: 1) It is person to the applicant2) Affixes to and runs w/ the land

i) Court review : any person aggrieved (someone who has standing; a unique injury) by a decision of the planning board may apply to supreme ct. for review by a proceeding under article 78 of the civil practice law and rules. Ct. may take evidence or appoint a referee to take such evidence… (not a de novo trial?)

j) Religion: 1) Land uses proposed by religious institutions is subject to

greater constraints than the regulation of secular land uses2) Religious uses promote public welfare and are inherently

beneficial to public3) Regulations typically encourage beneficial purposes served by

churches, synagogues, and other houses of worship4) Religious uses are allowed in residential and other compatible

zoning districts under a special use permit that may be issued by panning board

v. Rezoning a) Property owners may request that the local government rezone the

property b) Can rezone a parcel or area in the public interest

3. Goldman v. Crowther i. F: ∏ lived in Balitmore city in an area zoned residential and ran a small

clothing repair storeii. R: any exercise of power which interferes w/ some aspect of the constitution

must bear some substantial relationship w/ the public health and welfareiii. Policy: this wouldn’t really happen today as most regulations encourage

work/live ordinances encouraging people to run a business out of their home iv. As the ordinance attempts to regulate and restrict the use of property in

Baltimore is void because it: (1) deprives property owners of rights and privileges protected by the Const; (2) because such deprivation is not justified by any consideration for the public welfare, security, health, or morals apparent

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in the ordinance itself; (3) because it does not require that the restrictions shall in fact be based upon any such consideration.

4. Carter v. Harper i. F: milk/pasteurization plant was a non-conforming use; ∏ wanted to

build an adjacent building in order to comply w/ state health regulations. There was an ordinance stating that additions were prohibited w/ non-conforming uses. ∏ argued that it was arbitrary, capricious, unreasonable and was “spot zoning.”

5. Review: Village of Euclid v. Amber Realty Co. (see above for brief) i. Facial challenge→ no comprehensive plan case

6. Nectow v. Cambridge i. As applied case→ public purpose

7. Bartram v. Zoning Commission i. F: Rome applied for rezoning approval to construct 5 commercial shops

in an area that was primarily residential and the nearby owners objected. ∆ granted approval finding that decentralization of shopping centers was a benefit to the entire community as it relieved congestion. ∏ was an adjacent landowner and brought suit stating that ∆’s action was spot zoning.

ii. I: in an area of official discretion, is rezoning of a single parcel of land in order to benefit the entire community deemed spot zoning?

iii. R: When rezoning is based on an exercise of discretion that the change would benefit the entire community, then it is valid and is not spot zoning.

iv. A: Spot zoning singles out one party for preferential treatment; however, here, the benefit is for the community as a whole

v. H: valid. ≠ spot zoning

8. Zoning in More Detail i. The power to amend the zoning ordinance and change district lines and

designations on the zoning map provides a degree of flexibility

9. Church v. Town of Islip (Contract Zoning case) i. F: Town ∆ed the zoning of a corner lot (adjacent to another town) from

a residential to a business district. Bldg permit imposed conditions. neighboring property owners sued b/c they claim that it was not in conformity w/ comprehensive plan and it was illegal K zoning.

ii. H: this is an example of conditional zoning and not K zoning.

10. Giger v. City of Omaha i. Conditional Zoning: Imposes a condition on the developer

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At this time, we didn’t think we could do anything but Euclidian (shift begins)

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a) This is a valuable planning tool for the Leg b/c it permits a municipality greater flexibility in balancing development demands against fiscal and env concerns.

ii. F: ∆ bought an 84-acre parcel of property and then applied to City (∆) to have parcel rezoned to permit the construction of a mixed use development. Co-∆’s entered into a development agreement and the city passed 5 ordinances rezoning the parcel. Construction commenced. ∏ was a neighboring property owner who sued and declared the permits void due to K zoning.

iii. I: Is the agreement invalid per se as K zoning? Was it arbitrary, capricious and unreasonable?

iv. R: Conditional rezoning is a valid practice if it is reasonably related to the interest of public health, safety, morals and the general welfare.

v. A: agreement actually enhanced the city’s regulatory control over the development rather than limiting it. It was reasonably related to the public interest, health and general welfare and the city’s police powers were not harmed in any way.

vi. H: valid.

11. Montgomery v. Nat’l Capital i. The corporation's property was located on the edge of a business district.

Property to the north was zoned one-family, residential. The corporation's zoning request was contrary to a master plan adopted in 1957 and to a proposed new plan. The planning board supported the application, based upon a declaration of covenants prepared by the corporation.

ii. The council denied the application because conditional zoning was not allowed and there were insufficient changes in the character of the surrounding neighborhood to justify reclassification.

iii. The court reversed the circuit court's judgment and held that it should have affirmed the council's action because the covenants would have produced a form of illegal, conditional zoning if adopted as a basis for the requested reclassification and the council's decision was supported by substantial evidence and was not arbitrary and capricious.

iv. Holding – Covenants were unenforceable.

12. Compare and Contrast Conditional Zoning vs. K Zoning vs. Variances i. Contract Zoning:

a) Illegalb) “I’ll pay you 500K for some comprehensive plan”

ii. Conditional Zoning:a) Typically legal in most statesb) “we don’t want to rezone b/c we have no sewer system”c) Town is putting extra requirements

iii. Variances a) Rarely givenb) Cannot change the essential nature of the neighborhoodc) You are being exempted from extra requirements in town law

BUT you have to have a hardship

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1) Ex: No body elses property slopes the same way and you want a deck

13. Process:

14. New Thought

B. ADMINISTRATIVE TREATMENT: VARIANCES1. Generally:

i. Applicability: when a proposed use of property does not conform to applicable zoning restrictions it can be authorized by a use or area variance awarded by the ZBA

ii. Benefits:a) Provides flexibility in application of zoning law and b) afford landowner opportunity to apply for administrative relief

from certain provisions of the law

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Post-Euclidian→Now, we are mixing commercial, residential, recreational all on the same part of land (i.e., not as structured as Euclidian zoning)

PAST THOUGHT

Dillon’s Rule: any activity that the municipal government undertakes must be construed→ look to see if there is any factual relationship

NEW THOUGHTCannot be unreasonable, discriminatory, arbitrary→ must follow a logical thought process

QUASI JUDICIAL BODY

NOTICEPUBLIC HEARING

RECORD/ EVIDENCE

HOME-OWNER

ZONING ENFORCEMENT OFFICER(code interpretation)

ZONING BOARD OF APPEALS

STANDARDS LOCAL CODE & STATE STANDARDS

PUBLISH RULING

APPEALS(Must be 30 d from filing)

DISTRICTCOURT(as of right)

ZONING CODE

APPEAL OF INTERPRETED OF VARIANCE

FILED W/ TOWN CLERK

CODE OF INTERPRETATION

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iii. 2 Types:a) Use variance: Use of land in a manner or for purpose which is

otherwise not authorized, or is prohibited by zoning regs1) Owner must prove to ZBA that property cannot yield a

reasonable return under any use permitted under zoning statute

2) Ex: single family residential → retail business3) GR: must have significant economic injury

b) Area Variance: use of land in a manner which is not allowed by the dimensional or physical requirements of applicable zonng regulations

1) Ex: setback, height, or area requirements2) GR: balancing test

iv. Alternative Relief: property owners could also request local legislative board to rezone the property so that requested use is allowed as-of-right

2. Wawayanda Zoning Code i. §83: Allows variance which are different than those in the state law.

3. Town Law i. §267: Zoning Board of Appeals

a) Area Variance: shall mean the authorization of the ZBA for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations

1) if legislative body adopts ordinances→ it must adopt ZBAb) Appt. of members: “. . . each town board which adopts a local

law or ordinance or any amendments . . . pursuant to powers granted by this article shall appoint a board of appeals”

ii. §267(a): Board of Appeals Procedurea) Give public notice of hearing (at least 5 d prior)

iii. §267(b): Permitted action by Board of Appealsa) Use variances: no such use variance shall be granted by the

board of appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship

b) Applicants must demonstrate: 1) that for each and every permitted use under the zoning

regs for the particular district where the property is located

2) Applicant cannot realize a reasonable return (demonstrated by competent financial evidence

3) Alleged hardship relating to property in question unique and does not apply to a substantial portion of the district or neighborhood

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THE TEST!

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4) That the requested use variances, if granted will not alter the essential character of the neighborhood

5) Alleged hardship has not been self created c) §267(3)(b):

1) Area variances: in making determination, ZBA shall consider the benefit to applicant if variance is granted, as weighed against the detriment to health, safety, welfare of neighborhood or community.

2) Also consider: i.) whether an undesirable change will be produced in

character of neighborhood or detriment to nearby properties will be created

ii.) whether the benefit sought by applicant can be achieved by some method, feasible for applicant to pursue, other than an area variance;

iii.)whether the requested variance is substantialiv.) whether the proposed variance will have an

adverse effect or impact on physical or environmental conditions in neighborhood/district

v.) whether alleged difficulty was self-created

4. Larsen v. City of Pittsburgh , 543 Pa. 415 (1996) i. F: ∏ wanted to build a deck off the back of this house which had a

particularly steep hill to provide a play area for their child. Town granted variance and bitchy neighbor sued

ii. R: Must prove the following four factorsa) An “unnecessary hardship” exists which is not created by the

party seeking the variance and which is created by unique physical circumstances of the property for which the variance is sought

b) Variance is needed to enable the party’s reasonable use of the property

c) Variance will not alter the essential character of the district or neighborhood, or substantially or permanently impair the use or development of the adjacent property such that it is detrimental

d) Variance will afford the least intrusive solution iii. A: the poor backyard is the same for everybody and should be handled

by the legislature; the hardship must an unnecessary one and not just a mere hardship (Richmond v. Zoning Board of Adjustments). Mere desire to have more room fails to meet the “unnecessary hardship.” A condition that only a small portion of the residents suffers does not mean that it is unique.

iv. H: failed to meet the unnecessary hardship test

5. Sasso v. Osgood i. F: ∏ sought variance b/c he wanted to demolish an existing structure to

build a larger boathouse. Town granted variance and neighbors appealed.

