Land Use: HW 1/19/2010 #1 140-156 Land use is determined by zoning ordinances adopted by local governments.

Their provisions dictate the types of uses to which land may be put, the density at which development may occur, the height, size, and shape of buildings and the mix of commercial, residential, public and other land uses in each locality. zoning is valid only if it is accordance with a comprehensive land use plan. Land use regulations will not be sustained if they are ad hoc, arbitrary, capricious, unjust, unfair or irrational. Village of Euclid v. Ambler o The public guidance of private development was within the police power of the states.

Unitary view of zoning holds that the zoning ordinance itself contains comprehensive planning principles and can exist independently from a comprehensive plan without violating the legal requirement that zoning be in accordance with a comprehensive plan. o Comprehensive land use planning should precede the zoning ordinance and serve as its predicate. o Standard City Planning Enabling Act.

Land Use Law and Practice (1) Balancing Property Rights and the Public Interest: Limiting Doctrines Delicate act of balancing private property rights with the greater public interest. 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. Limitations: o First is the doctrine of substantive due process that requires land use regulations to serve a legitimate public purpose. o Second the administrative process by which regulations are adopted and enforced must follow the procedural requirements of state statutes and meet the fairness requirements of procedural due process. o Third localities must avoid improperly discriminating among similar parcels or against types of land users in violation of equal protection guarantees. o Fourth since local governments can exercise only those powers delegated to them by the state legislature, land use regulations cannot be ultra viresbeyond the scope of local authority. The action of the municipality must be undertaken pursuant to legislative power that has been delegated to it. o Fifth, local land use regulations must not effect a taking of private property for a public purpose without just compensation in violation of the takings provisions of the state and federal constitutions. o Sixth the 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, projects under construction, or projects already approved. o Seventh local land use regulations are not permitted to control matters whose regulations has been preempted by the state legislature. o Finally, local regulations must not abridge freedoms of speech, expression and the exercise of religion protected by the state and federal constitutions. Local land use authority is also limited by the power of state and federal legislatures and rights created by constitutional provisions. o Police power is to be exercised in the interests of all the people of the state and cannot by definition be used for exclusionary purposes. Zoning Practice Private land use is governed by five basic techniques (5). As-of-Right Uses and Their Accessory Uses Certain land uses are permitted as the principal and primary uses of land. Accessory uses that are customarily found in association with these principal uses, but which are incidental and subordinate to them are also permitted as of right. Nonconforming Uses A use of land that was in existence when a zoning restriction was adopted and that is prohibited by that restriction is called a nonconforming use. Because of the landowners investment in that use, most zoning laws permit nonconforming uses to continue but not to be expanded or enlarged. Typically nonconforming uses may not be reestablished after they have been abandoned or reconstructed after serious

damage. Where they are particularly inconsistent with the as-of-right uses permitted in a district the zoning law can require them to be terminated or amortized after a specified number of years. Nonconforming uses that are considered threats to public health or safety can be required to cease immediately.

Variance If a proposed use of property does not conform to applicable zoning restrictions it can be authorized by a use or area variance awarded by a board of appeals in certain circumstances. Use variances allow property owners to use their buildings and parcels for purposes otherwise prohibited by the zoning law. Often they are limited to parcels of land which can not be used profitably under any of the use categories allowed in their zoning district An area variance is given because of practical difficulties encountered by property owners in complying with the dimensional or physical requirements of the applicable zoning regulations (height or setback requirements). Special Use Permits Other usesonly if they receive a specialor conditionaluse permit issued by a local administrative agency. Typical land uses that are permitted by special or conditional permits include religious institutions, nursing homes and day care centers. To be uses that are harmonious with as of right uses, in general with the recognition that in a specific location, they can negatively impact adjacent properties and need to be limited or conditioned to mitigate such impacts. If an applicant for a special permit can demonstrate conclusively that no such impacts will result or that the proposal mitigates those impacts the permit will usually be granted. Rezoning Where a proposed use is not permitted by one of the above devices the property owner can request that the local government rezone the property making the proposed activity an as of right use under that zoning amendment. Alternatively, the local legislature can rezone a parcel or area in the public interest. - The restrictive view is that zoning is a rigid, district bound technique and that the locality is constrained by a literal reading of the enabling statutes. Zoning can regulate only the use not the user of property. Local Boards Goldman v. Crowther the real reason for refusing the permit was that Goldmans property is located in a residence district of Baltimore City, the outlines of which are fixed by the zoning ordinance referred to. - Whether the zoning ordinance in so far as it affects the right of the appellant to use his property in the manner we have described is a valid and an enforceable enactment and in dealing with that question it can be said that there is nothing in the record from which it can be inferred that such use is offensive to the eye, the ear or the nose of a person of ordinary sensibilities or that it imperils the public health, safety or welfare any more than would the same character of work done by Goldman for himself and his family except that possibly more of it is done. The board of zoning appeals is authorized in its discretion to disregard the strict letter of the ordinance and to vary or modify any of the regulations or provisions contained in it relating to the use, construction, or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done. The right to hold, enjoy and use property is not absolute but subject to the police power of the state and that that power may be affected by changing conditions is inevitable. Whether the power to hold, use and enjoy property can be restricted or taken away by the state under the guise of the police power for purely aesthetic reasons or for any such elastic and indeterminate object as the general prosperity without compensation. o These Restrictions are wholly arbitrary and have no logical relation to the public welfare but rest solely upon aesthetic grounds. o There is no rule or standard prescribed to guide the discretion of those entrusted with the administration of the ordinance in deciding what shall be allowed or what forbidden any more definite than that in any departure from the letter of the law the spirit of the ordinance shall be preserved, public safety and welfare secured and substantial justice done.

The theory that its prescriptions are in the interest of the public welfare it is not clear how any departure from them can be justified on that ground. Their only apparent purpose was to prevent the encroachment of business establishments of any kind upon residential territory, regardless of whether they affected in any degree the public health, morals safety or welfare. In effecting the purpose they take from the property owner the right to use his property for any purpose not sanctioned by the letter of the ordinance or allowed by the practically unfettered discretion of the board of zoning appeals and deprive him

of privileges guaranteed by the 23rd article of the MD Bill of rights. The ordinance is void first because it deprives property owners of rights and privileges protected by the Constitution of the State; second because such deprivation is not justified by any consideration for the public welfare, security, health or morals apparent in the ordinance itself; and third because it does not require that the restrictions shall in fact be based upon any such consideration.

State Ex Rel. Carter v. Harper Mandamus to compel the issuance of a building permit. - The rights preserved to the individual by these constitutional provisions are held in subordination to the rights of society. 14th amendment. Where the interest of the individual conflicts with the interest of society, such individual interests is subordinated to the general welfare. If in the prosecution of governmental functions it becomes necessary to take private property, compensation must be made, but incidental damage to property resulting from governmental activities or laws passed in the promotion of the public welfare is not considered a taking of the property for which compensation must be made. Whether such ordinances have any reasonable tendency to promote the public morals, health, or safety or the public comfort, welfare or prosperity. - The benefits derived by the cities adopting such regulations are that they attract a desirable and assure a permanent citizenship; they foster pride in and attachment to the city; they promote happiness and contentment; they stabilize the use and value of property and promote the peace, tranquility and good order of the city. o The attainment of these objects affords a legitimate field for the exercise of the police power. o He who owns property in such a district is not deprived of its use by such regulations he may use it for the purposes to which the section in which it is located is dedicated. That he shall not be permitted to use it o the desecration of the community constitutes no unreasonable or permanent hardship and results in no unjust burden. o An ordinance permitting those already engaged in business to enlarge the same while prohibiting all others from engaging therein would not tend to make the ordinance less vulnerable. o A structure or premises may be erected or used in any location by a public service corporation for any purpose which the railroad commission decides is reasonably necessary for the public convenience or welfare. o Such buildings are erected to promote the comfort and convenience of the public and this is within the police power of the state to compel such erection it constitutes a reasonable and valid classification. It must be apparent that the ordinance enacted pursuant to state authority which prevents the erection of buildings or the conduct of business deemed inimical to public interest need not also prohibit the erection of buildings or the conduct of businesses which is essential to the comfort and convenience of the public and which the duly constituted authority of the state determines to be necessary for the public service which a public utility is required to render. o Reasonable and valid constitutional enactment

# 2 156-171 Euclid and Enabling Legislation Town Law: 261-264 Village of Euclid v. Ambler Realty Issue: Under federal law, does the ordinance establishing the zoning violate the 14th amendment (right to property) when there are attempted regulations under the guise of the police power which are unreasonable and confiscatory? NO. The ordinance must be for the benefit of the public welfare. This is to be determined not by an abstract consideration of the building considered apart but considered in connection with the circumstances and the locality? Rationale: The line which separates legitimate from illegitimate assumption of power depends on the circumstances and conditions. These ordinances are made for the public welfare and rely on some aspect of the police power. It cannot be said that the ordinance passes the bounds of reason and assumes the character of merely arbitrary fiat. The ordinance therefore can not be declared unconstitutional. o The appellee offered no evidence that any specific part of the regulation has actually had any appreciable effect on the value or marketability of the lands. This is speculation and no evidence aside from speculation is present. o The zoning ordinance was to prevent the growing of Cleveland into the village. It was a comprehensive and cumulative zoning ordinance. o One way to attack a constitutional attack is as it applies to a particular person but here they attacked it on its face as it applied to everyone. Rule: an ordinance under review as well as all similar laws and regulations must find their justification in some aspect of the police power asserted for the public welfare.

Zoning, Rezoning and Conformance with the Comprehensive Plan Local governments are municipal corporations that obtain their legal authority from their charters, home rule authority and from state enabling acts. In the land use field, municipal authority comes primarily from discrete enabling acts adopted by the state legislatures modeled after the standard zoning and planning enabling acts described in section one. - If a local legislative body attempts to adopt or amend zoning laws in a manner that is inconsistent with the enabling laws, that attempt may be challenged successfully as ultra vires: beyond the corporate authority of the municipality. State statutes prescribe both the subject matter of local land use laws and their mode of adoption. o Ex. By requiring public notice of a zoning amendment and public hearing prior to its adoption. Attempts to adopt or amend zoning that do not follow prescribed procedures are described as being jurisdictionally defective or ultra vires. A STANDARD STATE ZONING ENABLING ACT UNDER WHICH MUNICIPALITIES MAY ADOPT ZONING REGULATIONS A STANDARD STATE ZONING ENABLING ACT Section I. Grant of Power For the purpose of promoting health, safety, morals, or the general welfare of the community, the legislative body of cities and incorporated villages are empowered to regulate and restrict the height, number of stories and size of buildings and other structures. Section 2. Districts For any or all of said purposes the local legislative body may divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this act Section 3. Purpose in View Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. spot zoning is the legal flaw that exists when a zoning amendment does not conform to the comprehensive plan. Is any change that departs from the comprehensive plan. It is the singling out by a zoning amendment of a small parcel of land and permitting the owner to use in a manner inconsistent with the permissible uses in the area. It is the arbitrary and unreasonable devotion of a small area within a zoning district to a use which is inconsistent with the use to which the rest of the district is restricted. It is held that a spot zoning ordinance which singles out a parcel of land within the limits of a use district and marks it off with a separate district for the benefit of the owner thereby permitting a use of that parcel inconsistent with the use permitted in the rest of the district is invalid if not in accordance with the comprehensive plan and is merely for private gain. The spirit of a zoning ordinance is not violated nor is it inconsistent with a comprehensive zoning ordinance to grant a just and reasonable exception by amendment based upon the character and use of property not similar to other property in the district, but which is now and was distinguishable before the adoption of the comprehensive zoning ordinance. o spot zoning when construed to mean reclassification of one or more like tracts or similar lots for a use prohibited by the original zoning ordinance and out of harmony is illegal.

#3 171-185 Master Plans and Comprehensive Plans Town Law: 272a Bartram v. Zoning Commission A comprehensive plan means a general plan to control and direct the use and development of property in a municipality or a large part of it by dividing it into districts according to the present and potential use of the properties. Action by a zoning authority which gives to a single lot or a small area privileges which are not extended to other land in the vicinity is in general against sound public policy an obnoxious to the law. It can be justified only when it is done in furtherance of a general plan properly adopted for and designed to serve the best interests of the community as a whole. The vice of spot zoning lies in the fact that it singles out for special treatment a lot or a small area in a way that does not further such a plan.

Where however in pursuance of it a zoning commission takes such action its decision can be assailed only on the ground that it abused its discretion vested in it by the law. To permit businesses in a small area within a residence zone may fall within the scope of such a plan and to do so unless it amounts to unreasonable or arbitrary action is not unlawful. It is the duty of the commission to look beyond the effect of the change upon them to the general welfare of the city. Where the value of the property of an individual is seriously affected by a zoning regulation especially applicable to it, this fact imposes an obligation carefully to consider the question whether the regulation does in fact tend to serve the public welfare and the recognized purposes of zoning. o Property owners in the neighborhood had no right to a continuation of the existing situation which could be effective against a decision by the commission reached legally and properly. o The state through the authority it vests in zoning authorities may regulate any business or the use of any property in the interest of the public health, safety or welfare provided this be done reasonably. To that extent the public interest is supreme and the private interests must yield. o

Notes: [3] characteristics of spot zoning I. the requested use is significantly different from the prevailing use in the area. II. The area in which the requested use is to apply is rather small. i. More concerned with the number of separate landowners benefited by the requested change than it is with the actual size of the benefited area. III. The requested change is more in the nature of special legislation i. It is designed to benefit only one or a few landowners at the expense of the surrounding landowners or the general public. Enterprise Partners v. County of Perkins Odors, dust and insects are considered to be nuisances and are not regulated by the DEQ. The trial court ruled that the ordinances were not zoning ones but fell within the police power granted to the counties by the legislature and that no preemption or conflict existed between the ordinances and state statutes. That they were not arbitrary or unreasonable and did not violate the constitution. Zoning regulations shall be adopted or amended by the county board only after the adoption of the county comprehensive development plan by the county board. Counties have statutory authority to regulate the use of lands within their jurisdiction to promote the public health, safety and welfare. o County boards may divide the county into districts of such number, shape and area as may be best suited to carry out the purposes of this section and regulate, restrict, or prohibit the erection, construction, reconstruction, alteration or use of nonfarm buildings or structures and the use, conditions of use or occupancy of land. o Al such regulations shall be uniform for each class or kind of land or buildings throughout each district but the regulations in one district may differ from those in other districts. Notes: When does a law constitute zoning? o If a zoning law it is subject to the jurisdictional limitations of the zoning enabling act. If not its authority must reside in another state enabling act. o Adoption of a comprehensive plan which incorporates valid zoning goals increases the likelihood that the zoning of a particular parcel in conformity with the plan is not arbitrary or unrelated to the public interest. Osiceki v. Town of Huntington Town Law 263 provides that zoning ordinances must be made in accordance with a comprehensive plan. It is a compilation of land use policies that may be found in any number of ordinances, resolutions, and policy statements of the town. These policies may be garnered from any available source most especially the master plan of the community if any has been adopted the zoning law itself and the zoning map. Town Law 272-a gives the planning board the authority to prepare a master plan for the development of the entire area of a town. May adopt a comprehensive plan, specifies 15 subjects that a comprehensive plan may include and ends by stating that all town land use regulations must be in accordance with a comprehensive plan adopted pursuant to this section. o Here the town made no attempt to justify its determination that disregarding the towns specific master plan is not inconsistent with a comprehensive zoning plan for the area rather than an entirely ad hoc decision. If there is any justification for this interference with Ps use of his property it must be found in the needs and goals of the community as articulated in a rational statement of land use control policies known as the comprehensive plan. o In the absence of a formally adopted comprehensive plan the court examined all relevant evidence including the zoning map an dlaw for evidence of comprehensive planning. A comprehensive plan requires that the rezoning should not conflict with the fundamental land use policies and development plans of the community and invalidated the rezoning It would appear that neither a master plan nor even a written plan is necessary

o o

The requirements of the enabling statute are met if implicit in the zoning law there is the element of planning which is both rational and consistent with the basic land use policies of the community. A comprehensive plan may be validly enacted in an ordinance itself without existing in some form separate from the ordinance.

#4 185-195 Administration and Conditional Zoning Huntington Code: 198, 125-131 Zoning Administration and Flexibility The power to amend the zoning ordinance and change district lines and designations on the zoning map provides a degree of flexibility. In some state, localities are require to show that circumstances have changed which necessitate the amendment. Technical terms are defined, as of right uses permitted in each district, assessory uses are allowed and a variety of dimensional requirements are applied to land development with the dimensions changing from district to district. Art. I General Provisions Art. II Definitions Art. III Zoning Districts and Map Art. IV District Regulations Art. V Supplementary RegulationsLand Activities Art. VI Special Use Permits Art. VII Planning Board/Commission Art. VIII Zoning Board of Appeals Art. IX Administration and Enforcement Art. X Amendments in drafting and adopting zoning provisions the local legislature must establish sufficient standards to guide the administrative review boards. Amendment of Ordinance Church v. Town of Islip The complaint charged that the amendment was not in conformity with a comprehensive plan, that it was passed arbitrarily after a contrary recommendation, that it arbitrarily singled out this one tract for business zoning, and that it was illegal contract zoning because the Town Boards consent to change the zone was subject to the condition that Ds owners Housler agree to several conditions. It is understandable that in the public interest and in the interest of practical expediency the practice of granting zoning changes and conditioning their uses by means of privately imposed restrictive covenants has seemingly become widespread. Start with the proposition that this zoning being a legislative act (not a variance) is entitled to the strongest possible presumption of validity and must stand if there are any factual basis. The board is authorized by the Town Law to create districts subject to this condition: All such regulations within a district shall be uniform for each class or kind of buildings, throughout such district and shall be made in accordance with a comprehensive plan. o The purpose of a plan is to look ahead. Piecemeal, parcel by parcel, conditional zoning pending the adoption of a plan is unauthorized. o Variances in appropriate situations may be granted by Zoning board of appeal but only under prescribed safeguards. Notes: - Conditional Zoning in the sense that certain conditions are unilaterally imposed on the premises by the city in order for rezoning to become effective or in the sense that the land is rezoned conditionally and subject to revocation of the action if the conditions are not met has been upheld in Wisconsin, Kansas, Nebraska, Mass, NY, NC. - Issue is whether conditions are in fact imposed unilaterally by the city without there first having been a bargaining or negotiating process. o Whether it should matter as to whether there is a discussion process which takes on the colorations of negotiation or bargaining. - Conditional Zoning is a device employed to bring some flexibility of use to an otherwise rigid system of control. o Involves ordinances which provide either that rezoning becomes effective immediately with an automatic repealer if the specified conditions are not met or that the zoning become effective only upon conditions being met without a certain time.

This type of zoning seeks to minimize the potentially deleterious effect of a zone change on neighboring properties through reasonably conceived conditions which harmonize the landowners need for rezoning with the public interest. On the other hand illegal contract zoning properly connotes a transaction wherein both the landowner who is seeking a certain zoning action and the zoning authority itself undertake reciprocal obligations in the context of a bilateral contract.

#5 195-209 Rezoning and Variances Town Law: 267 Subd. 1-2, 267b; 267c Huntington Code: 198-12.5 Giger v. City of Omaha Three issues on appeal: o [1] + [2] relate to appellants contention that the trail court erred in not finding that the Omaha City Council acted in an arbitrary, capricious and unreasonable manner in adopting the rezoning ordinance. That the City entered into a development agreement with Midlands, adopted a rezoning ordinance which incorporated that agreement and rezoned the Renstrom property pursuant to that agreement. That the rezoning agreement is invalid per se and that the rezoning ordinance violates the substantive standards set forth in 14-402 and 14-403. That because rezoning by agreement is illegal contract rezoning, it is invalid per se, is an ultra vires act and fosters the appearance of evil. o [3] Involves appellants claim that the trial court erred in not granting a permanent injunction enjoining Midlands from filling the flood plain on the Renstrom property and altering the channel. - Ex. Bucholz v. Omaha where the city conditioned its granting of a rezoning ordinance on the developers entering into a protective covenant (contract rezoning). Question: whether the conditions imposed by the city for rezoning are reasonably related to the interest of public health, safety, morals and the general welfare. o The court gives great deference to the citys determination of which laws should be enacted for the welfare of the people. o When the city rezones a parcel of property we presume the validity of that action absent clear and satisfactory evidence to the contrary. o When the city considers a request for rezoning based upon a plan or representation by the developer it is presumed that the city grants the request after making the determination that the plan as represented is in the interest of public health, safety, morals and the general welfare. o The city should be permitted to condition rezoning on the adoption of an agreement between the developer and the city or any other means assuring the developer builds the project as represented. o This device allows the city the flexibility to extract improvements that bare zoning ordinances do not provide, grants a greater means of control over the development to the city and gives the city a remedy to enforce the developers plans and representations. - Conditional rezoning is a legislative function and therefore must be within the proper exercise of the police power. The conditions imposed by the city for the rezoning must be reasonably related to the interest of public health, safety, morals and the general welfare. o Should be declared invalid only if it can be shown that there was no valid reason for change, that they are clearly arbitrary and unreasonable and have no substantial relation to public health, safety morals and general welfare OR that city is using concomitant agreement for bargaining and sales to highest bidder or solely for the benefit of private speculators. o To successfully challenge conditional rezoning the appellants must prove that the conditions imposed by the city in adopting the rezoning ordinance were unreasonable, discriminatory or arbitrary and that the regulation bears no relationship to the purpose or purposes sought to be accomplished by the ordinance. (same test used for testing the validity of zoning ordinances in this jurisdiction) The validity of zoning ordinance will be presumed in the absence of clear and satisfactory evidence to the contrary. - Uniformity provision purpose was mainly political rather than a legal one, to give notice to property owners that there was be no improper discriminations. It does not prohibit classification within a district so long as it is reasonable and based upon the public policy to be served. o It does not prohibit reasonable classifications within a district. To successfully challenge the rezoning ordinance on the grounds it violates the uniformity requirement the appellants must prove that the actions of the city in

adopting the ordinance were unreasonable, discriminatory or arbitrary and that the regulation bears no relationship to the purpose or purposes sought to be accomplished by the ordinance. Montgomery County v. National Capital Realty Corp. Issue: whether the covenants constituted a form of impermissible conditional zoning? covenants coupled with the site plan, if adopted for the requested reclassification would have produced a form of conditional zoning. - The general rule in these jurisdictions in which the validity of such covenants has been litigated is that they are illegal. The basis of such rule is that the rezoning of a particular parcel of land upon conditions not imposed by the zoning ordinance generally in the particular district into which the land has been rezoned is prima facie evidence of spot zoning, is not in accordance with a comprehensive plan and is beyond the power of the municipality. Legislative bodies must rezone in accordance with a comprehensive plan and in amending the ordinance so as to confer upon a particular parcel a particular district designation it may not curtail or limit the uses and structures placed or to be placed upon the land so rezoned differently from those permitted upon other lands in the same district. o Where there has been a concatenated rezoning and filing of a declaration of restrictions the general view (where the question has been litigated) is that both the zoning amendment and the restrictive covenant are invalid. The municipality within which the subject land was located agreed to support the rezoning application before the respective county legislative body in exchange for certain commitments entered into by the applicant. Thus neither the legislative body was not a party to the agreement neither the rezoning nor the agreement were invalidated. o This recoding in effect authorized conditional zoning in certain circumstances so long as local governments meet the statutory requirements and adopt the proper ordinances. o Contracts have no place in a zoning plan and a contract between a municipality and a property owner should not enter into the enactment or enforcement of zoning regulations. o Contract zoning is illegal when they enter into a bilateral agreement involving reciprocal obligations. By binding itself to enacted the requested ordinance (or not to amend the existing ordinance) the municipality bypasses the hearing phase of the legislative process. The adoption of an ordinance is the exercise of municipal legislative power. Governmental entity does not contract away its police power unless the contract amounts to the surrender or abnegation of a proper governmental function. o The zoning freeze in the agreement was not a surrender or abnegation because it was not of unlimited duration. The countys action was described as a legitimate exercise of governmental police power in the public interest and not a surrender of police power to a special interest. Administrative treatment variances and special or conditional use permits provide flexibility in local zoning practice and provide relief for individual parcel owners while protecting the surrounding neighborhood. o When a locality adopts a zoning ordinance the state enabling statute requires that it establish a zoning board of appeals, which may be called a board of standards or adjustment. - A variance allows the owner of a particular parcel that is uniquely situated to prove that relief is needed but will not be detrimental to the integrity of the ordinance or the character of the surrounding neighborhood. o They provide relief from unnecessary hardships that arise because of special conditions applicable to the affected parcel. They provide a safety valve that responds to unique circumstances, avoids as applied legal challenges by property owners and preserves the spirit of the ordinance as drafted by the legislature. o Decisions must be filed in a timely manner with the municipal clerk or in another office and aggrieved parties are allowed to appeal them to the courts within a prescribed time after the date of the filing. Section 7 of the Standard Zoning Enabling Act empowered the board of appeals: (b) to hear and decide special expcetions of the ordinance upon which such board is required to pass under such ordinance: and to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done. Special Land Uses - Conditional uses are different from as of right uses permitted in each zoning district. They are declared to be harmonious with the zoning district in which they are allowed, by permit but it is recognized that they are sufficiently different such that special conditions on construction and use may be needed to prevent adverse impacts on the district. - Variance allows a property owner to use her land or buildings in a manner that is prohibited by the ordinance while a special use permit authorizes uses that are allowed and encouraged and declared to be harmonious with the applicable zoning district.

