Land Use

Question 1

Nectow v. City of Cambridge

Answer 1

Power of gov’t to interfere by zoning is not unlimited. Cannot be imposed if it does not bear a substantial relation to the public health, safety, morals and general welfare.

Question 2

Village of Euclid

Answer 2

A municipality’s exercise of police power must be asserted for the general welfare of the community as a whole.

Ordinance regulating the use of land must be justified by the police power and support the public welfare.

Zoning ordinance must have a substantial relation to the public health, safety, morals, or general welfare. To be unconstitutional it must clearly be arbitrary and unreasonable. If the leg intent is debatable, the legislative judgment must be allowed to control.

Question 3

Hadacheck

Answer 3

Restricting uses of land is a proper exercise of the police power.

A comprehensive zoning plan is the constitution for land use planning and has the force and weight of law.

Question 4

Udell v. Haas

Answer 4

Zoning must conform to a comprehensive plan for the benefit of the community as a whole.

Question 5

CA General plan

Answer 5

Includes text and maps
Mandatory elements:
Land Use
Circulation
Housing
Conservation
Open Space
Noise
Safety
Optional: ag, economic, capital improvements, air, energy, green development

Question 6

Reid v. Architectural Board of Review of Cleveland Heights

Answer 6

Aesthetic conditions alone are insufficient to support exercise of the police power, but can be a reasonable justification to support a generally recognized ground for regulation.

Question 7

Pierro v. Baxendale

Answer 7

Reasonable restrictions designed to preserve the character of a community and maintain its property values are within the proper objectives of zoning. Ie single fam homes

Question 8

Hernandez v. City of Hanford

Answer 8

A regulation that has a direct and intended effect on competition is valid, as long as the primary purpose or ultimate objective of the ordinance is advancement of a legitimate public purpose reasonably related to the general welfare, not the impermissible private anti-competitive goal protecting or disadvantaging a particular favored or disfavor end business or individual.

Question 9

Graff v. Zoning Board of Appeals of the Town of Killingworth

Answer 9

14 dogs case

Permissive Zoning: uses not specifically permitted are prohibited.

An accessory use must be customarily incidental to the principal uses permitted on property. Incidental means (1) the use must not be the primary use of the property and (2) the use must be reasonably related to the primary use. Customarily means a use has commonly, habitually and by long practice been established as reasonably associated w the principal use.

Void for vagueness: An ordinance may be void if it does not provide fair warning of its effect or if it leads to standardless law enforcement. Can look to treatises, case law and other sources for guidance to interpret ordinance. Lack of specificity is required to provide flexibility for future interpretation.

Question 10

Nassau County v. Willis

Answer 10

Wetlands/uplands case.
Court will give great deference to local government’s interpretation of general plan policies unless arbitrary and capricious.

There must be external and internal consistency with the general plan.

Question 11

Rumson Estates, Inc. v. Mayor & Council of the Borough of Fair Haven

Answer 11

Uniformity is not absolute, and rational regs based on different conditions within a zone are permissible so long as similarly situated property is treated the same, and the classification is not unreasonable or arbitrary. The reasonableness of the classification was the key. Here, the purpose of achieving proportionality of new construction to other houses, and building smaller, more affordable homes was considered reasonable. McMansions failed to match the fabric of the neighborhood.

Question 12

Conditional/Special Use Permit

Answer 12

People’s Counsel for Baltimore County v. Loyola College in Maryland

Conditional use process provides flexibility to rigid Euclidean zoning. Quasi-Judicial

Conditional uses are those that the Legislature has determined to be ordinarily acceptable in a particular zone, but it is acceptable to establish specific criteria under which such uses are allowed.

An ordinance delegating authority to grant or deny conditional uses must specify sufficient reasons why a conditional use should be denied. Standard must be specific enough for the applicant and the board that decides.

Question 13

Overlay Zones

Answer 13

A zone that overlies established use districts. Imposes its own restrictions on the land.
Example: historical or environmental districts

Question 14

Floating Zones

Answer 14

Zoning that is in the text but not on the map. It “floats” until appropriate. Like industrial parks or affordable housing.

Question 15

4 parts to zoning text

Answer 15

1. Standards for Zoning
2. Non-conformities
3. Provisions for Change
4. Definitions

Question 16

Spot Zoning

Answer 16

Three Part Little Test
1. Whether the requested use would differ significantly from the prevailing land uses in the area.

2. Whether the area requested for the rezone would be “rather small” in terms of the number of landowners benefitted by the requested zone change.
3. Whether the requested zone change would be in the nature of “special legislation” designed to benefit one or a few landowners at the expense of the surrounding landowners or the public.

Question 17

Fasano v. Board of County Commissioners of Washington County

Answer 17

Ordinances that lay down general policies without regard to a specific piece of property is an exercise of legislative authority that is subject to a limited standard of review of whether the decision unreasonable, arbitrary or capricious.