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Burden is on the homeowners to prove all 4 elements

Variances are vary extreme; however, they are granted in real life quite often even though the legal world intended them to be granted anomalously

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ii. I: Does the zoning board have to follow the “practicable difficulties” standard when the phrase was not actually written into the town statute by the legislature.

iii. R: Balancing Testa) “Weighing the practicable benefit to the applicant against the

detriment to the safety, health, and general welfare of the community.”

iv. H: Town law required zoning board to engage in a balancing test (Weighing the practicable benefit to the applicant against the detriment to the safety, health, and general welfare of the community) therefore the applicant need not show “practical difficulties”

6. McMorrow v. City of Town and Country i. The petitioner’s property was slightly over an acre, but shaped strangely so as

to restrict the area in which structures could be placed. ii. Residence was built prior to annexation of the property iii. The resident wished to put in an in-ground pool. Applied for a variance iv. Board denied the variance requested on the basis that there was no showing of

“practical difficulties or unnecessary hardships” requiring granting of the variances.

v. Variance are not granted for “mere inconvenience” vi. The land is usable. They failed to establish that a swimming pool is a necessity.

7. Wawayanda Zoning Code i. Article Vii. Article IX

8. Special Use i. Generally:

a) Special use permit allows for use/uses that are permitted by law but often require special conditions or standards due to the type of use

b) E.g., churches, hospitals, etc.

9. City of Chicago Heights v. Living Wordi. F: Living Word applied for a special use permit and zoning board

denied it b/c it was contrary to the comprehensive plan. ii. R: you cannot allow a special permit if it goes against the

comprehensive plan!iii. A: council is bound to the zoning code as established from the

legislative body

10. Special Uses v. Variances i. Variances:

a) Prohibited by the legislature and rarely given if it is unique to the property

ii. Special Usesa) Things that are permitted by law but we need to condition it

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b) E.g., allowance for churches but we have concern about all the traffic that comes on Sundays

C. NONCONFORMING USES1. Generally:

i. Def: a use of land that was in existence when a zoning restriction was adopted and that is prohibited by that restriction

a) Ex: when district zoned residential, all easing nonresidential uses in that area are rendered non-conforming

ii. GR: they can continue but can not be expanded or enlarged; they may not be reestablished after they have been abandoned or reconstructed a/f serious damage

a) Zoning law can require nonconforming uses to be terminated or amortized a/f a specified number of years; or

b) may have to cease immediately if threat to public health or safetyiii. Delegation of power:

a) State statutes delegate to local gov’ts authority to adopt zoning & to adopt measures to protect legitimate public investment expectations of owners of developed land

b) Provisions can be added to discourage continuation of nonconforming uses over time

1) Ex: limit owner’s right to expand or enlarge nonconforming use;

2) to reconstruct use a/f substantial damage3) ∆ property use to a different nonconforming use, or 4) require termination of use after specified period

iv. Illustrations:a) Reconstruction and restorationb) Enlargement, alteration, or extensionc) Changing to another nonconforming used) Abandonmente) Amortization:

1) Allow owner some time during which to recoup his investment in the nonconforming use

2) “where the benefit to public has been deemed of greater moment than the detriment to property owner.”

3) Test when amortization period is reasonablei.) depends on facts of each case. ii.) Whether public gain outweighs private loss.

4) “amortization” label INAPPROPRIATE when dealing with common law of nuisance.

i.) Grace period allowed to terminate nuisance is GRATUITOUS in nuisance cases.

5) when nonconforming use is noxious and owner has little investment in it.

i.) Ex. cease raising pigeons on roofv. Limitations & Concerns: Separation of incompatible land uses

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Analysis

Was there an established use at the

time of the zoning?↓

What is the extent of the nonconforming

use, and will the terms of the ordinance

permit expansion or a change of some sort

w/ respect to such use?↓

Has there been a termination of the nonconforming use due to substantial destruction of the

building in which it is housed, or

abandonment of the use, or legislative

action of one type or another?

↓Is the nonconforming

use subject to termination as a

nuisance through the granting of injunctive

relief?

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a) when variances are issued—effect is to declassify use as nonconforming

b) continuation of nonconforming uses also influenced by building inspectors interpretation as to what types of building improvements are prohibited.

2. Wawayanda Zoning Code i. §68 & §69 & §70 & §71

3. Expansion or Extension i. Generally:

a) Local laws prohibit the enlargement, alteration, or extension of a nonconforming use

b) Laws allow for normal maintenance, repairs, etc. as long as there isn’t an increase or creation

c) Vary from one municipality to another1) E.g., some may prohibit the physical expansion of a

buildingii. State v. Perry

a) F: ∏ owned an ice cream company and the area was re-zoned to a commercial from industrial zone, where such business was prohibited. Bought a large trailer w/ a blower unit to help w/ freezing temperatures. Zoning Board told ∆ to discontinue use of the trailer.

b) R: An addition of a facility constitutes an expansion which is a nonconforming use.

c) A: court found that ∆ attempted to provide additional closed space for freezing operations; trailer was used to expand and extend non-conforming use of the building on premises (which was a violation under the zoning regulations)

d) H: ∆’s use of the trailer which added facilities were non-conforming had previously existed and was a violation of the zoning regulations

4. Discontinuance i. Generally:

a) A property owner’s right to continue a nonconforming use may be lost abandonment

ii. State Ex Rel. Morehouse v. Hunta) F: an ex-frat house was rezoned to a single family residence; the

dean used it for him and his family and later sought a permit under non-conforming use (planned to just be temporary). Here, the statutory language said “non-conforming use may not be discontinued.”

b) R: the mere cessation of a nonconforming use does NOT destroy the right to continue it; it must involve the abandonment of such use

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c) A: court determined that the owner didn’t intend to abandon the right to use the building as a fraternity house (b/c the use was supposed to be temporary)

d) H: valid

iii. Toys “R” Us v. Silvaa) F: warehouse was sold to Toys R Us a/f the area was changed

from a commercial to a residential area. Bank acquired possession. Neighbors R Us objected to Toys R Us to coming back in and using it later.

b) R: A substantial, rather than a complete discontinuance of the active non-conforming use forfeits the non-conforming use.

1) Intent is insignificant. c) A: Court held that the resolution was consistent w/ terms and

policiesd) H: Court gave deference to the Boards decision and

interpretation. Reversed →Toys “R” Us cannot continue nonconforming use of the property as a warehouse.

5. Destruction i. Examples:

a) Acts of God

ii. Moffatt v. Forrest Citya) F: ∏ owned a home and added an addition and operated a meat

market on the premises. A fire destroyed the market. Zoning ordinance stated that if an area is damaged 60% or more so that it cannot be restored for any non-conforming use.” Moffatts began to rebuild and municipality filed suit that it was restricted

b) A: Only 40% of the premises of the premises can the nonconforming premises can be rebuilt

6. Amortization: Uses and Limitations i. Generally:

a) Occurs when they allow the owner some time during which to recoup his/her investment in the nonconforming use

ii. AVR, Inc. v. City of St. Louis Park a) F: concrete plant issued a special use permit. City wanted to

phase out to use zone as a residential area. Zoning Regs gave them 2 years to cease operation

b) R: Must give a reasonable amortization period and consider the following factors:

1) Information relating got the structure located on the property

2) Nature of the use3) Location of the property in relations to surrounding uses

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4) Description of the character of and uses in the surrounding neighborhood

5) Cost of the property and improvements to the property6) Benefit to the public by requiring the termination of the

non-conforming use7) Burden on the property owner by requiring the

termination of the non-conforming use8) Burden on the property owner by requiring the

termination of the non-conforming use9) Length of time the use has been in existence and the

length of time the use has been non-conformingc) H: amortization period was reasonable

D. ACCESSORY USES1. Def: certain land uses are customary found in association with the permited,

principal, primary uses of the land i. Ex: principle use→ single family home; permitted accessory

use→garage

2. GR : in order for an accessory use to be permitted “as of right,” must be incidental, subordinate, and customary w/o being a nuisance

i. Incidental: must be reasonably related to the principal usea) Ex: garage or recreational use

ii. Secondary/subordinate: less of a use than primary use (numerator/denominator)

a) Ex: garage generally smaller than the houseiii. Customary: if it commonly, habitually, and by long practice has been

reasonably associated w/ a principal usea) Ex: vehicle parking

3. Accessory Uses vs. Home Occupations

Accessory Uses As of Right IncidentalSubordinate

Home Occupations Special Permit Customary

4. Delegation of Power: i. ≠ specific power to municipalities to provide for accessory uses, local

governments have authority, under state enabling statutes, to regulate land under the police power

5. Variety of Ways to Implement: i. municipality may simply permit accessory uses by accepting those uses

that meet the qualifications of what is customary & incidental. (ordinance does not provide guidelines or expressly state accessory uses)

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ii. zoning law may permit certain accessory uses and prohibit all others. (those not expressly permitted in the list are prohibited unless clearly stated otherwise)

iii. List and prohibit only problematic accessory uses.iv. provide guidelines that can assist the zoning enforcement officer and

ZBA in interpreting what is an accessory use and by adopting a nonexclusive, illustrative list.

v. list some accessory uses that are allowed by special use permit and subject them to certain requirements.