Variances: [209-223] Larsen v. Zoning Board of Adjustment of City of Pittsburgh Four [4] factors that appellants must prove to be entitled to a variance: I. That an unnecessary hardship exists which is not created by the party seeking the variance and which is caused by unique physical circumstances of the property for which the variance is sought; a. Truly be an unnecessary one and not simply a mere hardship. One that is unique or peculiar to the property. b. The mere desire to provide more room for a family members enjoyment fails to constitute the type of unnecessary hardship required by law. II. That a variance is needed to enable the partys reasonable use of the property; III. That the variance will not alter the essential character of the district or neighborhood or substantially or permanently impair the use or development of the adjacent properties such that it is detrimental to the publics welfare; and IV. That the variance will afford the least intrusive solution. parties are not entitled to a variance for circumstances which are the result of any act of the appellant or his predecessors in title subsequent to the adoption of the Zoning Ordinance whether in violation of the provisions. Physical circumstances (unique) justify a variance, the party seeking the variance must demonstrate that the circumstances are unique or peculiar to the property in question and not a condition common to the neighborhood or zoning district. o A condition which affects only a small portion of a district is not sufficiently unique to warrant a variance but rather should be remedied by re-zoning. Need to establish that the variance was necessary for the reasonable use of the landand that a denial would make the property practically useless. How hard should the hardship be? o In order to obtain a use variance an applicant must demonstrate to the board that literal application of the zoning ordinance would completely deprive the landowner of all beneficial use of his or her property. o Furthermore the applicant may not rely on bald assertions of economic hardship but must present truly probative evidence to the zoning board such as cost data or financial statements. o A mere showing of a more profitable use that would result in a financial hardship if denied does not satisfy the requirements for obtaining a use variance. Hardship relied on as a ground for variance must be due to conditions not personal to the owner but rather to conditions affecting the land thereby making the land unsuitable for the permitted use in the zone in which it lies. The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance and arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved. o Where the claimed hardship arises from the applicants voluntary act, however a zoning board lacks the power to grant a variance.

Notes: -

Sasso v. Osgood A three-pronged test [3] of unnecessary hardship. Practical difficulties where the unusual topography of the subject parcel interfered with construction of a building and where area variances were required to build a house. - Area variance could be granted upon a showing of significant economic injury. the basic inquiry at all times is whether strict application of the ordinance in a given case will serve a valid public purpose which outweighs the injury to the property owner. - Use variances may be granted upon an application showing that applicable zoning regulations and restrictions have caused unnecessary hardship. o The standard area variances is governed by 267-b(3) that states:

In making its determination whether to grant an area variance, the zoning board of appeals shall taking into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety, and welfare of the neighborhood or community by such grant. In making such determination the board shall consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some other method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created which consideration shall be relevant to the decision of the board of appeals but shall not necessarily preclude the granting of an area variance.

Janssen v. Holland Charter TWP. Zoning Board of Appeals

Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the zoning ordinance, the board of appeals in passing upon appeals may vary or modify any of its rules or provisions so that the spirit of the ordinance is observed, public safety secured and substantial justice done. To conclude that a property owner has established unnecessary hardship, a zoning board of appeals must find on the basis of substantial evidence that: o (1) the property cannot reasonable be used in a manner consistent with existing zoning, o (2) the landowners plight is due to unique circumstances and not to general conditions in the neighborhood that may reflect the unreasonableness of the zoning; o (3) a use authorized by the variance will not alter the essential character of a locality, and o (4) the hardship is not the result of the applicants own actions. The increasing taxable value of the property and the comparatively low rental income derived are not self-created burdens. In considering the essential character of this locality one cannot and should not just look at the immediate neighboring properties. The character of the locality is defined in broader strokes. o Does not mean that the circumstances must exclusively affect only the single landowner. Rather the courts have repeatedly emphasized that the hardship to be unique is not shared by all others. o When a landowner has made the requisite showing of financial hardship and compatibility of the proposed used with the character of the neighborhood the variance should be granted since to deny it solely on the ground that unique circumstances have not been shown invites a potentially successful assault on the zoning ordinance as being confiscatory. Whether property used in trade or business or held for the production of income can reasonably be used for a purpose consistent with existing zoning will, ordinarily turn on whether a reasonable return can be derived from the property as then zoned. o Findings based on an analysis of the rental income received and the taxes assessed on the property as zoned.

Special Permits: [223-236] Huntington Code 198-66; 68 Town Law 274b City of Chicago Heights v. Living Word Outreach Full Gospel Special Use will be allowed only if the following six [6] criteria are satisfied: I. that the establishment, maintenance or operation of the special use will not be unreasonably detrimental to or endanger the public health, safety, morals, comfort or general welfare. II. That the special use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted nor substantially diminish and impair property values within the neighborhood. III. That the establishment of the special use will not impede the normal and orderly development and improvement of surrounding property for uses permitted in the district. IV. That adequate utilities, access roads, drainage and/or other necessary facilities have been or are being provided. V. That adequate measures have been or will be taken to provide ingress and VI. egress so designed as to minimize traffic congestion in public streets. VII. That special use shall in all other respects conform to the applicable regulations of the district in which it is located, except as such regulations may in each instance be modified by the city council, pursuant to the recommendations of the zoning board of appeals. - Special Use is a type of property use that is expressly permitted within a zoning district by the controlling zoning ordinance so long as the use meets certain criteria or conditions. o The purpose of special uses is to provide for those uses that are either necessary or generally appropriate for a community but that may require special regulation because of unique or unusual impacts associated with them. o They must be distinguished from use variances: A variance is authority extended to a property owner to use his property in a manner forbidden by the zoning enactment generally upon a showing of hardship. o A special use on the other hand allows a property owner to put his property to a use the enactment expressly permits. The inclusion of a special use within a zoning ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood. o A special exception use is a permitted use when allowed under a special permit Issue: Whether the city council in denying the churches application for a special use permit, could legitimately set the legislative intent expressed in the zoning ordinance to one side and instead rely upon the developmental goals expressed in the comprehensive plan as the basis for its decision? NO Zoning ordinances may expressly provide as a standard for issuance of a special permit that the proposed use at the particular location be compatible with or not negatively impact the local comprehensive plan.

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The citys zoning ordinance is law; the comprehensive plan is not---it shall be advisory and in and of itself shall not be construed to regulate or control the use of private property in anyway, except as to such part thereof as has been implemented by ordinances duly enacted by the corporate authorities. The zoning board should grant a special exception if the proposed use is compatible with existing uses defining compatible with respect to size, visual impact, intensity of use, proximity to other structures, and density of development.

NonConforming Uses: A nonconforming use is created when existing land uses, valid when established are prohibited by a new or amended zoning law. Nonconforming land uses are defined and regulated in most zoning laws. Ex. A nonconforming use is any use, whether of a building or tract of land or both, existing on the effective date of this chapter, which does not conform to the use regulations of the district in which it is located. Nonconforming uses issues arise when the zoning law is first adopted. o When property owners propose the improvement, expansion, rebuilding, or other change in their nonconforming property use, they must be certain to comply with local regulations governing those matters. o The nonconforming use article in the zoning law will prohibit or limit changes in buildings and lot uses that are nonconforming and provide in a variety of ways for the termination of nonconforming uses such as limiting their expansion or enlargement, prohibiting the reconstruction of damages structures, disallowing the reestablishment nonconforming uses after they have been discontinued for a time, or simply terminating them after the passage of a stipulated amount of time. [1] Was there an established use at the time of zoning? [2] What is the extent of the nonconforming use and will the terms of the ordinance permit expansion or a change of some sort with respect to such use? [3] 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. [4] Is the nonconforming use subject to termination as a nuisance through the granting of injunctive relief? Expansion or Extension Local laws often prohibit the enlargement, alteration or extension of a nonconforming use. State v. Perry Nonconforming use may be continued but may not be extended or expanded or changed to a less restrictive use. It is apparent that the D attempted to provide through the use of the trailer additional enclosed space for his freezing and storing operations. Non-Conforming Uses: [236-251] Huntington Code Article XV -. 198: 413 There seems to be no right to expand or enlarge a nonconforming use regardless of whether the local ordinance prohibits it. Distinguishing between the extension or enlargement of a nonconforming use and its repair, in determining whether the construction of a new building is permissible, in deciding whether the addition of new equipment amounts to an extension. o An addition to an existing building is clearly an extension or expansion of a prior nonconforming use o The building will prolong the continuation of the nonconforming use and considerably lessen the likelihood that it will be eliminated in the foreseeable future. o Allowing alteration of nonconforming uses only if no structural alterations were made to prohibit a mobile home owner to replace his mobile home with another one. o Intensification was permissible because the nature and character of the use remained substantially the same.

Discontinuance: A property owners right to continue a nonconforming use may be lost by abandonment. o Under modern zoning laws, that any discontinuance of the nonconforming use for a specified period constitutes abandonment. o Where the established period is reasonable, discontinuance of the use for that time amounts to an abandonment of the use. o Local discontinuance periods apply even when the owner can prove that he did not actually intend to abandon the nonconforming use. State Ex Rel. Morehouse v. Hunt The view of the board that the owner did not intend to abandon the right of use of the building as a fraternity house but that the use of it for a residence was intended to be only temporary until opportunity should arise to sell it for that purpose must therefore be upheld and given whatever legal effect it has.

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Lapse for a year of the nonconforming use before resuming or adopting another lawful nonconforming use was a reasonable time in which to resume or adopt a lawful nonconforming use; that lapse of the conforming use under either of the above situations is consistent with and does not constitute abandonment of the nonconforming use. o Rule: the mere cessation of a nonconforming use under the terms of a zoning ordinance does not destroy the right to continue it or prevent resumption of it was held. o Discontinuance involves more than mere cessation. It involves abandonment. Under that rule had the owner kept the premises vacant, waiting opportunity to rent or sell to a fraternity, the nonconforming use would have continued. o Under the reason of that rule, had the owner, under a finding of fact as to the owners intention, employed a caretaker for the house this would not have operated as a discontinuance. residence only

Note: Doctrine of Voluntary Abandonment: is not to be extended and applied to substituted nonconforming uses in a county zoning ordinance limiting discontinuance of such nonconforming uses to a definite time limit. The protection is extended only to the particular lawful use for which the building or premises is actually used at the time the ordinance takes effect. It does not extend to protecting other nonconforming uses substituted by virtue of a privilege or right given by county ordinance. Toys R US v. Silva (1) the NY zoning laws prohibit continuation of a nonconforming use if during a two year period the active operation of substantially all the nonconforming uses is discontinued. - Substantial rather than complete discontinuation of the active, nonconforming activity forfeits the nonconforming use and that the good faith of the owner is irrelevant to that determination. Zoning regulation did not require complete cessation of the nonconforming use as a precondition to termination, the BSA determined that the insignificant level of warehouse activity during that period failed to perpetuate the nonconforming warehouse use. - Issue: Determine the appropriate legal standard for abandonment under Zoning Regulation 52-61? o 52-61 terminates any further nonconforming use when the active operation of substantially all the nonconforming uses is discontinued for a continuous two-year period. o Standard of substantial rather than complete cessation. o Generally abandonment requires a nonconforming use requires both an intent to relinquish and some overt act or failure to act indicating that the owner neither claims nor retains any interest in the subject matter of the abandonment. o Discontinuance of nonconforming activity for the specified period constitutes an abandonment regardless of intent. o Intent to resume active operations shall not affect the determination whether a nonconforming use has been discontinued. Language prohibits additional nonconforming activities when substantially all of the active nonconforming operations are discontinued and deems the owners intent irrelevant. o Terminates a nonconforming use only when minimal nonconforming activity continues. Note: Provision in village code terminating a nonconforming use upon a change in ownership of the property was unconstitutional on its face. o Zoning deals with land use rather than the person who owns or occupies it. o Court held that a change in ownership and an attempt by the new owner to reestablish a discontinued use, reference must be made to the previous owners intent to reestablish the use. o The right to maintain a prior nonconforming use of two houses on one lot ran with the land. Destruction: Moffatt v. Forrest City Involves the application of the Zoning Ordinance. Appellants Mr and Mrs. Louie Moffatt purchased a home in the residential district of Forrest City. Made additions to the home and began operating a meat market and processing plant in said additions. In 1959 the city adopted a zoning ordinance which classified in the area as entirely residential. o Nonconforming usedamaged to extent of 60 percent may not be restored. Zoning ordinance should be strictly construed in favor of the property holders. o Despite this we must determine whether it was in fact damaged to the extent of 60 percent or more. NonConforming Uses: Accessory Uses [251-265] In the absence of an ordinance provision to the contrary the general rule is that a discontinuance of use caused by a fire on the

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premises does not amount to an abandonment and the building maybe repaired and the use resumed. AmortizationUses and Limitations Some local zoning ordinances require certain nonconforming uses to be amortized over a specified period at the end of which they must be terminated. They allow the owner some time during which to recoup his investment in the nonconforming use. Courts may uphold such provisions where the benefit to the public has been deemed of greater moment than the detriment to the property owner and where the property owners investment is fairly recognized. o A critical factor is the length of the amortization period in relation to the investment. o Whether the public gain achieved by the exercise of the police power outweighs the private loss suffered by the owners of the nonconforming uses. Amortization provisions are likely to be upheld: o When the common law of nuisance would allow neighboring property owners to enjoin the continuation of the nonconforming use. Ex. Gravel pit, auto wrecking operation or junkyard. o When the nonconforming use is somewhat noxious and the owner has little investment in it. Raising pigeons AVR Inc v. City of St. Louis Park Zoning ordinance requiring ready-mix plants in the area of the city zoned for industrial use but only pursuant to a special use permit. Court concluded that the plant was not a public nuisance per se, the city could not legislate it out of existence. In determining the length of a reasonable amortization period: o Information relation to the structure located on the property; o The nature of the use; o Location of the property in relation to surrounding uses; o Description of the character of and uses in the surrounding neighborhood; o Cost of the property and improvements to the property; o Benefit to the public by requiring the termination of the non-conforming use; o Burden on the property owner by requiring the termination of the non-conforming use; o The length of time the use has been in existence and the length of time the use has been non-conforming. Any amortization period must be reasonable. [7] factors. o City also considered the useful life of the plant. Application of the reasonableness standard depends on the zoning action at issue: o In legislative zoning the municipal body is formulating public policy so the inquiry focuses on whether the proposed use promotes the public welfare. o In quasi judicial zoning public policy has already been established and the inquiry focuses on whether proposed use is contrary to the general welfare as already established in the zoning ordinance. o What is reasonable should keep in mind that the zoning authority is less circumscribed by judicial oversight when it considers zoning or rezoning than when it considers a special use permit or a variance. Because zoning or rezoning classifications are legislative acts, courts must uphold them unless o Their opponents prove that the classification is unsupported by any rational basis related to promoting the public health, safety, morals, or general welfare, ore that the classification amounts to a taking without compensation. This rule applies regardless of the size of the tract of land involved. In analyzing the reasonableness of an amortization period, courts in some jurisdictions have considered the property owners recoupment of its original investment. o Whether the property in question has been fully depreciated for income tax purposes in reviewing the reasonablenss of an amortization period. Amortization period should be based on the plants fair market value or its replacement cost. Because the ordinance establishing a 2 year amortization period for AVRs plant reflects the citys consideration of the plants useful life and an analysis of other relevant factors adopted by the city, the district court did not err in upholding the citys two year amortization period. o Because the citys action was a legislative decision, the DC did not err in deferring to the citys broad discretion to adopt an ordinance establishing a two year period for AVRs plant. o Because AVR did not demonstrate disparate treatment of similarly situated property owners resulting from the enactment of the amortization ordinance and the ordinance establishing a two-year amortization period for AVRs plant, the district court did not err in concluding there is no equal protection violation. If the right of use is denied, the value of the property annihilated and ownership is rendered a barren rightsubstantial value of the property lies in its use. ACCESSORY USES

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Accessory uses are those uses of land found on the same lot as the principal use and that are subordinate to, incidental to, and customarily found in connection with the principal use. Ex. Garage is accessory to a residential use of a property because it is customarily found in connection with and is incidental and subordinate to the principal residential use. Generally, zoning laws permit lot owners to use their land for a permitted principal use as well as activities that are accessory to that use. o A use must also be incidental and subordinate to the principal use.

To be incidental an accessory use must be reasonably related to the principal use. To be subordinate, the accessory use must be proportionately smaller than the principal use. o An accessory use must also be customarily found in conjunction with the principal use. o A use is customary if it commonly, habitually and by long practice has been reasonably associated with a principal use. o Zoning ordinances allow property owners additional beneficial use of their property. Regulations which limit the accessory uses allowed in a district also recognize that some neighborhoods should be protected from accessory uses. Accessory, lot, use There are at least [5] different approaches a municipality can utilize to regulate accessory uses in its zoning laws: o First a municipality may simply permit accessory uses by accepting those uses that meet the qualifications of what is customary and incidental. Ordinance simply defines accessory uses as customary, incidental and subordinate in the definition section and then permits these uses in each district. o Second, a zoning law may permit certain accessory uses and prohibit all others. The legislature can do this by listing which accessory uses are allowed in each use district. Those uses not expressly permitted in the list are prohibited unless clearly stated otherwise. (most restrictive) o Third is to list and prohibit only problematic accessory uses. This eliminates foreseeable problems with the listed uses. o Fourth is to provide guidelines that can assist the zoning enforcement officer and zoning board of appeals in interpreting what is an accessory use and by adopting a nonexclusive illustrative list of acceptable uses. o Fifth is to list some accessory uses that are allowed by special use permit and subject them to certain requirements. This can be used by itself or in conjunction with any of the other four approaches. A municipality must be careful when enforcing accessory use regulations against educational institutions and religious organizations. Accessory uses connected to these principal uses are presumed to serve the public interest if they are incidental to the principal use.

Parks v. Board of Adjustment of the City of Killeen Issue: Whether operation of a music school by a property owner in his residence violates the ordinance? The property was still used as a residence and the giving of music lessons was but incidental to that use. In the statute as accessory use. The statute does not characterize customary home occupation in terms of profitability or volume of business. Greentree v. Good Shepherd Episcopal Church Motion by P a unit owner and president of board of managers of a condo to temporarily enjoin D from operating a homeless shelter at Good Shepherd Church. It has long been held that a church or synagogue may be used for accessory uses and activities which go beyond just prayer and worship. o Accessory use: o (a) is a use conducted on the same zoning lot as the principal use to which it is related (whether located within the same accessory building or other structure, or as an accessory use of land), and o (b) is a use which is clearly incidental to and customarily found in connection with such principal use; and o is either in the same ownership as such principal use or is operated and maintained on the same zoning lot substantially for the benefit or convenience of the owner, occupants, employees, customers or visitors of the principal use. o Such permissible accessory uses for a church or synagogue include a Sunday School, mens and womens clubs, youth and community centers. It is a permissible accessory use.

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ACCESSORY USES: HOME OCCUPATIONS [265-279] Huntington Code 198:12 p. 198:23 Dobo v. Zoning Bd. Of Adjustment of City of Wilmington Accessory Use: a use or structure on the same lot with and of a nature customarily incidental and subordinate to the principal use or structure (i.e., pump house, home occupation, tool shed, detached garage, storage shed, garage apartment, and other uses as determined by the Code enforcement Officer). no evidence that it is used for industrial purposes - the general rule is that a zoning ordinance being in derogation of common law property rights should be construed in favor of the free use of property. o Zoning regulations are not a substitute for private restrictive covenants. If the subdivision residents believe that petitioners use of their property is unreasonable their remedy is an action in nuisance not to enlist the City as an accomplice by incessant complaints about their neighbor. Colts Run Civic Assn v. Colts Neck Tp Zoning Board o The question is whether the maintenance of a domestic animal shelter as a hobby activity is a permitted accessory use. o The zoning district provided for a mixture of residential and agriculture uses. The stated purpose of the zoning plan for this district includes the continuation of farming. The proposed use must be subordinate and incidental as an accessory use. Not antenna for a wireless mobile telephone systemcommercial in nature. Home Occupations: 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. Other municipalities define home occupations more specifically in their zoning laws, requiring homeowners to conform their occupational uses to those definitions. Some adopt a list of permitted occupations uses while others prohibit a specific list while some use a standard approach using signs, traffic and other activities more in keeping with commercial districts. Zoning restrictions limiting the occupation use of homes recognize that residential districts must be protected from home occupations that are out of character with the neighborhood and are not uses that homeowners expect to be affected by when they purchase a home in a single family area. o [1] they may let their definition of accessory uses govern the matter leaving it to the zoning enforcement official to determine o [2] local legislatures may adopt a general definition of a home occupation to provide some guidance to enforcement official. o [3] may supplement their general definition of home occupation with a list of permitted occupations, a list of prohibited occupations and a definition of permitted professional offices. o [4] specified home occupations may be permitted only upon the issuance of a special use permit by a designed reviewing board. o [5] local legislatures may include specific standards that certain occupational uses must meet such as limiting the percentage of floor area Town of Sullivans Island v. Byrum Permitted Home Occupation Uses: which use is clearly incidental and secondary to the use of the dwelling for residential purposes and does not change the character thereof, and no person, not a resident of the premises is employed specifically in connection with the activity B&B is not clearly incidental and secondary to the residential use of the property and that it changed the character of the residence. o It is not a non-conforming use under the amended ordinance because it was not a non-conforming use at the time of the amendment. A use cannot be a non-conforming use if it was unlawful at the time of the amendment of the ordinance to prohibit the use. - As a general rule estoppel does not lie against the government to prevent the due exercise of its police power or to thwart the application of public policy. o The acts of government agents acting with their scope of their authority can give rise to estoppel but not unauthorized conduct or statements To prove estoppel against the government the claiming party must show: o [1] a lack of knowledge and the means of knowledge about the truth of the matter in question; o [2] justifiable reliance on the governments conduct;

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o [3] a prejudicial change in position When a landowner has actual or constructive notice of a matter and does not show any misrepresentation or concealment by the government estoppel will not lie against the government.

