Notable Case Law (cont.) and Zoning Basics

1. Notable Case Law (cont.) and Zoning Basics • Announcements and news • Policy memos, SoCRs, Jan (Coase) and Joe, presentations, TIF? • Case examples (cont. from last lecture) • Zoning URBDP 598A: Land Use Planning I, Winter AY 2006-2007

2. Judicial tests and some cases (woo!) • Going “too far” (Penn coal v. Mahon 1922) • Three factor balancing test: character of the regulation; the economic impact on the landowner; and the extent of interference with investment-backed expectations (Penn Central v. NYC 1978) • Two-part test: substantially advances state interest and not deny all economic use (Agins v. Tiburon 1980) (Questioned in Lingle v. Chevron 2005 on first part of test) • Logical nexus: means and end to be achieved need to be linked (Nollan v. California Coastal Comm. 1987) • Temporary taking=taking (First English Lutheran v. County of Los Angeles 1987) • If regulation prevents all economic use, it’s a taking (Lucas v. South Carolina Coastal Council 1992) URBDP 598A: Land Use Planning I, Winter AY 2006-2007

3. More cases! • Rough proportionality of impact to dedication as condition of development (Dolan v. Tigard 1994) • Rough proportionality inapplicable in denial of development permit (City of Monterey v. Del Monte Dunes 1999) • Acquisition of title after the effective date of a regulation does not automatically bar a regulatory taking claim (Palazzolo v. Rhode Island 2001) (However, Lucas logic applied, case remanded for Penn Central three factor balancing test) • No per se rule regarding the issue of whether a temporary land use restriction (even if a complete denial of all use is imposed for a finite and reasonable period), such as a moratorium, can constitute a taking. (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning 2002) • Land can be condemned for public good even if turned over to private interest. (Kelo v. New London 2006) • GREAT REFERENCE: http://www.mrsc.org/Subjects/Legal/takings.aspx URBDP 598A: Land Use Planning I, Winter AY 2006-2007

4. Zoning • First in 1916 NYC, defining court case 1926 (Euclid) • Conceptually in conflict with equal protection clause but courts rationalized uniformity is achieved within/between zones (all R zones regulated similarly) • Came out of urban areas and separation of uses for nuisance reasons. • 3 main uses: Residential, Commercial, Industrial • Historically cumulative, or hierarchical • R into I&C, C into I URBDP 598A: Land Use Planning I, Winter AY 2006-2007

5. Zoning Ordinance (handout) • Article 1: Preamble • References enabling legislation and police power • Allow for local govt as creatures of the state • Express power of Feds (war, treaties, coin money, interstate commerce, etc.) and all other powers go to states. • Home rule states: State-municipality relationship mimics that of fed-state. State holds onto some powers. • Police power: to protect public health, safety, general welfare URBDP 598A: Land Use Planning I, Winter AY 2006-2007

6. Zoning Ordinance II • Article 2: Definitions • Attempt to limit ambiguity of terms. Can be used to change law without changing statutes • Article 3: Land Use Zones • Separate incompatible land uses • Ordinance will include map and text • Zone descriptions and purposes for the zones. In simple areas boundaries are referenced. URBDP 598A: Land Use Planning I, Winter AY 2006-2007

7. Zoning Ordinance III • Article 4: Principle Zone Regulations • 3 types of uses: permitted, conditional, prohibited • Historically specifications were for access to air, light, fire protection. Currently, privacy, limit nuisance, internalize externalities as possible. • Administratively 4 parts: • Legislative body-enacts and amends ordinances • Staff (Zoning Administrator)-handles permitted uses, no discretionary authority • Zoning board/appeals-conditional uses, discretionary, functions in quasi-judicial fashion. Original jurisdiction for conditional uses, variances, appellate jurisdictions • Courts-handle appeals (after board of appeals) URBDP 598A: Land Use Planning I, Winter AY 2006-2007

8. Zoning Ordinance IV • Article 5: Supplementary Zone Regs • Non-conforming: use was conforming prior to zoning change. Generally allowed to continue in perpetuity. Not allowed “more non-conforming,” and amortization schedule to phase out use is possible • Non-complying structure: similar to above, but if destroyed >50%, not allowed to rebuild non-compliantly • Discontinued use ok if limited time (specified in ord.) • Zoning applied to land not ownership: transfers with title • Accessory uses: incidental to primary use, special setbacks or supplemental regulations relative to use with primary use URBDP 598A: Land Use Planning I, Winter AY 2006-2007

9. Zoning Ordinance V • Article 6: Administration and Enforcement • Enforced compliance • Conditional use permit will specify criteria of health, safety, welfare to protect against arb & capricious charge and inform applicant • Variances: 2 types—use and site • Granted only on basis of hardship, no fault of owner • Use variances are the sticky wickets • Subject to de minimus concept: the minimum allowed variance to mitigate problem • Spot zoning, or the granting of use variances, is not appreciated by courts • Miscellaneous: • Validity or separability clause: if any portion is found invalid, only that portion is invalid, not whole ordinance • Effective date: key, for non-con uses • Map: on TOC, reaffirms presence, validity URBDP 598A: Land Use Planning I, Winter AY 2006-2007

10. Other Zoning Types: Variations on a Theme • Post WWII moved to exclusive—not cumulative—zones, making cities delightfully sterile (question: how to allow for multi-use while maintaining principle of separation of incompatible uses?) • Floating Zone: described in ordinance text, unmapped. Can be placed if allowed as conditional use, described in definitions, is descriptive of what it includes. Takes expertise, rarely used • Performance zoning: with regard to land, area, structures, make standards explicit, allow anything that meets standards • People want certainty, FZ and PZ don’t give it • Extraterritorial zoning: city zones outside boundaries • Interim, holding, emergency zones: short process for adoption of simple form for specific time URBDP 598A: Land Use Planning I, Winter AY 2006-2007