6. Enforcement: i. A municipality should be careful when enforcing accessory use

regulations against educational institutions and religious organizations

7. Wawayanda Zoning Code i. Article III – Establishment of Districts and Zoning Map

a) § 195-7 Prohibited Usesii. Article IV – District Use, Lot and Bulk Regulations

a) Under each District1) Purpose 2) Permitted use 3) Special use permit 4) Accessory use

8. Collins v. Lonergan i. F: city granted permit for a skateboard ramp on somebody’s property ii. R: the determination will be upheld if there is a rational basis and it

is supported by substantial evidence a) Agency just cannot act arbitrarily or capriciously

iii. A: skateboard ramp was intended as a residential use; intensity of the use can be an underlying factor

iv. H: valid

9. Greentree v. Good Shepherd Episcopal Church (1989) i. F: ∏→ condos; alleged 5 causes of action against church w/ their

temporary homeless shelter sanctuary programii. R: If an accessory use is incidental, subordinate, and customary

without being a nuisance per se or being injurious to public health, safety, and general welfare, then it is valid.

iii. A: actions constitute a temporary emergency activity involving the homeless crisis; it was incidental to the activities of a church; it was subordinate b/c it wasn’t their main activity; and it was customary for a church to help the homeless. It was not a nuisance per se b/c the homeless were restricted from being there after people got off of work so there did not interefere.

iv. H: homeless shelter was a permissible “accessory use” of the church, which was protected as an activity under NYC Zoning and under ∆’s current certificate of occupancy

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It’s hard to discriminate against the church

It has well been held that churches do activities well beyond prayer & worship

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10. Dobo v. City of Wilmington i. F: ∏ operated a non-commercail sawmill on his property as aprt of a

permitted woodworking shop which was operated as a personal hobby. ZB ruled that the sawmill was not a permitted accessory use.

ii. R: a zoning ordinance being in derogation of CL property right should be construed in favor of the free use of property

iii. A: the sawmill was not found to be incidental, subordinate, and customary. It did allow for a hobby woodworking shop

iv. H: agreed w/ ZB v. D: ≠ supported by substantial and competent evidence

11. Wawaynda Code i. Zoning Code §195-22:

12. Hypos → by housei. Skateboard Rink

a) ≠ a permitted use → can’t get an “as of right” b) can’t get a variancec) could possibly apply for an accessory use

ii. Ball fielda) ≠ customaryb) could argue that it was subordinate

iii. Helicopter pada) The “as of right” uses in this district include agriculture and

single family houses b) Helicopter is not included in the permitted usec) Accessory use? Must be subordinate, customary, and incidental

1) Subordinate→helicopter may ≠ be smaller2) Customary→ most likely not

13. Review on appeals i. First, look at the plain-language of the statuteii. If not clear, look at the LH

E. HOME OCCUPATIONS1. Historically:

i. Single family homes have been used for occupational uses such as beauty parlors, dressmaking, laudries

2. Def: i. zoning limits single-family homes to residential uses and to those uses

that are customarily associated with residential use and incidental and subordinate to that residential use

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Z.E.O. determination Z Board Court

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3. GR: must be customary, incidental and subordinate to the residential usei. See above analysis→ similar to accessory use

4. Local Authority: i. some communities address on case basis; ii. others examine proposed occupational use & determine whether it is

customary, incidental, and subordinate to the residential use.iii. authority of local govts : To balance right of homeowners with

expectations of neighbors

5. Implementation: i. may let definition of accessory uses govern matterii. may adopt a general definition of a home occupationiii. may supplement a general definition with a list of permitted, prohibited

occupations.iv. may permit home occupation as-of-right or only upon issuance of special

use permitv. may include specific standards that certain occupational uses must meet.

6. Wawayanda Code i. §195-22: Home Occupation

7. Baker v. Posinelli i. F: ∏ was holding dance classes w/ about 160 students per wk. Town

Board ruled that it wasn’t a home occupation. ii. R: Elements:

a) Customaryb) Incidental; and c) Accessory or secondary to the use of the dwelling unit or

residential purposes iii. A: Must be upheld if neither irrational or unreasonable!iv. H: dance studio ≠ customary b/ too big/too much activity

8. Town of Sullivans Island v. Byrum i. F: town brought action seeking to enjoin homeowners from using part

of their residence as a bed and breakfast boarding houseii. A: court looked at square footage (over 25%) – law said secondary must

be less than 25% iii. H: bed and brkft was not clearly incidental and secondary

IV. COMMUNITY BUILDING: SUBDIVISION CONTROL AND INFRASCRUCTURE

A. REGULATIONS OF THE SUBDIVISION OF LAND1. Generally:

i. Involves the legal division of a parcel into a number of lots for the purpose of development and sale

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Home Occupations: could be regulated by either a special use permit or home occupation regulations

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ii. The authority to review and approve subdivisions may be granted to planning board by local legislature

iii. Where a subdivision application meets standards contained in regulations, it must be approved.

iv. Where is does NOT meet the standards, planning boards may impose conditions on the standards to insure that it meets the specifications or it can be rejected.

v. In communities that have not developed a zoning provision, subdivision control is the primary method by which the locality ensure land is developed in a beneficial way

a) However, when used in conjunction w/ zoning →goes further to facilitate the proper layout, design and development of community

vi. Adoption of subdivision regulations is permitted, not required by state law!

2. Governmental Power to Regulate Subdivisions i. Subdivision and site plan regulations typically supplement the

prescriptions of the zoning law by allowing administrative agencies to review and approve specific site design and features for their impact on the neighborhood and community

ii. Landowner must submit a plat of proposed subdivision that shows layout and dimensions, topography, drainage, proposed facilities at appropriate scale

iii. Plat: a map, drawing, or rendering of subdivision which can contain narrative elements

iv. Legislative Role:a) Authority to adopt subdivision regulations, to decide what

standards to include, to determine what types of private land subdivisions are subjects to approval and to appoint planning board as local reviewing body

v. Filing Certificate: a) once planning board authorized to approve SDs, municipal clerk

shall file a certificate of that fact with the county clerk or register of deeds

vi. Reviewing Body:a) local legislation or delegated to local planning board. b) May draft & recommend subdivision control regulations to

legislature for adoption.c) Subdivision statutes require planning board to hold hearings

(unless under SEQRA review→ SEQRA hearings are optional and not mandatory)

vii. Approval Process:a) Developer may be required to submit both a preliminary plat and

a final plat of proposed SD which is subject to review and approval

b) Decisions of approval must be filed w/ planning board and municipal clerk→ any grounds for modification must be stated

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Remember→ the PLANNING BOARD is an AGENCY!Any action that they take is from the State Agency Review Act

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c) Failure of planning board for modification must be statedd) Failure of planning board to take action w/in the established time

periods is deemed an approval by defaulte) Public hearing subject to notice must be held regarding

submission of final plat f) Under power to supersede state law, local legislature may vary

process to achieve objectivesviii. 2 levels:

a) Micro level →you cannot take legal title to something that has been subdivided

b) Macro level →what you are dong to the whole region is dependant on the property

3. Town Law i. §276: Subdivision Review; approval of plats; development of filed

platsa) Required steps

1) Application2) Public hearing w/i 62 days3) Public notice (5 or 14 days → depending)4) Closed w/i 120 days5) Decision of planning board 62 days after closing

i.) Resolution can be approved, denied, or conditionally approved

ii.) Met w/in 180 days (90 days period + another 90 days period)

6) Default approvalii. § 277: Subdivision Review; approval of plats; additional requisitesiii. § 278: Subdivision Review; approval of cluster development

4. Ridgefield Land Co. v. Detroit i. F: proposed plat was contrary to the general plan of Detroit. City

commission made certain concessions w/ building line and wanted them to dedicate 17’ to the city for an avenue

ii. I: did the city have the authority to make concessions to the general plan when there is a reciprocal benefit?

iii. R: When one applies for an application to subdivide the land and an exaction is asked for that would be a reciprocal benefit, it is not an unconstitutional taking.

iv. A: this wasn’t a taking b/c the city isn’t trying to compel the dedication; instead, they are saying that it would be a requirement in order to be recorded as it is contrary to the master plan. It would have been a taking if it didn’t come w/ the application to subdivide their land.

v. H: the council does have the authority to do so

5. Dawe v. City of Scottsdale i. F: plat was recorded as a subdivision but there has been no attempt to

improve the property and it remained vacant

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Another example of an exaction→city says they’ll pass if they donate land for XYZ

VESTED RIGHTS case

In NY, municipalities are given the authority to subdivide the land

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ii. R: In NY, vested rights require substantial construction or substantial improvements

iii. H: filing it not sufficient as you have to build something in order for it to be a vested right

6. City of Corpus Christi v. Unitarian Church i. F: Church was asking for a bldg permit; city wanted 15% of property

for a street. ∏ asked for a declaratory judgment. ii. R: Township must have the authority to approve the site plans iii. Church claims ultra vires – Court agrees

B. CLUSTER ZONING1. CLUSTER ZONING DENSITY ZONING 2. Def:

i. “a subdivision… in which applicable zoning ordinance or local law is modified to provide an alternative permitted method for:

a) layout, b) configuration and design of lots, c) buildings and structures, d) roads, e) utility lines and other infrastructure, f) parks, and g) landscaping

ii. in order to preserve the natural and scenic qualities of open lands.”

3. Generally: i. Ex: brownstones in Brooklyn, or sometimes to protect agricultural landii. Here, we are moving from suburbs that are spread out to higher densityiii. Q: How much area must it be to qualify as a cluster?

a) Could simply be an apt buildingiv. A locality permits a land developer to vary dimensional requirementsv. Local law exercising a community’s cluster development authority can

delegate broad or narrow authority to the planning board to cluster permitted developments

vi. Courts have ruled that a developer a may not be forced t convey title to the preserved open and to the locality

vii. Advanages: a) Drainageb) Low income housing

1) Blue collar workers2) Diversity

c) Open space requirements

4. Steps: i. local legislature enacts law/ordinance authorizing PB to adjust

dimensional reqs. of zoning in particular circumstances. a) must specify zoning districts permitted. b) Provisions will define how board authority & discretion of PB is.

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ii. Developer must submit subdivision plat, so PB can determine max density allowed w/o clustering.

a) Density shall not “exceed the number which could be permitted, in the PB’s judgment, if land were subdivided into lots conforming to ordinance.”

iii. Meet all requirements of subdivision approval throughout review & approval process.

iv. Copy of approved plat filed with municipal clerk. →Clerk puts appropriate notations & references on zoning map.

5. Town Law: i. §278: Cluster Development

a) gives planning boards the express authority to accept this type of development

b) planning boards can’t establish what uses b/c it is legislative c) Can developers be required to cluster? d) cluster zoning allows the board to make the decision to adjust this

to allow for a multi-family building e) building unit ≠ building

6. Chrinko v. South Brunswick Twp. i. F: City reduced the size of the lots→ reduced by 20% to leave room for

open space. ∏ contested the validity of cluster and open space zoning. ii. A: In this case there was no master plan; however, there was a

legitimate need to preserve the woods and open space. Therefore, cluster zoning was a legitimate way to accomplish this.

iii. H: Although the state zoning law does not in so many words empower municipalities to provide an option to developers for cluster or density zoning, such an ordinance reasonably advances the legislative purpose of securing open spaces preventing overcrowding and undue concentration of population.