Toussaint v. Town of Harpswell Dog kennel qualifies as a home occupation as defined in the towns zoning ordinance The ordinance permits home occupations in that district subject to the restriction that home occupations that provide public restrooms, showers or serve food to the public require a CEO permit. - Home Occupation: is an occupation or profession which is customarily conducted on or in a residential structure or property which is (1) compatible with the residential use of the property and surrounding residential uses; and (2) which employs no more than three (3) persons on site other than family members residing in the home. Home occupations related to commercial fishing in all cases will be acceptable uses. (BED and Breakfastas a home occupation) o Because the Toussaints challenged a decision on which they had the burden of proof they must establish that the evidence compels a contrary result. o Conflict of interestFavreau did not have any direct or indirect pecuniary interest in the project under review. Community Building: Subdivision and Site Plans [279-293] Town Law: 276, 277, 274a A subdivision is a process of community building. One of the instruments used by a community to regulate the use of privately owned land in the public interest. Subdivision review is a [2] part process: 1. The developer submits a preliminary plan or plat for the initial planning and layout of everything. [planning commission] a. The final plat is a precise drawing that contains the necessary information that will fix the location of lots and streets with reference to survey markers. b. It is also the means by which the streets and other proposed public improvements are conveyed to and accepted by the local government after the developer constructs them to the governments standard. c. If the final plat is consistent with the approved preliminary plat and any conditions imposed upon it then the basic design and layout of the subdivision will be agreed upon. d. the planning commission reviews the final plat often along with engineering plans at another public meeting and recommends action on it to the local legislative body. e. The developer must either construct the required improvements or post a performance bond to ensure that the improvements will be constructed within the next one or two years. f. If the developer completes the improvements or posts the performance bond the plat is recorded. Governmental Power to Regulate Subdivisions Ridgefield Land v. Detroit The common council which is the governing body referred to in the statute has power to adopt a general plan for the width of streets and to refuse to approve any plan which does not plant. It has become necessary for the general convenience and the public safety to widen the streets and to prevent others of the same kind from being established. o Because of this necessity there is nothing unreasonable in the demand of the city that the streets designated conform to the general street plan. The city cannot compel the P to subdivide its property or to dedicate any part of it for streets. o It can however impose any reasonable condition which must be complied with before the subdivision is accepted for record. o The owner of a subdivision voluntarily dedicates sufficient land for streets in return for the advantage and privilege of having his plat recorded. If public necessity demands parts of his lands for highways it can be taken only by condemnation and payment of its value. o In this case the D have imposed two conditions with which the P is required to comply for the privilege of having the plat recorded. o They are reasonable and necessary for the public welfare. In the exercise of its power under the statute and its charter, the city had a right to impose them. They do not constitute the taking of private property for public use and are not an infringement on Ps constitutional rights. The city is not exercising eminent domainwould be the case if the plat had been recorded and the city were undertaking to widen the streets or to establish a building line. Cluster Zoning: [297-315] Town Law 278

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Huntington Code 198:430 The Interstate Land Sales Full Disclosure Act 15 USCA 1701-1720 which requires developers of residential subdivisions of fifty or more lots to register the subdivision with the Department of Housing and Urban Development, prepare a detailed property report which must be provided to every would-be purchaser of a lot, and refrain from certain advertising practices. A cause of action for damages for misrepresentation or omission in the property report is given to the purchaser (1709) and a limited right to revoke a purchase agreement is provided (1703(b). Other info required in the property report is (5) a statement of the present condition of access to the subdivision, the existence of any unusual conditions relating to noise or safety which affect the subdivision and are known to the developer, the availability of sewage disposal facilities and other public utilities in the subdivision, the proximity in miles of the subdivision to nearby municipalities and the nature of any improvements to be installed by the developer and his estimated schedule for completion. 1702 exempt many of the typical urban and suburban subdivisions of more than fifty lots. o This act has been held to apply to condominium developments. Dawe v. City Of Scottsdale vested rights doctrinewhat point can you take away my rights and not violate the constitution the court says if the developer had started to develop and spent some money developing the developer would have had a vested right. Issue: Whether the appellants have had since 1963 a vested right to develop substandard lots within the city of scottsdale because of the recording of their plat. Subdivision ordinances apply to lots on prior recorded maps which were unsold at the time of the ordinances enactment. Whether the filing of a plat immunizes a parcel of real estate from subsequent zoning regardless of how urgent the need for regulation might be. o Where the amount of work which was done toward the construction of a service station was of small consequence, the permittee acquired no vested right to complete the construction of the building if the board of supervisors exercised its power to rezone the property and revoked the building permit. If the new requirements are within the police power the community may impose them through the building permit or similar administrative process as well as by way of subdivision plat approval. o However if the landowner has changed his position in reliance on old requirements or the absence of requirements some courts might approach the problem by finding a vested right in the landowner to proceed without meeting the new conditions. Two pronged test: o [1] a manifest commencement of labor on the ground which everyone can readily see and recognize as the commencement of a building; and o [2] the work must have been begun with the intention to continue the work until completion of the building. City of Corpus Christi v. Unitarian Church of Corpus Christi The charter of the City provides that the city shall never grant any permit to construct or repair any house or structure within such area (unplatted property) until such map shall be so approved and filed. It follows that it would be necessary that as a condition precedent to the granting of a building permit by the city that the church must file a plat of its unplatted property. It is proper for the city to require a property owner to obtain a building permit prior to the erection of a building. This requirement is a valid exercise of a municipalitys police power. Where the city itself or by and through its planning commission in its construction of the law deprives a citizen of an unquestionable legal right and there is no other adequate remedy the court having power to issue mandamus may review the matter. o The church does not propose to divide its property into two or more parts or to lay out a subdivision as stated the statute holds that every owner of any tract of landwho may hereafter divide the same in two or parts controls the disposition of those who are affected thereby. There is no statute charter or ordinance which would require the church as a single lot owner to dedicate a portion of its property for streets in order to get approval of its plat to obtain a building permit, where the church does not propose to subdivide the lot into smaller lots or otherwise divide it into a subdivision. Notes: Following adoption and filing of a master street plan the planning commission may prepare and shall administer after approval of the legislative body regulations controlling the development of land. In those states where the enabling legislation is tied to the subdivision plat as the triggering event for regulation or exactions the problem of how to deal with avoidance through metes and bounds sales arises. By selling off individual parcels without benefit of recorded plat, the subdivider avoids metting the conditions that he knows would be imposed if he presented a formal plat for approval. o To define subdivision as the dividing of any parcel into two or more lots. Then every land division would potentially trigger a survey, plat and plat approval. o It can be overly burdensome for smaller municipalities to regulateparticularly in rural areas where there tend to be owners of larger parcels of land (farmers) some municipalities may exempt certain division from full local

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review. Another approach is not to require a formal survey or plat for divisions into just a few lots but to insist on planning commission approval on the deeds of transfer.

Cluster Zoning: Chrinko v. South Brunswick Twp. Planning Bd. contests the validity of two ordinances permitting cluster or open space zoning. The P contend that the cluster or open space ordinances were enacted for the special benefit of the owner. D position is that they responded with reasonable legislation general in effect to the problem of large subdivision developments without land areas available for schools, recreation areas and green spaces. o Although the state zoning laws does not empower municipalities to provide an option for developers for cluster or density zoning such an ordinance reasonable advances the legislative purposes of securing open spaces, preventing overcrowding and undue concentration of population and promoting the general welfare. It accomplishes uniformity because it is open to all developers within a zoning district. The proofs in this litigation establish adequate consideration of cluster or density zoning in the area. Orinda Homeowners Committee v. Board Of Supervisors Appellants sought unsuccessfully to gain invalidation by the superior court of a rezoning ordinance in the unincorporated Orinda Area. Property rights of the homeowners would be adversely affected to a certain extent by the rezoning of the adjacent property and the question whether rezoning conformed with the general plan was an issue in the case. Planned unit development might be described as a tract of land absolved from conventional zoning to permit clustering of residential uses and perhaps compatible commercial and industrial uses and permitting structures of differing heights. o It is accurate to define cluster development as a device for grouping dwellings to increase dwelling densities on some portions of the development area in order to have other portions free of buildings. o A residential planned unit development (cluster development) does not conflict with the section mentions merely b reason of the fact that the units are not uniform that is they are not all single family dwellings and perhaps the multi-family units differ among themselves. o Section 65852 provides that the regulations shall be uniform for each class or kind of building or use of land through-out the zone. It does not state that the units must be alike even as to their character, whether single family or multi-family. In conventional zoning where apartment houses are permitted in a particular zone, single family dwellings, being regarded as a higher use are also allowed. Aims at the general objective of uniform land use within each land zone and that the conditional zoning which had been enacted did not conflict with the code section. Exactions: [315-317] [322-334] The basic aim of the cluster plan is to make suburbia more attractive by eliminating row on row of blocks of similar houses located on lots of similar size each an equal distance from the street and approximately an equal distance from one another. It seeks to retain the attractiveness of country living in urban and semi-urban areas by eliminating conformity and standardization. Preserve open space. A statute allowing but not obligation municipalities to provide for cluster development but did not prevent an ordinance from requiring approval of both the planning board and the zoning board for cluster developments. Subdivision Exactions and Other Regulations: Local unit require as a condition of subdivision plat approval: installation of public improvements, street grading, storm sewers, water mains etc.; dedication of subdivision streets and widening strips; imposition of restrictive covenants dictated by local unit but promised by the developer; dedication of land for park, playground, school, police or fire station; payment of fees in lieu of such dedication; a contract by the developer to contribute a substantial sum for school construction, a water or sewerage or other public facility. o The action may be ultra vires and void [322-334] LA Map-Act empowered cities generally to control subdividing. The status of an autonomous citywhere as here no specific restriction or limitation on the citys power is contained in the charter and none forbidding the partciuarl conditions is included either in the subdivision map act or the city ordinances it is proper to conclude that conditions are lawful which are not inconsistent with the Map act and the ordinances and are reasonable required by the subdivision type and use as related to the character of local and neighborhood planning and traffic conditions. - home rule municipality in a state with a strong tradition of municipal home rule. In states where the powers of municipal corporations are strictly construed, the question of whether the requirements imposed on subdivision approval are ultra vires with regard to the enabling legislation is frequently litigated. Not all conditions on subdivision approvals are subdivision dedications or exactions. o Assuming a carefully worded enabling act and a local subdivision ordinance based on it there is little doubt that

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reasonable improvements can be required. Courts have taken are (1) widespread use of requirements for installation of improvements or submission of a bond for their installation and (2) the findings of many of the studies of free and easy subdividing to develop a subdivision: A developer is offered the following alternatives: (1) install the improvements before the final plat approva(usually here he will be relying on approval of his preliminary plat); or (2) furnish escrow money to cover the cost of the improvements i.e. the plat is approved and the escrow money is released in installments as the improvements are put in; or (3) furnish a surety bond guaranteeing installation of improvements. Small developers complain about the additional capital required to be risked where improvements must be installed. Large developers know that improvements make lots and houses more saleable and are willing to install them Large developers complain that such municipal requirements are unreasonable in that the streets are too wide, the pavement too thick and the sewer too big. Improvement requirements should vary with density, topography, soil and whether or not the subdivision is a quiet backwater or is in the mainstream of development. o The question of what is a reasonable improvement in regard to expensive utility or drainage installations subdividers may be required to pay the entire cost of installing water mains which must subsequently be donated to the city water and sewer authority. If the developer pays his fair share of feeds for the water and sewer system and then is forced to abandon his project because of financial difficulties can he get a refund? o In one case where the city had already incurred a substantial expense and obligation. Equity and controlling law demand that the agreement be honored. What if the developer fails to install the improvements? o Lot owners were third-party beneficiaries of the contract to install roadway improvements made between the developer and the county and could bring a breach of contract against the developer. Expensive water and sewer facilities may give rise to a challenge that the city is using the exaction for revenue raising purposes or that they are not based on an equitable formula. o Court struck down a fee imposed on new customers to expand the sewer system because a portion of the fee was used to make improvements in the existing system. 181 Inc. v. Salem County Planning Bd. NJSA it provided that as a condition to the approval of a site plan the planning board shall require the dedication of additional right of way. Mandatory feature. The vice in the countys resolution is that it sets up a blanket policy of taking frontage along every county road without regard to present need, imminency of proposed use or of any standard. - In order for the county to place upon the landowner the burden of proof the county must first make its position clearthis must be done not in generalities but in specifics applicable to the land sought to be obtainedthere should be the adoption of an official map, a master plan but this is not enoughthere should be at a bare minimum a proposal for the imminent use of the land not a mere banking for unscheduled future use. Nexus - The statutory and ordinance provisions for a compulsory dedication could only be valid where the proposed street bears a realistic relation to or is reasonable made necessary by the subdivision. Nexus o In addition to holding that compulsory dedications of portions of the landowners property for future widening is invalid courts have utilized the same reasoning when the governing entity seeks to require the landowner to improve an existing road which abuts his property. o Off-Site Improvements and Impact Fees Divan Builders v. Planning Bd of Twp of Wayne Off-Site improvements include the installation of new or the extension or modification of existing improvements made necessary in whole or in part by the subdivision which will be benefited by the improvement. The cost of off-site improvement shall be allocated between the applicant, other property owners or any one or more of them. Based upon such factors as the benefit conferred upon the subdivision the cost of improvement and the extent to which the improvement is necessary to protect the neighboring property under the proposed plan. A municipality may condition subdivision approval upon the developers installation of those improvements which the local governing body finds necessary for the protection of the public interest. The constitutional and legislative direction to resolve questions of municipal authority broadly in favor of the local unita municipality may utilize three ways to finance an off-site improvement. The court held that a municipality which had created a planning board and adopted adequate subdivision ordinance could validity condition subdivision approval upon installation of necessary water mains. o 1. It may be undertaken entirely at municipal cost and expense; o 2. The municipality may undertake the project as a local improvement and assess the cost against the owners of the properties benefited pursuant to the procedure outlined. o 3. Is to require that the work be done at the expense of the developer with or without a formula providing for

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partial or total reimbursement. (fair and equitable) If the improvement is to be constructed by the municipality as a general improvement an amount equal to the difference between the estimated cost of the improvement and the estimated total amount by which all properties to be serviced thereby including the subdivision property will be specially benefited by the improvement; o No part of the cost of which may be specially assessed on properties specially benefited thereby. If the improvement is construed as a local improvement then in addition to the amount referred to in (a) the estimated amount by which the subdivision property will be specially benefited by the improvement; or o With all properties specially benefitedwith special benefits accruing to each the subdivider may be called upon to pay in addition to the amount set forth above the amount by which the subdivision property was specially benefited by the improvement. If the improvement is to be constructed by the subdivider, am amount equal to the estimated cost of the improvement. o Possibly with a provision for reimbursement by the municipality then the subdivider may not be charged with the amount by which the subdivision property was specially benefited.

Exactions: [338-342] [350-361] The rational nexus test has been utilized by most jurisdictions facing the problem of imposing on developers the requirements of dedicating land outside the proposed subdivision for future improvements or the actual construction of improvements outside the boundaries of the subdivision. Courts are suspicious of schemes that require a developer to pay the total cost of an off-site improvement - Recapture agreement a common device used in off-site or in oversized on-site improvements that will in the future, benefit subsequent developers. o The usual agreement provides for the city to calculate how much of the improvement installed by the developer will benefit future nearby developments, a provision that the city will charge the future developments that portion of previously installed improvmenet that benefits the new development and a promise to reimburse the original developer that amount. o Impact fees/development fees to fund certain off-site improvements. Non-Traditional Exactions Pioneer Trust & Sav Bank v. Village of Mount Prospect Plan may establish reasonable standards of design for subdivisions and for resubdivisions of unimproved land and of areas subject to redevelopment, including reasonable requirements for public streets, alleys, ways for public service, facilities, parks, playgrounds and other public grounds. No plat of subdivision shall be entitled to record or shall be valid unless the subdivision shown thereon provides for streets, alleysand public grounds in conformity with the applicable requirements of the official plan. - Issue: the validity of the quoted section of the ordinance and no provision of the ordinance other than that requiring the dedication is under attack by the Ps. o the power to prescribe reasonable requirements for public streets in the interest of the health and safety of the inhabitants of the city and continuous territory includes more than a mere designation of the location and width of the streets. o Ex. Required subdividers to dedicate land for educational facilitiesinvalid because the specific technique employed was not authorized by the statute and the term educational purposes was broader than the language of the statute. - Distinguishing between permissible and forbidden requirements: o Statutory provisions with respect to respect to reasonable requirements for streets and public grounds was based upon the theory that the developer of a subdivision may be required to assume those costs which are specifically and uniquely attributable to his activity and which would otherwise be cast upon the public o Because the requirement that a plat of subdivision be approved affords an appropriate point of control with respect to costs made necessary by the subdivision, it does not follow that communities may use this point of control to solve all of the problems which they can foresee. o The municipality may require the developer to provide the streets which are required by the activity within the subdivision but can not require him to provide a major thoroughfare the need for which stems from the total activity of the community. o Test: If the requirement is within the statutory grant of power to the municipality and if the burden cast upon the subdivider is specifically and uniquely attributable to his activity then the requirement is permissible; if not it is forbidden and amounts to confiscation of private property. The result is the total development of the community - Issue: whether the state law is such that a mandatory dedication of the land without cost to the public may be sustained in the regulation of proposed subdivision when it is admitted that such land may well be needed? o The result in this case is the total development of the community not attributable solely to this subdivision

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Jordan v. Village of Menomonee Falls Demand for 5K as an equalization fee the local ordinance says that the amount of land to be provided for on the basis of a map is $200 per residential lot $120 per residential lot created by the subdivision and $80 to be placed in a non-collapsing fund o whether it is constitutional or unconstitutional o where is the authority to demand money for parks the P is arguing that you dont have the power to require this o the court says the terminology other approving requirements gives the municipality the right to demand money for parks Such ordinances may make applicable to such divisions any of the provisions of this chapter or may provide other surveying, monumenting, mapping and approving requirements for such division. o Standing alone the statutory words other approving requirements would normally be confined to requirements of the same general nature as the antecedent enumerated specific words surveying, monumenting, mapping.(broadly construed) We conclude that a required dedication of land for school, park or recreational sites as a condition for approval of the subdivision plat should be upheld as a valid exercise of police power if the evidence reasonable establishes that the municipality will be required to provide more land for schools, parks, playgrounds as a result of approval of the subdivision. o The general trend (outside of NY) is that the courts in most places are sympathetic to solving the fiscal needs of the municipalitys [350-361] The enabling act expressly authorized fees in an amount to be determined by the town board, which amount shall be available for use by the town for neighborhood park, playground or recreation purposes including the acquisition of property. Because the fee could be used in any section of the town and thus was for the benefit, not of subdivision residents but of the town as a whole and the statute failed to set out standards or tests If the developer had take the step of making a notation on the check that the payment was under protest and that some indication of protest is necessary when making such payments in order to permit public agencies to operate on a sound fiscal basis and that such agencies need to be made aware when collected funds may have to be refunded. In another case---the city did not pass the contested ordinance until after the council knew of the intention to subdivide the city then to obtain the land would have to pay for it (takings) o There is authority sustaining required dedication of strips for the purpose of widening existing streets abutting in the subdivision. Denial of Subdivision Approval Coffey v. Maryland National Capital Park and Planning Commission The Code requires that the subdivision plats to conform to the master plan. - A master plan is not to be confused as a substitute for a comprehensive zoning or rezoning map nor may it be equated with it in legal significance. Subdivision controls are imposed for the purpose of implementing a comprehensive plan for community development. To achieve this end plats submitted to a planning commission for approval must be examined in relation to the official map and the master plan. o A subdivider must first meet the zoning regulations and then additionally must comply with the state and county subdivision regulations. Maryland National Capital Park and Planning Commission v. Rosenberg Issue: whether the action of the commission was arbitrary and capricious? We think it was. the subdivision regulation does not undertake to restrict pupils to the school within the boundaries of the service area in which they reside. The only limitation is that there must be an adequate school available within a reasonable distance. The regulation does not define reasonable distance. o Ejusdem generis: [Latin: Of the same kind or nature] A rule of statutory interpretation that where particular words are followed by general words, the general words are limited to the same kind as the particular worlds.

Thus where the Sunday Observance Act 1677 provided that "no tradesman, artificer, workman, labourer or other person whatsoever shall do or exercise any worldly labour business or work of their ordinary callings upon the Lord's Day..." the words "or other persons whatsoever" were to be construed ejusdem generis with those words which proceeded them so that an estate agent was not within the exception

Vested Rights: [361-364]; [386-397] Regulation of the Subdivision of Land As the challenge is facial, Ps must prove that the mere enactment deprived them of all reasonable use of their property.

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Might argue that the regulation is arbitrary or capricious. P bore the burden of proving beyond a reasonable doubt that the regulations are not rationally and reasonably related to a valid governmental interest. o Ex. Court held that a school district could not enjoin a city from giving subdivision approval for two projects on the ground of inadequate school facilities. o Statutes that allow school districts to impose exactions on developments for school purposes and concluded that the complex statutory scheme precluded denial of subdivision approval. Ex. Required that (county regulation) requiring all developers to demonstrate a 300 year water supply prior to subdivision approvaldesigned to insure that no development take place where there are not adequate water supplies for the future. It is rationally and reasonably related. o Ex where subdivision denied because financial situation of such that no schools could be built in the area in time and the additional fire and police protection which would be needed cannot be provided due to now financial situationneither the enabling statute nor the subdivision ordinance authorized rejection of the plat approval on these grounds ultra vires. Issues such as sanitary waste and drainage issues are relevantplat the applicant failed to provide sufficient information on drainage issues relating to the topography of the ground; health and safety issues relating roadways and entryways.

[386-397] Developer Agreements and Vested Rights Vesting statutes intended to protect the legal status of rights obtained at various points in the development review process. laws that create criteria for determining when a landowner has achieved or acquired a right to develop his property in a particular manner which cannot be abolished or restricted by regulatory provisions subsequently enacted. o If it has become vested it is a right that has become fixed and cannot be eliminated or amended. Not the same as takings or property rights statutes which either provide for review of regulatory statutes for potential taking effects or lower the threshold amount by which property must be diminished in value by enforcement of a regulation for there to be a compensable taking. The method for a development agreement used is usually an agreement in which the landowner typically agrees to at least some restrictions that the government could not generally obtain in exchange for his or her obligations becoming fixed. For a vested statute they apply to generally applicable regulations of land use and no agreement is needed for the landowner to be able to assert a vested right to develop. o For the rights to be vested the government must have made a decision and the landowner must have, in good faith relied to his or her detriment on that decision by making some improvement to the land or some other commitment of resources. o Doctrine of estoppel means that when someone does something with the intent that you will rely on their action or statement and you indeed rely in good faith on that action or statement demonstrate that reliance by some action to your detriment (not a mere statement that you will rely on it) the original party is legally bound by that action or statement. the landowner must demonstrate that the local official upon whose statement or decisions he relied upon was within authority to make the statement or decision as the government is not bound by an officials unauthorized acts.

The reliance must be in the form of substantial or extensive expenditures or actual construction.

Last minute amendments to land development regulations some states have decided that a development permit application may be subject to an ordinance that was pending in the local legislative process at the time the application was submitted. o Other states have applied estoppel to such pending ordinances and have not allowed a new or amended regulation to apply to a development permit application where the applicant had made a substantial investment in good faith reliance on the ordinances in place at the time of the application. o Other states have found that an applicant who was entitled to a development permit under the regulations in place at the time of the application could not be denied a permit based on amended regulations even where there was no substantial investment or reliance by the applicant landowner.

