Paul Boudreaux

Land Use Law

Fall 2020

CH 1: INTRO
 Terms
o SFH: single family homes
o LO: Landowner
o Dev: Developer
o NIMBY: Not in my back yard
o LULU: Locally unwanted land use
o Density: A measure of how many people or buildings are within a
certain area (Low/high)
o Zoning: A legal system that draws boundaries on maps to regulate
land use in different areas
 Land use normally involves three parties
o Landowner: either a person or organization – that wishes to do
something with land that it owns or controls
o Government: usually local government but could be state, holds much
discretion in whether to regulate, restrict, or even prohibit certain land
use in certain places.
o Neighbors: the people who live or work in the area around the
landowner’s land
 Land use controversies have three parties:
o Land owner/developer- build
 Fee simple
 Argues/support property right- my land I can do what I want with
it
o Government- regulate
 Public welfare argument
 E.g. city of London fire
o Neighbors- vote for gov't representatives
 Gov't doesn’t want to lose reelection so they pay attention to
what neighbors want
 Density issues:
Strain on public utilities
Health concerns
Fire hazard
EMS
 Effect on society of spread out/sprawling pattern of living:
o One effect is that Americans drive more and for longer distances than
do people in almost any other nation.
 o Fewer people ride on public transportation, fewer ride bicycles, and
fewer walk.
 Some commentators suggest that these factors have led to poor
public health and more obesity in the United States, among
other things.
o We pollute more and generate more greenhouse gases (which cause
global warming) than people do in almost any other country.
o because of our spread-out areas, we also have bigger houses and
larger yards.

CH 2: ZONING AN INTRODUCTION
1. BRIEF HISTORY
type of land use the London government adopted?
 The new law prohibited buildings from being constructed mostly of wood, in
order to decrease the risk and spread of fire.
reasons why some landowners, such as homeowners, objected to the new law:
 because bricks and stone were more expensive than wood
 As a result of the land use law, London developed into a city largely of brick.
 classic example of an essential conflict in land use law: Government regulates
land use for the public good (or so it says), and landowners complain that the
regulation costs them money or makes like more difficult for them.
o Meanwhile, neighbors might be on side or the other.

grid be preferable > array of meandering streets.

 A grid makes travel easier; to go from one spot to another typically involves
only one turn, and if there is a backup on one street, a traveler needs only to
move one street over.

Paramount Building
 Once buildings a certain height in NY need to be “set back”
 No air conditioning at this time-blocked air flow to other buildings
 Blocked sun
 Permanent shadow
 Annoying

Supreme Court doesn’t hear many cases about land use law
 most land use law is local law, cases don’t create federal court jurisdiction:
through either diversity or a federal question.
 Only if a federal constitutional right is asserted by landowner do many land use
cases get to federal court

“progressivism”
 Focusing on the idea of improving city life through planning to relive some of
the stresses and tensions of city life
 2. FOUNDATIONAL CASE: EUCLID
Village if Euclid v. Ambler Realty Co.
 Rule: Municipal zoning regulations are constitutional, unless they are clearly
arbitrary and unreasonable, having no substantial relation to the public
health, safety, morals, or general welfare.
 Reasons:
o The power to pass zoning regulations derives from states’ police
powers.
o Euclid is separate from Cleveland- representing a majority of its
inhabitants and voicing their will, have determined not that industrial
development shall cease at its boundaries, but that the course of such
development shall proceed within definitely fixed lines.
o application of constitutional guarantees must have some “elasticity.
o Zoning created by experts- will make it easier to provide fire apparatus
suitable for the character and intensity of the development in each
section; will increase the safety and security of home life; greatly tend
to prevent street accidents, especially to children, by reducing traffic
and resulting confusion in residential sections; decrease noise and
other conditions which produce/intensify nervous disorders; preserve a
more favorable environment in which to rear children,
o Apartments bad in residential- "parasite", crowded, ugly, not safe for
children, almost a nuisance, infers with circulation of air, disturbing
noise
 “pig in the parlor”
 Legal Principal: deference
 Judicial Review: Rational basis review
 Gov't's authority: police power
o Miller v. Board of public works city of LA: govt may regulate in a
variety of ways for the “health, safety, morals, or general welfare of
the public.”
 Regional effects: general welfare
 SFH bias? YES. SFH districts are good

Localism
 Local gov't in charge and knows what people want
 If locals don’t want in their community, they shouldn't have to have it
 LULU: Locally unwanted land uses
 NIMBY
 BANANA PEOPLE: build absolutely nothing anywhere near anyone
 County or state can override local gov't
 In few instances federal gov't can step in and override state or local
o Cell phone towers

3. MODERN ZONING
 In the wake of Euclid, nearly every city in the nation adopted a zoning
ordinance.
o Houston, Texas notable exception- no zoning laws
  Many neighbors believe that lower density means less traffic (because there
are fewer people in a low-density community than in a high-density one), less
noise, and less other annoyances of modern life

Why do affordable housing advocates argues for high density? Higher density
means more housing units in a given area.
o More housing units means a greater supply of housing, which should lower
somewhat the cost of housing.
 dense housing probably mean smaller housing units, such as apartments
(which law often calls multi-family housing).
o Smaller units are typically less expensive than bigger ones.

 Floor-area ratio (FAR): a number that compares the total floor area of a
building (or buildings) with the size of landowner’s property parcel.
o Rough determination of density
o Very important for developers- bigger the far, more $$$
o Surrounding residents want less FAR- more people, more cars, more
congestion

Upzoning & Downzoning

 In the land use world, single-family houses (“SFHs”) are considered the
“highest” use of land
 any change to other uses is downzoning: from SFH to apartments to
commerce to industry.
 Moving from industry up to commercial or to apartments or SFHs is upzoning.
o This terminology contributes to a psychological bias for the SFH.
 The terms are also used when density or FAR is changed.

Cumulative & exclusive

 Cumulative zoning: allows in a particular district any land use permitted by the
code, plus any use allowed in a higher use district
o in a U-3 district, which allowed apartments, churches, schools, etc., a
landowner could build an SFH if it wished.
o The thinking is that no neighbor would object to “higher” use in the
district.
 Exclusive zoning: only the uses listed in the text are allowed – not higher use
and not lower uses.
o This strictness is justified because it helps ensure that expectations of
landowners and neighbors are met.

St. Pete Regulations

 Impervious surface: does not allow liquid to pass through
o Ex. Asphalt, house.
 Also makes the ground hot
 Height restrictions- peak of roof can only be 36ft high
 Set back rules- need to be at least 6 ft away from boundary line of property
o Fires, privacy, maintain character
 Porches encouraged
o Used to be no air conditioning, hotter inside house than out
  Nonrepeating facades- can’t have a house that looks like another within four
houses
 Garages are supposed to be in the back
o Traditional character
 St. Pete regs incredibly detailed- includes pictures

Accessory Uses
 Accessory dwelling unit
o Granny flats: in back yards, for in laws/widowed
 Encourage different generations of family to live together
o Neighbor concerns- could rent out to strangers, two houses on one
property, density

Atlantic Refining & Marketing Co. v. Whitpain Township Zoning Hearing

Board
 Rule: to decide if accessory use allowed must be measured by the character
of the area in which the combined use is proposed.
o local custom

Custom
In land use, evidence is important
 For a government to defend its position in a land use matter, it should have
some factual evidence that supported its decision, as well as the ability to
show that it considered this evidence in making it decisions.
 This fits with rational basis scrutiny of government: as along as government is
going a reasonable job, courts will usually defer.
 if government can’t show to the court the evidence that supported its decision,
this leads to a suspicion that the government made its decision for reasons not
in the record, such as whim, personal animus, bribery, or something else that
is unreasonable.
 Justifying a decision with evidence found after the decision was made is called
post-hoc rationalization – that is, rationalization after the fact – and often is
not allowed.

Typical Accessory Uses

 SFH- doghouses, lawnmower sheds, she-sheds, and gazebos
 Pigeon coop not a customary use. DaPurificacao v. Zoning Bd. of Adjustment of
Township of Union, 873 A.2d 582 (N.J. 2005).

Home Occupations
 most zoning codes have restrictions on whether and what type of business, if
any, is permitted inside a home.
 Some codes restrict the occupation to a small portion of the residence; others
restrict the kinds of activity – such as manufacturing or the stage of certain
types of equipment – inside
 Before the modern age of big business, it was very common for shopkeepers –
from lawyers to druggists to painters and blacksmiths –to live and work in the
same building.
 many people made their livelihoods by doing other kinds of work at home,
including sewing, carpentry, and washing laundry for others.
  the 20th century zoning world reflected in the Euclid ideal envisioned a world
in which people would not work in the place that they lived- home and work
would be separated.
 The California Supreme Court in the 1920s reasoned: “It is manifest that the
introduction of any form of business or industrial use into strictly uniform home
districts operates, in a measure at least, to lower the value and depreciate the
desirability of surrounding property for residential purposes.” Fourcade v. City
and County of San Francisco, 238 P. 934, 937 (Cal. 1925).
 Neighbors concerned about parking/density
 there has often been a bias in favor of “professionals” – people such as
doctors, dentists, lawyers, and accountants.
o These persons may work at home, even if clients and customers come
to the home.
o many ordinances have restrictions on the size, lighting, and wording of
signs for home occupations.
 By contrast, other, “non-professional” occupations often are prohibited, even
if their effect on the neighborhood might be no different from the
neighborhood “professional.”