7. Orinda Homeowners Committee v. Board of Supervisors i. F: ∏ were homeowners; ∆ rezoned parcel of land from single family

residential to a planned unit development (PUD) & called for “residential clusters.” ∆ set maximum density and # of dwelling units. ∏ sued stating that it conflicted w/ governmental code which requires that a regulation shall be uniform for each class or kind of building or use of the land

ii. H: just b/c it is not uniform doesn’t mean that it is invalid. The code requires that the regulations be uniform.

8. Wawayanda Zoning Code i. §195-57

C. SUBDIVISION EXACTIONS AND OTHER REGULATION ISSUES1. Exactions, Generally:

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i. Similar to use conditions→ requires land, expenditure or money from the developer

ii. Statutory law can require subdividers to require the developers to designate land for recreation and provide facilities for people in the development

iii. Provides infrastructure on or off site iv. If land approved is ≠ sufficient for being uses as a park and/or recreation,

developers can be required to dedicate/designate $$$ to the town to provide parkes/recreation

v. GR: a) Dolan/Nollan→”essential nexus”/rough proportionality and

individualize determination test

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2. Development Approval Process w/ Exactions

3. Town Law i. §277: This is the state enabling act

4. Petterson v. City of Naperville i. F: County approved exaction for wider streets and storm guttersii. R: Must be held to be unreasonable in order to be an ultra vires

case. iii. A: it was w/in the legislative intent and had reasonable inference

5. 181 Inc. v. Salem County i. F: ∏, a homeowner, challenges the action of the planning board who

compelled ∏ to dedicate to the county a portion of the land upon a county road. Statute said that the planning board shall require the dedication of an additional right of way

ii. A: the planning board couldn’t prove that there was a essential nexus

6. Divan Builders, Inc. v. Twp. Of Wayne i. F: ∏, constructed a 31 unit residential comm.. the plan called for the

drainage of a pond through a pipe which would drain into a downstream source. The twp of wayne developed a plan for maintenance of the entire drainage basin which required the developer to put 20K towards the project.

ii. H: held that while the plan was prop the city did not apportion the costs to developer’s properly

7. Jordan v. Village of Menomonee Falls i. F: ∏’S purchased a 785 acre lot which they subdivided. Town law

required subdividers to dedicate a portion of the land for open space/schools or pay a fee where dedication is not feasible. ∏’s paid a 5K fee in which they now challenge

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COMPREHENSIVE PLAN

ZONING SUBDIVISION SITE PLAN

SEQRA REGULATIONS

APPLICATION(exactions, land dedication, provide infrastructure on site or off site)

DEVELOPER PLANNING BOARD

3 CHOICESApprovalApprove Conditions (or $ in lieu of)Deny

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ii. I: Does the village have the authorization from the legislature to require the dedication/feed? Is it an unconstitutional taking of property w/o just compensation?

iii. H: the legislature has provided the authorization. A liberal reading of the legislation must be used in order that the goals of the legislature be obtained. The fee is uniquely attributable to the community & its and therefore constitutional.

D. DENIAL OF SUBDIVION APPROVAL1. Generally:

2. Coffey v. Maryland-Nat’l Capital Park i. F: ∏ sought to subdivide ~16 acres into 117 townhouses w/in a density

of 7.38 units per acre the land was zoned R-T (townhouse) for a density of 80 to 119 units per acre; the county code requires subdivision plats to conform to the master plan; the planning comm.. rejected the plan. ∏ challenged.

ii. A: subdivision controls are imposed for the purpose of implementing a comprehensive plan for a community development

iii. H: the rejection was proper

3. Maryland-Nat’l Capital Park v. Rosenberg i. ∏ wanted to subdivide a 31 acre property. Denied subdivision. ii. Court rejected denial.

a) Availability of schools in area b) Board denied approval b/c checklist c) Board did not consider land around – other schools could have taken

some kidsiii. The checklist was arbitrary and capricious.

V. SMART GROWTH AND GROWTH MANAGEMENT

A. INTRODUCTION1. Generally:

i. Def. of Smart Growth: a) No clear definitionb) Intermunicipal planning that establishes discrete compact growth

areas and significant conservation corridors and landscapes

ii. Sprawl: “low density development beyond the edge of service and e/mt, which separates where people live from where they shop, work, recreate, and educate; thus, requiring cares to move between zones”

a) Defined by the Sierra Club

2. Local Land Use Controls that Achieve Smart Growth

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Non-Euclidian approach→ designed to breathe flexibility into the rigid uniformity of the district-bound zoning

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i. Goal: to create a sense of community, promote economically viable development, ensure the ease of movement and safety of residents, and preserve open space natural resources, and sustainable habitats

ii. Related Actions:a) Designation of discrete geographical areas not which private

growth pressures are directedb) Designation of other areas for recreation, conservation, and

environmental protection

3. Golden v. Town of Ramapo i. F: ∏ sought an order reviewing an annulling a decision and

determination of the Planning Board of the Town of Ramapo which denied their application for preliminary approval of a residential subdivision plat because of an admitted failure to secure a special permit

ii. R: Ordinance must promote the general welfare of the town. There must be a rational basis for phased growth in order to be constitutional.

iii. A: here, it was not exclusionary → there was a rational basis iv. H: the ordinance involved proper zoning techniques exercised for

legitimate zoning purposes by assuring that each new home built in the town would have at least a minimum of public services in the categories regulated by the ordinance

B. STATE AND REGIONAL PLANNING 1. Federal Land Use Legislation

i. Federal land use legislation would spur level planningii. Removal of some planning decision from local to regional or state

political jurisdictioniii. Wide spread intervention

a) Clean air act b) Clean water actc) Interstate compacts

2. State Planning i. Some states don’t’ make

3. Regional Planning i. There was a movement from state to regional planningii. Typically rejected

C. MORATORIA1. Generally:

i. Def: where there is a suspend of a right of property owners to obtain development approvals while the community take time to consider, draft, and adopt land use plans or rules to respond to new or changing circumstances not adequately dealt w/ by its current laws

ii. Q: a) How long is reasonable?

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Seminal Growth Management Case

EXTREME and RARE!

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1) I THINK that one year is considered reasonable and more than 1 yr is unreasonable

b) Are there any other options available?

2. Maryland-Nat’l Capital Park v. Chadwick i. F: ∏ restricted ∆’s property for 3 yrs and forced the property to be

virtually unusable due to a moratorium Required the preservation of land (like a conservation easement) and kept it from being developed.

ii. I: whether the ∆ by placing the ∏’s land in a public reservation w/in their consent for a max of 3 yrs unconstitutionally deprived ∏ of just compensation?

iii. R: If the moratorium deprives the land of all use for an unreasonable long time then it is a per se regulatory taking.

iv. A: all economic able use was strippeda) Relied upon Tahoe→ a moratorium is not a per se takingb) Maryland was a complete halt and the owners couldn’t even sell

property v. H: regulatory per se taking → unreasonable and ∆ owed just

compensation.

3. New Jersey Shore Builders Association v. Township of Middletown i. F: state prohibited moratoriumsii. I: What is the proper statutory req demonstration that a municipality

must show in order to have a moratorium. iii. R: Must have clear and specific evidence.

a) the legislation requires that there must be “clear and imminent danger” to the health of the inhabitant in order have a moratorium be invalid

D. GROWTH MANAGEMENT1. Generally:

2. Local regulation of Urban Growth

i. Construction Industry Ass’n v. City of Petalumaa) F: ∆ developed a 5 yr development plan which restricted growth

to 1000 new dev per year had requirements for affordable housing.

b) I: is a zoning policy to restrict population growth in order to preserve the attractive nature of the town rationally related to a public purpose so that it is not unconstitutional under the fourteenth amendment (due to being exclusionary)?

c) R: Must have a rational relationship to a legitimate state interest /public purpose and be reasonable.

1) ∏ has the BOP that it is unreasonable d) A: preservation of the rural community is the LSI which

supersedes the fact that they are excluding poor family from

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Essentially, there are lots of good examples of when a moratorium can be applied, but this wasn’t one of them.

Exclusion Zoning: Suburban zoning regulation which have the effect and purpose of preventing the migration of law and middle-income persons from living there

Getting into federal court→ remember this is a Fed Ques

As applied (vs. Tahoe→per se)

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living there. Restricting growth can be a valid public purpose but it depend on what you are trying to preserve

e) H: constitutional. Here, the local regulation is rationally related to the social and environmental welfare of the community and does not discriminate against interstate commerce.

ii. Associated Home Builders v. City of Livermorea) F: ∏, an association of contractors and subdividers, put a

restriction on growth until certain educational, sewage, disposal and water supply facilities complied w/ specific standards

b) R: Must have a real and substantial relationship to the welfare of the region.

c) A: 2 steps1) Forecast the probable effect and duration of the restriction2) Identify the competing interests affected by the restriction

d) H: ≠ unconstitutional

3. Steel Hill Development v. Town of Sanbornton i. F: city wanted to preserve the rural character of the community by

cluster zoning and agricultural zones. ∏ opposed development. ii. R: In order for provisions to be unconstitutional, they must be

unreasonable by having no substantial relationship to the public health, safety, or general welfare.

iii.

4. Denial of Access to Infrastructure

i. Dateline Builders, Inc. v. City of Santa Rosa a) F: suburb wanted the city to hook up the sewer system by the

house; would be “leap frogging” their way out of the city. City refused to connect them to city. ∏ sued b/c they felt that it was reasonable related to public interest & didn’t think they can’t deny unless they can’t handle volume.

b) H: the municipality reasonably exercised their authority b/c the new housing development was not consistent

c)

ii. Charles v. Diamond a) F: told the apt building that the municipality couldn’t connect to

them until their sewer problems were fixed. ∏ felt they were acting arbitrarily and capriciously. Villiage, County Sewer Dept. and state environmental agency were all the ∆’s.

b) R: A police power regulation must be reasonable w/in the limits of necessity

c) A: Court determined that if the village was acting unreasonably then they would be free of the reasonable requirement and the developer would have to make their own septic system.

d) H: There was not enough evidence on the record on whether or not the agency acted reasonably.