Avco Community Developers v. South Coast Regional Commission Issue: Whether the developer of a subdivision may acquire a vested right to construct buildings on its land without a permit from the California Coastal Zone Commission if it has subdivided and graded the property and made certain improvements on the land such as installing utilities but had not applied for or received a building permit for any structures? Rule: If a property owner has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government he acquires a vested right to complete construction in accordance with the terms of the permit. Once a landowner has secured a vested right the government may not by virtue of a change in the zoning laws, prohibit construction authorized by the permit upon which he relied. Evaluation requires a determination of the point in the development process at which a landowner can be said to have acquired a vested right to construct buildings on his land.

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Neither the existence of a particular zoning nor work undertaken pursuant to governmental approvals preparatory to construction of buildings can form the basis of a vested right to build a structure which does not comply with the laws applicable at the time a building permit is issued. o By zoning the property or issuing approvals for work preliminary to construction the government makes no representation to a landowner that he will be exempt from the zoning laws in effect at the subsequent time he applies for a building permit or that he may construct particular structures on the property and thus the government cannot be estopped to enforce the laws in effect when the permit is issued. In rare situations the government may grant another type of permit such as a conditional use permit which affords substantially the same specificity and definition to a project as a building permit and that in such instances a builder may acquire a vested right even though the document was not designated a building permit. o

Developer Agreements: - A development agreement is a statutorily authorized, negotiated agreement between a local government and a private developer that establishes the respective rights and obligations of each party with respect to certain planning issues or problems related to a specific proposed development or redevelopment project. o It allows both flexibility and certainty. It permits flexibility by allowing terms and conditions that are different from and more detailed than the requirements of land development regulations and the statutes authorizing them. Bollect v. Charles County MD - District court held that the Development agreement no longer imposed an enforceable obligation on the County because the Trustees did not ensure the provisions of adequate sewer and water facilities within the time period required by the development agreement. If there is an enforceable contractual obligation that has been impaired the P must prove that the impairment was substantial. If the impairment is substantial the court then determines if the government action giving rise to the substantial impairment was reasonable and necessary to protect an important public interest. o The trustees failure to meet their obligation under the Development agreement released the county from their obligations under the agreement. o A material failure to perform by one party prevents performance of the other partys remaining duties from becoming due, at least temporarily and it discharges those duties if it has not been cured during the time in which performance can occur. o NY requires that substantial work is completed. (early vesting / late vesting)

freezing zoning development agreement freeze was not a surrender of the police power but instead it advances the public interest by preserving future options.

Moratoria: ]617-631] A moratorium on development suspends the right of property owners to obtain development approvals while the community takes time to consider, draft, and adopt land use plans or rules to respond to new or changing circumstances not adequately dealt with by its current laws. Moratoria figure into growth management and smart growth by giving communities experiencing growth pressures time to rethink their land use plan and laws and adopt a new smarter approach that more properly manages growth. Sometimes used by a community just prior to adopting its first comprehensive plan and zoning law or undertaking a comprehensive revision of its plan and zoning. o It prevents developers and property owners from rushing to develop their land under current land use rules that the community is in the process of changing. o Also used to prevent development for a time while the government agency decides whether to acquire the land for a public use or until capital improvements are made. o It suspends completely the rights of owners to use their property. o Subject to an ad hoc inquiry that considers the circumstances of the case such as the character of the regulation, the public interest to be achieved, the extent to which it interferes with the owners investment backed expectations, and how severely they are affected by the regulation. Maryland National Capital Park and Planning Commission v. Chadwick Issue: whether Appellant MD by placing the appellees land in public reservation without their consent for a period not to exceed three years as authorized by the Montgomery county code unconstitutionally deprived the land owners of the use of their property without payment of just compensation? - Distinction between a compensable taking under the eminent domain power and a noncompensable taking under the police power. o Upheld regulations which may have as an incidental effect the diminution of value of property so long as those regulations have shown to be fair exercises of the police power. o A regulation which prohibits a beneficial use of private property constitutes a fair exercise of the police power if

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the public interest generally requires it and the regulation is reasonably necessary to achieve the public goal without being unduly oppressive upon individuals. A governmental action may amount to an invalid deprivation of property rights without due process of law either because of the purpose of the action was improper or because the means chosen were too burdensome on the individual property owner. A strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. o Restrictions of such totality upon the use of property placed in reservation for a 3 year period. o With no reasonable uses permitted amounts to a virtual freeze on the use of the property in its entirety. o Invalidated a state law which allowed a municipality to designate private property as parklands for up to 3 years but which imposed no duty upon the municipality to acquire the designated property. Recognize the need to promote intelligent planning by placing reasonable restrictions on the improvements of land scheduled to be acquired for public usewe do not therefore condemn as beyond the police power the enactment of reservation statutes which are reasonable in the application as to duration and severity.

Notes: Regulations that have the effect of preventing any development of land so as to make future acquisition by condemnation less costly are almost always held to be takings. Most statutes hold that one year is a reasonable time period. Drost v. Board of County Commrs of County of Pitkin moratorium on all land use applicationsto allow the county time to conduct a comprehensive study of the area including sensitive environmental areas and significant wildlife habitats and to adopt a master plan. Counties only have those powers that are expressly granted to them by the CO constitution or by the general assembly. The Land Use Enabling act broadly empowers local governments to plan for and regulate land use within their jurisdictions. Issue: Whether in light of all the applicable provisions of CO land use statutes the GA grants of land use authority to local government necessary implies the authority to adopt temporary moratoria that suspend review of development applications for a reasonable period of time necessary to prepare master plans? YES Local government may adopt a moratorium for a six month period without a public hearing. o Public hearing/ v. no public hearing NJ prohibits the prohibition of development in order to prepare a master plan and development regulations in addition to moratoria on applications for development or interim zoning ordinance except where the municipality demonstrates clear imminent danger to the health of inhabitants and no cases shall exceed a 6 month period. Sometimes a moratorium is enacted specifying one particular land use, or one pending adoption of a new comprehensive plan or new zoning ordinance. o Developer could not recover damages for delay in his project for the period during which a validly enacted sewer connection moratorium was in effect. - Where the municipalities do have the power to adopt moratoria while creating or revising their comprehensive plan or zoning law moratoria may be invalid because of their duration or other defect. [stop-gap?] Transfer of Development Rights [702-711] Huntington Code: 198:27.1; 198:157; 198:80; 198:94 Transfer of development rights provides a mechanism for channeling growth to those areas of a community where the infrastructure and services needed to support additional development may be provided cost-effectively. - NY defines transfer of development rights (TDR) as the process by which development rights are transferred from one lot, parcel, or area of land in a sending district to another lot, parcel or area of land in one or more receiving districts. The plan establishes receiving districts into which these development credits may be transferred. Developers who own land in these receiving districts may purchase credits from landowners in sending districts. o Each purchased credit allows the developer to build one housing unit over that permitted by the receiving districts zoning. There are three [3] basic elements to a TDR program: o [1] the sending district; consist of an area to be protected from development. o [2] the receiving district; is located where additional density can be absorbed and supported with existing or expanded infrastructure and services. o [3] the TDR credits are a legal representation of the abstract development rights that will be severed from property in the sending district and grafted onto property in the receiving district.

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They can be traded in a free market or a TDR bank can be established to facilitate exchanges. When a TDR credit is purchased from a property owner in the sending district that property owner records a deed restriction prohibiting development on the property The TDR credit can then be applied to property in the receiving district as a density bonus. Suitum v. Tahoe Regional Planning Agency Issue: Whether the claim is ripe for adjudication even though Suitum has not attempted to sell the development rights she has or is eligible to receive. Hold that it is. she brought an action alleging that in denying her the right to construct a house on her lot the agency restrictions deprived her of all reasonable and economically viable use of her property which amounted to a taking. o Whether a particular sale of TDRs may be completed is quite different from whether TDRs are salable; so long as the particular buyer is not the only person who can lawfully buy the rights would not be rendered unsalable even if the agency were to make a discretionary decision to kill a particular sale. The value of land taken or injured by the exercise of the power of eminent domain may be shown by opinion evidence. o Development rights that were transferred had a value so uncertain and contingent as to deprive the property owner of their practical usefulness. o A TDR provision may not be disregarded in determining whether the ordinance has destroyed the economic value of the underlying property. Overlay Districts: [717-721] Overlay zoning can be used to protect large scale critical environmental areas from development or to promote growth in areas that support higher density development. Overlay zoning is a flexible alternative to traditional zoning o To create an overlay zone a mapped district is superimposed on one of the more established zoning districts. o Property within the overlay district is then subject to two sets of regulations and stipulations: those contained in the underlying zoning district provisions and those provided for by the overlay zone itself. Local zoning can designate these development zones as the receiving districts under a TDR program and as eligible areas for bonus densities under incentive zoning. o Supplemental design regulations can be adopted and recreational facilities targeted to ensure the quality of the denser development districts. o Overlay district used for conserving fragile natural resources. The underlying zoning may permit the subdivision of all land in such an area for residential purposes. o Create conservation overlay zones and development overlay zones and implement them at the same time. An overlay district can be adopted that contains special clustering, setback provisions, or other standards that protect environmentally constrained areas. If wildlife habitat is to be protected in an overlay districtthe provisions will require that habitat areas are to be designated and that development of an affected parcel is to be regulated to avoid harm to the habitatdone by requiring developments that affect protected resources to secure a special permit which will contain conditions that protect the natural features by the way that buildings and improvements are located on the site. Incentive Zoning: Local legislatures may allow developers to build at densities greater than those permitted by the existing zoning in exchange for public benefits such as the provision of affordable housing or the preservation of open space. They may also include waivers of setback, lot coverage, and height requirements. NY communities used the standard zoning enabling statute to award incentives for affordable housinglocalities can use bonus density incentives and waive all dimensional requirements of zoning codes in exchange for a broad range of public benefits including infrastructure, open space, day care and affordable housing. NY allows communities to receive cash payments in exchange for zoning incentives awarded a developerthis allows localities to use the cash to achieve public benefit directlyit is possible for the community to purchase development rights or conservation easements, on valuable open land with the cash. o Obtain a conditional use permitsubmit a conditional use permit application to the citys planning commissiononce complete the planning commission reviews the application and provides its recommendations to the city council whereupon a public hearing is held. o The city council must be satisfied that the density will not adversely affect the health, safety, or comfort of persons living or working in the neighborhood and that it has no greater impact on the neighborhood than any other use generally permitted in the same district. Cash sale of zoning bonus unacceptable and inappropriate because cash was to be employed for purposes other than local improvements. Cant be arbitrary, capricious or undertaken for an improper purpose.

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Environmental review: [861-862] [872-887] Where the effect of the governmental prohibition against use is not in furtherance of a governmental activity such as flood control or preservation of land for a park but rather to preserve the land for ecological reasons in its natural environment without change, the consideration of the reasonableness of the exercise of the police power must be redetermined. Regulations that preserve the land for ecological reasons may be more reasonable than those aimed at flood control or open space preservation. Just v. Marinette County Issue: Whether the conservancy district provisions and the wetland filling restrictions are unconstitutional because they amount to a constructive taking of the Justs land without compensation? The protection of public rights may be accomplished by the exercise of the police power unless the damage to the property owner is too great and amounts to a confiscation. The securing or taking of a benefit not presently enjoyed by the public for its use is obtained by the government through its power of eminent domain. In the valid exercise of the police power reasonably restricting the use of property, the damage suffered by the owner is said to be incidental. However where the restriction is so great the landowner ought not to bear such a burden for the public good, the restriction has been held to be a constructive taking even though the actual use or forbidden use has not been transferred to the government so as to be a taking in the traditional sense. o Whether a taking has occurred depends on whether the restriction practically or substantially renders the land useless for all reasonable purposes. o The loss caused the individual must be weighed to determine if it is more than he should bearif the damages is such as to be suffered by many similarly situated and is in the nature of a restriction on the use to which land may be put and ought to be borne by the individual as a member of society for the good of the public health, safety, or general welfare it is said to be a reasonable exercise of the police powerbut if the damage is so great to the individual that he ought not to bear it under contemporary standards then it is a taking of the property or an unreasonable exercise of the police power. The state takes the property be eminent domain because it is useful to the public and under the police power because it is harmful. Thus the necessity for monetary compensation for loss suffered to an owner by police power restriction arises when the restrictions are placed on property in order to create a public benefit rather than to prevent public harm. An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others. o The exercise of the police power in zoning must be reasonable and we think it is not an unreasonable exercise of that power to prevent harm to public rights by limiting the use of private property to its natural uses. o Not available for human habitation is a reasonable use of that land when the new use although more economical value to the owner causes a harm to the general public. The court took the view that the preservation of privately owned land in its natural state for the enjoyment and benefit of the public by preventing the owner from using it for any practical purpose was not within the limit and scope of the police power and the ordinance was not saved by the use of special permits. o Filling a swamp not otherwise commercially usable is not in and of itself an existing use, which was prevented but is the preparation for some future uses which are not indigenous to the swampa special permit is a means of control and accomplishing the purpose of the zoning ordinance. o The depreciation of value is not based on the use of the land in its natural state but on what the land would be worth if it could be filled and used for the location of a dwelling. While loss of value is to be considered in determining whether the restriction is a constructive taking, value based upon changing the character of the land at the expense of harm to public rights is not an essential factor or controlling. Constitutional In Re Spring Valley Development State action was essential to insure that commercial and industrial developments which because of their nature or their size will impose unusually heavy demands upon the natural environment shall not be located in areas where the environment does not have the capacity to withstand the impact of the development. whether the offering for sale of subdivided lots is commercial. Though not the builderthere would be no one intending to construct or operate a development who could be held responsible under the statute if they are not held. The act and its application under the police power must have a clear, real and substantial relation to the purpose of the act. o Not unreasonable to place upon the subdivider who plans the number, size and location of the lots to be offered for sale the responsibility for avoiding an inevitable large scale ecological calamity. o This responsibility can more easily be met by the subdivision. Public interest. ENVIRONMENTAL REVIEW: [887-899] Moviematic v. Board of County Comrs

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Issue: Whether preservation of an adequate drinking water supply and ecological system in a particular area are legitimate objectives of zoning resolutions and ordinances. o Zoning regulations which are reasonably related to the adequacy of governmental services fall within the established purpose of the public health, safety, and welfare; o Water supply relates clearly to the public health. Zoning ordinances have been sustained because of their tendency to insure that such essential governmental services as water supply will be provided. Objective of preserving the ecological systems, zoning regulations which tend to preserve the residential or historical character of a neighborhood and/to enhance the aesthetic appeal of a community are considered valid exercises of the public power as relating to the general welfare of the community. o Inclusion of ecological considerations as a legitimate objective of zoning ordinances.

The definition of public health, safety, and welfare are now broadened to include and provide for ecological considerations. o They are reasonably related to the public health, welfare and will confer a public benefit upon the citizens. Environmental Impact Reviews NEPA requires federal agencies to evaluate the impact of their decisions on the environment. Requirement that federal agencies conduct an environmental impact review (EIR) prior to initiaiting their own capital projects, allocating funds to others, or taking other actions that might have environmental impacts. SEPA (state) (NY) the state statutes EIR requirement applies to the actions of local government as well. o Local planning and zoning decisions including the adoption of zoning ordinances and amendments, the grant of zoning ordinances, subdivision and site plan approvals, issuance of special use permits and the adoption of comprehensive plans. SEQRA requires an environmental impact statement for all government actions that may have a significant effect on the environment. Sun Beach v. Anderson Town land a planning board which fails to act on a preliminary subdivision plat application within 45 days is deemed to have approved the preliminary plat. When the planning agency has determined that development of the subdivision might significantly affect the environment the application for preliminary approval is not complete until a DEIS has been filed and has been accepted by the agency as satisfactory in scope and content. The final environmental impact statement need not be prepared until after the final plat has been submitted. o Once SEQRAs priority is recognized, the statute must be read to mandate that a preliminary plat application is not complete until a DEIS has either been dispensed with or accepted and the 45 day limitation in the Town Law does not commence to run until the application is complete. Notes: Environmental impact reviewsenvironment is broadly defined and expressly includes considerations such as existing patterns of population concentration, distribution, or growth and existing community or neighborhood characteristics. Where the local land use agency makes a determination that no adverse environmental impact is likely and therefore no environmental impact statement is required the approval deadlines apply. Conservation Easements and Land Trusts: Conservation easement is a voluntary agreement between a private landowner and a municipal agency or a qualified not-for-profit organization to restrict the development, management, or use of the land. The owner of the real property conveys an interest in the landa conservation easementto a qualified public or private agency and the deed is placed on the local land records. The agency holds the interest and enforces its restrictions against the transferring owner and all subsequent owners of the land. o Its purpose is to preserve or conserve the scenic, open, historic, archaeological, architectural or natural condition of real property. o They may permit public access such as hiking over a trail. They may be donated, sold at full market value or below market value. o If the easement is donated or sold below market value the landowner may qualify for an income tax deduction in the year of the donation or bargain sale. Land Trust is a local or regional not for profit organization, private in nature organized to preserve and protect the natural and manmade environment by, among other techniques, holding conservation easements that restrict the use of real property. PRELIMINARY APPROVAL: [933-936] Environmental Conservation Law 8-0101 Requires the local government to enact flood plain regulations prior to making flood insurance available. Wetlands: Local wetland regulations restrict activities such as dredging and soil disposal, construction of roads, grading and soil removal, timber harvesting and placement of buildings and infrastructure on wetlands and their buffer areas.

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Right to regulate not only the land within the established boundaries of a wetland or watercourse but also any adjacent area where activities might occur that would use the wetlands in a prohibited manner.

STEEPSLOPES: [946-954] Local laws can require the development on ridgelines and hilltop areas blend in with the natural environment and be buffered to preserve particularly valuable viewsheds in the community NYprevention of improper alteration of steep slopes Recognize natural connection on the land and waters by broadening the scope of natural protection laws. o Steep slopes are often found in connection with other critical environmental features and perform multiple functions of community value. Sellon v. City of Manitou Issue: Whether a particular municipal legislative enactment violates constitutional due process standards.. a presumption of validity attaches to zoning decisions of municipal zoning authorities. A party challenging a zoning ordinance on constitutional grounds assumes the burden of proving the asserted invalidity beyond a reasonable doubt. - Constitutionality: the ordinance containing provisions that bear a rational relationship to legitimate state concerns satisfies due process requirements. o Requires a reasonable relation between an ordinance and a valid interest such as public health, safety, morals or general welfare. NY. o A zoning ordinance that prohibits the use of property for any reasonable purpose will be deemed confiscatory and therefore violative of just compensation and due process protections. o A landowner is not entitled to obtain maximum profits from the use of property and that so long as the zoning ordinance leaves some reasonable use for the property the ordinance does not violate state constitutional standards. o Regulation need not be the best solution but need only show that its solution is itself reasonable and rationally related to the problem being addressed. Local site plan regulations are authorized by NY to include standards that provide for parking, access, landscaping, locations of buildings, protection of adjacent land uses and physical features and any additional elements specified by the local legislature. o any additional elements defined broadlyto include environmental considerations. o Steep slop within Scenic Resources: Laws that protect scenic resources and assets including open views, country roads, panoramic landscapes treelined streets, stone walls and agricultural scenes. Municipalities may protect specific view corridors that have particular aesthetic or economic importance to the community. (built environment)areas of high artistic value Historical overlay are suitable for preservation for historical, architectural, or cultural reasons. Overlayrequire that the city council identify the areas distinctive characteristics and general preservation guidelines. SIGNS: [994-1005] Huntington Code p. 198:296 Article X Aesthetic Historic and Cultural Interest Preservation Whether such concerns are or should be legitimately included within the police power without regard to whether tradition would exclude them unless joined with some other legitimate police power concern; and whether the judicial or statutory approval of such considerations would ultimately permit the aesthetic sensibilities of a few individuals to force others to conform to their particular ideas to the point of oppression. First Amendment Issues related to Regulation of Signs and Billboards Metro Media: The regulation applies only to a permanent structure constituting or used for the display of a commercial or other advertisement to the public. on-site commercial v. off-site commercial/noncommercial - Four Part Test: determining the validity of governmental restrictions on commercial speech: o [1] The First amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it [2] seeks to implement a substantial governmental interest, [3] directly advances that interest, and [4] reaches no farther than necessary to accomplish the given objective. Off-site commercial are prohibited while on-site are permitted

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It does not follow that noncommercial advertising is also valid. Greater degree of protection of noncommercial speech. o To allow a government the choice of permissible subjects for public debate would be to allow the government control over the search for political truth. o Not reasonable time, place, manner restrictionjustified ifthey are justified without reference to the content of the regulated speechserve a significant governmental interest, andleave open ample alternative channels for communication of the information.