In re Appeal of Janet HERRICK

 Rule:
 Reason:
o Women running family day care out of home
o Neighbors worried about traffic and congestion
o Local code only allowed day cares with six children or less if they in
homes (she normally had six, max ten)
o So needed conditional use permits, she was denied
o Regulations restricted use of in home business to less then 50% of the
home and could not happen outside
o She only used one-third of the living room and one third of front porch
o Porch was not viable from street
o Nothing she did violated the requirments that the home occupation be
“customary in residential areas” and “Not change the character
thereof”
o Knollwood Bldg. Condominiums v. Town of Rutland, 166 Vt. 529, 543,
699 A.2d 31, 41 (1997)- municipality possesses only those powers
granted to it by Legislature
o The court here properly focused on the statutory requirement that the
home occupation be “customary in residential areas” and “not change
the character thereof.” 24 V.S.A. § 4406(3).
o In this regard, the evidence fully supported the court’s finding that
nothing about the use of the rear deck for children’s play and storage
“caused a variation from the residential character” of the home or
neighborhood.
o The law and evidence also supported the court’s finding that day care
facilities for up to ten children were “customary” home occupations in
residential areas.
o City of Richmond Heights v. Richmond Heights Presbyterian
Church, 764 S.W.2d 647, 648 (Mo.1989)- day care center in area zoned
 for single family residences was valid accessory use under zoning
ordinance
Modern Occupations
 people have often operated home businesses without a permit or in violation of
law when they think that there is little likelihood of enforcement.
 The internet has radically increased the number of home occupations over the
past generation
 In the early days of the Internet (about 1994-2004), there were many cases in
which governments tried to stop Internet businesses
 Voyeur Dorm v. City of Tampa, 265 F.3d 1232 (11th Cri. 2001)- The residence
of 2312 West Farwell Drive provides no “offer[ing] [of adult entertainment] to
members of the public.” The offering occurs when the videotaped images are
dispersed over the internet and into the public eye for consumption. The City
Code cannot be applied to a location that does not, itself, offer adult
entertainment to the public. As a practical matter, zoning restrictions are
indelibly anchored in particular geographic locations …. [T]he case law relied
upon by Tampa and the district court concerns adult entertainment in which
customers physically attend the premises wherein the entertainment is
performed. Here, the audience or consumers of the adult entertainment do not
go to 2312 West Farwell Drive or congregate anywhere else in Tampa to enjoy
the entertainment. Indeed, the public offering occurs over the Internet in
“virtual space.” While the district court read [the city ordinance] in a literal
sense, finding no requirement that the paying public be on the premises, we
hold that [the ordinance] does not apply to a residence at which there is no
public offering of adult entertainment.

Commercial Zoning: The “Big Box” and “Formula” Store Controversy

 Another field in which land use law interacts with greater issues of American
society is the debate over “big box” stores.
 In recent decades, stores such as Walmart, Target, Home Depot, and others
have taken an increasingly large share of the American retail pie.
o They replaced stores such as Sears and Woolworth, which were in their
day criticized.
 Big box proponents- competitive/reduced prices; convenience; variety;
economic benefits of increased employment &sales tax revenues; one-stop
shopping super centers can reduce the number of car trips and related traffic
impacts; in at least one case, a village used a new big box store as the
centerpiece of its revitalization efforts.
 Big box critics- they mark the landscape; defile the local viewshed with their
large, featureless construction and acres of parking lots; eliminate
longstanding “Mom and Pop” stores; are inaccessible to pedestrians; generate
increased traffic and related pollution; place unacceptable demands on existing
infrastructure; inability to reuse the large empty structures (and their parking
lots) should the store close, or if an existing big box is abandoned as part of an
upgrade to a super center.
o For the most part, residents advance regulation (if not prohibition) of
these businesses to protect local economies, to ensure no negative
impacts to home values, and to guard the community against increased
traffic, visual, air, and water pollution, and other perceived or actual
impacts.
  Many communities also oppose Wal-Mart, in particular, based on its supposed
employment practices, lack of unions, and impact upon and attitude toward
the proposed host community.
 commentators point to the benefits that low prices of big box stores provide to
low-income people
o one writer has asserted that “No institution or agency has done more to
help the poor than Walmart.” John Tierney, For Profit, Anti-Poverty, City-
Journal, April 16, 2017
o The Baldwin Hills Walmart, for example, was credited with bringing, in
the1980s, low-cost shopping to a low-income section of Los Angeles with
few other shopping options.
o In Washington, D.C., Walmart opened smaller-than-usual stores and
smaller parking lots (some people actually walk!), after the mayor vetoed
a bill that would have required an especially high minimum wage for the
big retailer. Charles Fishman, 5 surprises at the new big city Wal-Mart in
Washington, D.C., Salon, Dec. 6, 2015,

Formula stores (this is the land use expert’s name for chain stores) – for example,
all Target stores -- typically have similar appearances.
 To be easily recognizable to customers

 neighbors of a new big stores surrounded by a parking lot typically displeased

at the prospect of a view of cars, asphalt, motor oil, and discarded soda cups
 local governments can affect the appearance of stores, either by regulation or
by persuasion.
o The McDonald’s in Sedona, Arizona, famous for its beautiful red rock
desert landscapes, has golden arches that are turquoise – a stone notable
for centuries for its use in jewelry in the Southwest.

Law softens visual impact to neighbors

o Many localities impose landscaping requirements, such as barriers of trees
or bushes around parking lots, to improve the neighbors views.
 preservation of small businesses (many of which might be local owned) and
preservation of the “character” of a town, especially its retail downtown.
 Jersey City, N.J.- enacted in 2013 a municipal ordinance to restrict, but not ban,
formula stores. Jersey City, N.J. Ordinance No. 15.053 (2013).
o In adopting the restriction, the city council concluded that “[r]restrictions
on formula business should be implemented to preserve Downtown’s
distinctive sense of place and unique neighborhood character.”

potential concerns in government’s using land use law to favor certain business
(small local ones) over others (big, national ones)
 Some formula stores owners have argued that such laws violate the interstate
commerce clause of the U.S. Constitution, because they are discriminating
against out-of-state businesses in favor of in-state ones.
 most courts have upheld laws that restrain formula stores as fitting the broad
police power to further the public welfare, as long as there is not explicit
discrimination against out-of-state owners.
 One case found an anti-formula ordinance to be unconstitutional, Island Silver
& Spice, Inc. v. Islamorada, 542 F.3d 844 (11th Cir. 2008)- Islamorada is an
 island village in the Florida Keys, famous for its fishing. The owner contracted
to sell the building for use as a Walgreen’s convenience store, but the village
government blocked the use because of the anti-formula store. The landowner
sued and won. Reason: Islamorada has a number of pre-existing formula retail
businesses, has no Historic District, no historic buildings in the vicinity of Island
Silver's property and the Ordinance is not necessary for preservation of the
historic characteristics of any buildings in the Village. B/c the ordinance does
not address small formula retail stores, which are permitted under the
ordinance, but would presumably affect the Village's small town character as
well or large non-chain businesses, the district court found that restricting
formula retail stores, while allowing other large and non-unique structures,
does not preserve a small town character. The district court determined that,
although in general, preserving a small town community is a legitimate
purpose, in this instance, Islamorada had not demonstrated that it has any
small town character to preserve.

Planned Unit Development Districts (PUDs)

 Many localities provide for a special type of land use district: a planned
development district (PUD, often pronounced as “pudd”).
 In these districts, the developer may mix uses, within some limitations, such as
the restriction that the PUD may not be any denser, in total, than the zoning for
the area would allow.
 a PUD district is typically not noted on the zoning map
o it is considered a floating district
 imagine a PUD district floating in the air, above but not on the map.
o If a developer wishes for it to “float down” on a particular spot (often an
area zoned for residential or commercial) the developer applies to the
zoning commission for the PUD district to float down and override the
existing zoning district
o If it is approved the map is changed to reflect the new PUD district.
o PUDs often “float” down to areas zoned for residential on the edges of
suburban areas, where little has been built before.
o A PUD might include SFHs, of course, along with some apartments, and
some retail (such as a restaurant and a dry-cleaner).
 one of the chief reasons for Euclidean separation of land uses was to avoid
clashing land uses – such as an oil refinery next to SFHs.
 Clustering: limiting density; cluster housing together w apts but allow for a
park - can build something other than SFH

Criticisms of Euclidian Zoning and Form-Based Codes

 the traditional world of Euclidean zoning involves an extraordinary amount of
regulation
 few other fields of human conduct are as heavily regulated as is land use
 land use law is a good example of “big govt”
o Yet there are few people marching in the streets against the tyrannical
hand of government in this realm.
o Libertarians and anti-regulation “tea party” advocates don’t scream in
favor of less zoning.
 In recent decades many commentators have criticized traditional zoning.
 1. the separation of land uses demands a community in which people must
drive from home to shopping to work, leading to environmental and other
harms, including suburban sprawl.
2. segregation of SFHs and apartments results in segregation of people by
income and, in many cases, by race and ethnicity as well (poor people and
people of color more often live in apartments).
3. the strictness and extraordinary detail of land use law imposes costs and
time burdens on developers and, eventually, these costs are passed on to
average Americans.
4. Euclidean zoning leads, some argue, to dull, low-density communities that
hold none of the visual and interpersonal pleasures of higher-density
communities in which land use and people are mixed. (In other words, no
city excitement).
 People born after 1980 are more likely to favor a denser community

Form-Based Codes
 One approach to change is to discard the heavy detail of zoning, in which land
uses are strictly separated, in favor of form-based codes, which allow more
flexibility.
 form-based code: is a land development regulation by using physical form
(rather than separation of uses) as the organizing principle for the code
o keyed to a regulating plan that designates the appropriate form and scale
(and therefore, character) of development, rather than only distinctions in
land-use types.
o Ultimately, a form-based code is a tool; the quality of development
outcomes depends on the quality and objectives of the community plan
that a code implements.
o Form bases codes often regulate density and appearance but leave details
such as use up to the landowner.
 a landowner could mix up SFHs, townhouses, apartments, stores, and
even industrial uses in a single block!

CH 3: “PLANNING” LAND USE LAW

 Creation of land use laws should be calm and deliberate giving consideration
to the needs of the community as a whole. Udell v. Haas.
 Zoning is NOT an expansion of common law nuisance

SSZEA
 The progressives of the early 1900s believed that proper procedures would
help ensure good decisions by government
 To help local governments create good land use laws, the U.S. Department of
Commerce (led at the time by future president Herbert Hoover) published in
1926 (the same year as Euclid) the Standard State Zoning Enabling Act
(“SSZEA”).
o This document was (and is) not law itself, but it serves as a model for
states to use in enacting their own state laws.
Question: What are some other examples of notable models that you studied in
your first-year courses for state legislatures or courts to adopt? Think!
 The Restatements- torts, contracts

SSZEA
 A law similar to the SSZEA is required in most states because local
governments typically do not have powers of their own other than those
granted to them by the state government.
 the existence of counties, cities, and towns is a matter of state law.
 Most state legislatures are able, if they wish, to create or abolish local
governments.
 They are also able to empower or restrain local governments in almost any
way that they wish.
 Zoning laws (which the SSZEA calls “regulations”) are for purpose of protecting
against “fire, panic, and other dangers,” as well “avoiding “overcrowding,”
facilitating transportation, water, sewage, schools, parks,” and other things,
according to SSZEA section 3.