A land use decision that applies a general rule or policy to specific individuals, interests or situations is judicial in nature and must be supported by substantial evidence in the record that (1) there is a public need for the contemplated change, and (2) that the need is best served by changing the classification of the particular piece of property in question as compared to other available property. The greater the change, the greater the burden of proof.

Question 18

City of Eastlake

Answer 18

The power of referendum was specifically reserved to the people, and is not an improper delegation of power by violation of due process when used to affect land use decisions

Question 19

Cuyahoga Falls

Answer 19

Proof of racially discriminatory intent is required to show an equal protection clause violation. However statements made by private individuals do not constitute state action for the purpose of the 14th Amendment.

Only the most egregious official conduct can be said to be arbitrary and capricious in violation of substantive due process.

A claim for discrimination under the Fair Housing Act can be established by disparate impact.

Question 20

Gorham

Answer 20

The constitutionality of a zoning ordinance is presumed valid.

Maintenance of property values is a legitimate interest served by zoning restrictions.

An ordinance delegating authority to grant or deny conditional uses must specify sufficient reasons why a conditional use should be denied. A conditional use standard must be sufficiently specific to guide both an applicant in presenting his case, and the board in examining the proposed use.

Question 21

Durand

Answer 21

The voluntary offer of public benefits beyond what might be necessary to mitigate the development of a parcel of land does not, standing alone, invalidate the legislative act.

Contract zoning is an agreement between a property owner and municipality to rezone a parcel of land, and is valid unless the statutory process for amending the zoning ordinance is violated.

Question 22

Topanga

Answer 22

Variances from the terms of the zoning ordinance shall be granted only when, because of special circumstances applicable to the property (including size, shape, topography, location, or surroundings) that strict application of the zoning ordinance deprives the property of privileges enjoyed by other property in the vicinity under identical zoning classification.

Question 23

Gage

Answer 23

A nonconforming use is a lawful use existing on the effective date of the zoning restriction and continuing since that time in nonconformance of the ordinance.

A zoning ordinance may not operate to immediately suppress or remove from a particular district an otherwise lawful business or use already established there.

It is logical and reasonable to place a time limit on the continuance of non-conforming uses based on the investment involved, the nature of the use, and the character and age of building involved.

Question 24

Avco

Answer 24

A property owner acquires a vested right to complete construction in accordance with the terms of a permit if he has performed substantial work and incurred substantial liabilities in good faith reliance on the permit.

A land owner with a vested right cannot be prohibited from construction under a permit if the zoning laws are changed.

The builder must comply with the laws which are in effect at the time the building permit is issued, including laws enacted after application for a permit. A land owner has no vested rights in existing or anticipated zoning.

Question 25

Kelo

Answer 25

Direct Condemnation

Land may not be taken from one landowner for the sole purpose of transferring it to another private party even if the first landowner is paid just compensation.

The governmental taking of property from one private owner to give to another in furtherance of economic development constitutes a permissible “public use” under the 5th Amendment.

The standard of review for takings cases is the rational basis standard of review, instead of a heightened standard of review.

Question 26

Loretto

Answer 26

Inverse Condemnation

Physical Invasion - Any permanent physical occupation is a taking.

Cable TV wires on apartment buildings case.

Question 27

Pennsylvania Coal

Answer 27

Inverse Condemnation
Regulatory Takings

Land Use Regulation can be a taking. Whether a regulatory act constitutes a taking requiring compensation depends on the extent of diminution in the value of the property.

In general, “if regulation goes too far”, it will be considered a taking.

Question 28

Lucas

Answer 28

Inverse Condemnation
Regulatory Takings

Total Deprivation of Use. - A regulation that deprives an owner of all economically beneficial uses of land constitutues a taking unless the proscribed use interests were not part of the title to begin with.

Question 29

Penn Central

Answer 29

Inverse Condemnation
Partial Deprivation of Use

A law that restricts the use of property is not a taking if the restrictions imposed are substantially related to the promotion of the general welfare, and permits reasonable beneficial use.

Penn Central Factors to consider when evaluating this are:

1. The economic impact of the regulation
2. The extent of interference with distinctive investment-backed expectations; and
3. The character of government action; physical invasion or regulation.

Question 30

Lingle

Answer 30

Inverse Condemnation
Modern Application of “substantially advances” test

The test of whether a governmental regulation substantially advances a legitimate state interest is irrelevant to determining whether the regulation effects an uncompensated taking of private property in violatoni of the 5th amendment.

Question 31

Hamilton Bank

Answer 31

Inverse Condemnation
Remedy; Ripeness

A takings claim is ripe for adjudication when a final decision has been made by the gov’t.