SIGNS: [1019-1036] Huntington Code Article XIV Commercial/Non-Commercial Speech - if speech is commercial then regulations affecting it must only pass the Central Hudson Test Non-commercial speech are subject to greater scrutiny and the tests depend on such factors as whether the restriction is content-based, the type of forum involved and whether the restriction is merely incidental A regulation that does not favor either side of a political controversy is impermissible because the First Amendments hostility to content-based regulation extends to prohibition of public discussion. [display clausecontent based speech primary impact] - If a regulation is not content based but still has an incidental restrictive effect on speech, it may qualify as a permissible time, place or manner regulation if it is narrowly tailored to serve a significant governmental interest and leaves open adequate alternative methods of communication. o Within the area of sign regulation, restrictions on size, height, materials and placement are often upheld as time, place and manner restrictions. o Regulations restricting use of illuminated signs have been upheld. o Even content-neutral speech restrictions may be invalid if alternative methods of communication are inadequate. Even regulations that do not foreclose an entire medium of expression but shift the time, place or manner of its use must leave open ample alternative channels for communication. Content-neutral sign regulations are susceptible to vaguenessa statues use of the term obscenity has been noted to inherently contain within it reference to a specifically defined conduct so that particular words need not be spelled out when this term is usedleast drastic means have to be usedgovernment interest in aesthetics and safety is insufficient to justify a durational restriction on political signs in residential districts. Local sign ordinances must contain sufficient criteria for reviewing authority (building inspector, planning direct etc.) to prevent an abuse of discretion. o A government regulation that allows arbitrary application is inherently inconsistent with a valid time, place and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view. o A law subjecting the exercise of First Amendment freedoms to the prior restrain on a license must contain a narrow, objective, and definite standards to guide the licensing authority. o City officials are to consider the value of the surrounding property, the environment of the surrounding property, the public good and the purpose of the zoning ordinance before granting or denying a variance. Aesthetic Regulation of Signs and Billboards When sign regulations do not run afoul of the First Amendment they are almost always justifiedon the governmental interest in preserving aesthetics State v. Diamond Motors beauty is a proper community objective, attainable through the use of the police power. - NYadvertising signs, billboards if misplaced are egregious examples of ugliness, distraction and deterioration. They are just as much subject to reasonable controls, including prohibition as enterprises which emit offensive noises, odors or debris. The offense to the eye must be substantial and be deemed to have material effect on the community or district pattern.offense to the eye must be substantial and be deemed to have material effect on the community or district pattern. Mayor v. Mano Swartz Ordinance which had made unlawful the painting of a sign on an exterior wall of a buildingbut allowed billboards and posters while aesthetic goals may legitimately serve as an additional legislative purpose, if health morals or safety or other ends generally associated with the concept of public welfare are being servedthey cannot be the only purpose of the regulation. Police power may rightly be exercised to preserve an area which is generally regarded by the public to be pleasing to the eye or historically or architecturally significant. Because the purpose of the ordinance was not the preservation or protection of something which was aesthetically pleasing but rather was intended to achieve by regulation an aesthetically pleasing result with no though of enhancing the public welfare.cannot be solely aesthetic grounds

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Federal Highway Beautification Act PARKING: ARCHITECTURAL CONTROL [1036-1051] Huntington Code Article VII State Stoyanoff v. Berkeley Conformity with surrounding structures and that unsightly, grotesque and unsuitable structures, detrimental to the stability of value and the welfare of surrounding property structures and residents and to the general welfare and happiness of the community be avoided and that appropriate standards of beauty and conformity be fostered and encouraged. o Would have substantial adverse effect upon the market values of other residential property in the neighborhood. The police power of the state embraces regulations designed to promote the public convenience or the general prosperity as well as regulations designed to promote the public health, the public morals or the public safety. o The stabilizing of property values and giving some assurance to the public that if property is purchased in a residential district its value as such will be preserved is probably the most cogent reason back of zoning ordinances. o The aesthetic factor to be taken into account is not to be considered alone. Along with that inherent factor is the effect that the proposed residence would have upon the property values in the area. People v. Stover put clothesline in the front of their yard in protest of taxes The adoption of the ordinance was prompted by the conduct and action of the D but if the law would otherwise be held constitutional it will not be stricken as discriminatory or invalid because of its motivation. o Intended to provide clear visibility at street corners and in driving out of driveways and avoid and reduce accidents; to reduce distractions to motorists and pedestrians and to provide greater opportunity for access in the event of firesmay be sustained as an attempt to preserve the residential appearance of the city and its property values by banning insofar as practicable, unsightly clothesline from yards abutting a public street. We have recognized a governmental interest in preserving the appearance of the community by holding that whether or not aesthetic considerations are in and of themselves sufficient to support an exercise of the police power, they may be taken into account by the legislative body in enacting laws which are also designed to promote health and safety. o Aesthetics is a valid subject of legislative concern, the conclusion seems inescapable that reasonable legislation designed to promote that end is a valid and permissible exercise of the police power. o If zoning restrictions which implement a policy of neighborhood amenity are to be stricken as invalid it should be not be because they seek to promote aesthetic objectives but solely because the restrictions constitution unreasonable devices of implementing community policy. o Whether void depends on whether the restriction was an arbitrary and irrational method of achieving an attractive, efficiently functioning, prosperous communityand not upon whether the objectives were primarily aesthetic. [ordinance regulatory not prohibitory] Causes no undue hardship, provides for issuance of clothesline where there is practical difficulty or unnecessary hardship.. conduct which is similarly offensive to the senses of hearing and smell may be a valid subject of regulation under the police power. - A purely aesthetic regulation must be supported by a showing that the offense to the eye has a substantial and material effect on the community. HISTORIC LANDMARKS: [1052-1067] Huntington Code Article VI NHPA section 106 requires federal agencies to take into account the adverse effects that federal undertakings may have on properties included in or eligible for inclusion in the National Register before approving any federal expenditures. limited exception when a proposed federal undertaking would directly and adversely affect a National Landmark property in which case the agency must minimize possible adverse effects to that property. o Requires federal government to take historical considerations into account when making decisions that may have adverse environmental effects. Historic Districts: Historic landmark preservation actpurpose of the act is to promote the general welfare of the inhabitants of the town through the preservation and protection of historic buildings and districts of historic interest; through the development of an appropriate setting for these buildings, places and districts; and through the benefits resulting to the economy in developing and maintaining its vacation-travel industry through the promotion of these historic associations. o No building or structure shall be erected, reconstructed, altered or restored until an application for a building permit has been approved as to exterior architectural features which are subject to public view from a public street, way or place. o The zoning regulations are in general directly related to the public safety and health and less directly to public morals.

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Aesthetic considerations alone are not enough but they may be taken into account if the primary objects of the regulation are sufficient to justify it. The act does not require anything to be done to existing structures with the possible exception of signs it applies only to exterior architectural features subject to public view from a public place. Promotion of general welfareconstitutional o Unconstitutionalif goes beyond the statutory purpose of preventing developments obviously incongruous to the historic aspects of the surrounding districtsthe court could look to old city plans, historic documents and photographs and contemporary writing to guide the commission. South of Second Associates v. Georgetown ordinances need sufficient standards to advise ordinary and reasonable men as to the conduct to which they attempt to proscribe or direct. o This ordinance is unconstitutionally vague in failing to delineate the differently classified areas within the district. The historical and or architectural character language of the ordinance when considered in conjunction with the objective factors in the ordinance and in the context of the public purposes to be achieved is sufficiently definite to pass constitutional muster. The ordinance contains contains sufficient standards to advise ordinary and reasonable men as to the type of construction permitted, permits reasonable application by the commission and limits the commissions discretionary powers. o Most municipalities which have established similar historical preservation districts, however specifically delineate those areas which possess such a unique character as to be entitled to preservation. o Nowhere in the ordinance is a delineation of the relevant areas to be found. The ordinances definition of area fails to set forth sufficient criteria to enable the potential applicant to reasonably ascertain in which area his property is situated. o Licensing scheme constituted an impermissible prior restraint on speech because it required prior administrative approval for the posting of noncommercial speech signs on residential properties. Preserving Landmark Structures Kent County v. Romney Capacity of the American people to prevent improvidence in matters relating to the conservation of our natural and manmade heritage. Look to 16 USCA 470f effect of federal undertakings upon property listed in the national registerstatute that has application to federal agencies, heads of federal departments or individual agencies and the advisory council on historical preservationthe Advisory Council on Historic Preservation Council is not a partyP has failed to establish by proof, argument or citation that it has any interest that would give it the right to bring this action. Lacks standing o HISTORIC LANDMARKS: [1067-1079] Penn Central v. City of New York Three prong test [3]: 1. economic impact on property 2. interference with investment backed expectations 3. character of government action Issue: Whether the Commissions application of Landmarks Law violated Penn Centrals Fifth and 14th amendment right against the taking of property without just compensation by arbitrarily limiting the development of a portion of their property and thereby preventing the owners from realizing a reasonable rate of return on their investment? NO Rationale: (1) the owners could not establish a taking simply by showing that they had been denied the right to exploit the superadjacent airspace, irrespective of remainder of the parcel; (2) the landmark law which embody a comprehensive plan to preserve structures of historic or aesthetic interest are not discriminatory; 93) that the law affected some owners more severely than others did not justify a taking; and (4) the law neither interfered with the owners present use nor prevented them from realizing a reasonable rate of return on its investment, especially since preexisting air rights were transferable to other parcels in the vicinity. A distinction between a charitable property owner which had not received the accumulated economic benefits enjoyed by commercial ventures through surrounding property development. Even though a pattern of common ownership once joined the parcel with the terminal, because of intervening sales of the parcel in question and also sales of intervening lots by Penn Central the requisite adjacency was broken. With religious organizationsbecause it found that it did not constitute a substantial burden on the Ps religious exercise. FGL& L v. Rye The revised zoning map demonstrates the only property zoned was Ps 22 acres. P sought an injunction against enforcement of the section, a declaration that it is invalid ultra vires, site specific spot zoning and not in accordance with a well-considered zoning plan and money damages. Such regulations, special conditions and restrictions may include appropriate and reasonable control of the use or appearance of neighboring private property within public view or bothif any such measures are adopted in the exercise of the police power, shall be reasonable and appropriate to the purpose or if constituting a taking of private property shall provide for due compensation which may include the limitation or remission of taxes. o The regulation authorizes control of private property is for the protection, enhancement, perpetuation and use of

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places, districts, sites, building structures. Nothing in the subdivision speaks to regulation of ownership. The right to impose reasonable controls on the use and appearance of neighboring private property within public view cannot be stretched to cover payment of restoration and maintenance costs for such construction which would impose those costs upon every unit in the district, not just those within public view would render meaningless the limitation intended by those words Landmark and historic preservation laws normally prevent alteration or demolition of existing structures unless the owner can demonstrate hardshipbut if they place an undue and uncompensated burden on the individual owner they may be held unconstitutional because it forces the owner to assume the cost of providing a benefit to the public without recoupment. o Here, society at large bars no part of the cost of restoration it is rather to be borne initially by P and ultimately by purchasers of dwelling units in the district. In light of the well-recognized rule that statutes are to be construed so as to avoid constitutional issues if such a construction is fairly possiblethe General Municipal Law sections under consideration as presently written should be construed not to authorize imposition of restoration costs solely upon P and purchasers from P or maintenance costs upon purchasers of properties other than those to be preserved. o The use of the police power to designate individual buildings as landmarks has proven to be controversialcreation of an historic district usually enhances the value of all the property in the district while the designation of a single building as a landmark usually imposes uncompensated burdens on the property owner. The validity of landmark ordinances has been questionedcourts have used the constitutional principles of vagueness and unlawful delegation of legislative powers to strike down landmark designation efforts at both the state and local levels. Private property owner must make his property available without compensation for public view. o Ex. Ordinance allows the church to allow the interior and rear portions to rot but it cant touch that portion of its property viewable from the street without permission of the local governing board. o Standards are based solely upon the feelings or observations of people interested in protecting neighboring properties in the historical district in the name of public welfare. o The issuance of a building permit where the application showed compliance with all building codes was a ministerial act, negating any discretionary power to impose conditions on the permit.

Notes: -

Urban Development: [722-738] Common law, no warranties with respect to property condition are implied by courts in conveyances including leases.now in Javins the court found that a warranty of habitability: is implied by operation of law into leases of urban dwelling units. Javins v. First National Realty Corp. Issue: Are housing code violations a breach of implied warranty entitling the tenants to withhold rent? the duties imposed by the housing regulations cannot be waived or bargained out of. However the court required the tenants to pay rent into the court registry in anticipation of retrial to be divvied up according to the retrial verdict. Basic validity of every housing contract depends on substantial compliance with the housing code at the beginning of the lease term. o Applies to maintenance and repair during the lease termserious failure to comply with this section before the lease term begins renders the contract void. o By signing the lease the landlord has undertaken a continuing obligation to the tenant to maintain the premises in accordance with all applicable law. Moore v. City of Detroit Issue: Does the ordinance which permits third parties to temporarily occupy property and a transfer or title to a nuisance abatement contractor considered to be an unlawful nuisance, unconstitutionally deprive property owners of their property interests without due process of law or just compensation? NO The ordinance represents an exercise of police power and reject the Ds reliance on the law of eminent domain. the court was not convinced that the taking as authorized under the ordinance is for a public purpose as the term evolved under the law of eminent domain. The ordinance does not impose upon property owner a burden which should be borne by the public. It is neither unfair or unjust for the city to impose the burden of abating these nuisances upon the individual owners rather than upon the public as a whole. Neighborhood blight partly because of the action or inaction of property owners. The ordinance does not authorize permanent occupancy and gives opportunity for the property owners to assert ownership. Under both the original building code and the ordinance, third parties are authorized by the city to enter onto public property for the purpose of abating a public nuisance. Given the nature of the intrusion, the purpose sought to be accomplished and the ease with which a property owner may terminate a nuisance abatement contract the court concluded that the ordinance constitutes a reasonable exercise of police powers. o A statute or ordinance authorizing physical occupancy of property without compensation to the property owner must be reasonable under the circumstances.

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Build in are ample notice and opportunity provisions which protect the right of the property owner to terminate the nuisance abatement contract at any point.

Davidson Bros., v. D. Katz & Sons Inc. Issue: Whether a restrictive covenant in a deed, providing that the property shall not be used as a supermarket or grocery store is enforceable against the original covenantors successor, a subsequent purchaser with actual notice of the covenant? Yes Rule: Two criteria must be met for the enforcement of covenants against successors (1) the original covenanting parties must intend that the covenant runs; (2) the covenant must touch and concern the land. - In using a reasonableness analysis with Notice of a non competing covenant which both benefits and burdens T& C the land, and then may be evaluated for reasonableness. Most jurisdictions engage in reasonableness factors. The trial court must first determine whether the covenant was reasonable at the time it was enacted. If it was but now adversely affects commercial development and public welfare it may consider allowing damages for breach of the covenant. Unenforceable Covenant was so contrary to public policy that it should not be recognized as a valid, enforceable obligation. NJ courts have refused to enforce contracts that violate public policythere persist in this state particularly in its urban centers, areas of economic distress characterized by high unemployment, low investment of new capital etc. revitalization of those areas required application of the skills and entrepreneurial vigor of private enterpriseG st was peculiarly suited for supermarket use and that there were no economically viable substitute locations. The covenant if enforced through injunctive reliefReasonableness factors: o [1] the intention of the parties when executed, whether viable purposes exists or contrary to law/public policy; [2] whether the covenant had an impact on the consideration exchanged; [3] whether the covenant clearly/expressly set forth the restrictions; [4] whether the covenant was in writing, recorded and whether subsequent had notices; [5] if the covenant is reasonable concerning area time of duration and not extended into perpetuity; [6] if the covenant imposes an unreasonable restraint on trade or secures a monopoly; [7] whether the covenant interferes with the public interest; [8] whether even if unreasonable at the time because of changed circumstances the covenant is now unreasonable. Urban Development: [738-749]; [757-763] Why one persons private property can be taken under the power of eminent domain to allow another private property to redevelop an area. Public uses for which property may be taken under the power of eminent domain are coextensive with the police power of the state. Since the public welfare is broad and inclusive the ends that may be achieved by using the power to condemn title to land include stemming blight and deterioration, redeveloping underdeveloped areas, and increasing the economic productivity of an area. The role of the judiciary in determining whether that power of eminent domain is being exercised for a public purpose is an extremely limited one. Condemning authorities do not have to demonstrate that their proposed redevelopment plans in fact will be beneficial, just compensation does not mean enough money to reestablish your home or business; the standard is whether the authority paid the price that a willing buyer would pay a willing seller at the time of condemnation. Downtown Retail Development Minneapolis Community Development Agency v. Opus Northwest LLC The condemnation is being undertaken to serve the citys desire to locate a mid-priced retail store, parking complex, extended skyway access and an office building in the South Nicollet Mall Area. MN ordinances require contractors to file affirmative action plans before doing business with the city. o Opus (no subsidies) challenges the legality of the project as Dayton Hudson has not filed one. Issue: Whether the taking serves a public purpose and is necessary? Great weight must be given to the determination of the condemning authority and the scope of review is narrowly limited. If it appears that the record contains some evidence however informal that the taking serves a public purpose, there is nothing left for the courts to pass on. The court is precluded from substituting its own judgment for that of the public body as to what may be necessary and proper to carry out the purpose of the plan. the condemnation of Opus property falls within the citys prescribed authoritytrend is to sanction broad legislative discretion to use eminent domain for a variety of economic development purposes. What constitutes a public use or public purpose is broadly definedit includes a city acquisition of private property for use by a different private entityif there is some evidence in the record that the taking serves a public purpose then there is nothing left for the court to decide. Condemnation efforts undertaken to enhance deteriorating urban areas and to create jobs satisfy the public purpose aspect of a condemnation proceedingthat actions taken to foster new development including the financing thereof in areas of a city that are already built up in order to provide employment opportunities, to improve the tax base and to improve the general economy of the state are examples of a public purpose. - Absolute necessity is not required for a finding of public purpose rather it is enough to find that the proposed taking is reasonably necessary or convenient for the furtherance of a proper purposea party challenging the necessity of the

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condemnation of a parcel will not succeed by merely suggesting alternatives to the governments plan. A condemning authority cannot undertake a public project if the project itself is not permitted by law. The public purpose for the present condemnation (obtaining mid priced retail store, increased public parking and employment) and the means of accomplishment are all legal. The condemnation is not barred by the fact that DH does not have an affirmative action plan on file with the citya private owner is entitled to have it shown that the taking is for a public use definite and certain of attainment. Issue: Whether the tax increment financing statute required the citys 1996 findings and if so whether they were sufficiently detailed? Before a tax increment financing district can be created a municipality must make the necessary findings. 1. Once the district is properly created, a municipality may modify a tax increment financing plan with no specified procedure or findings unless modification includes an increase in the bonded indebtedness or there are other circumstances identified in the statute and not present herechanges to an existing tax increment financing plan constitute modification for which no new findings are required and no procedure is prescribed. a. Since the amount of bonded indebtedness is not being increased the decision is a mere modification of the existing plan. Note: The purpose of tax increment financing of urban redevelopment is to create economically productive property where none presently exists by providing inducements to private commercial development. The municipality either with or without the power of eminent domain acquires all the property in an area in which the value of real estate is declining or there is a high proportion of underutilized or tax delinquent land. Pursuant to a development plan for the area the municipality then delineates a number of new disposition parcels which it markets to private developers. Inducements to such private developments include promises to construct certain support facilities or various other types of incentives affording substantial savings to the developer. Once the land becomes productive the increment over the prior tax revenues is utilized to pay off the interest and principal on the bonds issued to finance the redevelopment and the municipality retains in its general treasury the amount equal to the former tax revenue from the area. After the bonds are paid off, the area is expected to remain economically productive providing substantially increased tax revenues for municipal government. It allows cities or redevelopment authorities to issue bonds secured by the increase in property tax revenues that the newly redeveloped land will generate for the city. This projected increase in taxes becomes the revenue stream used to pay the principal and interest on bonds sold to private investorsthe interest paid to investors is tax exempt (considered public bonds) and therefore lower than interest paid on private financing from commercial lenders. By issuing and selling these bonds the authority secures the capital needed up front, to purchase land, install infrastructure, or lower the cost of the enterprise so that it becomes economically feasible. o The private developer pays taxes on his development at the same rate as all other taxpayers. -

Parcelization this term refers to the problem caused by the multiple ownership of many small parcels in a proposed urban redevelopment area. o by using eminent domain and working with a qualified and eligible redeveloper, cities can unify parcel ownership, create an efficient scale of operations and hope to attract investment capital and project funding for truly viable projects.

Promoting Brownfield Redevelopment: Another method of keeping density in the right place and preventing urban sprawl is brownfield redevelopment Brownfields are abandoned, idles or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination. Growth technique: o First, by remediating contaminated properties, the environmental threat presented by these sites is eliminated thereby protecting the health fo the community. o Second, when redeveloped the formerly abandoned sites generate tax revenue for the community. o Third, by developing brownfield sites which are typically located in more urbanized areas some development pressure is removed from outlying greenfields. o Fourth, communities can use brownfields to meet various planning objectives such as the creation of affordable housing or additional commercial development. Comprehensive Environmental Response Compensation and Liability Act CERCLA adopted by many states impose strict, joint and several liability upon an owner or operator of a site where contamination is present, regardless of whether that person caused the pollution. o as a means to encourage redevelopment of brownfields a number of states have enacted statutes to reduce liability and have created programs that provide financial incentives to redevelopers. o The law provides some relief from liability for bona fide purchasers who meet certain conditions and contains various funding mechanisms for brownfield revitalization. [757-763] Industrial Development

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Sun Co. v. City of Syracuse Industrial Development Agency P contend that the proposed taking of their property is not primarily for a public purpose and that under the terms of the Preferred Developer Agreement, SIDA illegally contracted away its eminent domain power. Under the terms of the PDA Pyramid undertook certain financial obligations and in return SDIA agreed to acquire at least those properties within Oil City which Pyramid commits to acquire from SDIA for the development of the Carousel Landing Project. SDIA authority to acquire property is derived from a General Municipal Law 858(4) which provides that a public benefit corporation established as an industrial development corporation (IDA) under article 18-A of the General Municipal Law my acquire by purchase, grant, lease, gift pursuant to the provisions of the eminent domain procedure law...real property or rights or easements therein necessary for its corporate purposes. o Scope of review is limited by EDPL 207 to whether the proceeding was constitutional or within the agencys statutory jurisdiction: whether the agency made its determination and findings in accordance with the procedures set forth in article 2; and whether a public use, benefit or purpose will be served by the proposed acquisition. If an adequate basis for determination is shown and the objector cannot show that the determination was without foundation the agencys determination should be confirmed. o So long as the governmental agency takes the property for a public purpose and provides the owner with just compensation the EDPL does not violate substantive due process. o There is no prohibition against private funding of a public condemnation

General Municipal Law prohibition prohibiting IDAs from funding retail projects do not apply because (1) the amendments provide that they shall not apply to projects for which an agency has authorized assistance by the passage of an inducement resolution before the effective date of 10/19/93 and (2) the amendments exempt tourist destinations and retail establishments in highly distressed areas. Public Purpose: the project is an integral part of an overall plan to redevelop a unique public assetaccording ot the project the site is crucial to that redevelopment plan which would transform an economically underutilized area limited in development potential by the presence of Oil City and its unsightly oil tanks into an aesthetic asset with a mix of residential, recreational and commercial uses. o It would serve its purposes the public ones by reducing physical blight and improving the aesthetic appearance of the era, improving the infrastructure in the project area, expanding employment opportunities, increasing the tax base and sales tax revenues and promoting the identification and alleviation of environmental problems in the area. o As the primary purpose are public the incidental private benefit will not invalidate an agencys determination so long as the public purpose is dominant.

Urban Development: [763-780] Economic Development Kelo v. City of New London Issue: Under Federal law, does a taking serve as public use when it is taken from one private party and given to another for economic redevelopment? YES the court used rational review to determine that the citys goals were sufficient to justify the taking. Rule: It first establishes that property cannot be taken specifically to confer a benefit on a private property. Nor could the city take it without a public purpose. However the fact that a private benefit is conferred does not negate the public use of the taking. The court construes public use very broadly and gives deference to the decisions of the city. Economic development constitutes public benefit and use as held in Berman and Hawaii. o This is not a rigid formula or intensive scrutiny but broad latitudedeference is given because of the comprehensiveness of the plan, the deliberation of the adoption and the limited scope of the courts review. o The court follows precedent allowing economic development to be viewed as public use. o The court holds that the heightened scrutiny would impose an impediment to the consummation of these plans.

Issue: whether the takings of the particular properties were at issue were reasonably necessary to achieving the citys intended public use, and whether the takings were for reasonably foreseeable needs o Could not take the property under the mere pretext of a public purpose when its actual purpose was to bestow a private benefithowever would be executed pursuant to a carefully considered development plan.inadequacy of use by the general public as a universal test o The area must be planned as a whole for the plan to be successfulcommunity redevelopment programs need not by force of the constitution be on a piecemeal basis, lot by lot. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean It authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan,

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the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us as it was in Berman to resolve the challenges of the individual owners not on a piecemeal basis but rather in light of the entire plan. Promoting economic development is a traditional and long accepted function of government. o The taking should be upheld as consistent as long as it is rationally related to a conceivable public purpose. o A court applying a rational-basis review under the Public Use Clause should strike down a taking that by a clear showing is intended to favor a particular private party with only incidental or pretextual public benefits just as a court applying rational basis review under the Equal Protection clause must strike down a government classification that is clearly intended to injure a particular class of private parties with only incidental or pretextual public justifications. Where the purpose of a taking is economic development and that development is to be carried out by private parties or private parties will be benefited the court must decide if the stated public purposeeconomic advantage to a city sorely in need of it is only incidental to the benefits that will be confined on private parties of a development plan. Three [3] categories of takings that comply with the public use requirement: o First [1] the sovereign may transfer private property to public ownershipsuch as for a hospital, road or military base. o Second [2] the sovereign may transfer private property to private parties often common carriers who make the property available for the public usesuch as with a railroad, a public utility or a stadium. o But public ownership and use-by-the-public are sometimes too constricting and impractical ways to define the scope of the Public Use Clause. Thus, we have allowed that in certain circumstances and to meet certain exigencies takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use. A purely private taking could not withstand the scrutiny of the public use requirement as it would serve no legitimate purpose of government and would thus be voidone persons property may not be taken for the benefit of another private person without a justifying public purpose even though compensation be paidthus a public purpose was realized when the harmful use was eliminated because each taking directly achieved a public benefit it did not matter that the property was turned over to private use. The government has authority to do so (condemn) whenever it is necessary or appropriate to use the land in the execution of the powers granted to it by the constitution. When the legislature has declared the use or purpose to be a public one its judgment will be respected by the courts. A genuine public use must be present before the state invokes its right to takeeconomic development by itself is not a sufficient public use to satisfy a taking. Although economic benefit can be considered as a factor among others in determining whether there is a sufficient public use and benefit in a taking it cannot serve as the sole basis for finding such benefitan economic or financial benefit alone is insufficient to satisfy the public-use requirementany taking based solely on financial gain is voidthe use of deteriorating area as a standard for determining whether private property is subject to appropriation is void for vagueness .