PLANNING AND COMPREHENSIVE PLAN

 The SSZEA’s section 3 states that zoning regulations “shall be made in
accordance with a comprehensive plan ….”
o vague statement is interpreted different ways in different states.
o Some states interpret this merely to mean that zoning laws must be
somewhat coherent.
o others require a more rigorous procedure. Florida’s law is one of the
most detailed.
 In Florida, many jurisdictions adopt large “Comp Plan” documents.
 Roughly following the language of the statute, the Comp Plan discusses ideas
by setting forth very general Goals, which are to be achieved through
Objectives, which in turn are to be reached through Policies.
 The land use laws are the details that try to implement these policies.
 Note that Fla. Stat. § 163.3194 states that all development and governmental
“actions” must be “consistent with” the comprehensive plan. This is known
as the consistency requirement, which many states follow in some
manner.
 §1- Power arises from the police power of states
 §2- Divides the community into zoning areas (districts)
 §3- The comprehensive plan
o Regulations should be made in accordance with this plan (consistency
requirement)
 §7- creates a board of adjustment, which gives the Board the powers to
o Rule on any alleged errors of the zoning commission
o Decide “special exceptions”
o Authorize variances
o Allows anyone aggrieved by any officer, department, board of bureau
of the municipality to appeal to the Board
PINECREST LAKES, INC, v. SHIDEL
 Rule: The statutory rule is that if you build it, and in court it later proves
inconsistent, it might have to come down. The court's injunction enforces the
statutory scheme as written.
 remedy allowed by statute
 developer did not act in good faith
 no compatibility between the structures in the southern tier of Phase 10 and
the northern tier of Phase 1. an examination of the density of development in
the two tiers at issue, precludes this court from finding that they are in any
way comparable.
 The County has been ordered to comply with its own Comprehensive Plan
and restrained from allowing inconsistent development; and the developer
has been found to have built an inconsistent land use and has been ordered
to remove it.
Notes on the case
 The apartment buildings were demolished in 2002.
 Pinecrest Lakes is a good example of some important principles of
jurisprudence.
1. when a statute is clear – as the injunction remedy appeared to be – then a
court is unlikely to be persuaded by augments of “unfairness.”
 Courts will often say: “Send your arguments to the legislature.”
2. a party that appears to act recklessly – such as the developer that built,
even though the case was still in litigation – will received little sympathy.
(bad faith)
3. violations of land use law typically trigger injunctive relief (sometime
referred to a “equitable” relief), as opposed to merely money damages
(sometimes referred to, confusing, as relief at “law,” from the days when
there were separate courts of law and equity).
 The demolition order in this case probably generated little sympathy for the
developer.
 But this case also shows another powerful example of the bias in favor of SFHs.
 The Comp Plan in effect in effect stated that an SFH owner should never have
to live next to a tall building, even a two-story apartment building.

DETAILS OF GOV’T LAND USE AUTHORITY

 SSZEA provides that much of land use law is done by a local government
agency called the Zoning Commission. (SSEZA sec. 6.)
 SSZEA is only a model, many states and many places use different names.
o St. Petersburg calls the agency the Land Development Department.
Other places, the Zoning Board.
o other places, the Planning Commission.
o But the idea is the same: This is the government agency that has the
primarily, every-day responsibility for deciding what may legally be
done with land.

Why doesn’t the legislature – the city, town, or county council – make the
every-day decisions?
1. the legislature must deal with everything in government – from taxes to
budgets to criminal law to family law, etc. – and simply doesn’t have time
to spend on all the work needed in the land use world.
 2. high-level employees of the zoning commission (as with other agencies)
have special training and education in the field of land use law.
o The progressives believed that government could do great things if
trained experts were given authority. In big cities, some zoning
commission employees are lawyers; in many places, top officials are
certified planners (also called city planners, urban planners, and
land use planners).

Land Use Creation Process: Who Does What?

 Here’s the division of responsibility among parts of local government,
according to the SSZEA.
 The zoning commission drafts and recommends land use laws to the
legislature. Sec. 6.
 But the zoning commission is not the legislature; only the legislature (or
somebody authorized to act for the legislature) can make law.
 Land use laws (also called regulations or ordinances, of course) are
adopted by the legislature, just as Congress or a state legislature adopts
statutes. Sec. 4.
 Legislatures can and sometimes do reject the recommendations of the
zoning commission.

Applications and the Building Permit

 Different local governments have different laws on how to build. In many
places, a landowner or developer must obtain a building permit – the
thing that a landowner must obtain to be able to start construction.
o you might see a sign with a copy of the building permit nearby.
 In some places, getting a building permit is as simple as visiting the
zoning commission and getting the permit on the spot.
 In other places, the procedures are more complicated. This is because
there are many prerequisites to the granting of the permit.
o First, the government ensures that the plan fits the zoning.
o Next, the government may study issues such as pollution, traffic, and
historic preservation.
o Input from the neighbors may have to be solicited, under law. (The
landowner might be worried about this step, of course!)
o The building might have to meet special “green” construction
requirements to limit its energy and water usage. (We’ll talk about
these laws later.)
  landowners and developers often hire private consultants, who offer
expertise in navigating local government.
 In busy cities where there is a lot of construction, it might take six months
or more to obtain a building permit.
 Not on the chart are other steps about the physical nature of the land.
o If the soil has to be shaped, the landowner might need a grading
permit from another agency that looks out for problems with erosion
and water drainage.
o Then there are steps to put in place features such as sewer and water
lines, as well as securing electricity and other utilities.

Appeals
 Section 7 provides for a Board of Adjustment, which acts as sort of an
appellate body for zoning commission decisions.
o Note that the SSZEA gives powers to the Board to: (1) rule on any
alleged errors of the zoning commission; (2) decide “special
exceptions;” and (3) authorize “variances.”
o think of these as instances in which the zoning law allows the
landowner to argue for individual changes in the permissible zoning.
  an appealing party faces an uphill battle if it argues for a review of finding
of fact from the lower-level decisionmaker, but a better chance of success
in arguing errors of law.
 For a hypothetical example, consider a zoning district that permits a
“filing station” (what some people used to call a gas station); a landowner
wants to build a charging station for electric cars; the zoning commission
denies the permit with a conclusion that an electric charging station is not
a “filling station” because it does not offer gasoline.

 The landowner might appeal to the Board of Adjustment and present a

strong argument that a reasonable interpretation of “filing station” for
modern times includes an electric charging station. Compare Pierro v.
Baxendale, 118 A.2d 401 (N.J. 1955) (zoning for a “rooming house” did not
allow for a motel).

 Many governments allow a neighbor to intervene by filing a complaint

about decision.

Does the SSZEA allow a neighbor to appeal to the Board of Adjustment?

 Section 7 states that “Appeals to the board of adjustment may be taken
by any person aggrieved by any officer, department, board of bureau of
the municipality ….”
 It offers a similar right of appeal from the Board of Adjustment to an
appropriate court.
 Most states interpret “any person aggrieved” to include any neighbor or
person living or working nearby – anybody who might be reasonably
unhappy and personally affected by the government’s decision.
 This is a significant feature of the SSZEA and land use law: neighbors have
a right to argue before government about land use decisions off but near
their land.
 many state courts limit to people in the community the right to appeal as
“aggrieved;” an oil company or an out-of-town environmentalist probably
wouldn’t have the ability to appeal a decision involving the electric
charging station.

Rezoning & Spot Zoning

 SSZEA sec. 5 specifically provides for land use laws to be “amended,
supplemented, changed, modified or repealed.”
  government can protect itself from court challenges if it explains
reasonably why it is making the change
 It also helps the government if the zoning change is not a drastic one –
thus not upsetting the expectations of neighbors too much. See, e.g., Oka
v. Cole, 145 So.2d 233 (Fla. 1962) (upholding a rezoning from SFH to
multi-family housing in Miami Beach; the government evidence that there
was a slumping demand for SFHs in the city and that an adjacent parcel
was already zoned and built for multi-family use).
 But many courts have expressed skepticism of “spot zoning.”
 Spot zoning- rezoning a particular spot in a way that is different from the
surrounding zoning.
o There is no definitive legal rule that bars spot zoning.
o But courts are often suspicious that such zoning wasn’t done calmly
and deliberately, or that the change is being done for purposes of
pleasing some individual person – maybe the landowner, maybe a
neighbor, maybe someone in government.

 Planning arising from Due Process

 “Take it slow and think about it”
 Why do we need planning?
 Slower processes makes for better decisions
 Standard State Zoning Enabling Act (SSZEA)
 § 1 – police power
 § 2 – Dividing up community into zoning areas (districts)
  § 3 – The comprehensive plan
 To fit with Due Process, the SSZEA requires flexibility

GREATER YELLOWSTONE COALITION, INC., v. BOARD OF COUNTY COMMISSIONERS

OF GALLATIN COUNTY
 Three-part test for spot zoning:
1. Whether the requested use is significantly different from the prevailing
use in the area;
2. Whether the area in which the requested use is to apply is small (not
solely in physical size);
 How many separate landowners will benefit from the zone
classification?
3. Whether the requested change is more in the nature of special
legislation designed to benefit the one or a few landowners at the
expense of the surrounding landowners or general public
 Inquiry should also involve whether the requested use is in
accordance w/ a comprehensive plan
 Zoning amendment was illegal spot zoning base on three-part test
 PUD designation would conflict w/ predominately rural and residential
character or surrounding properties & differed from prevailing uses on
surrounding properties; duck creek parcel small in relation to Hebgen lake
zoning district (only 2% of district), owned by a single entity, only one
landowner benefited from the rezone; substantial evidence supports district
courts finding that the proposed zone change benefitted duck creek
properties at the expense of surrounding land owners and general public &
significant impact on wildlife habitat

CH 4: FLEXIBILITY IN ZONING
 SSZEA §7 provides for special exceptions and variances
o To be decided by board of adjustment

1. SPECIAL EXCEPTIONS
 Special exceptions (called conditional uses in some places) are allowed
on a case-by-case basis; this makes sense for certain types of land uses in
certain locations
 In many places, the government grants a permit only if the proposed use
meets certain conditions – in effect, that it would be good fit in the
community. Because of this, some places call this technique a conditional
use, not a special exception.
 Some governments use a very vague standard for granting a permit for a
special exception; they might allow the use if it serves “the public interest.”
City of Chicago Heights v. Living Word Outreach Full Gospel Church and
Ministries, Inc., 749 N.E.2d 916 (Ill. 2016) (standard in Chicago).
 vague- might allow for building of lulus
 Many places also state that the landowner/applicant has the burden of proof
of showing that its proposal meets the code standard. Bray v. Zoning Bd. of
Adjustment, 410 A.2d 909, 911 (Pa. Commonw. Ct. 1980).
 o If the evidence isn’t sufficient or isn’t persuasive, then the landowner
isn’t entitled to the permit;
o but if the evidence is persuasive that the planned use meets the
code’s conditions, the government must allow the special exception;
the government doesn’t hold complete discretion to deny a permit for
no good reason.