Before asserting a violation of the Just Compensation Clause in federal court, the Plaintiff must attempt to obtain compensatoin through whatever procedures the state has provided for doing so.

Question 32

Marks

Answer 32

Due Process
Substantive Due Process

The denial of a permit is arbitrary if the decision is not related to any zoning interest, but instead is motivated by heavy opposition of neighbors expressing concerns not related to zoning.

The public’s negative attitudes, or fear, unsubstantiated by factors which are property cognizable in a zoning proceeding are not permissible bases for local officials’ land use decisions.

Private biases cannot directly or indirectly be recognized as a legitimate basis for denial of a land use approval.

Question 33

Olech

Answer 33

Equal Protection

The Equal Protection Clause gives rise to a cause of action on behalf of a “class of one” where the Plaintiff does not allege memebership in a class or group, but alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for such treatment. A single individual can allege arbitrary treatment at the hands of local gov’t.

Question 34

Kaahumanu

Answer 34

Section 1983 Civil Rights Claims

Gov’t officials are absolutely immune from liability for their legislative acts. 4 factors are considered in determining whether offficial action is legislative:

1. Does the act involve ad hoc decision making or the formulation of policy?
2. Does the act apply to a few individuals or the public at large?
3. Is the act formally legislative in character?
4. Does the act bear all the hallmarks for traditional legislation?

Question 35

Playtime Theaters

Answer 35

Interference w/ First Amendment Rights

Content Neutral Time, Place, Manner Regulation of Speech

Content Neutral time, place, and manner regs do not violate the 1st Amendment if they are designed to serve a substantial gov’t interest and do not unreasonably limit alternative avenues of communication.

A city is not required to show specific adverse impact from the operation fo adult theatres but can rely on the experiences of other cities. In this case, the restriction imposed by the ordinance was “content neutral” and necessary to prevent the secondary effects of such theatres.

Question 36

Gilleo

Answer 36

Interference w/ First Amendment Rights

Signs: Control on the Dissemination of Info

While gov’t may regulate the physical characteristics of signs, they may not allow some signs and ban others based upon their content. Nor may gov’t ban all signs and foreclose an inportant forum of communication.

Sign regulation will be invalid if it: 1. Restricts too little speech b/c its exemptions discriminate on this basis of signs’ messages, or 2. Prohibits too much protected speech.

Test of Validity of Time, Place, Manner Restrictions:

1. Does the reg serve an important gov’t interest?
2. Is the gov’t interest served by the reg unrelated to the suppression of a particular message?
3. Is the reg narrowly tailored to serve the gov’t interest?
4. Does the reg leave open ample alternative means for communicating messages?

Question 37

RLUIPA - Religious Land Use and Institutionalized Persons Act of 2000

Answer 37

Religious Freedom

A zoning reg is invalid under RLUIPA if it imposes a substantial burden on religious excercise that makes it effectively impractical to conduct religious exercise. A land use reg that interferes w/ religious land uses must be the least restrictive means of advancing a compelling gov’t interest. The fact that the churches were required to expend considerable time and money to locate a church did not entitle them to relief under RLUIPA substantial burden provision.

Question 38

Free Exercise Clause

Answer 38

Religious Freedom

No law may prohibit the free exercise of religion.

A neutral, generally applicable, and otherwise valid regulatoin does not have to be justified by a compelling gov’t interest. However, an otherwise nuetral, generally applicable law is subject to a heightened standard of review if it includes hybrid claims involving other Constitutional protections, such as freedom of speech or freedom of association.

If a land use reg does not involve a suspect class or a fundamental right, legislation is presumed valid if it is rationally related to a legitimate state interest.

The fundamental rights theory of heightened scrutiny appleis only to laws that effect “grave intereference with important religious tenets, or compel congregants to perform acts undeniably at odds with fundamental tents of their religious beliefs”

Question 39

Gardner

Answer 39

Subdivision Regs
Antiquated Subdivisions

A map recorded before 1893 did not establish a create legally cognizable subdivisions for purposes of the SMA, notwithstanding the map’s claimed accuracy and its inclusion in a 1877 atlas.

The recordation of a subdivision map in 1865 w/out something more, such as conveyance, could not and did not create a legal subdivision.

In order to be consistent with the SMA’s statutory purpose to facilitate local regulation of the design and improvement of subdivisions so as to encourage orderly community development, antiquated subdivision maps (pre-1893 maps) recorded in the absence of an applicable subdivision statute, ordinance, or regulation did not in themselves establish subdivisions or create legal parcels that mandate the issue of certificates of compliance for the subdivided parcels they did depict.

Question 40

Youngblood

Answer 40

Subdivision Approval Process

Consistency with the general plan is determined on the date of approval of a tentative map.

Approval of a tentative map vests the subdivision through final approval and recordation.