Intergovernmental Conflicts: [780-789]; [578-585] Forte v. Borough of Tenafly Comprehensive master planto preserve the central business core of the borough should not only be preserved but strengthened and improved Issue: May a municipality which wishes to preserve, rehabilitate and improve an established business area devoted chiefly to retail stores, zone the rest of the municipality against retail sales? It may since the avowed purpose was to protect the business district it was invalid. o Zones are created or uses therein curtailed in a manner which benefits other zonesthe mere fact that this is one of the purposes of the ordinance does not make it invalidan area desirable for industry may be zoned otherwise because industry would damage a nearby residential or business zone. Conversely, residential use may be forbidden in or near industrial areas to encourage the full expansion of industrial plants therein without fear of complaint of nuisancea municipality may not by zoning or otherwise exclude a particular use only because it will compete with an existing business or businessesbut if the exclusion of competition happens to be an incident or effect of otherwise valid zoning it does not invalidate itWhether it is unreasonable and therefore invalid insofar as it applies to Ps propertythe Ps may use their property for the many purposes allowed by the ordinanceif they do they will have the same rights to make incidental or accessory retail sales as those already carrying on similar businesses in the C-2 zone. The nonconforming retail stores are not so numerous as to make the ordinance unreasonable. Swain County v. Winnebago Action brought to challenge the validity of a zoning ordinance adopted by the county which rezoned the property of the D to permit the construction of a shopping center. the special interests they must be shown before a taxpayer may challenge the act of a corporate body is not limited to ordinances affecting zoning. The financial or administrative affairs of the county are not subject to question by the use of a

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taxpayer unless his taxes are directly to be affected or unless he as opposed to the general public has some special or distinct interest affected. The general allegations of depreciation and loss in value of the Ps business and business properties are mere conclusions which must be supported by specific allegations of fact which show a special damage. o Neither the fact that the P may suffer reduced incomes or be put out of business by more vigorous or appealing competition nor the fact that properties on which such businesses are operated would thus depreciate in value give rise to a standing to sue. o A person can have no vested or special property right in either the monopoly or competitive advantage accorded by zoning restrictions at a given time.

Notes: Court upheld a denial of a permit to build a outlet outside the towns core commercial district because of its negative impact on the general character and ambience of the community. data documenting the decline of the downtown and estimating the stores further adverse influence on that decline were reasonable and sustainable. It held that it was not irrational to conclude that the use though permitted is not desirable at the particular location. The court stated that while the towns decision refers to the economic effect the proposed store would be expected to have upon other local businesses it does so in the context of assessing the probability and extent of the change it would work upon the overall character of the community as a result of an increased vacancy rate among commercial properties in the downtown areas an entirely proper avenue of inquiry. The fact that the legislature wished to protect the residential, small-town character of this part of town was clearly a legitimate interest to be advanced by zoning. o Authorizes local zoning commissions to protect the distinctive character, landscape and historic values of the areas under their jurisdiction. [578-585] INTERGOVERNMENTAL CONFLICTS: STATE-LOCAL CONFLICTS Brown v. Kansas Forestry, Fish and Game Commn Issue: Whether in the absence of any clear legislative direction one way or the other a state agency must conform its land use to local zoning regulations? To rule in favor of the superior sovereignthus where immunity from a local zoning ordinance is claimed by an agency occupying a superior position in the governmental hierarchy it is presumed that immunity was intended in the absence of express statutory language. - A second test is to determine whether the institutional use proposed for the land is governmental or proprietary in nature. o If the political unit is found to be performing a governmental function it is immune from the conflicting zoning ordinance. o When the use is considered proprietary the zoning ordinance prevails. o Where the power of eminent domain has been granted to the governmental unit seeking immunity from local zoning some courts have concluded that this conclusively demonstrates the units superiority where its proposed use conflicts with zoning regulations. o Whether the operation of a particular governmental unit is subject to local zoning. When the governmental unit which seeks to circumvent a zoning ordinance is an arm of the state the application of any of the foregoing tests has generally resulted in a judgment permitting the proposed use. Three [3] common tests are employed: o [1] superior sovereign; o [2] governmental-proprietary test; o [3] eminent domain test. Issue: Whether a city had to comply with county zoning ordinances in building a sewage disposal plant outside the city limitsthe grant of eminent domain power to the city evinced a legislative intent that it not be subject to county zoning. the citys possession of eminent domain power did not grant automatic immunity from the countys zoning power in locating its disposal plantthe eminent domain statutes do not purport to give the cit the right to select the exact location in the County and the public interest is best served in requiring it to be done in accordance with the zoning laws. o Look to legislative intent and the public interest. o State agency must prevail because it is exercising the power of the sovereign overlooks that the zoning power the city seeks to exercise is also a sovereign powersuitable alternatives exist to accommodate both the communitys interest in maintaining the integrity of low density residential zoning and the needs of the Bureau. - The trust test for immunity in the first instance is the legislative intent in this regard with respect to the particular agency or function involved. That intent is to be divined from a consideration of many factors with a value judgment reached on an overall educationall possible factors cannot be abstractly catalogued

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o [1] the nature and scope of the instrumentality seeking immunity; o [2] the kind of function or land use involved; o [3] the extent of the public interest to be served thereby; o [4] the effect local land use regulation would have upon the enterprise concerned and; o [5] the impact upon legitimate local interest. Even where immunity is found it must not be exercised in an unreasonable fashion so as to arbitrarily override all important legitimate local interests. This rule must apply to the state and its instrumentalities as well as to lesser governmental entities entitled to immunity. o It would be arbitrary if the state proposed to erect an office building in the crowded business district of a city where provision for off street parking was required for the state not to make some reasonable provision. o Balancing of interests testfor resolution of conflicts which arise between the exercise by governmental agencies of their police power and their right of eminent domain. Balancing the citys urgent need to replace its present disposal system against the marginal impact on the proposed area for the new facility. The real question is where the decision making authority should be lodged and if a claim of arbitrariness is to be made who should have the presumption of reasonableness and who the burden of proof o [1] the instrumentality seeking immunity is a state agency and its judgment is entitled to considerable deference; o [2] the general function being performedpromoting recreationis one of recognized public utility but hardly on the level of importance with public education. The specific use providing parking space near but not in a recreation area is of a more marginal public interest. o [3] while there is public interest in the proposed use in that some people will find this parking lot more convenient than other parking lots, the segment of the population affected is relatively small. o [4] regulation if rezoning is refused would have the effect of requiring the parking lot to be located in some area other than a residential subdivision such a move might make the lot less convenient but would probably not substantially impair the usefulness of the recreation area. o [5] the proposed use would prima facie at least have a substantial adverse impact on the surrounding householders and on the existing land use plan. INTERGOVERNMENTAL CONFLICTS: EXCLUSIONARY ZONING [586-592] Issue: Whether the state Board of Regents was required to obtain a building permit and follow city building codes in constructing a new facility at the University of Kansas Medical Center? The university was bound by the local zoning ordinance as to the use of off-campus property. Balancing test should apply to a state agency charged with the construction of prisons. o Compelling state interest Courts have taken up the question of which test to use in resolving intergovernmental zoning conflicts o Balancing of interests approach o The applicability of local zoning ordinances to construction of correctional facilities by state agenciescourt held that the state should make reasonable efforts to comply with local land use restrictions in siting correctional facilities but need not follow local zoning procedures o A private corporation seeking to construct and operate a correctional facility enjoyed the same immunity from local zoning regulations as a public entitywhat if the intergovernmental dispute involves a foreign government The 1974 land use act which allows both state and local government to regulate land use that might have an impact beyond the immediate scope of the project. o All agencies, departments and subdivision of this state may use real property, as owner or tenant in any county or municipality in this state shall be subject to the zoning ordinance thereof. Local- Local Conflicts City of Bridgeton v. City of St. Louis The absence of or specific legislative silence related to any statutory language regarding expansion or addition in Section 305 the term establish patently refers to an action undertaken at the outset of an airports existence. o This language evinces a legislative intent to distinguish between a new airport and the expansion of existing facilities. o The addition of a runway to Lambert Airport is not the establishment of a new airport in a new location it is the operation and expansion of an existing airport. - Issue: whether or not St. Louis is immune from Bridgetons zoning ordinancesa question of lawit is not necessary for St. Louis to exhaust administrative remedies before asking the court to determine immunity. - Balancing of interests two tests (1) power of eminent domain test; and (2) the balancing of interests test o Factors: Were the nature and scope of the instrumentality seeking immunity the kind of function or land use involved to the extent of the public interest to be served thereby, the effect local and use regulation would have upon the enterprise concerned and the impact upon legitimate local interest.

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In some instances one factor is more instrumental than another and may be so significant so as to overshadow all others. Where the broader public interest is so important that immunity must be granted even though the local interest may be great. The substantial benefits conferred by the operation of the airport on the public clearly outweigh the interests of Bridgeton. The expansion is essential to its survival.

[599-602] Can a local unit rule its provincial world and ignore the effects of its zoning upon outsiders a densely settled suburb could properly exclude industry if it has some other place to go in the general area, but nevertheless where the following standard was announced: o what may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social prevailing within the municipality and its needs present and reasonably prospective but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. o The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries often prescribed decades ore even centuries ago and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. - Regions considerations town in one state adopted a law which rezoned part of the town including area contiguous to NJ border. o Where the court held that one municipality had standing to challenge another zonings decision to allow construction of X near the residential areas of the Ps village. o Where the city allowed standing to challenge the county rezoning of property adjacent to city-owned land from agricultural to planned unit development o That a town was a person aggrieved and had standing to challenge rezoning of the neighboring city that allegedly resulted in aesthetic and economic injury to the P town. Where the potential exists that a zoning action will cause a serious environmental effect outside jurisdictional borders, the zoning body must serve the welfare of the entire affected community. o If it does not do so it acts in an arbitrary and capricious manner. o The action was arbitrary and capricious in that it failed to serve the community as a whole. Specifically adverse environmental effects and potentially severe financial burdens on the affected community have been completely disregarded. o That to allow this development would frustrate the very purpose of urban growth boundaries and render the plan useless in controlling urban sprawlthe development would seriously frustrate urban-level utilization of lands. That it will suffer economic injury because of increased competition to is existing and planned commercial enterprisesthe board has weighed the detriment to the city and finds that the proposed uses outweigh the detriment. [789-796] Exclusionary Zoning Legal obligations of suburban communities to provide for a variety of types of housing through their zoning ordinances.excluding all uses except those that are expressly permitted. In adopting a zoning ordinance the legislature is making a clear statement about a type of community it wants to be. The Bedroom Suburb: State Ex Rel. Chiavola v. Village of Oakwood Issue: Whether a MO municipality may enact valid zoning ordinances without having first formally adopted a comprehensive plan under 89 which provides that regulations on zoning and districts shall be made in accordance with a comprehensive plan. There is a presumption of validity for zoning ordinances; the presumption is rebuttable but Landowners bear the burden of proving Ordinance No. 10 is unreasonable in order to successfully rebut the presumption. - Reasonablenessan ordinance may be either facially unconstitutional or unconstitutional as applied to a particular tract of land. o Requires zoning to bear a substantial relationship to health, safety, morals or the public welfare. o The constitutional standard is one of reaosnableness. Zoning may be unreasonable on its face or as applied to a particular tract of landCourts not only determine whether application of the zoning is substantially related to the alleged purpose of the zoning but also the private detriment caused by such application. o Even where the zoning is related to the public welfare the zoning may be considered unconstitutional where it demonstrates a detriment to private interests which outweighs the public benefit from retaining it. o What is reasonable depends on the requirements of the locality, for what might be reasonable in one place may be unreasonable in another. o the fact that economic loss will be sustained if the ordinance is upheld is not controlling; nor is the fact that

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neighboring or adjoining land is less restrictive, establishes that the regulation is arbitrary or unfairly discriminatory. Statutes were never intended to give a municipality the power to adopt a one use district zoning ordinance encompassing the whole town. o Single-use zoning is legally permissiblepermitted to use zoning to promote the health, safety, morals and general welfare of its residents. There is no requirement for the existence of a separate comprehensive plan in order for a zoning regulation to be constitutionalwhile the existence of a separate well-delineated plan may might it easier to establish an appropriate use of the police power and the reaosnableness of the regulation or ordinance is not a constitutional requirement. o Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare to provide adequate light and air. o The requirement of a comprehensive plan is not a mere technicality which serves only as an obstacle for public officials to overcome in carrying out their duties but rather is the essence of zoning. Without a plan there can be no rational allocation of land use. What form must a comprehensive plan take in order to complyplan connotes an integrated product of a rational process and comprehensive requires something beyond a piecemeal approach, both to be revealed by the ordinance in relation to the physical facts and the purposes authorized by statute. o A comprehensive plan may be validly enacted in an ordinance itself without existing in some form separate from the ordinanceit made be found in the fact the ordinance zones all or substantially all of the political subdivisions; that it regulates all uses; or that it covers all of the usual factors of land utilization, height area and use. Where adequate commercial services can be obtained nearby it is permissible to exclude commercial structures from the community and that he allowance of only one-family housing promoted the welfare of the community where multiple use zoning did not.

Exclusion Through Housing and Lot Size Provisions: Zoning can exclude low, moderate and middle income households by establishing large minimum lot sizes and allowing developers to build large homesto ensure that the assessed value of the homes remains high, providing the community with tax assessments and revenues needed to pay the cost of education and municipal services. Zoning is a critical factor in the local municipal finance formula: by deciding what types of land uses to allow the municipality determines the infrastructure and services it must provide future residents and businesses as well as the values of property it can tax to provide those benefits. - They do not want land uses in the community that will lower their homes value or adversely affect the quality of their suburban experiencethese are private interests and cannot serve as the legal basis for zoning no matter how powerful a political force they represent. - Zoning provisions must serve a public purpose; they must advance in some way the public health, safety, welfare and morals. National Land and Investment v. Kohn Passing on the constitutionality of its 4 acre minimum area requirement. A presumption of validity attaches to a zoning ordinance which imposes the burden to prove its invalidity upon the one who challenges it. Zoning involves governmental restrictions upon a landowners constitutionally guaranteed right to use his property unfettered except in very specific instances by governmental restrictions. The burden of proof imposed upon one who challenges the validity of a zoning regulation must never be made so onerous as to foreclose for all practical purposes a landowners avenue of redress against the infringement of constitutionally protected rights. o Zoning ordinances can be enacted for the health, safety, morals or general welfare of the community. o The 4 acre minimum greatly restricts the marketability of this tract because with fewer potential lots the cost of improvements such as curbing streets and other facilities is thus greater on each lot. Each building lot being larger the cost per lot is automatically increased. The desire of many buyers not to be burdened with the upkeep of a four acre lot also makes Sweetbriar so restricted, less desirable. o Sanitary boardthe zoning officer may require lots larger than the minimum permitted by the zoning ordinance if the result of percolation tests upon the land show that a larger land area is needed for proper drainagecompel the conclusion that a 4 acre minimum is neither a necessary nor reasonable method by which Easttown can protect itself from the menace of pollution. Zoning is a tool which enables them to more effectively meet the demands of evolving and growing communities. It must not and cannot be used by those officials as an instrument by which they may shirk their responsibilities. It is a means by which a governmental body can plan for the future it may not be used as a means to deny the future. o If preservation of open spaces is a objectivethis can be accomplished through cluster zoning or

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condemnation of development rights with compensation paid for that which is taken.. Next is to preserve historic lotthe concept of the general welfare defies meaningful capsule definition and constitutes an exceedingly difficult standard against which to test the validity of legislationwhether in fact it is the public welfare that is being benefited or whether disguised as legislation for the public welfare a zoning ordinance actually served a purely private interests. o Rural character must be preservedalthough the zoning of the surrounding area is a relevant consideration in assessing the validity of a zoning regulationit is not controlling on the issue presentedwith most zoning classifications there can eb little question as to their suitability in any political subdivision. The surrounding zoning is relevant. o A zoning ordinance whose primary purpose is to prevent the entrance of newcomers in order to avoid future burdens, economic and otherwise upon the administration of public services and facilities is not valid. Notes: minimum lot areas cannot be so large so as to be exclusionary and thereby serve private interests but finds a 1 acre requirement reasonable. o May not refuse to confront the future by adopting zoning regulations that effectively restrict population to near present levels. o A municipality must present extraordinary justification for implementing a minimum lot size requirement of two acres or more. If the primary purpose or effect of the ordinance is to benefit private interests rather than public welfare, legislation cannot be held valid merely because some of its incidental effects may be for the general good. o On the other hand if the ordinance has a substantial relationship to the general welfare of the community in that it can fairly be taken as a reasonable effort to plan for the future within the framework of the Countys economic and social life, it is not unconstitutional because under it some persons may suffer loss and others be benefited.

Ybarra v. Town of Los Altos Hills Poverty becomes a suspect classification under the equal protection clause when the individuals or groups of individuals who constituted the class discriminated against in our prior cases shared 2 distinguishing characterstics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. Test (2) criteria: - In these circumstances the town need not show a compelling interest to justifying a zoning ordinance which discriminates against the poorthe town need only show that the ordinance bears a rational relationship to a legitimate governmental interest. It preserves the rural environmentthe ordinance requires the towns to adopt housing plans which made adequate provisions for the housing needs of all economic segments of the communitydoes not require it to provide housing for non-residents even though the non-residents may live in the broader urban community of which the town is a part. Constitutionality legitimate as long as housing opportunities for lower income groups are provided elsewhere in the region Preserving the character of the community is valid (house size legitimate) Even where such a provision can be shown to be reasonable related to a legitimate governmental state interest it can be invalidated if its adverse consequences become too severe. Restricting Non-Traditional Families A zoning ordinance routinely includes a definitions section and a separate section that lists the type of zoning districts it establishes, including the land uses that are allowed as-of-right or by special permit within each districtthe single family home as an architectural matter is designed and built for a single housekeeping unitsingle family may be defined as a household whose members are related by blood, marriage or adoption. Some definitions add households of unrelated individuals but limit the number of individuals in these non-traditional households to a certain number of persons ranging from 2-5. - Zoning was designed primarily to limit the physical impact of land useit serves the public interest to limit traffic, parking, housing overcrowding, noise, water usage and waste water. Village of Belle Terre v. Boraas Issue: Is an ordinance which limits the number of unmarried people who can live together unconstitutional? NO Rule: A zoning ordinance which excludes more than two unrelated people from living together does not violate the United States Constitution. zoning ordinance had a narrow definition of family which prevented unrelated college students from living together. The ordinance involves no fundamental rightIt deals with economic and social legislation and will not violate equal protection if the law is reasonable and bears a rational relationship to a permissible state objective. It is permissible for the legislature to draw lines which limit the number of unmarried people who can constitute a family. The ordinance does not ban association because a family within its guidelines may entertain whomever it likes. A quiet neighborhood is a permissible goal of a legislature. The police power includes zoning an area to promote family values, youth values and quiet seclusion. o Not aimed at transients

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Family one or more persons related by blood, adoption or marriage living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption or marriage shall be deemed to constitute a family. Bore rational relationship to a permissible state objectivesfamily values and family needsin other casesintrusive regulation of the family neither Belle Terre nor Euclid govern when the government intrudes on choices concerning family living arrangements, this court must examine the importance of the governmental interests advanced and the extent to which they are served by the challenged regulationmakes a crime of a grandmothers choice to live with her grandson slices into the family

HOUSING AND URBAN DEVELOPMENT: [812-827] EXCLUSIONARY ZONING McMinn v. Town of Oyster Bay The age requirement for defining two unrelated individuals as a family violated the State constitutional guarantee of equal protection of the laws and that the ordinance violated the executive law to the extent it prohibited occupancy of a single family house by two individuals on the ground of marital status but that the ordinance was in all other respects valid. Constitutional insofar as it restricted occupancy of a single family home to any number of persons related by blood, marriage or adoption or two unrelated persons. The ordinance was enacted to further several legitimate governmental purposes including preservation of the character of traditional single-family neighborhoods, reduction of parking and traffic problems, control of population density and prevention of noise and disturbance. - Issue: whether the means the local legislature has chosen, the challenged ordinance and the definition of family contained in it are reasonably related to the achievement of these legitimate purposes. o Restricting occupancy of single family housing based on the biological or legal relationships between its inhabitants bears no reasonable relationship to the goals of reducing parking and traffic problems, controlling population density and preventing noise and disturbance. o Depends upon the size of the dwelling and the lot and the number of its occupants. The definition of family employed here it both fatally overinclusive in prohibiting for example a young unmarried couple from occupying a 4 bedroom house who do not threaten the purposes of the ordinance and the underinclusive in failing to prohibit occupancy of a two bedroomhome by 10-12 persons who are related only in the most distant manner. o The definition is facially unconstitutional

The court struck down a single family definition for 10 college students because they planned to live in the house for 3 years and shared housekeeping dutiesfunctional equivalent of a family.

City of Ladue v. Horn To approximate a family relationship there must exist a commitment to a permanent relationship and a perceived reciprocal obligation to support and to care for each otheronly when these characteristics are present can the conceptual family equate with the traditional family. It is ample to lay zones where family values, youth values and the blessings of quiet seclusion and clean air make the area a sanctuary for peopleLadues zoning ordinance is rationally related to its expressed purposes and violates no provisions of the Constitution. Ladue has in precise language defined the term familyit chose the definition which comports with the historical and traditional notions of family; namely those people related by blood, marriage or adoption. The essence of zoning is selection and if it is not invidious or discriminatory against those not selected it is properthere is a governmental interest in marriage and in preserving the integrity of the biological or legal family. The stated purpose of the ordinance is the promotion of the health, safety, morals and general welfare in the citywhether Ladue could have adopted less restrictive means to achieve these same goals is not a controlling factor in considering the constitutionality of the zoning ordinance. o The focus is on whether there exists some reasonable basis for the means actually employed. o If any state of facts either known or which could be reasonable be assumed is presented in support of the ordinance we must defer to the legislative judgmentnot acted arbitrarily in enacting its zoning ordinance which defines family as those related by blood, marriage or adoption. - Tandem house containing two private areas of equal size with a bed and bathroommingles or couplets who may be unrelated persons who could not individually afford to buy a house and who by combining assets can share a house. City of White Plains v. Ferraioli Issue: whether group home consisting of a married couple and their 2 children together with 10 foster children qualifies as a single family unit under the ordinance. Group home sets up in theory, size, appearance and structure to resemble a family unit fits within the definition of family, for purposes of a zoning ordinance. (not-for-profit) Not for purposes of a zoning ordinance a temporary living arrangement, nor would the children be shifted about. It is a proper purpose of zoning to lay out districts devoted to family values and youth values.