PEOPLE'S COUNSEL FOR BALTIMORE COUNTY, v. LOYOLA COLLEGE IN MARYLAND

 Rule: The special exception requires a case-by-case evaluation by an
administrative zoning body or officer according to legislatively-defined
standards.
 the appropriate standard to be used in determining whether a requested
special exception use would have an adverse effect and, therefore, should be
denied is whether there are facts and circumstances that show that the
particular use proposed at the particular location proposed would have any
adverse effects above and beyond those inherently associated with such a
special exception use irrespective of its location within the zone.
 When SE is specifically listed, presumption it should be allowed; when
showed it is allowed, burden shifts to govt to show not allowed
NOTES ON THE CASE.
“Presumptive Finding”
 The court’s reasoning seems to suggest that when a land use such as a
“college” is listed by the code as a special exception, this creates a
presumption that the land use should be permitted, unless the factors show
otherwise
 county code stated that a special exception may be granted only if it will not
be “detrimental to the health, safety, or general welfare of the locality,”
congest the roads, create fire hazard, and “be detrimental to the
environment.”
 But any occupied building of any kind would create some risk of fire, some
added congestion, and might add some water or air pollution, even if it is
minimal.

2. VARIANCES
 Variance
o The code does not allow this (generally prohibited)
o The burden is on the landowner
 Has to show “hardship”
 Cannot be a personal hardship

Town of Indialantic v. Nance

 Landowner wanted a height variance, as well as a variance to allow less
parking
 On appeal, you argue over whether the court’s decision was fairly debatable
o Courts defer to agencies
 Hardship can’t be self-created
 Finances can give rise to a hardship claim
o If you can’t make a reasonable return on property b/c of the land
 Unique nature of the individual parcel of land can give rise to a hardship
claim
 o Something unusual about the land itself
 Hardship concerning the land

3. NONCONFORMING USES
Nonconforming use
 The use was once lawful, but a change in zoning laws makes it unlawful
 Nonconforming use allows for this to stand
 It would be unfair to punish someone who was previously abiding by code
 The law doesn’t want to upset people’s expectations
 Amortization – Value of property decreases over time
 St. Pete regulation – 16.60.030
Bransford v. Zoning Board of Appeals
 Lot size was nonconforming
 Lot size regulations promotes low density
 Problem: lot too small (ordinance). Land owner argued that they are just
changing the house size, doesn't affect lot, does not change nonconforming
nature.
 The board's denial of the plaintiffs' special permit to reconstruct their
proposed new residence was within its discretion
 the expansion of the proposed new residence in terms of footprint,
living area, and height; that the average structures in the vicinity of
the plaintiffs' lot measured approximately 1,800 square feet in area
(significantly smaller than the area of the plaintiffs' proposed new
structure); and that the area on which the plaintiffs' lot is located is
flat, open terrain, with few trees or vegetation to buffer homes from
each other.
 There already so unfair to make them tear it down but if want to make
changes, changes must conform
 Generally a nonconforming use cannot be modified unless it is to conform
NOTES ON THE CASE.
 a principle behind the nonconforming use in land use is that eventually most
will disappear – either because of disasters (such as fires) or because the
building is torn down.
 The reason that the house was nonconforming was that its lot was too small,
under the zoning.
 The court quoted a landmark Simon case, which referred to protection against
“fire,” “overcrowding,” obtaining “adequate light, air and sunshine,” and
“beauty.” This should sound familiar from Euclid.

If you asked homeowners in Martha’s Vineyard why they have minimum lot
size laws, what do you think that they would say?
 Parking, infrastructure, fire, beauty, privacy

Allowing non forming uses matches expectations of both landowner & neighbors
 Legal at the time
 Amelioration
CH 5: AGREEMENTS BTWN GOVT AND LANDOWNER
 The government holds the authority to make law, which the landowner would
like to clarify to its advantage.
 A landowner may be able to bring financial resources of the private sector –
money – that could be used to make a deal with the government.
 An arrangement might serve the public welfare by bringing private money to
help the community.
 And an agreement might enable the landowner to make more money from
the plan.

1. SUBDIVISIONS
Concerns for government often arise when a landowner seeks to subdivide
the land. To subdivide is simply a fancy word to divide.
 A developer who wishes to build a housing development with many houses,
for example, wishes to subdivide the ownership of the land: the developer
wishes to sell various small parcels of the land to home buyers
 Subdivisions often impose large impacts on the community.
o Some effects might be good – such as jobs in construction and more
shoppers in local stores.
 Neighbors might worry about a tremendous increase in traffic (imagine all
these homeowners pouring onto the highway at 8:30 a.m. each morning).
 might worry about pollution from cars
 an increase in sewage
 runoff off motor oil from the new streets onto the local streams
 hundreds of new kids in the local classrooms.
 Infrastructure: The tangible things that government does to support a
community – roads, sewers, water supply, garbage pickup, police, fire stations,
and public schools
 politicians at all levels are often reluctant to do what is necessary to improve
the infrastructure
Why are politicians reluctant?
 Improving infrastructure takes money, and money for government often comes
from taxes imposed on the taxpayers of the jurisdiction.
 When a landowner proposes to build a new subdivision, the existing residents
also might resent having their taxes used to pay the infrastructure needs that
are generated by the new subdivision.

Why would the existing residents complain?

 They might reason that they did not generate the need the new infrastructure;
the new subdivision (and its new residents) did!
 the existing residents – as well as politicians that wish to appeal to them –
might think about ways to pass along costs of the new infrastructure to the
new subdivision and its residents.

 This desire to pass along the costs of “growth” – the construction of new
buildings and migration of new people – to the new residents is one of the most
important issues of modern local government.
 Pre WWII houses were built one at a time, govt took responsibility of providing
infrastructure
  In the years since- most houses built in clumps of big subdivisions & govt
began passing along infrastructure costs
 1950, Suffolk County, N.Y., adopted a law that imposed a condition on
subdivision approval: the subdivision developer had to build (“improve”) the
paved roads that the subdivision would need, as condition for getting a permit
to subdivide.
o The New York court upheld the county law, noting that “in this era of the
automobile, modern living as we know it is impossible without improved
highways” (thanks, court!) and reasoning: It is [the developer] who wishes
to construct dwellings on his property, and the town merely conditions its
approval of such construction upon his compliance with
reasonable conditions designed for the protection both of the ultimate
purchasers of the homes and of the public. That the State may empower
the town to do this, is clear. The regulation here involved is not essentially
different from other regulations of property in the interest of public health,
safety or welfare. Brous v. Smith, 304 N.Y. 164, 165 (1952).
 Deferential approach of Euclid to reasonable govt regulations for public welfare

Question: How else could government pass along the costs of hiring new
teachers and firefighters? Think!

 Gov't can impose requirements as conditions to the permit to subdivide

 Gov't procedures for approving a subdivision
1. Developer contacts zoning commissions to discuss plan to build & shows
that the plan meets the zoning.
 Gov't may give developer a basic idea of conditions that it always
imposes on subdivisions as well as an special concerns
2. Developers presents to the zoning commission a map of planned
subdivision (Preliminary plat)
 preliminary plat will specify how many houses or buildings are
planned, as wells as the general location of streets, exits to major
highways, and other features
 Preliminary plat tells zoning commissions how the subdivision would
affect the community in terms of infrastructure, pollutions, etc.
3. Final plat w/ conditions met

Why does the developer acquiesce?

 Sometimes, the developer realizes that won’t make money if it abides by the
conditions, and it withdraws its proposal.
 most often, the developer will fulfill the government’s conditions.
 If the developer believes that it will be able to meet the conditions, it will
submit a final plat, which often shows more detail and shows the fulfillment of
the government’s conditions.
 Once the final plat is approved, the developer is free to start work on preparing
the land for subdivision and construction
what happens if, when the landowner seeks approval of its final plat, the
government seeks to impose new conditions or new requirements?

2. ESTOPPEL AND VESTED RIGHTS

 When the government seeks to add or change its conditions after approval of
the preliminary plat, the landowner may argue that the government should
be estopped from changing the conditions.
o Because this legal doctrine is based on fairness, it is often called
equitable estoppel.
o Expectations
 Estoppel (CL) v. vested rights (statute)
o Estoppel default

THE FLORIDA COMPANIES v. ORANGE COUNTY

 Rule: doctrine of equitable estoppel will preclude a municipality from
exercising its police power to prohibit a particular use of land where: (A)
property owner (1) in good faith (2) upon some act or omission of the
government (3) has made such a substantial change in position or has
incurred such extensive obligations and expenses that it would be highly
inequitable and unjust to destroy the right he acquired. Hollywood Beach
Hotel Co. v. City of Hollywood, 329 So.2d 10, 15-16 (Fla.1976).
 A comparison of the adverse effects of a proposed use at a proposed location
to the effects at other locations in the same zone is not part of the required
analysis for special-exception applications. The controlling case, Schultz v.
Pritts, 432 A.2d 1319 (Md. Ct. App. 1981), unequivocally rejected this
 argument, holding that an applicant only has to show that the proposed use
has no detrimental effect on the neighborhood and will not adversely affect
the public interest. Schultz states that a special exception must be denied if
the proposed use would have an adverse effect on the neighborhood that is
different from the adverse effect that would result from the same use
anywhere else in the zone. This is not the equivalent of stating that a special-
exception applicant must prove that a proposed use would be more
detrimental elsewhere. A special-exception applicant need not prove this, and
the zoning body need not consider evidence of those comparisons.
NOTES ON THE CASE
“Fair Play”
 The Court summarized: “The theory of estoppel amounts to nothing more than
an application of the rules of fair play. One party will not be permitted to invite
another onto a welcome mat and then be permitted to snatch the mat away
….”
 Note that the law gave the government the authority to “void” its approval of
the preliminary plat after one year if substantial work had not been completed.

What is the purpose for such time limits?

 Note that the developer resubmitted its preliminary plat application seven
years after the first application.

Advocating for a Client: Law and Facts

If you represented the developer, however, which facts would you have emphasized
to the court?
 Orange County changed it laws between 1973 and 1980 to disallow private
sewage treatment plants in rural areas;
 instead, subdivisions would have to use septic tanks, which are individual
sewage treatment systems that require more land (and thus lower the number
of lots available for many subdivisions).