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Look at the External needs and balance against the internal needs!

LEAP FROG DEVELOPMENTLeaving city boundaries to help someone w/ city utilities

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E. STATE GROWTH MANAGEMENT LEGISLATION1. Generally:

i. There must be communication b/w the regional and municipality

2. Haviland v. Land Conservation and Development Commission i. F: ∆ made urban growth boundaries in order to provide an orderly and

efficient transition from rural to urban land use. Boundaries were to be based upon :

a) Goal 14 which had 7 factors→ long range urban population requirements, need for housing and employment opportunities, economic provisions, maximum efficiency of land uses, environmental energy and social opportunity, economic provisions, retention of ag land and compatibility with the nearby ag activities in Oregon

b) ∏ arg that there were inadequate facts to support the findings of the growth boundaries

ii. R: Court requires that you supply substantial evidence to support ruling.

iii. H: there was sufficient evidence on the record that they didn’t act arbitrary and capriciously.

3. Residents of Rosemont v. Metro i. F: ∆ amended their Urban Growth Boundary to add 830 more acresii. Because the decision was a subregional need – it was not valid. Urban growth

boundary was set aside. Boundary was set in an erroneous fashion iii. H: city erred→ no logic in their decision

F. CENTERS OF GROWTH AND DEVELOPMENT1. Generally: Footprint by living on the land.

2. Housing Codes i. First Nat’l Realty Corp. v. Javins

a) F: ∆ rented an apt and defaulted on their payment; they didn’t think they had to pay due to housing violations.

b) R: The modern urban tenant seeks more from a lease than the outdated common-law conveyance of an interest in land, rather, he seeks a well-known package of goods and services; and, modern housing regulations imply into every lease a warranty of habitability, the breach of which by the landlord will justify a suspension of the tenant’s covenant to pay rent.

c) H: Every lease contains an implied warranty of habitability to the extent of relevant housing regulations.

G. URBAN REDEVEOPMENT TECHNIQUES1. Generally:

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Policy: if a LL cannot obtain rent for a default w/o correcting the facility then the implication is that the LL must increase rent in order to meet obligation. Ex: Slum lords. Having a warranty of habitability isn’t going to ↑ jobs of ↑ living standards

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i. Ex: urban sprawl areas

2. Kelo v. New London i. PULIC USE = PUBLIC PURPOSE = PUBLIC WELFARE ii. Public Use is broad →doesn’t necessarily mean that the public will use

it but that it is for the general public purposeiii. F: city development board heard that Pfizer was interested in starting a

convention center. New London was a depressed city and was blighted. Wanted to take Kelo et al.’s land to lease out to a private developer in accordance of the redevelopment plan and pay Kelo just compensation. ∏ made several improvements on her property and there was a significant amount of emotion involved in this case.

a) Q: What exactly is “blighted” or “economically depressed?” We don’t really know…

iv. I: Is it a public use when a city wants to take private property and give to another private property for purposes of economic development?

v. R: Rational basis test. a) Look to see if the general public will benefit or not vs. just one

party vi. A: court used a rational basis analysis to see if it’s reasonably related to

a public purpose. It’s irrelevant whether or not the area is blighted or not (Berman v. Parker) b/c the concept of public welfare (see also Monsanto where the court felt that it was a public use b/ the use of their data increased speed where pesticides could be put into marketplace).

vii. H: this did justify a public purposeviii. D: economic development per se is ≠ a public use; in Berman

the ∏ was harming the public. Here, ∏ wasn’t harming anything.

3. Minneapolis Community Development Agency v. Opus i. F: City wanted to exercise eminent domain over an area to build a

mall/office building area for large scale economic development. This is not a blighted area.

ii. R: Absolute necessity is ≠ req. for a finding of public purpose but simply that the taking was reasonably necessary or convenient for the furtherance of the proper purpose.

iii. A: Here, there is undoubtedly would be benefit to the public.

4. Protecting Growth Districts from Competition i. Generally:

a) Market pressures sometimes operate as a centrifugal force1) the conditions at the urban core repel capital investment

outward2) this causes underlying tension w/ land use

ii. Forte v. Borough of Teneflya) F: the city is trying to keep the central business district from

deteriorating (i.e., to keep people coming downtown to use the busses and library). As a preventative measure, they were rezoning.

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Public Use is broad →doesn’t necessarily mean that the public will use it but that it is for the general public purpose

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b) R: Simply preventing economic competition is not a public purpose, it is a private interest.

c) H: ≠ public purpose.

iii. Swain v. County of Winnebagoa) F: ag land is rezoned for dept land. ∏’s were a bunch of private

competitors that own business in the center city. ∏’s sued stating that the rezoning was arbitrary and capricious.

b) R:c) A: The ∏’s didn’t have standing b/c re: traffic, they were

harmed just as much as the general public. Re: competition→ can’t delegate a private vs. another private.

d) H:

H. PROMOTING BROWNFIELD REDEVELOPMENT1. Generally:

i. This is another method to keep density in the proper place and prevent urban sprawl

ii. b/c former industries plight neighborhoodsa) contaminated→pose env challengesb) if redeveloped then the city could generate tax revenue

iii. Brownfields are idle, underused industrial and commercial facilities where expansion or redevelopment is complicated by environmental contamination

iv. Cities can designate these contaminated properties

2. Smart-Growth Techniques

I. POST-EUCLIDIAN ZONING1. Generally:

2. Examples: i. Floating zonesii. Overlay districtiii. Clustering subdivisionsiv. Bonus or incentive zoningv. Transfer of development rights

3. Rodgers v. Village of Tarrytown i. F: Ordinance created a new district or class of zone which only applied

to a few people. Rodgers→6 acres; rubin→10acres. If you had 10 acres you can apply to the board for rezoning.

ii. R: you can reasonably rely on the zoning classification when you purchase your property unless the rezone isn’t a valid public purpose

a) Uniformity requirement?

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What if the city of Rockford was a ∏?Euclid was a suburb and the court stated that even though they were a suburb they had powers of their own given to them from the state

FLOATING ZONE CASE

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iii. H: that it is not spot zoning b/c not specifically changing for the benefit of one individual owner

iv. Compare to Golden v. Ramapo: Rogers is neo-Euclidean zoning (i.e., floating zone) as it is flexible and allows the Z to respond to problems; dissent argued that it was too flexible

VI. LOCAL ENVIRONMENTAL LAW

A. HISTORICAL OVERVIEW1. What is Local Environmental Law?

i. the role of the local government is discussed typically in the context of their devolved authority under federal statutes. THOUGH local governments are given a key, if not primary role in land use regulation

ii. local governments adopt zoning ordinances and mapsiii. comprehensive zoning began as a civil engineering and fire prevention

concept – iv. subdivision and site plan regulations emerged to complement these

aspects of local land use lawv. E.g., in New York you can find laws on:

a) Cluster subdivision, environmentally sensitive Area Protection, Erosion and sedimentation Control, Filling and Grading, Floodplains Control, Ground Water/Aquifer Resource Protection, Landscaping, Mining and Excavation, Ridgeline Protection, Scenic Resource Protection, Soil Removal, Solid Waste Disposal, Steam and Watercourse Protection, Steep Slopes, Stormwater Management, Timber Harvesting, Tree Protection, Vegetation Removal, and Wetlands.

2. Examples of Local Environmental Law i. Comprehensive Plan

a) defining the environment – between what should be preserved and what should be used

ii. Zoninga) Zoning law or ordinance is the principal tool used by

municipalities to regulate land use.b) The zoning ordinance divides the community into zoning

districts. 1) A zoning district is a portion of the community designated

for certain kinds of land use.c) All zoning must be in accordance with the municipality’s

comprehensive pland) Zoning districts used for enviro purposes:

1) can prohibit uses harmful to resources within a zone, can deduct constrained areas such as steep slopes, can control stormwater runoff, minimize erosion and sedimentation, and restrict tree harvesting.

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2) Use as zoning boundaries the drainage basins of watersheds rather than major roads or other artificial mechanisms as dividing lines between districts.

iii. Overlay Zoninga) Preservation overlay

1) imposed over existing zoning districts that will apply in addition

2) none of the as-of-right development destroyed.b) To protect vegetation, habitat, prevent flooding.

iv. Incentive Zoninga) NY State laws allow local governments to provide zoning

incentives to developers on the condition that specific physical, social, or cultural benefits are provided to the community in return.

b) Allows developers to build at greater densities than allowed under zoning in exchange for public benefits such as open space or affordable housing.

c) The authorizing statutes allow communities to receive cash payments in exchange for the zoning incentives awarded a developer

v. Open Space subdivisionsa) may included incentive zoning

vi. Subdivisiona) Regulations can prevent menace to public and adjacent lands,

including the environmentb) In NY you cannot pass a habitat protection law but you can

include amendments to subdivision plan – vii. Clustering

a) NY Statutes define cluster development as: 1) A subdivision…in which the applicable zoning ordinance

or local law is modified to provide an alternative permitted method for the layout, configuration and design of lots, buildings, and structures, roads, utility lines, and other infrastructure, parks, and landscaping in order to preserve the natural and scenic qualities of open lands.

viii. Site Plana) Is the arrangement, layout, and design of the proposed use of a

single parcel of land consisting of a map and all necessary supporting material.

b) Site plan regulations can be structured to preserve natural resources that are located on the site under review and adjacent to it –

1) Can take into consideration factors such as adequate water supply, control of stormwater, erosion and sedimentation, and protection of wildlife.