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High density uses may be restricted so too those uses which are associated with occupancy by numbers of transient persons may be limitedby requiring single family use of a house the ordinance emphasizes and ensures the character of the neighborhood to promote the family environment. o The city has a proper purpose in largely limiting the uses in a zone to single family units but if it goes beyond to require that the relationships in the family unit be those of blood or adoption then its definition of family might be too restrictive. o So long as the group home bears the generic character of a family unit as a relatively permanent household, and is not a framework for transients or transient living it conforms to the purpose of the ordinance. AN ordinance may restrict a residential zone to occupancy by stable families occupying single family homes but neither by express provision nor construction may it limit the definition of family to exclude a household which in every but a biological sense is a single family. The minimal arrangement to meet the test of a zoning provision as this one is a group headed by a householder. Courts have held local zoning ordinances void as contrary to state policy when they restricted an agency boarding home, a day care center and a center for delinquent youths. In some cases the zoning ordinance is not exclusionary as to group homes but such uses may require a special use permit or exception or may be a conditional use in the single family district. Whether the denial of a permit to construct a facility for elderly residents violated the fair housing actthe proposed residents of the new facilityare handicapped within the meaning of FHAobviously suffer from physical and mental impairments that substantially limit one or more major life activities.

EXCLUSIONARY ZONING: [827-844] RESTRICTING MOBILE HOMES AND MANUFACTURED HOUSING Prohibiting construction of non-traditional types of housing in single family zones; housing that is not built on site or stick built. Yurczyk v. Yellowstone County Home conformed to the Uniform Building Code and the CABO standards but violated the on-site construction provision. Court found that the Y substantive due process rights were violated because the on-site construction requirements did not have a substantially bearing upon the public health, safety, morals, or general welfare of the community and was not based upon a legitimate governmental objective; that the Ys equal protection rights were violated because the on-site provision treated them differently than similarly situated property owners and it did not have a substantial bearing upon the preservation of property values in the district; that the on-site regulation was unenforceable because it was void for vagueness. A zoning ordinance enacted pursuant to the aforementioned section will be found to be a constitutional exercise of police power it if has a substantial bearing upon the public health, safety, morals or general welfare of the community. o There is nothing in the record that demonstrates these concerns actually drove the formulation of the regulations at issue. The record reflects that the modular homes would not have affected property values in the area. o Mathematical certainty is not required for the ordinance to pass as long as there is a reasonable basis for the classification chosen. Residential dwelling as used in this part shall not apply to factory manufactured mobile homes constructed as a single selfcontained unit and mounted on a single chassisa per se exclusion of manufactured homes from single family districts was unconstitutionallocal government could regulate manufactured homes in such ways as requiring attachments to a permanent foundation, appropriate lot sizes and aesthetic standards. Zoning that Excludes Multi-Family Housing There are several factors that lead some developing municipalities to adopt zoning restrictions that exclude or greatly limit the amount of land zoned for multi-family housingthese include a desire to protect the value of existing single-family homes, to avoid the costs of providing municipal services, including education to multi-family housing and its occupants and the fear that multi family housing and its occupants will bring with it households that the majority of current residents would rather not have living in the community. accomplished by not zoning any land in the community for multi family use; by designating one or a few small areas as multi-family districts, or by allowing multi family housing projects only by special use permit which can be denied in the discretion of the approval board in certain circumstances. These provisions tend to exclude low and moderate income house holds from living in the community because multi-family housing is more cost effective to build than single family homes. Whether the power to zone which is delegated to the local government by the state itself can be exercised by a community in a way that excludes people in the state who are in need of housing. Zoning may not be used for the express purpose of excluding growth where development pressures exist. Southern Burlington County Naacp v. Township of Mount Laurel That the effect of Mt. Laurels land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources.

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Carried out was to keep down local taxes on property and the fewer the school children the lower the tax rate. Issue: whether a developing municipality like Mt. Laurel may validly by a system of land use regulation make it physically and economically impossible to provide low and moderate income housing in the municipality for the various categories of persons who need and want it and thereby as Mt. Laurel has exclude such people from living within its confines because of the limited extent of their income and resources. o Every such municipality must by its land use regulations presumptively make realistically possible an appropriate variety of choice of housing. o More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity at least to the extent of the municipalitys fair share of the present and prospective regional need. o These obligations must be met unless the particular municipality can sustain the heavy burden of demonstrating peculiar circumstances which dictate that it should not be required to do so. Land use regulation is within the states police powerall police power enactments, no matter at what level of government must conform to the basic state constitutional requirements of substantive due process and equal protection o Only provides for one type of housingis presumptively contrary to the general welfare and outside the intended scope of the zoning power in the particulars mentioned. Facial showing of invalidity. A developing municipalitys obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to that municipalitys fair share of the present and prospective regional needzoning must be on an individual municipal basis rather than regionally. Not to declare the entire unit nullified but rather allow then a certain period of time to rectify it. To provide a realistic opportunity for low and moderate income housingmunicipalities must take affirmative action to provide incentives to developers to provide their fair share of their regions need for affordable housinginvolve such things as providing developers with a zoning bonus: additional density over the as-of-right zoning density allowed on land they own which provides a financial incentive for them to create housing units within their developments that are affordable to low and moderate income households. Growth share to provide affordable housing to a proportion of its growth for every 8 market rate residential units produced and for every 25 jobs a locality is obligated to provide one unit of affordable housing.

The primary goal of a zoning ordinance must be to provide for the development of a balanced, cohesive community which will make efficient use of the towns available land. Second in enacting a zoning ordinance, consideration must be given to regional needs and requirementsthere must be a balancing of the local desire to maintain the status quo within the community and the greater public interest that regional housing needs are metthat although we are aware of the traditional view that zoning acts only upon the property lying within the zoning boards territorial limits it must be recognized that zoning often has substantial impact beyond the boundaries of the municipality. - The court established a two prong test when determining reasonableness of local zoning ordinances attacked as exclusionary: o 1. Whether the town has provided a properly balanced and well ordered plan for the communitythat is are the present and future housing needs of all the towns residents met; and o 2. Were regional needs considered. INCLUSIONARY ZONING: [844-860] Berenson v. Town of New Castle Fails to make adequate provision for multi-family housingwhether the far-reaching remedial provisions of the judgment may be sustained. Zoning and land use regulations were deemed to be legislative functions to be exercised by and within the particular expertise of the local legislative body. With the single exception of discriminatory zoning of similarly situated parcels in which case the obvious remedy was to treat like parcels alike, a judicial declaration that a zoning ordinance was invalid as applied to a particular piece of property was never accompanied by a declaration which actually rezoned that property or placed it within a particular use classification. - fair share of regional housing needs is a abstract and speculative number in this case. o the use of a fair share goal has never been judicially approved in the context of the housing needs of the population at large o Fair share doctrine o While not sufficient to save the zoning ordinance from invalidation the towns contention that multi-family rental housing cannot be constructed today even with governmental subsidies unless the land is publicly owned or figured at zero cost is not without some merit. o Focus on the least cost housing as opposed to low-income housing is attributable to its recognition that it will

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be virtually impossible to provide large amounts of newly constructed housing for the economically less fortunate in the foreseeable future. Fair share quota is unsupported by the law and contrary to the public policy considerationsnever encompassed the judicial specification of a particular number of higher density units to be built or the acreage to be devoted to such usage and that even in New Jersey where the doctrine is most highly developed the SC has refused to required judicial prescription of a mandatory fair share unit quota concluding in essence that should would be inappropriate. o The courts had no choice in the absence of meaningful regional planning but to assess the reasonableness of what the locality has done. o Whether NC exclusion of multi-family dwellings was reasonable in light of present and foreseeable local and regional needs. o It was soon recognized that the developers rights could not realistically be separated from the rights of others then nonresidents in search of a comfortable place to live. If the developers economic needs are met by the rezoning of its land, then who represents the rights of those in search of housing in appealing cases every municipality must make realistically possible an appropriate variety and choice of housing. Affordable Housing Land Use Appeals Act which expressly reverses the burden of proof when a municipality denies a developers application to construct affordable housing a municipality that denies a developers application to construct affordable housing carries the burden of proving that its action is justified by showing that it was necessary to protect substantial public interests and such public interests clearly outweigh the need for affordable housing. o If the zoning commission denies a developers affordable housing proposal, the commission must prove based upon evidence in the record compiled before such commission that the decision is necessary to protect substantial interest in health, safety or other matters which the commission may legally consider; and such public interests cannot be adequately protected by reasonable changed ot the affordable housing development. o Affordable housing is defined to include developments in which at least 30 percent of the dwelling units are guaranteed to be affordable to households with median incomes who will not pay more than 30 percent of their annual income for housing costs in the development. When developers challenge land use regulations that restrict the supply of housing that may be built the statute shifts the burden to the local government to establish that the restriction is necessary for the protection of public health, safety or welfare. A further burden of proof is established to justify the denial of permission to build housing projects for low and moderate income households.

Inclusionary Zoning Such programs take the form of mandatory requirements contained in local zoning that require developers to provide affordable housing as part of their approved market rate projects or the provision of incentives to developers who decide voluntarily to produce affordable housing. The housing element of the local comprehensive plan must contain an assessment of housing needs and an inventory of resources and constraints relevant to the meeting of these needs. o This local assessment must include the localitys share of regional housing needs; the statute contains an approach for estimating and distributing regional needsin drafting and adopting a housing element, local officials must analyze governmental constraints on the development of housing, the availability of housing subsidies and financing, and available construction sites with appropriate services for housing. Home Builders v. City of Napa The primary mandate imposed on residential developers a requiremnt that ten percent of all newly constructed units must be affordabletwo alternatives - First, developers of single family units may at their option satisfy the so called inclusionary requirement through an alternative equivalent proposal such as a dedication of land or the construction of affordable units on another site. - May also satisfy the 10% through an alternative equivalent proposal if the city council in its sole discretion determines that the proposed alternative results in affordable housing opportunities equal to or greater than those created by the basic inclusionary requirement. - Second, a residential developer may choose to satisfy this by paying an in-lieu feeall fees generated through this option are deposited into a housing trust fund and may only be used in to increase and improve the supply of affordable housing in city. Argument that it violates the takings clauseit imposes significant burdens on those who wish to develop their property it also provides significant benefits to those who comply with its termsthose developments that include affordable housing are eleigible for expedited processing, fee deferrals, loans or grants and density bonuses. The Ordinance permits a developer to appeal for a reduction, adjustment or complete waiver. *** When evaluating the validity of generally applicable zoning regulations it is appropriate to place the burden on the party who is challenging the regulation. o The citys inclusionary zoning ordinance is a generally applicable legislative enactment rather than an

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individualized assessment imposed as a condition of development thus the burden shifting does not apply as in Dolan. First, creating affordable housing for low and moderate income families is a legitimate state interest. o That local governments have a responsibility to use the powers vested in them to facilitate the improvement and development of housing to make adequate provision for the housing needs of all economic segments of the community. Second, the citys inclusionary zoning ordinance will substantially advance the important governmental interest of providing affordable housing for low and moderate income families. o By requiring developers in city to create a modest amount of affordable housing (or comply with alternatives) the ordinance will necessarily increase the supply of affordable housingsubstantially advance legitimate state interests. Substantially advance test in the context of a governmental requirement that appellant property owners dedicate a portion of their beachfront property to the public as a condition for obtaining a rebuilding permitthere must be a essential nexus between a condition imposed on the land and the impacts caused by the proposed use. A rough proportionality standard best encapsulates what we hold to be the requirement of the 5th amendmentthe city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development. The intermediate standard of judicial scrutiny is intended to addressland use bargains between property owners and regulatory bodies those in which the local government conditions permit approval for a given use on the owners surrender of benefits which purportedly offset the impact of the proposed development. o Where the individual property owner developer seeks to negotiate approval of a planned development the combined Nollan and Dolan test applies o But a different standard of scrutiny applies to development fees that are generally applicable through legislative action because the heightened risk of the extortionate use of the police power to exact unconstitutional conditions is not present. Individualized development fees warrant a type of review akin to the conditional conveyances at issue in Nollan and Dolan, whereas generally applicable development fees warrant the more deferential review that the Dolan court recognized. NY could enact a landmark preservation law that was designed to mitigate the effects of prior policies that permitted large numbers of historic structures, landmarks and areas to be destroyedthe city can enact an inclusionary zoning ordinance even if its prior policies contributed to a scarcity of available land and a shortage of affordable housing. The fair return standard is used to evaluate restrictions placed on historically regulated industries such as railroads and public utilities. Any person who does not want to sell or rent a portion of his housing units to low income individuals may choose one of the alternative such as donating vacant land or paying an in-lieu fee. Second, a claim that a regulation is facially invalid is only tenable if the terms of the regulation will not permit those who administer it to avoid unconstitutional application to the complaining parties. o When an ordinance contains a provision that allows for administrative relief we must presume the implementing authorities will exercise their authority in conformity with the Constitution. The power of an agency to make adjustments to guarantee a fair return is not limited to those literally granted by the ordinance.

Building Industry Association of San Diego v. City of San Diego The court set forth the appropriate test to determine whether economic legislation that is generally applicable to all development such as the subject inclusionary zoning ordinance survives a facial constitutional challenge. A claim that a regulation is facially invalid is only tenable if the terms of the regulation will not permit those who administer it to avoid an unconstitutional application to the complaining parties. When an ordinance contains provisions that allow for administrative relief we must presume the implementing authorities will exercise their authority in conformity with the constitution. Reduce the requirements upon finding an absence of any reasonable relationship or nexus between the impact of the development and the inclusionary zoning requirement. The waiver requirement set forth an out for the developer when the basic constitutional connection is lacing. o Waiver only upon four separate findingsthe ordinance does not provide for the granting of a waiver solely because of an absence of any reasonable relationship or nexus between the impact of the development and the inclusionary requirementthe city can therefore impose the inclusionary requirement on a development not reasonably related to the need for that requirement. Notes: New York authorized its local governments to provide zoning incentives to developers to provide affordable housing as well as other public amenitiesthe developer is allowed to build a greater number of homes than is otherwise permitted by the zoning law and to sell or rent some of these bonus units at market value. In return the developer is required to use that profit to reduce the cost of the additional bonus units to make them

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affordablethese affordable homes must then be rented or sold to persons or families on limited income. The NY statutes allow incentives to be given in exchange for the provision of other community benefits as well including open space, parks, day care, or elder care or other specific physical, social or cultural amenity of benefit to the residents of the communitywhere the community benefit cannot feasibly or practically be provided directly by individual developers the incentive system can provide for developers to make cash payments to the localitysuch sums must be held in a trust fund to be used exclusively for the community benefits specified.

RACIAL DISCRIMINATION [499-512] Racial Discrimination in Housing United States v. City of Black Jack Missouri Fair Housing Act is to provide within constitutional limitations for fair housing throughout the United StatesTitle VIII is designed to prohibit all forms of discrimination. the discretion of local zoning officials recognized that must be curbed where the clear result of such discretion is the segregation of low income Blacks from all white neighborhoods. - The burden of proof in Title VIII cases is governed by the concept of the prima facie case. To establish a prima facie case of racial discrimination the P need prove no more than that the conduct of the D actually or predictably results in racial discriminationdiscriminatory effect The P need make no showing whatsoever that the action resulting in racial discrimination in housing was racially motivated. Once the P has established a prima facie case by demonstrating racially discriminatory effect, the burden shifts to the governmental D to demonstrate that its conduct was necessary to promote a compelling governmental interest. o The DC concluded that the ordinance had no measurably greater effect on blacks than on whitesthe courts conclusion was in error as it failed to take into account either the ultimate effect or the historical context of the citys action. The ultimate effect was to foreclose 85 percent of the blacks living in the metro from obtaining housing in BJ and to foreclose then at a time when 40 percent of them were living in substandard or overcrowded units. o It having been established that the ordinance had a discriminatory effect it follows that the US had made out a prima facie case under Title VIII and the burden shifted to the city to demonstrate that a compelling governmental interest was furthered by that ordinancethe city asserted primarily that the following governmental interests to justify the ban: Road and traffic control; prevention of overcrowding of schools; prevention of devaluation of adjacent single family homes. o Whether any of these rise to the level of compelling governmental interest first whether the ordinance in fact furthers the governmental interest asserted; second whether the public interest served by the ordinance is constitutionally permissible and is substantial enough to outweigh the private detriment caused by it and third whether less drastic means are available whereby the stated governmental interest may be attained. Test The remedy for this violation of the Fair Housing act3615: o Any law of a state, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid. o Need to find evidence and/or history of discriminatory effect

Village of Arlington v. Metro Housing Development Corp. The planned development did not conform to the Villages zoning ordinance and could not be built unless Arlington Heights rezoned the parcel to R-5. Has always been zoned single family and the neighboring citizens had built or purchased there in reliance on that classification. Rezoning threatened to cause a measurable drop in property value for neighboring sites. Second the Villages apartment policy adopted by the board in 1962 called for R-5 zoning primarily to serve as a buffer between single family development and land uses incompatible such as commercial or manufacturing districts. o Such a disparity in racial impact alone does not call for strict scrutiny of a municipalitys decision that prevents the construction of the low-cost housing. o The denial of rezoning must be examined in light of its historical context and ultimate effect. Would be tolerated if served compelling governmental interests o Official action will not be held unconstitutional solely because it results in a racially disproportionate impact Disproportionate impact is not irrelevant but it is not the sole touchstone of an invidious racial discrimination proof of racially discriminatory intent or purpose is required to show a violation of the Equal protection clause.

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Statistical showing of discriminatory impact of land use decisions discouraged subsidized multi-family housing would not be enough to invoke the equal protection clause of the 14th amendment. ..a statistical presentation might be sufficient to establish a violation of the Fair Housing Actthe court held that Arlington Heights had a statutory obligation under the Fair Housing Act to refrain from zoning policies that had the effect of foreclosing construction of low-cost housing within its boundaries

Federal Fair Housing Act Makes it unlawful to refuse to sell or rentor otherwise make unavailable or deny a dwelling to any person because of race, color, religion, sex, familial status or national origin. (includes local land use regulations) Huntington NAACP v. Huntington - disparate impact test of Title VII employment discrimination to strike down a refusal to rezone for multifamily housing. Under this test, discriminatory effect rather than discriminatory intent is the standard. If the P establishes a prima facie case that a land use regulation has a discriminatory effect the burden shifts to the D municipality to prove that is actions furthered, in theory an din practice a legitimate bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect. - A strong prima facie showing of discriminatory effect because of its disproportionate impact on minorities and its segregative impact on the entire community o Plan-specific; site-specific reasons

Plan specific objections such as parking and fire protection problems, proximity to a RR station and a utility substation, inadequate recreation and play areas and undersized and unrealistic units could presumably have been solved with reasonable design modifications and proper landscaping. Site specific such as traffic problems and health concerns relating to sewage disposal and proximity to a utility substation.

Fair Housing Amendments Act Expanded the protections against discrimination to persons with disabilities and families with children under the age of 18. Handicapped means with respect to a person(1) a physical or mental impairment which substantially limits one or more of such persons major life activities, (2) a record of having such impairment, or (3) being regarded as having such an impairment but such term does not include current, illegal use of or addiction to a controlled substance. Familial status means one or more individuals (who have not obtained the age of 18 years) being domiciled(1) a parent or another person having legal custody of such individual or individuals; or (2) the designee of such parent or other person having such custody with the written permission of such parent or other person. Provisions affecting local land use regulations 3604 coverage to familial status and disabled status which impact zoning through apartment and group home controversies. The second way in which the Fair Housing amendments act is made applicable to local land use regulations is contained in the provision adding disabled status as a protective class. Prohibited discrimination against that class includesa refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling. Exemptions from Coverage (a) a statement that the amendments are not intended to invalidate or limit any law that requires dwelling to be designated and constructed in a manner that affords handicapped persons greater access than is required by this sub-chapter, and (b) a provision that dwellings do not have to be made available to individuals whose tenancy would constitute a direct threat to the health and safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. (b) The amendments also exempt from coverage any reasonable local, state or federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling. In addition the amendments exempt from housing for older persons from the familial status discrimination prohibitions3607(b)(4) denies the protections of the act to persons convicted of the illegal manufacture or distribution of a controlled substance. AGE DISCRIMINATION; ADULTS USES [512-517]; [520-526]; [549-552] City of Edmonds v. Oxford House Inc. Rule: Citys family composition regulation was not exempt from the FHA as a maximum occupancy restriction. Issue: Does petitioners ordinance fall within the FHA exemption which permits any reasonable restriction on the max number of occupants in a dwelling? The Communities definition of family was not a maximum occupant restriction and thus was not exempt under the FHA. The code provision governed family living and had been enacted to foster the family character of the neighborhood rather than the living space per occupant. Since an unlimited number of related persons could live together under the Code it was not enacted to set a max occupancy.

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The Code governed family living and not living space per occupant as the exemption under the FHA. The purpose of a maximum occupancy is to protect the health and safety by preventing overcrowding. It achieve this it need not apply uniformly. Discrimination covered by the FHA includes a refusal to make reasonable accommodations in rules, policies, practices or services when such accommodations may be necessary to afford [handicapped] persons equal opportunity to use and enjoy a dwelling. Land use restrictions designate Districts in which only compatible uses are allowed and incompatible uses are excluded. o Reserving land for single family residences preserves the character of neighborhoods, securing zones where family values, youth values and the blessings of quiet seclusion and clean air make the area a sanctuary. o To limit land use to single family residences a municipality must define the term family thus family composition rules are an essential component of single-family residential use restrictions. o Maximum occupancy restrictions cap the number of occupants per dwelling in relation to available floor space or the number and type of rooms. o Rules that cap the total number of occupants in order to prevent overcrowding of a dwelling plainly and unmistakenably fall within the statutes absolute exemption from the FHAs governance; rules designed to preserve the family character of a neighborhood, fastening on the composition of households rather than on the total number of occupants living quarter can contain do not. o These provisions do not cap but only direct that they be used to house families.

[520-526] Age Discrimination in Housing Colony Cove v. Brown Started out with rule that residency only for senior citizens age 55 or older. Seeks to evict appellants who were born after the rule. It was not irrational or arbitrary and did not violate the constitutional rights to equal protection and familial privacy. Although the constitutional right of familial privacy encompasses a parents right to live with his or her childthe parks 25 years or older policy here does not purport to compel the separation of parent and child or to preclude the family from living together in an entire city. It simply denies the family access to a limited number of housing units. - The Unruh Act prohibited an ordinary apartment complex from adopting a rule which excluded all families with children from the complexage-based exclusionary policy which it proscribed was distinguishable from the age-limited admission policies of retirement communities or housing complexes reserved for older citizens. In light of this policy age qualifications as to housing facility reserved for older citizens can operate as a reasonable and permissible means under the ACT of establishing and preserving specialized facilities for those particularly in need of such services. It was designed to meet a social need differs fundamentally from the wholesale exclusion of children from an apartment complex otherwise open to the public. Fair Housing Amendments generally make it unlawful to discriminate in the sale or rental of housing or to make a dwelling otherwise unavailable on the basis of familial status as well as on the previously forbidden grounds of race, color, religion, sex or national origin. The term familial status is defined as families which include children under the age of 18. It creates an exception for housing for older personsin which discrimination on the basis of familial status is not prohibitedhousing for older persons is legislatively defined to include in part housing which is (1) intended for solely occupied by, persons 62 years of age or older, or (2) intended and operated for occupancy by at least one person 55 years of age or older per unit. o In determining whether housing for older persons qualifies within the meaning of the latter category involving occupancy by at least one person 55 years of age of older per unit the Secretary of the Housing HUD shall develop regulations which include a at least the following requirements: (1) the existence of significant facilities and services specifically designed to meet the physical or social needs of older persons or if the provision of such facilities and services is not practicable that such housing is necessary to provide important housing opportunities for older persons; and (2) that at least 80 percent of the units are occupied by at least one person 55 years of age or older per unit; and (3) the publication of and adherence to policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older. Grandfather clause that housing will not be disqualified as housing for older persons merely because persons residing in such housing as of 9/13/1988 do not meet the requirements under either the 62 or 55 years of age or older categories so long as any new occupants meet the age requirements under either of those categories. Notes: Rural town of less than 5K did not have authority under the enabling act to create a new zoning classificationfor development of tracts of 400 or more acres. NY have allowed such zoning. [549-552] Regulating Adult Business Uses A variety of ordinary commercial uses may be excluded from communities as municipalities exercise their zoning power to safeguard the public health and welfare.