Get the Words and Procedure Right!

 Orange County’s law gave the Board of County Commissioners (the legislature)
the ability to cancel a preliminary plat approval after one year (a reasonable
thing to do), the government’s cancellation was done by the public works
director and referred only to cancelling “engineering” approval.

More than Subdivisions

 Because of the complexity and two-step process for subdivisions, estoppel
claims are often made by developers trying to get final approval for
subdivisions.
 the concept of estoppel set forth in Florida Companies might apply to any
situation in which the government creates reasonable reliance and then upsets
that reliance.

Factors in the Estoppel Test

 Florida Companies decision set forth a list of factors for estoppel, requiring that
a land owner:
1. Act in "good faith";
 term usually means that the landowner didn’t lie to the government,
isn’t trying to trick the government, or didn’t take risky steps that a
reasonable party would not do.
2. Act in response to some act or omission of the gov't";
3. Make a "substantial change in position or incurred extensive obligations";
4. This change or obligation makes it "highly inequitable and unjust to
destroy the right" the landowner acquired.

A problem that arises from time to time is when the landowner knows that the law
might change but then rushes to get preliminary approval; is this acting in “good
faith”?
 In one case, a landowner got preliminary approval from the government to
construct a commercial building; before much work was done, however, the
zoning law was changed to allow only residential use. (This is a frequent
phenomenon, as we see.) The landowner continued its work and argued
estoppel. The court held that “reliance” taken after a change was made was,
in effect, not done in “good faith.” Hillsborough v. Smith, 276 N.C. 48 (1969).

What if a developer sees a potential legal change on the horizon, can the landowner
act in good faith? Does it matter how likely the change is? Who would decide
“likely”?
 Hawaii case- The local government rezoned land, at the developer’s request, in
order to allow the construction of a large resort on the Nukolii area of the
island of Kauai. Neighbors then began a process to reverse the zoning through
referendum (a vote by the public, which is allowed in some states). The
developer then applied for a preliminary permit in December. The next month
(January), the referendum was placed on the ballot (the government “certified”
the referendum “petition”) for November 4. The government granted the
landowner a building permit on November 3, the day before the referendum
vote. (What happened in the vote? The public referendum reversed the
zoning, of course!) The Hawaii Supreme Court held that the government was
not estopped and that the voters’ decision barred construction. In effect, the
court reasoned that the landowner should not have relied on a government
approval that was issued while the referendum was pending.

“Act or Omission” of the Government.

 Almost always the government has to “act” in some way to generate estoppel.
 Almost all courts have said that the zoning, by itself, is not enough to create
estoppel.
 Rather, the government must act in some way to crate reliance for the
developer’s particular plan, such as approval of a preliminary plat. See Wal-
Mart Stores, Inc. v. County of Clark, 125 F. Supp.2d 420 (D. Nev. 1999).

“Substantial Change in Position or ... Incurred ... Extensive Obligations.”

 This is the factor of determinantal reliance.
 To win an estoppel claim, the developer must show not only that the
government gave some approval, but that the developer relied (in “good
faith,” of course) on this approval to spend money that it can’t get back, as
with the money spent on the sewage treatment plant in Florida Companies.
  Simply buying land is not enough, of course. See, e.g., Sautto v. Edenboro
Apts., 174 A.2d 497 (N.J. Super. 1961).
 The more that the developer can argue that the money was spent on things
that relate to the government’s approval, the stronger the case for estoppel.

“Highly Inequitable.”
 This factor should seem similar to the “public interest” factor or “balance of the
equities” factor that often appears in law – the standard for granting a
preliminary injunction, for example.
 If the government argues that the developer’s project would be very bad for
the community, this argument might weigh on the side of denying estoppel.
 But if the developer argues that its plan would be good for the community, this
works in its favor.

Vested rights
 Doctrine of estoppel gives little certainty to developers or govt
 Many states have adopted laws the create vested rights for a developer for
certain types of approval by gov't
 If the gov't makes one of these approvals, the developer’s rights are vested –
meaning gov't is estopped from interfering with the developer’s rights.
 if the gov't hasn’t made this approval, the government can change its laws.
 Gov't's approval is a discretionary act – meaning that the government may
decide either to grant it or not to grant;
o after vesting, however, further steps are merely ministerial, meaning
that no discretion is involved.

YOUNGBLOOD v. BOARD OF SUPERVISORS OF SAN DIEGO COUNTY

 board did not act unlawfully in approving the tentative map; once the
developer complied with the conditions attached to that approval and
submitted a final map corresponding to the tentative map, the board
performed a ministerial duty in approving the final map.
 ‘A governing body shall not deny approval of a final subdivision map pursuant
to Section 11549.5 if it has previously approved a tentative map for the
proposed subdivision and if it finds that the final map is in substantial
compliance with the previously approved tentative map.‘

NOTES ON THE CASE

A Straightforward Test?
 The subdivision approval process as explained in Youngblood seems very
simple: when the government approves a preliminary plat, this is the
government’s one and only chance to impose conditions.
 Once the preliminary plat is approved with conditions, the landowner’s rights
are vested; if it meets the conditions, the landowner gets to build as planned.
The government’s approval of the final plat is merely ministerial – meaning
that it is mechanical: if the conditions are met, it must approve, and it cannot
impose new conditions.
o This gives a developer confidence that its plans will be workable if it
meets the initial conditions.
 3. CONTRACTS BETWEEN GOVERNMENT AND LANDOWNER
 SSZEA’s section 7, the Board of Adjustment is given the power to make
“exceptions,” “variances,” and “conditions” in making its decisions.
 court-made doctrine that states that governments should not engage in
“contract zoning” – that is, changing the zoning simply through a contract
with the landowner.

Most courts would look very skeptically on a government that told a landowner: You
want the zoning changed? If you pay us $1 million, we will change zoning
What is the concern behind this doctrine?
 Dacy v. Village of Ruidoso, 18, 114 N.M. 699, 703–04, 845 P.2d 793, 797–98
(1992): govt agreed to swap parcels with the landowner; as part of the
arrangement, the government rezoned the land that it traded to the private
landowner so that the landowner could build apartments. In most situations
contract zoning is illegal- contract zoning is inherently flawed as a “problematic
blend of contract and police powers.” Their opinions typically condemn
contract zoning as an illegal bargaining away or abrogation of the police
power.
 one form of contract zoning is legal: a unilateral contract in which a party
makes a promise in return for a municipality's act of rezoning. In this situation,
the municipality makes no promise and there is no enforceable contract until
the municipality acts to rezone the property. Because the municipality does
not commit itself to any specified action before the zoning hearing, it does not
circumvent statutory procedures or compromise the rights of affected persons.

Did the court convince you that there is an important difference between a bilateral
and unilateral contact? Does this follow what you learned in contact law?
 In order to avoid invalidation by courts, governments can argue that the
arrangement was not a deal but merely zoning with a condition.
 In a case in New York state, the town rezoned at the landowner’s’ request, but
imposed various conditions, recorded by a binding covenant, including that the
landowner limit the size of the building and construct a fence with shrubs along
the property boundary.
o A court concluded that these conditions did not constitute illegal contract
zoning. Church v. Town of Islip, 8 N.Y.2d 154 (1960).
 Today, rezoning with conditions is very common, especially with big
development projects, and especially for things such as landscaping, road
improvements, and other steps that lessen the adverse impact of the
development.
 Governments argue that the public gets valuable benefits from these
arrangements.

DURAND v. IDC BELLINGHAM, LLC

 Rule: The enactment of a zoning bylaw by the voters at town meeting is not
only the exercise of an independent police power; it is also a legislative act,
carrying a strong presumption of validity. It will not normally be undone unless
the plaintiff can demonstrate “by a preponderance of the evidence that the
zoning regulation is arbitrary and unreasonable, or substantially unrelated to
the public health, safety ... or general welfare.” If the reasonableness of a
 zoning bylaw is even “fairly debatable, the judgment of the local legislative
body responsible for the enactment must be sustained.”
 Reason: plaintiffs bear a heavy burden on both counts (issues 1&2), and to
sustain that burden “must prove facts which compel a conclusion that the
question [of the validity of the ordinance] is not even fairly debatable.
An agreement between a property owner and a municipality to rezone a parcel
of land may cause the municipality to violate the process mandated by [state
statute]. Such an instance of “contract zoning,” as we will refer to it, involving
a promise by a municipality to rezone a property either before the vote to
rezone has been taken or before the required process has been undertaken,
evades the dictates of [the state statute], and may render the
subsequent rezoning invalid. The Land Court judge correctly concluded that no
such advance agreement existed in this case. IDC pledged that if the town
were to rezone the locus for industrial use (and if other events occurred), IDC
would pay the town $8 million. At no time before the May 28, 1997, town
meeting were the voters of town meeting bound to approve the zoning
change. Because the town followed the procedures dictated by [state law], the
rezoning was not invalid on statutory grounds.
 Really open, was not done in secret, common knowledge to towns people
 Illegal: whenever it arises from a promise by a municipality to zone property in
a certain manner
 Legal: a unilateral promise in return for a municipality’s act to rezone
 Municipality does not commit itself to any specific act before rezoning
 Go through legal procedure then get money if approved

What land use acronym could we give to people’s thoughts about an electric power
plant? Think!
 A LULU. No one wants a power plant next to them, but everybody needs a
power plant to be built some place.

4. INCENTIVE ZONING
 Dacy and Durand show the potential dangers of deals between government
and landowner.
 How could government get benefits from a developer without entering into a
contract?
o The government could adopt a law that told any potential developer: If
you agree to give the public certain benefits, you can build more than
what the law otherwise would allow.
 Increased FAR
o To further avoid seeming like a contract, the government could ask not for
benefit in terms of money, but in terms of services that would help the
public.

What kinds of services might the government ask for?

 The government might ask for infrastructure, which it otherwise would have to
pay for through tax money.
 Today, it is very common for governments to publish a schedule (like a menu)
which tells developers what they if they provide certain infrastructure, the
developers can build more than the law otherwise allows.
 o This is called incentive zoning (or bonus zoning). It is up to the
developer to decide which incentive it wishes to “order.”