2) Can include site contours, lighting, sidewalks, and parking designed to conform to the natural environment and character of the community

ix. Non Traditional Protections

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a) Aquifer Protection, Erosion and Sediment Control, Fish and Wildlife Habitat, Floodplains, Ridgeline Protection Overlay District, Steep Slopes, Stormwater Management, Timber Harvesting, Transfer of Development Rights, Tree Preservation, Wetlands and Watercourses

3. The Law of Nuisance i. Some Basic Considerations

a) Historical Aspects b) Public vs. Private Nuisances

1) Public→endanger health, safety, property, morals, or comfort to a considerable number of people

i.) E.g., storing explosives in a populous place, prostitution, gambling house, odors, dust, smoke, sound, obstruct a highway or navigable stream, or nuisance per se (violate a nuisance statute)

2) Private→ affects only a limited number of peoplei.) Interference w/ the use and enjoyment of land

(does ≠ include direct physical invasion or trespass)

c) The Duty Note to Interfere Substantially w/ Your Neighbor 1) Neighbor has the right to quiet enjoyment

d) The Restatement’s Guide to What is Substantial Harm 1) §827 Gravity of the Harm: Factors Involved

i.) Extent of harm involvedii.) Character of the harmiii.)Social value of useiv.) Suitability of the particular use or enjoyment

invaded to the character of the localityv.) Burden on the person harmed

2) §828. Utility of Conduct: Factors Involvedi.) Social value that the law attaches to the primary

purpose of the conductii.) Suitability of the conduce to the character of the

localityiii.)Impracticability of preventing or avoiding the

invasione) Nuisance Per Se and Nuisance Per Accidens

1) Nuisance Per Se: i.) E.g., immoral activities, extrahazardous materials,

statute declared nuisances2) Nuisance Per Accidens:

i.) Nuisance in fact, case-by-case basis based on the circumstances of each situation

f) Motive and Nuisance

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Coming to the Nuisance→you can’t complain if the nuisance was already there

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1) “Spite fence”→trend going this direction to overcome the effects of absolute property rights

g) Doctrinal vs Functional Approach to Nuisance Cases 1) There are problems in areas that aren’t zoned

4. Hulbert v. California Portland Cement Co. i. F: ∏ owned fruit trees and sued ∆ b/c their cement plant were causing

damage to the fruit trees. ∏ wanted injunctive relief and ∆ felt that money damages were sufficient.

ii. R: a) the right to use and enjoy property is supreme and no use can

be permitted to destroy that of another. b) A nuisance that interferes w/ the comfortable enjoyment of

the premises is a private nuisance which may be abated. Therefore, the injured can recover pecuniary damages.

c) The test: BALANCE THE EQUITITES OF THE TWO PARTIES

iii. A: the courts here balanced the equities iv. H: injunction was denied and ∆ had to pay monetary damages

5. Boomer v. Atlantic Cement i. F: ∏ (the neighbor) sued the cement co. (∆) and sought an injunction

and $$ alleging the property damage was being caused by dirt, smoke, and vibration emanating from the plant.

ii. I: Despite the fact that the ∆’s creating of a nuisance may have impaired substantial property rights, may the court impose damages in lieu of an injunction when the ∏’s property damage is relatively small in comparison w/ the value of the ∆’s operation?

iii. R: Balance the equitiesiv. A: B/c of ∆’s large investment an inj. would cause the plant to close

down and it would be a private takingv. H: permanent damages may be given vs. an injunctionvi. D: if you don’t grant an injunction then you’re allowing the polluting

company to pollute more

6. DeMars v. Town of Bolton i. F: the town increased lot sizes for environmental concernsii. R:iii. A:iv. H:

7. Morris County v Parsippany-Troy Hills i. F: ∏ is a private landowner in a swampland. Had a environmental law ii. R:iii. A: Using a takings analysis, you can’t say that all economic has been

taken (thus, ∏ can’t sue under Lucas). Could sue under the Penn

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Nuisance Claims: $$$$ vs. injunction

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Central analysis looking at the character of the regulation, the economic impact of the regulation, and investment expectation of the owner.

iv. H:

B. ADVENT OF LOCAL ENVIRONMENTAL LAW1. Generally:

2. Just v. Marinette County i. Public trust doctrine case ii. Local partnership to protect propertyiii. A: Similarly, apply a Penn Central takings analysis

3. In Re Spring Valley Development i. F: State law required licensure of not adversely affecting the environment;

developer applies for subdivision approval; Alleges violation of EP. ii. Court has to read the statute

a) Determine if the statute applies to the developer b) Statute applies for commercial purposes and to protect the environment

iii. State taking back some of the authority a) Requiring environmental impact be submitted to state b) Have to prove they will not impact the env and then they get a permit

to complete project iv.

4. Moviematic Industries Corp. v. Board of County Com’rs i. F: env regulations; Development within wetlands area is barred by zoning. ii. Rule: Env regulations is in the public interest and is a valid exercise

of police powera) To be a taking, must prove that the land is no longer

economically viable iii. Claim – violation of substantive due process

a) Somehow this did not comply with health safety welfareiv. Substantial evidence rule (the board made a decision based on substantial

evidence) a) Planning board denies and then the court looks to substantial evidence b) Challenger still has the burden of proof

v. Absence of credible evidence allows challenger to prove arbitrary decision

5. Wawayanda Zoning Code i. §195-52

C. LOCAL ENVIRONMENTAL IMPACT REVIEW1. Generally:

i. SEQRA: Extensive provisions setting forth the procedures and requirements for the environmental review of local land use actins are fond in NY’s Environmental Conservation Law, Art. 8

a) Local agency must determine whether an action it is considering may have significant adverse environmental impact

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NY is one of the few states w/ this step

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b) If action has such potential, the agency must first prepare an Environmental Impact Statement (EIS) which forces it to consider alternatives and to avoid/mitigate adverse environmental impacts of a proposed project.

c) Failure to follow procedures required by SEQRA will render an action invalid

ii. Type 1: a) Adoption may have to be accompanied by the preparation of a

full environmental impact statement b) Amendments adopted a/f public notice and hearing

iii. Subdivision approval under SEQRA: discretionary action affecting environmental that is subject to environmental review

a) Typically, subdivision statutes require planning board, as lead agency for SEQRA purposes, to hold hearings

b) However, SEQRA hearings are optional and not mandatory!

2. Sun Beach Real Estate v. Anderson i. F: subdivision approval action of a preliminary subdivision plat; city

advised developer it would process application when it received a draft environmental impact statement (DEIS) or determined there was no environmental significance. Town law required that action be done in 45 d but SEQRA requires that a DEIS be submitted at the time??? ∏ brought action to direct city’s town clerk to issue a certificate of preliminary plat approval

ii. I: Does SEQRA or Town Law apply? iii. R: the legislative declaration of purpose in that statute makes it obvious

that protection of the environment far overshadows the rights of developers to obtain prompt action on their proposals

iv. A: v. H: SEQRA should apply 45 d time imposed by NY Town Law §276 did

not commence to run until city planning board accepted a DEIS b/c DEIS had to be available when it was still practical to modify project

3. What is Subject to SEQRA? i. Capital projectsii. Comprehensive planiii. Zoning amendmentiv. Site Plan or Subdivision Regulationsv. Project Approvalsvi. Subdivisionsvii. Site Plansviii. Special Permitsix. Variances

4. SEQRA Regulations i.

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Case of first impression

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5. SEQRA Chart

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SUBDIVISION APPLICATION(EAF short form or long form)

EAF is then circulated to the other agencies

COMMENT

Determination of Significance (“Possible Impacts”)

POSITIVE DECLARATION(i.e., BAD for the environment)

NEGATIVE DECLARATION(i.e., GOOD for the environment)

DEIS (draft environmental impact statement)

Public Hearings (SEQRA)

Findings (SEQRA)

Mitigation of impact on the environment (broad→includes al different kinds of environmental protection)

Conditions

Same subdivision application (include the conditions)

DECISION

SEQRA is over

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6. Environmental Review Techniques i. Generally:

a) Requires local agencies when reviewing development projectsb) Adopting plans and establishing programs to prepare an

environmental impact statement for actions that may have a significant adverse impact on environment

c) Requires agencies use all practicable means to minimize or avoid adverse effects

ii. Approvala) Lead agency: local land use review and approval agencyb) Actions: a development approval, the adoption of a plan or

enactment of land use regulationsc) SEQRA imposes “action forcing” and “substantive” requirements

on local land use decision-makersd) Local agencies required to “use all practicable means to realize”

SEQRA’s policies/goals1) “to act and choose alternatives, which, consistent with

social economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects.”

e) SEQRA applies to local land use actions such as approving applications for rezoning, subdivision and site plan review, the issuance of special permits and variances and the adoption of comprehensive plans and capital projects.

iii. Type I vs. Type II: a) Type I actions :

1) “deemed more likely to require an EIS” than Unlisted Actions, which are simply not listed in the regs as Type 1 or II.

2) ex. adoption of a comprehensive plan or zoning law, changes in allowable uses in any zoning district affecting 25 acres or more; construction of 50 or more homes not to be connected to public water and sewerage systems.

b) Type II actions : 1) where no environmental review is required. 2) ex. area variances for 1, 2, or 3 family houses;

construction of noncommercial structures of less than 4,000 sq ft; and construction or expansion of 1,2,3 family homes on improved lots.

3) ministerial actions, such as issuance of building permits where no discretion is exercised, are not subject to SEQRA.

iv. EIS: a) Local lead agency must prepare an EIS before granting

conditioning, or denying a proposal or project where there may be a significant adverse impact on environment

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7. Checklist for local lead agency: i. Is the land use project or proposal an “action” as defined by the law and

the regs?ii. Which agency is principally responsible for approving the action?

a) that agency is the lead and has the responsibilities listed hereiii. What type of an action is it? The choices are →Type I, Type II or

Unlisted.a) If the action is a Type II action, no further environmental review

is required.b) If action is a Type I or Unlisted Action, an assessment of the

environmental impact of the action must be conducted.c) Applicants for Type I and Unlisted Actions must submit an

Environmental Assessment Form listing the potential environmental impacts of their projects or proposals.

1) EAF: “[form is] intended to provide a method whereby applicants and agencies can be assured that determination process is orderly, comprehensive, yet flexible enough to allow introduction of information to fit a project or action” (6 NYCRR 617.20)

iv. Will it have a significant adverse effect? a) If the project or proposal will not have a significant adverse env.

Impact, then a negative declaration is issued and no further env. review need be conducted.

