Assignment p 617-644 (Tuesday) Section 2.

Zoning Police power by the state that passes enabling legislation [police power, is the ability to govern and make legislation that s constitutional and protect general welfare and public safety these things are left for local bodies of government] [Enabling legislation ]Authorizes the cities and municipalities to divide the land by commercial and residential zones, vests local authorities with the ability to enact zoning ordinances that spell out the different uses, ways of making use of property {ex} residential vs commercial vs industrial if your property cannot comply with the zoning ordinance, the property owner needs to request a VARIANCE [ and ask to be excluded/exempted from that piece of zoning ordinance that they want to be exempt from ] o the city always considers what will happen down the line from a procedural standpoint, if the city grants a variance for x, then for consistency purposes how many others will they have to grant a variance for? [Zones] generally categorized by use, such as residential, duplex, industrial, agricultural, and open space / [cumulative zoning] less-intensive uses [ex: single family residential [non-cumulative zoning] more-intensive uses [ex: industrial] , most zoning today is non-cumulative and prevents the mixing of uses in higherintensity zones / a deferral of power from the federal constitution to give police power to protect general welfare Defense of estoppel [derived from equity] / Defense of vested rights [shows principles of common and constitutional law] [USE] there are multiple zones for each general category of use / have restrictions regarding height, bulk and **USE [PROCESS] zoning code is the core of zoning, consists of a map and text that have been adopted by the city council [ will contain provisions re: parking, advertising, ingress and egress, structural design, historic preservation, landscaping, accessory uses, pedestrian walkways Zoning code specifies the process for obtaining various land use approvals Specific discretionary approvals for particular projects, such as conditional use permits, variances, subdivision maps and site plans are often decided by the planning commission or alternatively by the board of zoning adjustment Discretionary permit decisions are administrative or quasi-judicial actions and therefore require notice, hearings, substantial evidence on the record, and findings that show why the decision make applied the standards for granting or denying

the permit that had been set forth in the applicable zoning code provision Zoning map shows what each parcel or geographic area is to be used as / indicates what uses are allowed by right, prohibited, allowed conditionally [Segregation of Uses] [Euclidean zoning]- another name for traditional zoning, the purpose is to segregate/separate incompatible uses from one another / zoning is often specific to one parcel of land [this is common in long developed urban areas o [spot zoning] what courts sometimes use to refer to the zoning of a parcel different from surrounding parcels if the court is calling it irrational / when someone is challenging a specific type of use that has been granted, it is an argument made for impermissible zoning that seems to be unfair for a particular area / apply a standard that is arbitrary to your zoning [Plans and Planning] [consistency requirement]a core concept of zoning is that it is required to be in accordance with a comprehensive plan / elements covered by comprehensive plans include land use, transportation, housing, infrastructure (ex: schools, parks, sewage capacity, public utilities services, water supplies, natural resources, open space, public safety} [Discretionary Permits and Approvals] much of the day-to-day of land use decision making by government regulators involves discretionary permits and approvals o Four important functions of subdivision regulations: 1) ensures accuracy of official government records 2) ensures the provision of infrastructure needed to support new development on subdivided land 3) ensures coordination and compatibility of infrastructure from one subdivision to the next 4) provides an initial review of, and means of controlling, anticipated development o [Conditional Use Permit] CUP special exception or special use permit / a conditional use is one that the city council has determined is appropriate for the particular zone but may have adverse impacts on surrounding land uses and the public health, safety, morals, or welfare if not monitored and controlled CUP applicant must establish that the particular project is compatible with surrounding land uses and appropriate in its particular location o [Variance] relief from a requirement or prohibition in the zoning code for a particular parcel or project when compliance with the zoning code would impose an undue hardship on the property owner [**hardship must be more than financial, there