 Defenders of agreements btwn govt and developers call incentive zoning a

win-win
o Govt gets needed infrastructure and services for public
o Developers get to build more

5. COMMUNITY BENEFIT AGREEMENTS

 developer can offer these things through a community benefits agreement
(“CBA”).
o Can be low cost housing, build infrastructure, hire locals, etc.
o Prevent locals fighting developer at zoning board
 Typically, the developer will sign the agreement alongside existing community
groups, or groups that have arisen specifically for the purpose of challenging
the land use project
 some criticize CBAs as developers “buying off” community groups
 others see CBAs as a great example of the American free enterprise system –
neighbors are empowered to secure benefits for their community from affluent
developers
 Once a CBA is signed, a smart developer will usually meet all of its obligations.
o Typically, the CBA states that if the development doesn’t happen (often,
developments aren’t completed because of changes in the real estate
market, a downtown in the developer’s finances, changes in zoning law,
etc.), the developer’s obligations are cancelled.

Riverside South Planning Corporation v. CRP/Extell Riverside, L.P., et al.

 Rule: fundamental rule of contract interpretation is that agreements are
construed in accord with the parties' intent and the best evidence of what
parties to a written agreement intend is what they say in their writing. a
written agreement that is clear and unambiguous on its face must be
enforced according to the plain meaning of its terms, and extrinsic evidence
of the parties' intent may be considered only if the agreement is ambiguous.
o A contract is unambiguous if on its face it is reasonably susceptible of
only one meaning.
o Parole evidence cannot be used to create an ambiguity where the
words of the parties' agreement are otherwise clear and unambiguous.
 Reason: what RSPC actually obtained was only a limited and conditional
commitment. Look to plain language of the contract (clear and
unambiguous). Agreement was only for a maximum of 10 years but could be
less-sunset provision. Agreement was between Trump (personally) & RSPC,
then he sold to another company and that company was not a party to the
contract. Contract not to be recorded, not an encumbrance. Does not run
with the land, not designed to apply to future landowners. Not intend to
create an interest in real property. clear contractual language does not
become ambiguous simply because the parties to the litigation argue
different interpretations.
CH 6: LANDOWNERS’ RIGHTS: CONSTITUTIONAL
“TAKINGS”
 courts often defer to the decisions of local governments in land use law
 Constitutions set forth limitations on government’s power

the U.S. Constitution originally was construed as applying almost exclusively to the
federal (national) government, modern cases have extended most rights to restrict
state governments; what is this doctrine called?
 Selective incorporation

 U.S. Constitution makes only a handful of references to “land” or “property.”

o The due process clause of the Fifth Amendment, for example, refers to
“life, liberty, or property.” The only right specific to property or land is
also in the Fifth Amendment. This is called the “takings” right.
o Interpreting takings right is con law

 Eminent domain- power of govt to take private property

 When government exercises its power of eminent domain, it is condemning
property (meaning that it is taking away title from the private landowner);
thus, eminent domain is sometimes referred to as condemnation.
 5th amendment (LO rights)- "nor shall private property be taken for public
use, without just compensation."
o Must compensate fair market value when govt uses eminent domain

1. “PUBLIC USE”
 takings clause does not state explicitly that governments are restricted only
to taking property for public use.
 courts have long interpreted the power of eminent domain to be bound by
this restriction: governments may use eminent domain to take only for
public use.
 early days of the nation, courts interpreted public use to mean that the
government had to use the land, for things such as highways, forts, or
schools.
 Title in these lands rests with the government.
 in the 20th century, governments became bolder and used eminent domain
for projects in which they did not keep the title, but rather transferred it to
some other private person.
 In the early 1950s, the federal government used eminent domain to take
some private land in SW Washington, D.C., that consisted mostly of low-cost
housing (what people at the time called “blighted” areas or “slums”), and
then transferred the title to private developers for nicer (and more
expensive) new housing.
o The Supreme Court approved, reasoning that the elimination of slums
served the “public welfare,” and thus constituted public use. Berman
v. Parker, 348 U.S. 26, 33 (1954).
 30 years later, the state of Hawaii used eminent domain to take title to many
large farm holdings in the state, with the intention of selling them to smaller
farmers; the goal was to spread ownership in the state away from a few rich
families that for long had owned much of the land in the state.
  the Supreme Court, through an opinion of Justice Sandra Day O’Connor, held
that this was a public use because it served the public welfare, even though
the government didn’t keep the title. Hawaii Housing Authority v. Midkiff,
467 U.S. 229 (1984).
 Midkiff was decided during the rise of the modern property rights movement,
in which scholars and justices, including Justice Scalia, argued that American
law had drifted away from traditional respect for private property rights, in
favor of amorphous ideas of social public good. One of the aims of the
property rights movement has been to challenge the broad power of
governments to condemn through eminent domain.

Kelo v. City of New London

 Rule: A state may use its eminent domain power to condemn private property
and distribute it to private individuals so long as it is for “public use” under the
Fifth Amendment, which means the use must be rationally related to a
conceivable public purpose.
 Reason: City of New London did not violate the Fifth Amendment’s
public use requirement and validly exercised its eminent domain
authority when it took private property and distributed it to private
developers for the purposes of creating jobs and raising tax revenue.
The Court referenced precedent set out in Berman v. Parker, 348 U.S. 26
(1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), where a
state’s use of eminent domain was upheld when land was taken from private
individuals and sold to other private individuals. This was because the purpose
of the eminent domain projects were held to promote public welfare in some
form. State legislative judgments regarding the discretion of projects in place
for the public good are entitled to great deference from the judicial branch.
Like the above referenced cases, Connecticut’s legislative judgment concluding
that the eminent domain program is necessary to benefit the public to increase
tax revenue and jobs must receive a high level of deference. The Court held
that after considering prior decisions, on previous decisions, the state
Legislature’s plan serves a public purpose sufficient to satisfy the Fifth
Amendments public use requirement. In addition, Kelo’s argument, claiming
true public use cannot result in only economic benefits on the public, fails, as
an economic benefit to the general public can still be a viable public purpose.
Kelo’s second argument that the proposed public benefit must be “reasonably
certain” to occur also fails because the judicial branch is prevented from
inquiring into such, due to the deference afforded to state legislative decisions.
Third argument, reasonable certainty that project will happen (successful
economic development).
Embraced the broader and more natural interpretation of public use as “public
purpose.” court has repeatedly and consistently rejected that narrow test ever
since.
 Dissenting (O’Connor): The three historical classes of eminent domain takings
which satisfy the “public use” requirement are:
1. taking property for public ownership, such as public roads;
2. taking property for use by common carriers, like railroads, who put the
property to public uses;
 3. taking property for private ownership in the context of some sort of a
public program.
o Using eminent domain to take property away from private individuals
and transferring it to another private owner when the sole public
purpose is economic development is improper. Transferring the land to
a private owner is problematic, but allowing such takings where the
sole public purpose is economic development goes too far. That
permits the federal government to “transfer property from those with
fewer resources to those with more. The Founders cannot have
intended this perverse result. "
 Significance: Kelo v. City of New London made it easier for the government to
seize property for a “public purpose” without violating the Fifth Amendment.
Even if the land is resold to a private individual, such action is legal so long as
a public purpose is behind the legislative plan.
 Sometimes you can challenge public use determination-when not procedurally
sound or serves no legitimate purpose (no explanation of why its good for the
public)
 Public use = public purpose
Notes on the case.
Deference once again
 The Supreme Court’s majority once again reviewed the governmental action
with a very deferential attitude, in effect concluding that if the New London
government thought that eminent domain was a good idea for the city’s
economy, courts should not stand in its way!
A stricter test for public use?
 Kelo and private property rights advocates argued for a stricter test that would
disallow governments from using eminent domain for the purpose of economic
development, or at least have the court scrutinize whether the economic
development plan would likely be successful.

Do you see any problems with having courts apply a stricter test?
 Justice O’Connor, who was appointed by Republican President Ronald Reagan,
wrote in her dissent that “beneficiaries are likely to be those citizens with
disproportionate influence and power in the political process, including large
corporations and development firms.”

Does this concern sound like something that a Republican appointee would usually
say? Think!
 (Note that O’Connor wrote, more than 20 years before, the Midkiff opinion that
approved Hawaii’s big eminent domain plan.)

States to the Rescue?

 At the end of the majority’s opinion, the court noted that “nothing in our opinion
precludes any State from placing further restrictions on its exercise of the
takings power.”

If New London’s action was constitutional, how could states outlaw a similar action
in the future?
  Because of the response to Kelo, many state legislatures quickly enacted laws
to restrain eminent domain by governments in their state.
 Notwithstanding any other provision of law, including any charter provision,
ordinance, statute, or special law, if the state, any political subdivision as
defined in s. 1.01(8), or any other entity to which the power of eminent domain
is delegated files a petition of condemnation on or after the effective date of
this section regarding a parcel of real property in this state, ownership or
control of property acquired pursuant to such petition may not be conveyed by
the condemning authority or any other entity to a natural person or private
entity, by lease or otherwise, except that ownership or control of property
acquired pursuant to such petition may be conveyed, by lease or otherwise, to
a natural person or private entity [with a few minor exceptions.] Fla. Stat. §
73.013 (2019).

Not-so-New-London …
 Although the city of New London won the case and Kelo’s land was taken, the
city’s big development plans fell through, in part because of the economic
crash of 2008.
 Pfizer eventually moved away and, as of 2019, Kelo’s former land still stood
vacant.
 Her house was moved to a new location and has a monument in front of it.

2. REGULATORY TAKINGS
 When government takes property by eminent domain, it must provide just
compensation to the landowner, of course.

How does a government or court decide how much someone such as Kelo should
get for her property?
 Most lawsuits over eminent domain involve the landowner’s arguing that it is
entitled to more money than the government offers
 juries and judges decide what is just compensation
 Some states also provide for the award of moving expenses, loss of business,
and other costs.

 Govt did not use eminent domain, but merely regulates what the landowners
can do with the property, and landowners complain all the time that their land
is less valuable because of the legal restrictions on land use.

What was the most famous case in which the landowner complained that regulation
decreased the value of its land?
 Penn Central Transportation
 Hadacheck v. Sebastian, 239 U.S. 394 (1915), the Los Angeles case in which
the landowner complained about the city’s outlawing the manufacture of bricks
 Supreme Court decided Pennsylvania Coal Co. v Mahon, 260 U.S. 393 (1922), a
coal company owned the rights to coal under other people’s land, including
some houses. a state law prohibited coal mining that might cause buildings to
subside. The coal company argued that the law, which didn’t use eminent
domain (the government didn’t take title to the mineral rights, it just regulated
them), was like eminent domain, in that the coal company could no longer use
 its valuable coal mineral rights. The Supreme Court, in an opinion written by
the famous legal scholar Oliver Wendell Holmes, Jr., concluded that the
regulation was a taking that triggered compensation. Holmes recognized that
“government could hardly go on” if it had to compensate for each and every
regulation of property. Holmes wrote that government must compensate when
it “goes too far.”