1) lead agency must take a “hard look” at possible env. impacts

2) must set forth in writing a “reasoned elaboration” for its negative declaration

b) If the project/proposal may have a significant adverse env. impact, then a positive declaration must be issued and a Draft Environmental Impact Statement prepared.

v. Lead agency may require the preparation of a scope of the contents of the EIS and may provide for public participation in its preparation.

a) scoping - 1) process by which lead agency identifies potentially

significant adverse impacts related to proposed action that are to be addressed in draft EIS including content and level of detail of the analysis, range of alternatives, mitigation measures needed and identification of nonrelevant issues.

2) provides a project sponsor with guidance on matters which must be considered and provides an opportunity for early participation by involved lead agencies and public in review of proposal.

vi. EIS must consider & examine all relevant env. impacts, identify possible conditions that can be imposed on action to mitigate any adverse env. impacts found and discuss any alternatives proposed action that would mitigate or avoid those impacts.

vii. Applicant must submit a DEIS

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a) when deemed complete, it is filed, along with a Notice of Completion that the lead agency issues.

b) If a public hearing on the DEIS is to be held, a Notice of Hearing must be filed and published 14 days prior to hearing which must be held within 60 days from the filing of the Notice of Completion. Regs. give public a right to comment on Draft and lead agency to respond.

viii. Lead agency must complete a FEIS a) within 45 days of the close of the public hearing, if one is held, orb) within 60 days of filing of the DEIS, whichever occurs last.

ix. Lead agency’s finding statement, based on FEIS, is adopted.a) considers impacts contained in the EIS and balances them w/

social, economic, and other essential considerations, selects mitigation conditions or alternatives

x. Findings statementa) Positive findings statement demonstrates that project should be

approved and that action will avoid or minimize environmental impacts to maximum extent possible.

b) A negative findings statement documents reasons why action cannot be approved.

8. The Appearance of Structures and Other Aesthetic Regulations i. Local Aesthetic Regulations:

a) Continuity and maintain integrity of designb) Prevent existing visual assetsc) Method of protecting the public welfare

ii. Home Rule Authority: a) In NY, local governments have a “home rule” authority to adopt

local laws for a variety of purposes relating to land use controlb) “protection and enhancement of its physical & visual

environment. Authority to preserve trees, landmarks, and historic districts.”

c) visual blight can occur in a community in a variety of ways; protect from potential negative effects.

iii. Architectural review board: a) can have advisory authority only or the authority to review,

approve, disapprove, or conditionally approve proposed new construction and building improvements before the building inspector is authorized to issue a building permit.

b) Whether exterior design and treatment of proposed construction conforms with design review standards contained in the regulation.

c) 2 standards of review :1) Whether proposed construction is “excessively

dissimilar” to established pattern of design 2) Whether proposed project is “excessively similar” to

existing buildings where objective is to prevent monotonous visual impact of new development in area.

iv. Implementation:

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a) comprehensive planningb) zoningc) identification and study of unique aesthetic resourcesd) overlay zones- do not disturb underlying zoning requirements;

add add’tl considerations and requirements to protect and enhance.

e) sign control ordinances.f) design review lawsg) Tree preservation lawsh) Local development approvals

v. Limitations: May allege a) arbitrary and capricious; unconstitutional

1) justify regs through advance planningb) “clear and convincing evidence” that proposal fails to meet

established guidelines

vi. People v. Stovera) F: close-line case to protest taxes. Town subsequently passed

ordinance prohibiting this unless you get a special permit. ∏ sued arguing Free Speech and that it wasn’t reasonably related to the public purpose.

b) I: is solely aesthetics enough? c) R: Aesthetics alone is reasonably related to public purpose. d) A:e) H: yes, aethetics by itself is public purpose.f) D: slippery slope→what’s next? Regulation architecture?

D. HISTORICAL LANDMARK AND CULTURAL PRESERVATION1. Generally:

i. Think of historic districts as being overlaysii. Question of sensitivity→ developer’s economicsiii. Difference b/w landmark protection and historic district preservation

a) Landmark→ just oneb) Historic district →whole area

iv. Examples in NYCa) SoHob) Rockefellerc) GCS

v. You can designate something just b/c something happened there vs. architecture

2. Historical Preservation at the Local Government Level

3. Opinion of the Justices to the Senate i.ii.iii.iv. H:

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Aesthetics Case

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4. Penn Central Transp. Co. v. City of New York i. F: ∏ wanted to build 50 more levels for commercial development on

GCS→ denied b/c it was a landmark and the addition would be ugly. ii. R: Law doesn’t say that you can’t build, but just that it must be

appropriate. iii.iv. .

5. Fgl & L Property Corp v. City of Rye i. F: ∏ wanted a conservation easement to preserve the shedii. City decided that 22 acres would be regulated from developer iii. City required owner to restore 2 buildings

a) Imposes cost upon condo owners to restore buildingsiv. Court looked to regulation and could not see the permission v. Law focused on single property to require owner to restore and maintain

property a) Beyond power of local gov to protect historic properties

vi. R: Conservation easements are deemed to be in perpetuity unless otherwise identified.

E. CONSERVATION EASEMENTS AND LAND TRUSTS

1. Conservation Easements: i. Def: a voluntary agreement between a private landowner and a

municipal agency or qualified not-for-profit corporation to restrict the development, management, or use of the land.

a) Owner of real property deeds an interest in land, (conservation easement) to a qualified public or private agency.

b) Agency holds interest and enforces its restrictions against the transferring owner and all subsequent owners.

c) created in perpetuity or for X number of yearsd) conservation easements do not grant public the right to cross or

use restricted land.

ii. GR: locality must show that there is a close nexus between a legitimate public objective and the end achieved by imposing the easement on the applicant’s property; & burden roughly proportionate to impact

iii. Generally:a) natural or manmade features are not altered or developed in a

manner inconsistent w/ conservation or preservation.b) may be donated or sold at below-market value (get income tax

deduction)c) Writing/Recording:

1) must be embodied in a written instrument, recorded on county land records, and filed with DEC. By statute, holder of easement may enter & inspect burdened

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When compensation is reciprocal then typically not challenged (c.f. luthern church case→ they didn’t benefit from the historical district

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property in a reasonable manner & at reasonable times to assure compliance.

d) Enforcement:1) can be enforced by original grantor of easement, land trust

or public agency to whom easement is granted, or 3rd party specifically named in agreement.

2) judge may issue injunction or $ damages to be paid3) statutes are unclear whether affirmative obligations would

be enforceablee) affirmative obligation - one that requires the landowner to

maintain the property in a specific manner, such as maintaining the condition or color of exterior surfaces

f) Termination:1) conservation easements may be extinguished by

foreclosure of liens on property that preexisted the easement.

iv. Smith v. Mendon a) F: ∏ wanted to build a house on a property where there was a

EPOD (environmental protection overlay district). ∏ applied for a permit to construct a house on a section that was non-EPOD. Town board approved it on the condition that they place a conservation restriction on any development on the EPOD’s.

b) I: can the planning board subject approval on an environmental restriction? If so, does such a condition constitute a taking?

c) R: must be reasonably related to a LSId) A: This isn’t a Lucas taking b/c there is still economic value left.

This isn’t an exaction b/c they aren’t requiring public access (however, had it been they probably would have passed the essential nexus/rough proportionality test so had it been an exaction the court probably would have said that it was a taking)

e) H: the action was reasonably related to a legitimate state interest→ env preservation. Conservation restriction substantially advances a legitimate public purpose. Regulatory action may only be reasonably related to a legitimate interest to satisfy the standard.

2. Land Trust i. Def: a local or regional not-for-profit organization, private in nature,

organized to preserve and protect natural and man-made environment by holding conservation easements that restrict use of real property.

ii. Applicability: Usually pursue own organizational agendas.

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Excellent analysis in opinion

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VII. STATUTORY CONTROL and Other Limits on Local Land Uses

A. FEDERAL PREEMPTIONB. STATE PREEMPTIONC. DISCRIMINATION AND HOUSING

1. Non-Traditional Families i. How restrictive can a local ordinance be in restricting family?

2. Village of Belle Terre v. Boraas i. F: The word family was used in the ordinance. Dickmans leased Truman house

for 18 months. Total of 6 people not related moved into the house. ii. Valid to restrict number of related people – within the police poweriii. Preserving family values is rationally related to legitimate public purposeiv. Police power can be used to lay out zones where family values, youth

values and quiet and clean air make a sanctuary.

3. McMinn v. Town of Oyster Bay i. F: There was a young unmarried couple who rented the house to 4 unrelated

youthsii. Because the ordinance challenged in this case contain age limitations making it

more restrictive than the Belle Terre ordinanceiii. Court had not stated what definition of family is minimally necessary to survive

Federal due process scrutiny. iv. The ordinance is facially unconstitutional under the due process clause of the

NY State Const a) Due Process – Has to be done for the health, safety and welfare

v. Public purpose is not accomplished by the age restriction vi. The law is aimed at the type of household – not a legitimated public purpose

4. City of Ladue v. Horn i. F: Residing in s home were Horn’s 2 children (aged 16 and 19) and Jones’

one child (age 18); City made demands upon s to vacate their home because their household did not comprise a family.

ii. Even they were living together as a family, they were not a family as defined by the code.

iii. The essence of zoning is selection; and, if it is not invidious or discriminatory against those not selected, it is proper.

iv. s were not related by blood, marriage or adoption, as required by City’s ordinance

v. Ladue’s zoning ordinance is rationally related to its expressed purposes and violates no provisions of the Const of the US

5. City of White Plains v. Ferraioli i. F: City of White Plains to enforce its zoning ordinance and enjoin use of a

single-family house as a “group home” for 10 foster children.ii.iii.iv. .