must be something unusual or distinctive about the property itself, such as its size, shape, topography, or other physical condition, that is the source of the hardship and would prevent the type of development reasonably enjoyed by similarly zoned parcels ]-self imposed hardship does not justify variances [Flexible Zoning Techniques] a variety of regulatory mechanisms that have been added to the standard approach of Euclidean zoning o 1) overlay zones [ impose additional requirement or authorizations for a particular geographic area, on top of the existing zoning, such that both sets of controls apply to the particular geographic area o 2) buffer zones [provide for a transition from an area of more intensive land uses to an area of less intensive land uses o 3) performance zones [regulate actual outputs of development, instead of uses {ex: allowing industrial uses in various zones but restricting any use that exceeds certain noise, air pollution emission etc} o 4) planned unit developments [allow for the mix of uses, heights, bulk, and other features described in an approved site plan, and the particular development project as approved becomes the zoning itself, instead of one of the pre-set zones or districts provided for in the zoning code [Environmental regulations of land use] federal and state environmental statutes and regulations prohibiting development that impacts ecologically-relevant categories of land or specific natural places

Case citation: Village of Euclid v Ambler Realty Co. WAY CHALLENGES ARE MADE IN THE CASES (2): [Facial constitutional challenge] the STATUTE itself is being challenged as unconstitutional on its face [As Applied] the statute as it is being applied to a particular case is unconstitutional Facts: village of Euclid is in Ohio and is a municipal corporation, it adjoins the city of Cleveland o in 1922 Euclid council adopted an ordinance establishing a zoning plan for regulating and restricting the location of trades, industries, apartment houses, two family houses, single family houses, lot area to be built upon, the size and height of buildings, etc. Appelle owns a 68 acre tract of land by the westerly end of the village and on both sides of the land there are restricted residential plats upon which residences have been erected

o Allegation: the Euclid ordinance violates section 1 of the Fourteenth amendment because the tract of land is vacant and its purpose is for selling and developing for industrial uses [the land is ESPECIALLY adapted for this***] and had market value of $10,000 per acre but if use is limited to residential purposes market value does not exceed $2500 per acre and first 200 ft has value of $150 per ft but will be reduced to $50 or below per ft. Procedural History: Issue: whether the ordinances violate section 1 of the Fourteenth Amendment re: the plaintiff/appellee and is a nuisance #2 what is the crux of the more recent zoning legislationthe creation and maintenance of residential districts, from which business and trade are excluded [Substantive violation of Due Process] the statute as it is enacted is harming an inherent right of an individual and there is no way to protect the individuals access to their right improper grant of power Rule: common law of nuisances / Fourteenth amendment Holding: ordinances are valid Reasoning/Explanation: Issue #1: Precise limits or boundaries cannot be set with re: to ordinances because it varies with circumstances and conditions exclusions of a reasonable margin to insure effective enforcement does not make the ordinance invalid / it is bound to happen and works both ways in that sometimes the bad does not get excluded in order to allow the good Issue #2: [the state courts only agree that the exclusion of buildings devoted to business, trade, from residential districts, bears a rational relation to the health and safety of the community ] Case citation: West Land Equities Inc v City of Logan Facts: Plaintiff planned to use property for single-family housing Feb 1969 plaintiff bought 18.53 acres of property within City of Logan April 1976 pursuant to new land use ordinances the property was zoned a manufacturing zone which permitted single family dwellings July 1977 plaintiff introduced there project October 1977 the planning commission went on record and opposed the sub-division

November 1977 the commission rejected the proposed subdivision [three reasons listed on p 631]

Procedural History: November 1977 plaintiffs appealed the decision of planning commission to municipal council [denied] December 1977 plaintiffs filed a complaint in district court and a restraining order was issued on January 3 1978 [REMEDY] city enjoined from amending its zoning ordinance January 1978 trial court held that plaintiffs proposed project was permissible under the zoning regulations in existence prior to January 31, 1978 [before ordinance of Defendant went into effect] April 1978 injunction lifted and ordinance enacted and became effective Defendants appealed Issue: Whether the amendment to the zoning ordinance enacted by the city could be retroactively applied to plaintiffs application for subdivision approval Issue #2 whether there has been substantial reliance by the owner on governmental actions related to the superseded zoning that permitted the proposed use Rule: Holding: trial court decision affirmed in favor of plaintiff Reasoning/Explanation: Utah supreme court setting new precedence and holding that an application for subdivision approval or a building permit is entitled to favorable action if the application conforms to the zoning ordinance in effect at the time of the application, unless changes in the zoning ordinances are pending which would prohibit the use applied for or unless city can show a compelling reason for exercising its police power retroactively to the date of application Case citation: Maryland Reclamation Associates, Inc v Harford County Facts: MRA wants to use 68 acre agriculturally zoned property located in Harford County as a rubble landfill