Is this test helpful to future cases?

 the case still stands for the proposition that some regulations trigger
compensation.
 This is what is called regulatory takings – taking by regulation alone.
 It is also called inverse condemnation, because landowners may get
compensation without the government’s using eminent domain

Supreme Court, with Holmes still on it, decided Euclid, in which the landowner
argued that the zoning regulation diminished the value of its land.

Did the court mention the takings rights or Pennsylvania Coal?

 The landowner tried due process instead.

 Supreme Court heard a case that opened up the doctrine further.

o The case involved a somewhat new type of regulation: laws to preserve
historic buildings.

Penn Central Transportation Co. v. City of New York

 Rule: In determining whether a state regulation constitutes a taking under the
Fifth and Fourteenth Amendments, courts should consider (1) the economic
impact of the regulation on the owner, (2) the extent to which the regulation
has interfered with the owner’s reasonable investment-backed expectations,
and (3) the character of the government action involved in the regulation.
 the Landmarks Preservation Law is upheld
 Reason: The economic impact of the law does not constitute a total diminution
of the value of its property, as it can still generate revenue from renting out
portions of GCT. The investment backed expectations are not significantly
impaired by the regulation, as the revenue from developed airspace was not
an option when PCT first invested in the property. The government invasion
caused by the regulation is not physical. the invasion is merely a prohibition on
further development of Penn Central’s property. There is significant public
interest in light space was furthered by the regulation which prohibits the
development of airspace above the terminal. The landmark law does not
require compensation. The prohibition on the air rights is not total, it only
prevents Penn Central from building an office building in excess of 50 stories
above the building.
 Diminution in value: the difference between value of land w/o regulation – the
value of land w/ regulated
 Cant segment property

Penn Station factors:

1. Economic impact on LO
 2. Extent to which the regulation has interfered w/ investment backed
expectations
3. Character of the govt action
o In particular where the regulation can be characterized as a physical
invasion by govt rather than a public program adjusting the benefits and
burdens of economic life to promote the common good

Lucas v. South Carolina Coastal Council

 Facts: Lucas paid $975,000 for two residential lots on the Isle of Palms in
Charleston County, South Carolina, on which he intended to build single-family
homes. the South Carolina Legislature enacted the Beachfront Management
Act, which had the direct effect of barring petitioner from erecting any
permanent habitable structures on his two parcels. A state trial court found
that this prohibition rendered Lucas's parcels “valueless.”
 Rule: A state regulation that completely deprives private property of all its
economic value constitutes a taking under the Fifth and Fourteenth
Amendments that requires the payment of just compensation to the property
owner, unless the economic activity prevented by the regulation is not part of
the owner’s initial title or property rights when acquiring the property.
 Total wipe out
 Reason: difficulty in applying this principle because few standards exist to
define what constitutes going “too far.” In seeking to define this terminology,
precedent invalidates two discrete categories of regulations for going “too far”
i.e. regulations that compel a property owner to suffer physical “invasion” on
his property and regulations that deny all economically beneficial or productive
uses of land.
 a fortiori: with greater reason or more convincing force —used in drawing a
conclusion that is inferred to be even more certain than another

“sacrifice all economically beneficial uses”

 The Supreme Court stated a general rule that a landowner is entitled to
compensation when it “sacrifice[s] all economically beneficial uses” for the
public use. The court also used the phrase “economically idle.”

“in the eye of the beholder”

 Justice Scalia’s opinion dismissed the old idea that a government could
regulate a “harm” and avoid compensation.
 He reasoned that “the distinction between ‘harm-preventing’ and ‘benefit-
conferring’ regulation is often in the eye of the beholder.”
 Court also concluded that when its categorical rule is triggered, the
government “may resist compensation only if the logically antecedent inquiry
into the nature of the owner's estate shows that the proscribed use interests
were not part of his title to begin with.”

Are Temporary Regulations Lucas “Total” Deprivations?

 Landowners annoyed by governmental regulations try to characterize their
claims as Lucas-type “total” takings claims, of course, rather than as claims
that are subject to the fuzzy Penn Central factors.
 One frequent type of effort has been for landowners who are delayed by
government regulation to argue that the delay is a “temporary” total taking,
 and that they are entitled to the lost value of their land during the length of the
delay.
 The Supreme Court rejected the “temporary taking” argument in Tahoe-Sierra
Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S.
302 (2002).
 In this case, landowners owned property on beautiful Lake Tahoe in northern
California.

The local government (actually, a regional planning agency, which was

represented at the Supreme Court by John Roberts, later chief justice) imposed
a “moratorium” of 32 months on new construction near Lake Tahoe, while the
government figured out the effects of new construction (as you might imagine,
a lot of people want to build houses around Lake Tahoe) on the water quality of
the once-pristinely blue lake. The Supreme Court in Tahoe-Sierra held that a
temporary taking is not a Lucas-type total taking; landowners had to proceed
under the Penn Central factors.
 claims of temporary taking are very much like claims of segmentation
o cant segment in time
 Current use is just one segment of the property have to look at property as a
whole
o Future use still exists
 Effect of moratorium on FMV?
o Waiting 32 months not a big deal for developer

CH 7: LANDOWNERS’ RIGHTS: EXACTION, IMPACTS FEES,

AND STATE-LAW RIGHTS
 Governments often impose conditions on citizens’ ability to do things
 Usually, there is no legal problem with such conditions, as long as there is a
rational reason for them
 Courts have long held that the government cannot impose unconstitutional
conditions – that is, government cannot condition approval on giving away
constitutional rights. See, Perry v. Sindermann, 408 U.S. 593 (1972)
 Govt might wish to impose conditions when the landowner plans to use the
land in a way that adversely affects public welfare; the government might
impose a condition that lessens or eliminate the adverse impact.
o E.g., a landowner might wish to build houses in a rural area that is not
linked to a sewer system; the county government can condition the
building permit with a requirement that the house be built with high-
quality septic systems, to avoid sewage leaking into the groundwater from
which the county gets its drinking water
 Critics of conditions to give property to the government have given such
conditions a name: exactions
o verb to exact means to demand payment; it does not have a good
connotation
 In land use law, the word exaction usually is reserved for situations in which a
government conditions a permit on the landowner’s handing to the
government some form of tangible property.
  When government conditions a permit on the payment of money, it is usually
referred to as an impact fee.

1. EXACTIONS
 Property rights advocates have focused their aim on exactions.
 In the 1980s, the California Coastal Commission (a state agency) wanted more
public access to the beach (which is public property) in Ventura County; along
most of the coast ran a series of single-family houses.
 coastal homeowners named Nollan applied to tear down their house and build
a bigger one on the same spot. The government imposed a condition on the
granting of a building permit: the Nollans would have to give a public easement
over their land, meaning that part of their land would become a public
passageway for people going to and from the beach. The landowner sued. The
Supreme Court, with Justice Scalia writing, held that the condition was an
unconstitutional exaction by the government. Nollan v. California Coastal
Commission, 483 U.S. 825 (1987). In explaining the public welfare rationale for
demanding the easement, the government argued that the building of a larger
house would reinforce a “psychological barrier” on citizens who sought to use
the public beach. Scalia reasoned that this made no sense; he surmised that
the government was engaging in “extortion” of the landowner.
 Here is the legal test, as stated by the court: A government may
demand a condition of property for a permit only if there is an
“essential nexus” between, on the one hand, some harm to the public
created by the requested land use and, on the other hand, the
exaction.

synonyms for “nexus

 Connection, junction, link

 the government may demand property as a condition only if the condition

helps ameliorate some harm that that the requested land use would cause.

Dolan v. City of Tigard.

 Rule: The government may not, without just compensation, place land use
conditions on an approval of a private property development plan unless there
is a “rough proportionality” between the conditions and the impact of the
proposed development.
 Reason: Yes nexus but- not a proportional connection sufficient to withstand a
Takings Clause claim between conditions placed on a development permit
requiring a landowner to dedicate portions of her property to a public
greenway and a pedestrian/bicycle pathway and the government’s interests of
preventing floods and reducing traffic that may arise as a result of the
development. The government may not place land use restrictions on property
unless there is a rough proportionality between the conditions imposed and the
impact of the land use. In this case, Tigard has not met its burden of showing
that the land use restrictions are roughly proportional to the impact of Dolan’s
proposed redevelopment. Tigard has not shown that the required land
dedications, as currently constructed, are necessary to offset the impact of
Dolan’s redevelopment. In terms of the public greenway, Tigard has not shown
 that a public greenway, as opposed to a private one, is necessary to control
flooding. A public greenway would completely eradicate Dolan’s right to
exclude others from her property, a significant burden not justified by Tigard.
In terms of the pathway, Tigard has not shown that the proposed pathway is
sufficiently likely to reduce traffic congestion caused by Tigard’s larger store.
Although the city finds that the pathway could offset some of the traffic, such
speculation is not sufficient to warrant a requirement that Dolan dedicate a
portion of her land for that purpose.

Nollan- essential nexus

Dolan- rough proportionality

“rough proportionality”
 Dolan added a requirement that the exaction have a “rough proportionality” to
the harm of the requested new land use.
 This is a requirement of size: an exaction cannot be too big, considering the
harm of the land use.

old-fashioned saying that matches this requirement?

 Mountain out of a mole hill

“… the city must make some sort of individualized determination …”

 The requirement that a government must make an “individualized
determination” for each exaction is perhaps the most demanding requirement
of Dolan.
 Presumably, this means that a government cannot simply state: ”Anyone who
wants to expand a building must give an easement of 10% of their land.”
o This would not be an individualized determination.
 The city government concluded that Dolan’s new store would generate 435
new trips per day. That’s a lot of trips! This assertion was used to justify the
bike/pathway easement – the harm to the public would be more trips, and the
pathway would eliminate some of these trips.