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Upheld zoning ordinance which prohibited any adult movie theatre within 1000ft of any other such establishment or within 500 feet of a residential area. Although the First Amendment protects sexually explicit forms of communication from total suppression, municipalities have the power to place reasonable restrictions on the time place, an manner in which these materials are showcased or sold if the regulations are necessary to further some significant governmental interest. Secondary effects have become an essential condition precedent to the enactment of local adult use ordinances to support the legitimate governmental interest in regulating these uses. o The municipalities evidence must fairly support the municipalities rationale for its ordinance.

Secret Desires Lingerie v. City of Atlanta When a governing body enacts an ordinance regulating adult entertainment establishments because of their purported undesirable secondary effects it must rely upon specific evidence showing a correlation between such establishments and the undesirable secondary effects the governing body seeks to control. The governing body can rely on evidence in the form of studies performed by other governmental units. It can rely on evidence in the form of its own formal studies. But they must be considered before the ordinance is passed in order for the ordinance to be considered as one enacted for the purpose of combating the undesirable secondary effects of sexually explicit businesses. The governing body must be able to offer evidence of the studies it relied upon in enacting the ordinance. [552-557] Voyeur Dorm v. City of Tampa Adult entertainmentany premises except those businesses otherwise defined in this chapter on which is offered to members of the public or any person for a consideration entertainment featuring or in any way including specified sexual activities as defined in this section or entertainment featuring the displaying or depicting of specified anatomical areas as defined in this section; entertainment as used in this definition shall include but not be limited to books, mags, films, newspapers, photographs, paintings, drawings, sketches, or other publications or graphic media filmed or live plays, dances or other performances. Issue: whether section of the city code applies to the alleged activities. The plain and unambiguous language of the city code does not expressly state a requirement that the members of the public paying consideration be on the premises viewing the adult entertainmentwhile the public does not congregate to a specific edifice or location in order to enjoy the entertainment provide the court found that the address was a premises on which is offered to members of the public for consideration entertainment featuring specified sexual activities within the plain meaning of the code. A citys interest in attempting to preserve the quality of urban life is one that must be accorded high respect. o The regulation of public health, safety and morals is a valid and substantial state interest. The SC has held that these restrictions may be imposed to protect family values, youth values and the blessing of quiet seclusion. The address provides no offering of adult entertainment to members of the publicit occurs via the internetthe code cannot be applies to a particular location that does not at that location offer adult entertainment. Generally municipalities may not prohibit adult businesses entirely however some sexually oriented uses may be considered so obnoxious that total exclusion will be upheld. o Courts sometimes strike down locational zoning for adult businessescourts also uphold regulations that require adult uses to be separated from one another. But the regulations may not be so restrictive that they constitute essentially preclusion. Not uncommon for such restrictions to be void for vagueness. [497-499] HOUSING DISCRIMINATION Racial Discrimination in Housing [421-439] Regulatory Takings Per Se Regulatory Takings Lucas v. South Carolina Coastal Council Enacted act which had the direct effect of barring petitioner from erecting any permanent habitable structures on his two parcels. Issue: Whether the Acts dramatic effect on the economic value of Lucass lots accomplished a taking of private property under the 5th and 14th amendment requiring the payment of just compensation? The Acts complete extinguishment of his propertys value entitled him to compensation regardless of whether the legislature had acted in furtherance of legitimate police power objectives. At the time he had bought them there were no restrictions imposed upon such property and that the act decreed a permanent ban on constructioneliminated the unrestricted right of use and rendered them valueless. Generally though that the Takings clause only reached a direct appropriation of property. o If the protection against physical appropriations of private property was to be meaningfully enforced the governments power to redefine the range of interests included in the ownership of property was constrained by constitutional limits. o While property may be regulated to a certain extent if regulation goes too far it will be recognized as a taking. o Two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest

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advanced in support of the restraint.

First regulations that compel the property owner to suffer a physical invasion of his property. In general (permanent invasions) no matter how minute the intrusion and no matter how weighty the public purpose behind it we have required compensation.

Second categorical treatment appropriate is where regulation denies all economically beneficial or productive use of the land. o The 5th amendment is violated when landuse regulation does not substantially advance legitimate state interests or denies the owner economically viable use of the land. The functional basis for permitting the government by regulation to affect property values without compensationthat Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general lawdoes not apply to the situations where the government has deprived the landowner of al economically beneficial uses. o Compensation requirementis the fact that regulations that leave the owner of land without economically beneficial or productive options for its use by requiring land to be left substantially in its natural state carry with them a heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm. o Harmful or noxious uses of property may be proscribed by the government regulation without the requirement of compensation. When it is understood that prevention of harmful use was merely our early formulation of the police power justification necessary to sustain (without compensation) any regulatory diminution in value; and the distinction between regulation that prevents harmful use and that which confers benefits is difficult to show it becomes self-evidence that noxious-use logic cannot serve as a touchstone to distinguish regulatory takings which require compensation from regulatory deprivations that do not require compensation. o May not have to pay compensation only if the through inquiry into the nature of the owners estate shows that the proscribed use interests were not part of the title to begin with. o Where permanent physical occupation of land is concerned we have refused to allow the government to decree it anew (without compensation) no matter how weighty the asserted public interests involved. Would permit the government to assert a permanent easement that was a pre-existing limitation upon the landowners title. o Ex. Owner of lake bed would not be entitled to compensation when he is denied a permit to engage in landfilling operation that would have the effect of flooding others land. Such regulatory action may well have the effect of eliminating the lands only economically product use but it does not proscribe a product use that was previously permissible under relevant property and nuisance principals. The use of these properties for what are now expressly prohibited purposes was always unlawful and (subject to other constitutional limitations) . Total takings inquiry o The state must identify background principals of nuisance and property law that prohibit the use he now intends in the circumstances in which the property is presently found. Only on this showing can the state claim that in proscribing all such beneficial uses the act takes nothing. The findings of no value must be considered under the Takings Clause by reference to the owners reasonable investment backed expectations.

Exactions Separate category of regulatory takings. Adjudicative land use exactionsspecifically government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit. Nollan v. CA Coastal Commission their option to purchase was conditioned on their promise to demolish the bungalow and replace itthey were required to obtain a coastal development permit subject to the condition that they allow the public an easement to pass across a portion of their property. So long as a project contributed to the need for public access even if the project standing alone had not created the need for access and even if there was only an indirect relationship between the access exacted and the need to which the project contributed imposition of an access condition on a development permit was sufficiently related to burdens created by the project to be constitutional. o Although the condition diminished the value of the lot it did not deprive them of all reasonable use of their property. o Had CA required them to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach rather than conditioning their permit to rebuild their house on their agreeing to do so it would have been a taking. Where governmental action results in a permanent physical occupation of the property by the government itself or by othersa taking to the extent of the occupation without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner. A permanent physical occupation has occurred where individuals are given permanent and continuous right to pass to and fro.

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Land use regulation does not effect a taking if not reasonable necessary to the effectuation of a substantial government purpose. o If the commission attached to the permit some condition that would have protected the publics ability to see the beach nowithstanding the construction of the new househeight limitation, width restriction etc so long as the Commission could have exercised its police power to forbid construction of the house, imposition of the condition would have been constitutional. o The constitutional propriety disappears if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition. Need a nexus between the condition and the original purpose of the building restriction. Unless the permit condition serves the same governmental purpose as the development ban the building restriction is not a valid regulation of land use but an out-and-out plan of extortion.

[439-457] Dolan v. City of Tigard Rule: When a city requires a landowner to convey some property to the city as a condition to obtaining a permit there must be a rough proportionality between the burdens on the public that would result from granting the permit and the benefit to the public from the conveyance of land. Issue: Does an impermissible taking of property occur when a city requires a landowner to convey property to the city in order to get a permit to redevelop property? YES One purpose of the takings clause is to bar the government from forcing some people to bear public burdens which should be borne by the public as a whole. Had the city simple required petitioner to dedicate a strip of land along the creek for public use rather than conditioning the grant of her permit to redevelop her property on such a dedication a taking would have occurred. Such public access would deprive Petitioner the right to exclude others. However a land use regulation does not constitute a taking if it substantially advances legitimate state interests and does not take all economically viable use of the land. - A determination must be made as to whether the essential nexus exists between the legitimate state interest and the permit condition exacted by the city. If the nexus exists, then a determination must be made as to the required degree of connection between the exactions and the projected impact of the proposed development. There must be a rough proportionality between the demands of the city and the impact of the proposed development. o Here the prevention of flooding and reduction of traffic are legitimate public purposes and a nexus exists between preventing flooding and limiting development. o The city must make some sort of individualized determination that the required dedication is related both in nature and an extent to the impact of the proposed development. Here the city ahs never explained why a public greenway as opposed to a private one was required in the interest of flood control. Petitioner has lost her ability to exclude others which is one of the most essential sticks in the bundle of property rights. o If we find a nexus exists we must then decide the required degree of connection between the exactions and the projected impact of the proposed development. Notes: Nexus (Nollan) Rough proportionality (Dolan) City must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development. o This higher level of scrutiny imposes a burden on the government of proving the essential nexus and roughly proportionate relationship that they require. The government must show that where there is a total taking of all economic value background principles of state law including nuisance, proscribe the land use prohibited by the land use regulation. o If the government can demonstrate that the condition sit has imposed in a land-use permit are rational, impartial and conducive to fulfilling the aims of a valid land-use plan, a strong presumption of validity should attach to those conditions. The burden of demonstrating that those conditions have unreasonably impaired the economic value of the proposed improvement belongs squarely on the shoulders of the party challenging the state actions constitutionality. o Not extended the rough-proportionality test beyond the context of exactionsland use decisions conditioning approval of development on the dedication of property to public use. **** Ad Hoc Factual Inquiries Penn Central Transp. V. New York City Rule: A city may as part of a comprehensive program to preserve historical landmarks, place restrictions on the development of individual historical landmarks without effecting a taking requiring payment of just compensation within the meaning of the 5th Amendment.

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Appellants may continue to use the property precisely as it has in the past. SO the law does not interfere with Appellants primary expectations concerning the use of the Terminal. In addition, the restrictions imposed did not prevent Penn Central from all construction on top of the terminal. o The prevention of the construction of the 50 plus story buildings above the Terminal was a reasonable restriction substantially related to the promotion of the general welfare. Just compensation need not be paid. o Appellants property was not singled out to endure financial hardship. NY has a comprehensive scheme to preserve landmark structures under which 400 structures have been designated landmarks. o Several factors must be weighed to determine what is essentially an ad hoc factually based determination: (1) the economic impact of the regulation on the claimant and the extent to which the regulation has interfered with distinct investment backed expectations; (2) the character of the government action. A taking is more readily found when the government has physically invaded the property than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good. To consider whether a taking has occurred the SC takes into account several factors: [1] the nature of the interference with a property interest; [2] the extent of the interference with the same; [3] the number of units affected by the interference; [4] the ability of the property owner to continue to put the subjected property to its intended use; and [5] the legitimacy of the States interest in restricting the propertys use. A taking will more readily be found when the interference with property can be characterized as a physical invasion by Government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good. Landmark laws are not like reverse spot zoning o Land use decision which arbitrarily singles out a particular parcel for different, less favorable treatment than the neighboring ones. There is no taking where a city prohibits the operation of a brickyard within a residential city or forbids excavation for sand and gravel below the water line. o Nor is it relevant where the government is merely prohibiting a noxious use of property that the government would seem to be singling out a particular property owner. o Even where the government prohibits a noninjurious use the court has ruled that a taking has not occurred if the prohibition applies over a broad cross section of land and thereby secures an average reciprocity of advantage. While zoning might reduce individual values the burden is shared relatively evenly and it is reasonable to conclude that on the whole an individual who is harmed by one aspect of the zoning will be benefited by another. Need to be able to make a reasonable return. A taking does not become a noncompensable exercise of police power simply because the government in its grace allows the owner to make some reasonable use of his property. It is the character of the invasion not the amount of damage resulting from it so long as the damage is substantial that determines the question whether it is a taking.

[458-476] Palazzolo v. Rhode Island Rule: It would be illogical and unfair to bar a regulatory takings claim because of the post-enactment transfer of ownership where the steps necessary to make the claim ripe were not taken or could not have been taken by a previous owner. the court held that the enactment of the wetlands act did not automatically amount to a valid regulation by virtue of the petitioners succeeding to ownership after the regulation was passed because if the regulation accomplished a taking under the constitutional precedents then the mere fact that the Petitioner took exclusive ownership after the regulation could not bar a claim for compensation. The court held that Petitioner should be afforded the opportunity to prove a diminished economic value under which the Petitioner can attempt to prove that his property has been deprived of value by regulation but the deprivation falls short of total deprivation of economic use. This may be shown by investment backed expectations. o A state may not evade the duty to compensate on the premise that the landowner is left with a token interest. Here however the evidence showed that Petitioner was left with more than a token interest. o Because the SC concluded that the wetland regulation predated petitioners acquisition of the property at issue petitioner lacked reasonable investment backed expectations and hence lacked a viable takings claim. Though important investment backed expectations are not the only oneevaluation of the degree of interference with these expectations is one factor.

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Equal Protection Instance where owners allege selective application of land use regulations, harassment of the property owner or discrimination among types of properties. Village of Willowbrook v. Olech Issue: Does the Equal protection clause give rise to a cause of action on behalf of a class of one where the P did not allege membership in a class or group.? YES - The court held that Olechs allegations were sufficient to state a claim for relief. Our cases have recognized successful equal protection claims brought by a class of one where the P alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Irrational and arbitrary. Remedies: First English Evangelical Lutheran Church v. Los Angeles County Rule: Where the governments activities have already effectuated a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the takings was effective. Issue: What is the proper form of compensation for a taking? The remedy includes monetary compensation during a period of non-use which arises by the ordinance. - The appellant asks us to hold that the SC erred in Agins v. Tiburon in determining that the 5th amendment does not require compensation as a remedy for temporary regulatory takingsthose regulatory takings which are ultimately invalidated by the courts. o Cant hold as a taking for bureaucratic delayonly for regulation Fifth amendment o The government may elect to abandon its intrusion or discontinue regulations however the private person so temporarily deprived of property is entitled to compensation. Once a court determines that a taking has occurred the government retains the whole range of options already available: amendment of the regulation, withdrawal of the invalidated regulation or exercise of eminent domain. o The courts decision is not to be read as permitting a court to allow a private person to require the government to institute eminent domain proceedings. Where the governments activities have already constituted a taking of all use of property no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. o It is the owners loss not the takers gain which is the measure of the value of the property taken. Invalidation of the ordinance or its successor ordinance after this period of time, though converting the taking into a temporary one is not a sufficient remedy to meet the demands of the Just Compensation Clause. o Where the governments activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. o Temporary takingsdamages to be measured from the time of the adoption of the oppressive regulation to the time of invalidation. The owners loss is measured by the extent to which governmental action has deprived him of an interest in property, and that the value of that interest in turn is determined by isolating it as a component of the overall fair market value of the affected property. o A temporary taking is at issue the court looked at whether there was an effect on the propertys potential for producing income or on an expected profit. o Market rate of return computed over the period of the temporary takings on the difference between the propertys fair market value without the regulatory restriction and its fair market value with the restriction. o Amendments to a zoning ordinance could not be a taking because the value of the property had doubled despite the more restrictive zoning provisions adopted after the owner purchased the property. - Axiomatic that the 5th amendments just compensation provision is designed to bar Government from forcing some people to bear public burdens which in all fairness and justice should be borne by the public as a whole. o The ordinance denied appellant of all use of its property. o Invalidation of the ordinance without payment of fair value for the use of the property during this period of time would be constitutionally insufficient. Court of Appeals held that the property had not been taken in the first instance because the regulation was necessary to protect the public health, safety and the cause of action for inverse condemnation was properly dismissed. o The net result is that while a property owner may be constitutionally entitled to compensation for an interim or temporary taking she must first establish that a taking has occurred. o Had the state court found that a taking had occurred and invalidated the regulation the task for the court would be to calculate the damages to the property owner due to the imposition of the regulation from its adoption to its invalidation.

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Ex. Court allowed landowner to obtain full pre-regulation value of the property even though the parcel retained some residual value after the taking. In this case the court remanded with instructions that the appropriate measure of damages should be the loss in income producing potential suffered over the 16 months that the ordinance was in effect. Ex. Del Oro Hills v. Oceanside a developer who sought taking damages from the city after the citys growth control ordinance was found invalid, could not simply allege an invalid regulation and claim per se damages. The court found that the developer had sold all of his development albeit not at the highest price that he might have obtainedand that his land had enjoyed viable economic uses during the period the invalid ordinance was in effectamendments to a zoning ordinance could not be a taking because the value of the property had doubled despite the more rest o Courts look to the values added to property by governmental actions as a factor in measuring governmental takings. o

[536-549] Preemption TELECOMMUNICATIONS ACT OF 1996 A section which precludes state and local governments from regulating the placement of personal wireless facilities on the basis of the environmental effects of radio-frequency emissions to the extent that such emissions are with the FCC safety guidelines. Personal wireless facilities PCS towers which cellular and personal communications services providers have been building. While state and local governments generally retain the ability to regulate the placement of such facilities on the basis of considerations such as aesthetics, they cannot promulgate zoning regulations or ordinances based on any potential health risks from the RF emissions from these towers. Sprint Spectrum v. Willoth SEQRA requires agencies to evaluate whether pending actions have significant environmental consequences and if so requires the agency to go trough an EIS procedure beginning with a draft EIS and continuing through a final EIS aimed at ferreting out the environmental consequences of approving a project as well as practicable mitigating resources. Two [2] limitations on local zoning authority are found in subsection B(i) which provides that state and local regulation of the placement, construction, and modification of personal wireless service facilities(I) shall not unreasonably discriminate amongst providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. A denial of a request to build wireless facilities must be in writing and supported by substantial evidence contained in a written record, and not contrary to the limits on town authority. Whether a decision is supported by substantial evidence must be determined according to the traditional standard used for judicial review of agency actions. o Substantial evidence requires evaluation of the entire record including opposing evidence and requires a decision to be supported by less thana preponderance but more than a scintilla of evidence. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Act explicitly contemplates that some discrimination among providers of functionally equivalent services is allowed. Any discrimination need only be reasonable. o The phrase unreasonably discriminate among providers will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services. o Local governments may reasonably take the location of the telecommunications tower into consideration when deciding whether: (1) to require a more probing inquiry; and (2) to approve an application for construction of wireless telecommunication facilities even though this result may result in discrimination between providers of functionally equivalent services. o What is meant by the Acts proscription that local government regulation of wireless service facilities shall not prohibit or have the effect of prohibiting the provision of the personal wireless services lies between the extreme positions argued by Sprint and the planning board. Personal wireless services is defined as [1] commercial mobile services; [2] unlicensed wireless services and [3] common carrier wireless exchange access services. o [1] commercial mobile services are mobile service for profit that makes interconnected service available to the public. (public telephone network) o [2]Unlicensed wireless services offering of telecommunications services using duly authorized devises which do not require individual licenses. o [3] Common carrierconsists of several terms o local government is proscribed from prohibiting for-profit radio communication services carried on between mobile stations or receivers and land stations that (1) are connected to the national telephone network and that (2) provide wireless phones with access to telephone exchange services or facilities for the purpose of the origination or termination of telephone toll services.

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A local government may reject an application for construction of a wireless service facility in an under served area without thereby prohibiting personal wireless services if the service gap can be closed by less intrusive means. It may be possible to select a less sensitive site to use a preexisting structure or to camouflage the tower and or antennae. A local government may also reject an application that seeks permission to construct more towers than the minimum required to provide wireless telephone services in a given area. Once an area is sufficiently serviced by a wireless service provider the right to deny applications becomes broader: state and local governments may deny subsequent applications without thereby violation the act. So long as there is no unreasonable discrimination. It is not unreasonably discriminatory to deny a subsequent application for a cell site that is substantially more intrusive than existing cell sites by virtue of its structure, placement or cumulative impact. Aesthetics is generally a valid subject of municipal regulation and concern both under the Planning Boards review of a site plan. The inclusion of a permitted use in a local zoning ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the local community. The fact that the towers constitute a permitted use is not determinative. Any local zoning ordinance permitting a specific type of structure, such as a radio or television tower may give rise to a presumption that the aesthetic visual impact of the towers was considered at the time that radio and tv towers were included as permitted uses in the zone. But no such presumption is warranted here because the pertinent zoning ordinance permits utility substations.

Further Notes on Federal Preemption The Federal railway Safety Act was held to preempt all local railroad safety legislation except state law in an area where the Secretary has not issued a regulation or order and stricter state law is necessary. National Manufactured Housing and Safety Standards Act held to preempt ordinances imposing greater safety requirements for mobile or manufactured housesdoes not preempt zoning of mobile home locations. CERCLA has been held to preempt conflicting state or local regulation. Fair treatment means that no group of people including a racial, ethnic or socioeconomic group should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal and commercial operations or the execution of federal, state local and tribal programs and policies. [557-561] State Preemption The state governments may also play a significant role in limiting or restricting local decision making control in certain areas. Mining Gernatt Asphalt Products v. Town of Sardinia Ordinance eliminated mining as a permitted use. Issue: Whether the town violated various statutory provision relating to referral and public notice of the amendments when it enacted some but not all of the amendments that were proposed; (2) the NY state Mined Land Reclamation Law supersedes the Towns authority to amend its Zoning Ordinance in a manner that eliminates mining as a permitted use throughout the town; and (3) the Towns action constituted impermissible exclusionary zoning. The amendments as enacted did not prohibit or terminate existing mining operations throughout the town they continued as lawful but nonconforming uses; The only functional difference between the amendments as proposed and as enacted is the legal status of currently operating mines; while mining on existing sties is now a nonconforming use under the Towns zoning ordinances, had the amendments been adopted as proposed mining on existing sties would have been a specially permitted use. Even if all three proposed amendments had been enacted new mining would not have been permitted in the town because proposed section 7 authorized special permits only for mining sties permitted by the DEC at the time the legislation was enacted. Whether the zoning ordinance which eliminated mining as a permitted use in all zoning districts are preempted by the Mined Land Reclamation Lawleaves municipalities with the limited authority to determine in which zoning districts mining may be conducted but not the authority to prohibit mining in all zoning districts. o In Frew Run we distinguished between zoning ordinances and local ordinances that directly regulate mining activities. Zoning ordinances have the purpose of regulating land use generally. Notwithstanding the incidental effect of local land use laws upon the extractive mining industry, zoning ordinances are not the type of regulatory provision the Legislature foresaw as preempted by Mined Land Reclamation; the distinction is between ordinances that regulate property uses and ordinances that regulate mining activities. o Nothing in the Reclamation act suggested that its reach was intended to be broader than necessary to preempt conflicting regulations dealing with mining operations and reclamation of mined landsin the absence of a clear expression of legislative intent to preempt local control over land use the statute could not be read as preempting local zoning authority. o The patent purpose of the 1991 amendment was to withdraw from municipalities the authority to enact local laws imposing land reclamation standards that were stricter than the State-wide standards under MLRL. o The MLRL does not preempt the Towns authority to determine that mining should not be a permitted use of land within the town and to enact amendments to the local zoning ordinance in accordance with that determination.

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[576-577] Decide whether to allow mining to occur in a particular zoning district but once the activity is a permitted use the state preempts local control regarding regulating how the mining operation is conducts. Where courts have held that the states mining law did not preempt all local regulation of mining activities. GO OVER PREEMPTION

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