Procedural History: Issue: Whether MRA substantially relied on County possibly allowing a rubble landfill to be constructed and maintained

Rule: Zoning Estoppel 1) relying in good faith 2) upon some act or omission of the government 3) has made such a substantial change in position or incurred such extensive obligations and expenses that it would be highly equitable and unjust to destroy the rights which he ostensibly had acquired [ government issues a permit to a citizen that allows him or her to develop property in some way, and after citizen has incurred expenses or has changed his position in reliance upon permit, the property for which permit given is rezoned and citizens intended use in illegal, then the court can enjoin the city from stopping the property use that violates new zoning scheme Requires the property owner to have relied in good faith on conduct of government and had substantial reliance Holding: no zoning estoppel doctrine was adopted with re: to MRA project Reasoning/Explanation: Zoning estoppel should be applied sparingly and with utmost caution -Maryland has continuously had a strict stance in protecting government rights to downzone in face of planned construction MRA should have anticipated difficulty getting landfill from past actions in the city that it was aware of p 640 early v late vesting p 636 definition of zoning estoppel 1/12/12 Case citation: Van Sicklen v Browne Facts: Petitioners applied to planning commission for a conditional use permit for the construction of an automobile service station on a lot owned by them in the Highway Service District Application was denied [reasons stated on p. 641]

Procedural History: Issue: Whether planning commissions reasons for denying petitioners application are legitimate Rule: Holding: trial court decision affirmed in favor of planning commission Reasoning/Explanation: P 642

Assignment p 645-666 (Thursday) Takings: Physical, Regulatory and Exactions [Fifth Amendment] a person must be justly compensated if there property is taken for public use [Fourteenth Amendment] Due Process Clause [Takings Clause] 1) private property 2) taking 3) public use 4) just compensation [physical takings] government intrudes on the owners right to exclude by physically possessing or occupying the property or mandating that the owner accommodate the possession or occupation by another [regulatory takings] governments regulation of the owners use of property is so great as to be tantamount to a taking of the property [exactions] government regulators condition the granting of a land-use or development permit on the owner providing certain property to the government or public (ex: easements, facilities, land) [Williamson County ripeness requirements] two procedural requirements applying to property owners bringing just compensation claims for takings must be understood 1) [final decision rule] property owner must have final decision from the government about the scope and effect of its actions on the property / property owners must seek any available permits, exceptions, variances, and appeals 2) [the state compensation rule] if land taken has been by a state or local government entity, the property owner must seek compensation through state-provided processes before bringing a clam in federal court [the taking of the property is not unconstitutional but it requires that the property owner be compensated Case citation: Loretto v Teleprompter Manhattan Catv Corp Regulation that is permitting another to use your land ---defer to LORETTO and constitutes a physical taking and just compensation is needed Facts: 1970 the previous owner of 303 West 105th street, NY allowed Teleprompter to install a cable of 30ft in length along the length of the building about 18 inches above the roof top and directional taps on the front and rear of the roof / 4days later the cable was extended another 46 ft and cable had been run to the adjoining building , the previous owner have D the exclusive privilege of providing cable television service to tenants there were also two large sliver boxes along the roof cable in 1971 Loretto bought the five story apartment building and did not about the cable

Teleprompter routinely obtained authorization for its cables from property owners and paid the owners 5% of the gross revenue that they made from the tenants in the particular property In 1973 NY enacted s.828 and said Landlords could not interfere with installation of cable on their property and may not demand payment from tenants or from any CATV company [only receive payment if any damage caused to property during installation], L is entitled to a one time $1 fee