Approval of a final map is a ministerial act when it is determined that it is in substantial compliance with the previously approved tentative map.

Question 41

Palm Beach County v. Wright

Answer 41

Official Maps

The adoption of a map designating corridors for future roadways is a proper exercise of the police power and is not a per se taking.

Question 42

Exclusionary Zoning

Answer 42

Municipal use of the zoning power to exclude persons based on socioeconomic status. Exclusionary zoning will commonly refer to requirements that have the effect of increasing the cost of housing so that it is beyond the means of lower income households (ex: such as setbacks, min lot sizes, min floor area, limit on multi-family and manufactured housing).

Question 43

Inclusionary Zoning

Answer 43

Policies that promote an affordable housing component.

Question 44

Mt. Laurel

Answer 44

Fair Share Obligation

Excluding housing for lower income people is unconstitutional , and a municipality must affirmatively afford a realistic opportunity for the construction of its fair share of the present and future regional need for low and moderate income housing.

The Mount Laurel obligations are:

1. Remove excessive restrictions and exactions not necessary to protect health and safety.
2. Use affirmative measures:

a. Subsidies; may have some fiscal detriment, like tax abatement.
b. Inclusionary zoning devices: 1. Incentive zoning, not preferred; 2. Mandatory set asides, more effective (re-sale/re-rent kept at affordable level; overturned DeGroff takings and socio-economic issues) 3. Zoning for mobile homes; complete ban is suspect; 4. Providing least cost housing.

Every municipality must make a variety of realistic housing choices available, despite a lack of economic incentives to do so.

Each developing city was obligated to meet its “fair share” of the regional need for low and moderate-income housing. Mt. Laurel II extends to developed cities as well.

Question 45

Arlington Heights

Answer 45

Allegations of racial discrimination does not necessarily result in the use of the strict scrutiny standard by this court. Zoning ordinance did not violate 14th amendment based on application of Disparate Impact/Purposeful Discrimination test.

Official action will not be held unconstitutional solely because it results in a racially disproportionate impact; proof of discriminatory intent is required to show a violation of the Equal Protection Clause. However, disproportionate impact may be considered in the analysis and is a relevant factor in the analysis of circumstantial evidence surrounding the decision. The factors that a court may look at include:

1. Racial impact of the decision; whether the scheme bears more heavily on one race than another;
2. Historical background surrounding the decision, including the specific sequence of events that resulted in the challenged scheme.
3. Any procedural and substantive departures from the normal procedures used in approving or denying previous decisions; and
4. The legislative or administrative history of the decision or action, including contemporary statements, minutes of meetings or reports.

Question 46

Belle Terre

Answer 46

Non-Traditional Living Arrangements

Constitutional Limitations
The police power is a valid basis for establishing residential zones limiting the number of unrelated individuals that may inhabit a dwelling.

If there is no protected class discrimination, and no fundamental right infringed by the ordinance, the proper standard of review is the rational basis test.

Question 47

Cleburne

Answer 47

Non-Traditional Living Arrangements

Constitutional Limitations

Mental retardation is not a quasi-suspect classification calling for a heightened level of scrutiny. The case is reviewed under the usual equal protection review. Legislation that distinguishes between mentally retarded and others must be rationally related to a legitimate governmental purpose. In this case, the court held that the public’s negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for local officials’ land use decisions.

Question 48

Bove v. Donner Hanna Coke

Answer 48

One must so use his property as not to injure that of another. A landowner is not permitted to make an unreasonable use of his premises to the material annoyance of his neighbor if the neighbor’s enjoyment of life or property is materially lessened.

In a growing community, changes are inevitable. Residents of different types of communities must endure certain amounts of annoyance and discomfort which is incident to life in that community. analyze the facts.

Question 49

Hadacheck

Answer 49

Restricting uses of land is a proper exercise of the police power.

A general/comprehensive plan is the constitution for land use planning and has the force and weight of the law.

Question 50

Santa Margarita Residents Together

Answer 50

Development Agreements

Developers can enter into development agreements that freeze zoning changes. These are legally enforceable contracts.

A gov’t entity does not contract away its police power unless the contract amounts to the surrender or abnegation of a proper governmental function.

Question 51

Nuisance

Answer 51

An unreasonable interference with the use or enjoyment of land. Weighs gravity of harm to plaintiff against utility of plaintiff’s use.

Nuisance per se - nuisance at law (ex. sale of drugs)

Nuisance per accidens - lawful conduct that is wrong b/c of circumstance (ex. halfway house in residential neighborhood)

Private Nuisance - invasion of interest in enjoyment of land

Public Nuisance - interference with rights of public

NOTE - an activity licensed or permitted by statute cannot be a nuisance.

Question 52

Purpose of Zoning

Answer 52

To promote health, safety, morals, or general welfare of the community.