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D. EXCLUSIONARY ZONING:1. South Burlington NAACP v. Mount Laurel

i. F: A trial court found that defendant township had unlawfully excluded low and moderate income families from the municipality by means of its zoning ordinance, and ordered affirmative relief, which did not include provision for persons who were not residents

ii. The trial court found that defendant township had unlawfully excluded low and moderate income families from the municipality by means of its zoning ordinance, and declared the zoning ordinance void.

iii. Holding: Zoning regulations – there have to be a variety of housing options in a fair share

iv. The court affirmed the judgment of the trial court, insofar as it found that defendant township had unlawfully excluded low and moderate income families through its zoning ordinance, and ordered the zoning ordinance modified by defendant

2. Berenson v. Town of New Castle i. Defendant town appealed from a judgment of the Supreme Court at Special

Term in Westchester County (New York), which declared the town's zoning ordinance unconstitutional and directed the town to amend its zoning ordinance and change its planning and land use policies and regulations within six months so as to permit the construction of at least 3,500 units of multifamily housing in the town by a certain date. Plaintiff landowners filed the suit.

ii. The judgment was modified to delete the 3,500 unit requirement. The matter was remanded to the town board to remedy its zoning deficiency within six months.

iii. The town board was directed to rezone the landowners' property for multifamily use, and the trial court was directed to retain jurisdiction for the purpose of allowing the landowners to challenge the validity of any amended ordinance.

iv. As so modified, the judgment was affirmed.

3. Home Builders v. City of Napa i. Defendant city enacted an inclusionary zoning ordinance, requiring that 10

percent of all newly constructed units must be affordable as that term was defined.

ii. Plaintiffs, a non-profit corporation and an association of professionals involved in residential construction, sought to have the inclusionary zoning ordinance declared facially invalid

iii. The court of appeal affirmed, holding that because defendant had the ability to waive the requirements imposed by the ordinance, the ordinance did not, on its face, result in a taking.

iv. The application of a general zoning law to particular property effected a taking if the ordinance did not substantially advance legitimate state interests or deny an owner economically viable use of his land.

v. Creating affordable housing for low and moderate income families was a legitimate state interest and the inclusionary zoning ordinance substantially advanced the important governmental interest of providing affordable housing for low and moderate income families.

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vi. Challenger wants the court to not find a nexus between high cost housing and affordable housing

a) If no nexus - Wants a regulatory taking - under Nolon (has to be a nexus)

b) If nexus – the amount of low cost is not proportional to amount of building – Dolan (rough proportionality between condition and impact)

vii. Standards don’t apply

VIII. REVIEW OF LAND USE DECISIONS

A. REVIEW BY THE PARTIES: MEDIATION

1. Mediation Generally: i. Through mediation, one can recommend actions, supported by relevant

and convincing facts, to the administrative body for its consideration ii. Counseling to prevent disputes and orchestrating their settlement area

among the most valuable tools lawyers provide their clientsiii. Mediation is a way for corporations to achieve settlements based on

sound business practices vs. legal standardsiv. Facilitators

a) Neutral 3rd partyb) Expertsc) Bring involved parties together, build trust, clearly establish

interests, serve as intermediaries, see options to resolution generated, work toward mutually acceptable settlement

v. Limitationsa) Parties may not identify themselves until later in the process a/f

board meetingsb) Parties may not believe there is a sufficient dispute to justify

time, expense, and risk of subjecting matter to mediation

2. Mediation Statutes i. State and local statutes prescribe standards and procedures that must be

followedii. Kucera v. Lizza

a)iii. Municipal Home Rule Law § 10 (1)(ii)(a)(14)

a) Authorizes a city, town or village to adopt and amend local laws relating to “the powers granted to it in the statute of local government.”

b) To exercise its supersession authority, a town or village must follow the procedures outlined in the Municipal Home Rule Law. §22 requires that a local law that supersedes a state law “shall specify the chapter…number and year of enactment, section, subsection, or subdivision, which it is intended to change or supersede.”

iv. Section 10(6) of the Statute of local governments

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BATNA: Best Alternative to Negotiate an Agreement

Alternative Dispute Resolution

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a) Empowers municipalities to “adopt, amend, and repeal zoning regulations.”

v. Municipal Home Rule Law §10(1)(ii)(a)(11) a) gives cities, towns, and villages authority to adopt local laws for

the “protection and enhancement of [their] physical and visual environment

vi. §10(1)(i) a) gives cities, towns, and villages authority to adopt local laws, no

inconsistent with provisions of the constitution relating to their local property, affairs, or government.

3. Model Land Use Mediation Law i. Section 1: Short Title and Applicability ii. Section 2: Declaration of Policy

a) to provide an alternative to litigation for resolving such disputes. Shall be liberally construed so as to effectuate the purposes described.

iii. Section 3: Fiscal Implications a) costs allocated to among the parties.

iv. Section 4: Definitions a) Local Board: the local legislature, zoning board of appeals,

planning board or other local board or agency charged with reviewing and approving proposals that affect the development or conservation of land within the jurisdiction of…

b) Mediator: an individual who has been certified as a mediator under the guidelines of the unified court system community dispute center program or a person who, prior to 1/1/97, has served as a mediator in 2 or more separate disputes involving municipal planning and zoning.

c) Party in interest: individuals or agents identified by the mediator as having a substantive concern or role in the outcome f a given planning or zoning proceeding conducted by the ….provided however that the…shall not be deemed a party of interest for the purposes of this article.

v. Section 5: Procedures a) mediation shall supplement, not replace planning and zoning

practices. Any interested party may request. Any consent shall be conditioned on public notice, suspension of time limits shall not exceed 60 days. Nothing in this section shall be construed to limit the authority of the legislature or body to impose additional or more restrictive conditions.

vi. Section 6: Confidentiality a) parties in interest may agree that the proceedings of the mediation

shall remain confidential. vii. Section 7: Accepted Practices

a) shall be conducted in accordance with accepted mediation practices

viii. Section 8: Effect of Agreement

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a) shall not be bound by the terms or conditions of any agreement resulting from voluntary mediation conducted pursuant to this local law.

ii. Section 9: Legislative Intent → Supersession of the Town Law authoritya) gives authority from municipal home rule law and statute of local

governments of NY state.iii. Section 10: Severability

a) if any provision is held to be unconstitutional or otherwise invalid by any court of competent jurisdiction, the remaining provisions of the Local Law shall remain in effect.

iv. Section 11: Effective Date a) shall become effective upon filing with the Secretary of the State

2. Mediation Before a Land Use Application Is Made

i. Santa Margarita Residents v. San Luis Obispo Countya) F: county wanted to put a freeze on development for 5 years and

∏’s argued that it was arbitrary and capricious b) H: the project had been developed under a comprehensive plan

and this was w/in the agency’s discretionary authorityc) ∏s (residents) were not involved in mediation

3. Mediation During the Development Approval Process i. Landowner submits an application for development permit→ local land

use agency (negotiation process initiated) ii. Parties:

a) Ownerb) Members of local administrative agency w/ approval authorityc) Members of other public agenciesd) Those affected by project→ neighbors, taxpayers, and citizens

1) They receive notice of their right to speak at public hearings

iii. Not as structured as a typical negotiationiv. Local dev. approval process:

a) Costs applicant lots of $b) Involves only indirect contacts c) Provides little opportunity to creative/ win-win solutions d) Lengthy, inflexible, and frustratinge) Unpredictable outcomes, relationships among involved b/c

damagedf) During process, however, critical interests of stakeholders are

expressed

v. Merson v. McNally (1997)a) F: Mining operations case; the project was originally proposed

to involve several potentially large environmental impacts and they could have been redesigned in early SEQRA process to avoid having such negative impacts. The Planning Board was

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the agency involved, who conducted series of open meetings w/ sponsor, other agencies, and public. As a result of the meetings, revised project avoided significant adverse impact. ∏’s claimed that it constituted a malicional negative declaration which under SEQRA cannot be issued for type of action involved here to avoid preparing EIS

b) A: Planning Board had conducted an “open and deliberative process” characterized by significant “give and take.” The changes made in the proposal here were ≠ the result of conditions imposed by Planning Board, but “adjustments incorporated by project sponsor to mitigate concerns identified by public and reviewing agencies

c) H: negative declaration upheldd) ∏ went so far in the litigation b/c they were not invited to

mediation

B. REVIEW BY COURTS1. Generally:

i. property owners cannot challenge a land use action solely because they will suffer economic competition from a newly permitted development or business. Limiting economic competition has been held by the courts as not within the “zone of interest” of zoning and land use regulation.

a) APPLICATION to a BOARD and then ACTIONS are TAKEN : approval, denial (appeal)

b) Article 78 civil practice law and rules – all 50 states have allowed citizens to sue local governments.

1) Land use suits fall under this provisionc) Statute of Limitations – 30 days after action aggrieved party must

file citizen suit.

2. Fritts v. City of Ashland i. BoC of the City of Ashland rezoned from R-2 to I-1 a tract of 4 acres which

was in single ownership. The Circuit court entered judgment upholding the ordinance and ∏s have appealed. In the city, the area along the river is zoned industrial and the property is in the middle of city. This was a case of spot zoning. The zoning change on its face was arbitrary, capricious and

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Application (EAF)

Planning Board (“lead agency”) Special Use Mining Permit

DEC (Mined land rec. permit)

NEGATIVE DECLARATION

Classified(Type 1) Def of Sign

Suggestions→change of application

Meetings

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unreasonable and the burden was on the city to justify the change. The city could not justify the change – done to get the industry to stay

ii. Ultra vires claim – outside the scope of their authority a) They did not have the authority to spot zone (not in accordance with

comp plan)iii.

3. Neuzil v. City of Iowa City i. Majority view of 50 states ii. NY, NJ, CT operate this way iii. Judiciary reviewing legislative act

a) Presumes validity b) Defers to leg intent c) Rational basis test - d) Burden of proof on challenger

iv. Due Process case a) Pg 1325 b) Wanted down-zoning declared void as unreasonable

v. Maryland Rule a) Minority rule b) Only allows change if there was an error c) Puts judge in position in second guessing leg d) What kind of argument – Due process

1) Have the power to change the zone vi.

4. Fasano v. Washington County i. Floating zone (Rogers v. Tarrytown) ii. Oregon – still pertains iii. When leg body rezones it is adjudicating as specific level the rights and

burdens at that level a) No longer making legis policy

iv. Planning board – adjudication – application for variance or site plan approval a) By nonleg body

v. Leg policy a) Created when policy put into effect b) Leg declaration

1) Not as deferential 2) Burden of proof on applicant to leg body - Prove that the

change is rational 3) Showing that this is rational

vi.

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