Procedural History: 1976 Loretto brought a class action suit against Teleprompter and alleged Teleprompters installation was a trespass and a taking without just compensation Trial court granted summary judgment to Teleprompter Lorettto appealed. Appeals court upheld the statute [required the landlord to allow installations but permits landlord to request payment from the CATV company under s. 828(1)(b) to be determined by State Cable Commission, then the court eliminated landlord fees and stated CATV has important educational and community benefits o Rejected argument that physical occupation authorized by govt constitutes a taking because it does not interfere with any reasonable investment-backed expectations nor does it have an excessive economic impact on Loretto in comparison to her property rights Issue: whether a minor but permanent physical occupation of an owners property authorized by government constitutes a take of property for which just compensation is due Rule: Fifth Amendment Holding: Appeals court decision reversed, the case remanded for further proceedings DISSENT: majority opinion contradicts itself / the court is reaching in the past to disrupt a NY legislative decision to respond to a modern social problem (cable) Reasoning/Explanation: ANALYSIS in TAKINGS each side has to argue how the constitution is taking away or supporting rights Plaintiff: violation of Fifth and Fourteenth Amendment

Defendant: under police power, the state has the right to provide property Look at 1) the type of invasion and 2) what each side would argue in favor [intrusiveness, economic impact] or against the Taking

[Regulatory Taking] not a physical invasion / you are NOT permitted to make use of some of your bundle of rights as a property owner {ex: right to exclude / changing set backs} ---How to Analyze what type of Taking: o 1) what is the public policy reasoning for this regulation, who does this regulation affect? [is it just good for ME or is it good for a lot of other people]balancing equities / why didnt I know about the regulation?] o 2) Is a variance possible? If the Varince is not granted what can be argued?? --Maybe Substance Due Process?? -- or that this is a Regulatory Taking by preventing me from making use of my property Case citation: Yee v City of Escondido Regulatory Taking [balance of equities] If there is a statute that may be unconstitutional, the argument must be grounded in a constitutional argument, balance equities and balance public policy Facts: Yee owns mobile home parks in Escondido, CA 1978 Mobilehome Residency Law adopted 1988 Proposition K approvedret control ordinance that set rents back to 1986 levels and prohibits rent increase without the approval of City Council Procedural History: Petitioners filed complaint in San Diego Superior Court re: rent control ordinance and requested damages of $6million , declar. That rent control ordinance is unconstitutional and an injunction barring ordinances enforcement City got a demurrer Yees complaint was consolidated with 11 other complaints re: same issue for the court of appeals 8 other park owners and Yees petitioned for certiorari, granted Issue: Whether local rent ordinance in addition to Mobile home residency law, constitutes a physical occupation of their property entitling them to compensation Rule:

Holding: Court of Appeals judgment affirmed, NO Taking. Regulatory taking, not PHYSICAL taking Reasoning/Explanation: Assignment 660-682 Case citation: Pennsylvania Coal Co v Mahon [REGULATORY TAKING CASE] Facts: Plaintiffs, Mahon, want to prevent Pennsylvania Coal Company from mining under their property in such a way as to remove the support and cause a subsidence of the surface and of their house Deed has express terms that reserve the right to remove all coal under the house and that the plaintiffs take all risk and waive all claims for damages that may occur from mining Plaintiffs say that the reservation was taken away with the Act of Pennsylvania (1921)-Kohler Act [Subsidence] affecting the physical integrity of the property Procedural History: Court of Common pleas denied an injunction for the plaintiffs and said that to apply the ACT would be unconstitutional Penn Supreme Court agreed that Defendant had property rights protected by the constitution and held that the Kohler Act was a legitimate exercise of police power and gave a decree to the plaintiffs a writ of error was granted and brought case to US Supreme Court Rule: Holding: p 663 fundamental rule for REGULATORY taking: property may be regulated to a certain extent, if regulation goes too fait it will be recognized as a taking property must be so severely affected that is constitutes a TAKING Reasoning/Explanation: Case citation: Penn Central Transportation Co v City of New York This case is FACIAL CHALLENGE developed a test to decide whether there is a regulatory taking Has the most developed approach for cases involving regulation that do not involve PHYSICAL INVASION and do not eliminate all economical value of use---use PENN CENTRAL as precedent Facts:

1967 commission designated the Terminal a landmark and enjoyed tax exemption, Terminal is owned by Penn Central 1968 Penn Central entered into a renewable 50 year lease and sublease agreement with appellant UGP properties, Inc. o UGP was to construct a multistory office building above the terminal and promised to pay Penn Central $1 mill during construction and $3 mill annually thereafter Penn Central proposed two separate plans to construct an office building atop the terminal / both denied o Breuer I Commission reasoning: the proposed 55 ft tower atop the Terminal would be detrimental to the southern view [south faade] and that although the Pan Am building is 375 ft away it and the surrounding buildings were cut off from view and the proposed addition would be highly visible [rebuts appellants view that Breuer I could do not further damage to the South faade with one additional tower] o Breuer II Commission reasoning: in order to protect a landmark it cannot be torn down

Procedural History: Penn Central filed suit in New York Supreme Court [trial court] : claim application of Landmark Preservation Law had taken property without compensation in violation of FOURTEENTH AND FIFTH amendments o Appellant argument: Law is depriving gainful use of air rights and has taken their air rights [regardless of how much the rest of the Terminal is worth] / value of Terminal site is diminished Trial court granted injunctive and declaratory relief and severed the question of damages for a temporary taking ?? Appellate Division reversed on appeal by the City Court of Appeals affirmed [reasoning: there was no taking because control of the property had not been transferred to the City, the law only restricted appellants ability to exploit it] o No denial of Due Process because 1) landmark regulation permitted the same use of the Terminal 2) appellants did not show that thy could not earn a reasonable return on investment in the Terminal 3) even if Terminal never made a profit Appellants other real estate holdings could help support the Terminal 4) development rights retained above the Terminal will constitute significant compensation for loss of rights above the terminal itself US Supreme Court reasoning re: Taking o How to decide this type of case [two tests]: 1)Economic impact on claimant vs extent that regulation has interfered with distinct investment backed expectations o AND 2) [Character of Regulation]physical invasion or not

[FACIAL CHALLENGE] the STATUTE itself is being challenged as unconstitutional on its face [AS APPLIED CHALLENGE] the statute as it is being applied to a particular case is unconstitutional Issue: Whether there is a denial of substantive due process by the Landmark Preservation Law and are transferrable rights above Terminal just compensation Rule: New York Citys Landmark Preservation Law police power to regulate landmarks [state] Holding: Court of Appeals decision affirmed in favor of the City the Preservation Law has not violated the Fifth amendment and has provided just compensation / the Preservation Law does not interfere in any way with the present uses of the Terminal Case citation: Lucas v. South Carolina Coastal Council If there is 100% loss of use then it is a REGULATORY taking unless a person buys the property based on the existing conditions and regulations than there is no taking, that person bought into the problems / unless it has to do with existing nuisance law ---defer to LUCAS AS PRECEDENT Facts: 1986 Lucas paid $975,000 for two residential lots in SC to build single family homes 1988 SC legislature enacted Beachfront Management Act and barred Lucas from building permanent habitable structures on land Act required owners of land in a critical area to obtain a permit from SC Coastal Council prior to building o Lucas lots were not in critical area according to the original 1977 SC Coastal Zone Act Lucas commissioned architectural drawings for this purpose Procedural History: Trial court Act made property valueless, just compensation $1,232,387.50 SC Supreme Court- reversed [Act to prevent serious public harm, no compensation required] US Supreme Court court agrees with trial court when a person is forced to leave their property economically idle, he has suffered a taking Issue: Whether Act is a taking and requires just compensation under the Fifth and Fourteenth Rule: SC Beachfront Act

Holding: Judgment reversed and case remanded CONCURRENCE (1) DISSENT (2) 1/19/12 assignment p682-700 Case citation: Palazzolo v Rhode Island Facts: RI Coastal Resources Management Council rejected Palazzolos development proposals

Procedural History: Trial Court found in favor of RI Appeals Court affirmed RI Supreme Ct affirmed reasoning: takings claim was not ripe ; regulations predated 1978 and have been intact since Palazzolo has owned the land ; Palazzolo still retained $200,000 in development value remaining on an upland parcel of the property ; court sighted Penn Central Transp. v City of NY Palazzolo petitioned to US Supreme Ct US Supreme Ct reasoning: the case is ripe for decision / a purchaser or a successive title holder is deemed to have notice of an earlier-enacted restriction and is barred from claiming that it effects a taking, he took title with notice of limitation / court agrees with RI Supreme Ct re: plaintiff still retains economically beneficial use because uplands of the property can still be developed Issue: Whether RI wetlands laws constitute a taking and require compensation under Fifth Amendment and Fourteenth Amendment Rule: Holding: remanded to state court to be decided under principles stated in Penn Central Analysis 1)Economic impact on claimant vs extent that regulation has interfered with distinct investment backed expectations AND 2) [Character of Regulation]physical invasion or not CONCURRING: OConnor: CONCURRING: Scalia DISSENTING: Ginsburg / Souter / Breyer Three types of regulations: Claim regulation Zoning/housing regulation

Regulations that are not based in STATE ACTION [private individuals] Exactions Case citation: Tahoe-Sierra Preservation Council, Inc v Tahoe Regional Planning Agency Facts: Procedural History: Issue: Rule: Holding: does not constitute a PER SE taking under Lucas / not Lucas, this is temporary so use a Penn Central Analysis, and after using Penn Central there may be a taking and more information is needed Reasoning/Explanation: 5th Amendment to State / must incorporate 14th amendment[if this is a STATE action], 10th amendment [police power] original expectations economic impact public policy To argue a Taking there would need to be private property is it a TAKING public use is there just compensation physical intrusion is the most common type of taking [cite LORETTO case] [cite LUCAS case] some govt action short of intrusion that deprives you of all value of your land / total deprivation a complete taking [ cite PENN CENTRAL case] govt action and a determination needs to be made / reasonable economic expectations economic impact [substantive due process Fourteenth Amendment]

[Regulatory Taking] not a physical invasion / you are NOT permitted to make use of some of your bundle of rights as a property owner {ex: right to exclude / changing set backs} ---How to Analyze what type of Taking: 1) what is the public policy reasoning for this regulation, who does this regulation affect? [is it just good for ME or is it good for a lot of other people]balancing equitites / why didnt I know about the regulation?] -If it is a fifth amendment takings clause there cannot be a private actor who is the defendant if it is a taking, the argument the state would have, if the state was conceding that this was a taking, would be regarding the compensation that is owed to the plaintiff. 1/24/12 Assignment p700-727 d. development exactions [Exactions] third type of regulation / its an offset for the state to take some of an individuals land in order to lessen the impact of a development [public reason] / exactions are done to offset damage to the community Case citation: Dolan v City of Tigard -p won , it was a taking [rough proportionality test] 1. Legitimate state interest [in order to make use of someone elses property for some other reason the state must be doing the right thing - is this exaction helping to solve the problem 2. Essential nexus [there has to be a relationship that is ESSENTIAL between the exaction and the state interest / nexus must be roughly proportional to the impact] potential exaction greenway [a trail/path/ a pocket of nature] EXCLUSION, DISCRIMINATION, EQUAL PROTECTION AND DUE PROCESS Case citation: Village of Arlington Heights v Metropolitan Housing Development Corp. - p won on appeal, case reversed and remanded / a deeper look needs to be taken into whether the re-zoning petition was denied for discriminatory reasons [in a discriminatory zoning case- go through a EUCLID ANAYLSIS ON ONE SIDE [police power allows state statutes to govern local zoning boards through power given by the Supreme Court in Euclid ]who is the protected class Assignment p727-747 Case citation: City of Cleburne, Texas v Cleburne Living Center

Court said that public policy wise if they allow the city to not allow the housing for this class of people, disabled, then it will set a standard that will allow other people to disallow housing for that class as well How to analyze a discrimination claim regarding equal protection? 1. Is the group part of the suspect class? [strict scrutiny test, this is a value based test specific to public policy] [minimal scrutiny] try to see if the classification is RATIONALLY related to the legitimate state interest [heightened scrutiny] based on sex, race, national origin, religion very specific class Case citation: Bay Area Addiction Research and Treatment, Inc. v City of Antioch [significant risk test] Mt. Laurel cases that have to do with exclusionary zoning and inclusionary zoning Euclidean zoning Public policy schools are important, need to make sure that all persons similarly situation should be treated alike

To pass strict scrutiny, the law or policy must satisfy three tests: It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections. The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored. The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately. The Supreme Court has established standards for determining whether a statute or policy's classification requires the use of strict scrutiny. The class must have experienced a history of discrimination, must be definable as a

group based on "obvious, immutable, or distinguishing characteristics," be a minority of "politically powerless," and its characteristics must have little relationship to the government's policy aims or the ability of the group's members to contribute to society. Historical context and ultimate effect Arlington heights
WAY CHALLENGES ARE MADE IN THE CASES (2): [Facial constitutional challenge] the STATUTE itself is being challenged as unconstitutional on its face [As Applied] the statute as it is being applied to a particular case is unconstitutional

ANALYSIS in TAKINGS each side has to argue how the constitution is taking away or supporting rights Plaintiff: violation of Fifth and Fourteenth Amendment Defendant: under police power, the state has the right to provide property Look at 1) the type of invasion and 2) what each side would argue in favor [intrusiveness, economic impact] or against the Taking [Regulatory Taking] not a physical invasion / you are NOT permitted to make use of some of your bundle of rights as a property owner {ex: right to exclude / changing set backs} ---How to Analyze what type of Taking: o 1) what is the public policy reasoning for this regulation, who does this regulation affect? [is it just good for ME or is it good for a lot of other people]balancing equities / why didnt I know about the regulation?] o 2) Is a variance possible? If the Varince is not granted what can be argued?? --Maybe Substance Due Process?? -- or that this is a Regulatory Taking by preventing me from making use of my property Case citation: Yee v City of Escondido Regulatory Taking [balance of equities] If there is a statute that may be unconstitutional, the argument must be grounded in a constitutional argument, balance equities and balance public policy US Supreme Court reasoning re: Taking o How to decide this type of case [two tests]: 1)Economic impact on claimant vs extent that regulation has interfered with distinct investment backed expectations o AND 2) [Character of Regulation]physical invasion or not 5th Amendment to State / must incorporate 14th amendment[if this is a STATE action], 10th amendment [police power] original expectations economic impact public policy To argue a Taking there would need to be private property is it a TAKING public use is there just compensation

physical intrusion is the most common type of taking [cite LORETTO case] [cite LUCAS case] some govt action short of intrusion that deprives you of all value of your land / total deprivation a complete taking [ cite PENN CENTRAL case] govt action and a determination needs to be made / reasonable economic expectations economic impact [substantive due process Fourteenth Amendment] [Regulatory Taking] not a physical invasion / you are NOT permitted to make use of some of your bundle of rights as a property owner {ex: right to exclude / changing set backs} ---How to Analyze what type of Taking: 1) what is the public policy reasoning for this regulation, who does this regulation affect? [is it just good for ME or is it good for a lot of other people]balancing equitites / why didnt I know about the regulation?] -If it is a fifth amendment takings clause there cannot be a private actor who is the defendant if it is a taking, the argument the state would have, if the state was conceding that this was a taking, would be regarding the compensation that is owed to the plaintiff.