2. IMPACT FEES
 One reason that there are few cases challenging exactions in the 21st century
is that exactions involve a condition of granting property.
 Today, more governments prefer to make conditions of a payment of money.
 Money is often called “the most welcome gift of all.” Money can be used for
just about anything, including buying land.
 Impact fees need to meet Nollan & Dolan
 Nexus
 Rough proportionality
 Individual determination
 Can’t have boiler plate (must do case-by-case)

 When a govt imposes a condition of a payment of money, this condition is

called an impact fee
 idea is that a requested land use may impose an adverse impact on the public
and that the fee helps mitigate the harm
  Govt can use the money to ameliorate the harm in some way (or use it for
other purposes).
 city of Tigard could have imposed an impact fee on Dolan to make up for the
increase in traffic; the money could have been used to build better bike lanes
(or car traffic lanes) anywhere in the city.
Many of the harms may be characterized as infrastructure needs.
o New construction might lead to a need for new roads, new sanitary
sewers, better drainage, more firefighters, more police, etc.

other expensive type of infrastructure needed:

 New housing developments generate the need for new schools – new teachers,
new classrooms, and maybe even a new school building

 school costs are such a major part of most local government’s budgets, this
type of “impact” led to the first and most common type of impact fee.
 Traditionally (that is, before the age of impact fees), governments typically
raised money for new schools and other infrastructure through taxes imposed
on existing residents (as well as selling bonds).
 Impact fees also may be more politically preferable to increasing taxes.

 Govt can do similar analyses for impacts on firefighting, police, sewers,

transportation, and other govt services
 Once govt makes the calculations, they can publish a schedule of impact fees
 Impact fees imposed by only a minority of govts
 CA and FL are vigorous in imposing impact fees
o Greatest population growth in recent decades
o Greatest local concern over population growth control
 Fees can vary tremendously-
o Pinellas County, Fla., imposes an average impact fee of $2,000 per unit,
while in nearby Collier County it is about $25K.
o Freemont, Cal., on the San Francisco Bay, each new housing unit
generates an average of more than $77K in impact fees
 Recession of 2008 many govts lowered or did away w/ impact fees

After Nollan and Dolan, the Supreme Court clarified that fees – including fees made
“in lieu of” exactions – also must meet the Nollan/Dolan test. Koontz v. St. Johns
River Management District, 570 U.S. 595 (2013).

Question: Why? Think!

In creative California, some governments impose fees not only for schools, roads,
sewers, and fire, but also for needs such as “public art.”

VOLUSIA COUNTY v. Aberdeen at Ormond Beach, L.P.

 Rule: Public school impact fees are unconstitutional under state law as applied
to developments where minors are forbidden to live.
 Reason: Public school impact fees are unconstitutional under state law as
applied to developments where minors are forbidden to live. The applicable
test is the dual-rational-nexus test, which requires that, in order to assess
impact fees from a subdivision for public schools, the government must
 demonstrate a rational nexus between (1) the need for the public schools and
the growth in population generated by the subdivision and (2) the expenditures
of funds collected from the subdivision and the benefits accruing to the
subdivision. Aberdeen does not generate new students and consequently does
not increase the need for public schools. Aberdeen will not benefit from public
schools, as no children reside in Aberdeen; rather, the funds will be spent for
the benefit of children in other developments. Any benefits accruing to
Aberdeen from public schools are too tangential to fulfill the dual-rational-
nexus test. In contrast to the cases cited by Volusia, which involve challenges
to the particular assessment of fees and the assessment of user fees based on
the actual presence of children in a given residence, Aberdeen does not
challenge the particular assessment of fees, nor does Aberdeen base its
argument on the actual absence of children. Rather, Aberdeen argues that it is
categorically exempt because children are categorically forbidden from
permanently residing in Aberdeen. Aberdeen is correct, as the categorical
prohibition of children means that Aberdeen does not and will not contribute to
the need for public schools or benefit from the construction of such schools.

No children ... no school impact fee?

 The court held that the government failed to meet the “dual rational nexus
test” because (1) the old-persons community (Aberdeen) did not generate any
need for more school spending, and (2) that “impact fees collected at
Aberdeen will not be spent for Aberdeen's benefit, but for the benefit of
children living in other developments.”

3. STATE-LAW RIGHTS
 The rights in the U.S. Constitution are written in terms of restrictions on
governmental action (“No state shall” … or “Congress shall …”).
o means that federal constitutional rights act only as a floor; states may
grant additional rights to its citizens.
 These additional state rights do not infringe on the federal constitution; thus,
they are constitutional.
 property-rights movement of the 1980s, many states have enacted statutes to
provide for more circumstances in which governments compensate landowners
for regulations.
 some states have tried to require partial compensation for partial takings (that
is, not Lucas total takings) in some circumstances.

Florida’s Bert J. Harris, Jr., Private Property Rights Protection Act of 1995
Fla. Stat. 70.001 Private property rights protection (2019)

OCEAN CONCRETE, INC. v. INDIAN RIVER COUNTY, BOARD OF COUNTY

COMMISSIONERS
 Rule: To prevail under the Harris Act, the property owner must prove that “a
specific action of a governmental entity has inordinately burdened an existing
use of real property or a vested right to a specific use of real property.” when a
claim under the Harris Act is presented for judicial review, the court must first
consider whether a claimed “existing use of the real property” or a claimed
“vested right to a specific use of the real property” actually existed. If yes to
 either, it must next determine whether the government action inordinately
burdened the property. If the court finds that there was an inordinate burden,
then it must impanel a jury to determine the total amount of compensation to
the property owner for the loss caused by the inordinate burden to the
property.
o party seeking relief under the Harris Act bears the burden of proof.
o Inordinate burden: when the govt restricts property such that owner is
unable to obtain reasonable expectation backed investment with
respect to prop as a whole or that the prop owner bear permanently a
disproportion share of the burden for the good of the public when the
burden should be imposed on the public at large
 Reason:
o Because a concrete batch plant did not exist on the property, the court
applied the second part of the “existing use” definition. Although,
based on the "investment back expectation", it would seem reasonable
to rely on takings cases, the Harris Act itself proclaims that it is
“separate and distinct ... from the law of takings” and, to that end, also
provides that “[t]his section may not necessarily be construed under
the case law regarding takings if the governmental action does not rise
to the level of a taking.” §§ 70.001(1); 70.001(9), Fla. Stat. (2008). the
court's reliance on federal takings cases as opposed to Florida law
interpreting the Harris Act was misplaced
o “nonspeculative use” analysis really only comes into play when a party
is arguing that it may have been able to use its land in the future for a
purpose not expressly provided for by the zoning code at the time of
the government action. when the use was expressly provided for, as it
was here, no need for a speculation analysis

Urban growth boundary

 No development outside this area
 Oregon

CH 8: LANDOWNERS’ RIGHTS: THE FIRST AMENDMENTS

 Takings is a constitutional right a land owner might assert against land use reg
 ALSO landowners argue violations of rights under first amendment
 First amendment: Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances.
o Restricts CONGRESS

How does it also apply to states and local governments?

 Landowners argue that a law violates their right to freedom of speech or to
free exercise of religion

1. FREEDOM OF SPEECH
Types of Speech
 “Speech” has been interpreted, for First Amendment purposes, to cover both
uttering words and other methods of disseminating information
 o this overlaps with freedom of the press
 hierarchy of types of speech.
 courts have divided up speech into three broad categories: political,
expressive, and commercial.
1. Political speech is the most protected.
 The reasoning is that both the drafters of the Constitution and Americans today
consider this to be the most important type of speech to protect. Arizona Free
Enterprise Freedom Club PAC v. Bennett, 564 U.S. 721 (2011).
 Political speech covers speech about the law, government, and social issues.
 idea of freedom of speech was radical when the Bill of Rights were drafted in
1789, and it’s still not something that all societies accept.
2. Commercial speech – usually advertising -- is the least protected.
 The idea here is that regulating commercial speech is more like regulating
business practices; commercial speech rarely concerns important issues of
public policy.
 Courts uphold regulations of commercial speech laws supported by good public
welfare reasons. First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
3. Expressive speech.
 The Supreme Court has often stated that the First Amendment grants a “right
to expression,” not just speaking. Spence v. Washington, 418 U.S. 405 (1974)
(right to display altered U.S. flag as “expressive conduct”).
 Other cases have stated that entertainment, such as movies, dances, and
songs are protected as expressive speech, even if they don’t refer to political
issues.
 governments have some right to regulate this form of speech, especially as to
location (see time, place, and manner below). Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991) (nude dancing)
 expressive speech is between political speech and commercial speech in the
hierarchy.

Content-Based v. Content-Neutral
 1st amend protects freedom of speech but not conduct
 Govt can regulate what landowner does with the land, but govt will be in
difficult place if it regulates content of speech, such as a law (HELD
UNCONSTITUTIONAL) that allowed for placement of commercial signs but not
political signs, Matthews v. Town of Needham
 Content based regulations are subject to strict scrutiny and rarely survive,
R.A.V. v. St. Paul
 Govt can regulate conduct that has the effect of limiting speech, as long as the
reg was not designed to regulate speech

How could a law restrict speech but not regulate the content of speech?
 Time, place, and manner restrictions

Time, Place, and Manner Restrictions

 Govt holds a strong position if it merely regulates time, place, and manner of
speaking
 Govt can outlaw knocking on doors to distribute campaign literature between
midnight and 4 a.m. – a time regulation.
  Govt can make it unlawful to hand out leaflets while blocking doors to an office
building – a place restriction.
 Govt may outlaw the use of a powerful outdoor loudspeaker that hurts
pedestrians’ ears – a manner restriction.
 Ward v. Rock Against Racism, 491 U.S. 781 (1989)-(law that regulated use of a
music venue was justified as a way of limiting noise).
 Just b/c govt argues that a law is a time/place/manner restriction doesn’t mean
it is
 Law must be:
o Narrow
o Allow for speech in other times, places, or manners
o Govt must have a very good public welfare reason for the reg

CITY OF LADUE v. Margaret P. GILLEO

 Rule: Even regulations that do not foreclose an entire medium of expression,
but merely shift the time, place, or manner of its use, must leave open ample
alternative channels for communication
 Reason:
o acknowledging Ladue's police power to minimize visual clutter
associated with signs, the Court ruled that the law "almost completely
foreclosed a venerable means of communication that is both unique
and important."
o special respect for individual liberty in the home has long been part of
our culture and our law; that principle has special resonance when the
government seeks to constrain a person's ability to speak there
o individual residents themselves have strong incentives to keep their
own property values up and to prevent “visual clutter” in their own
yards and neighborhoods—incentives markedly different from those of
persons who erect signs on others' land, in others' neighborhoods, or
on public property
o Displaying a sign from one's own residence often carries a message
quite distinct from placing the same sign someplace else, or conveying
the same text or picture by other means
 Precisely because of their location, such signs provide
information about the identity of the “speaker.”
 identity of the speaker is an important component of many
attempts to persuade
o Residential signs are an unusually cheap and convenient form of
communication.
o Law is not narrowly tailored enough for the problem city claimed to be
preventing, strict scrutiny

Easy or Hard?
 As it often does, the Supreme Court devoted many pages to the law and policy
on the regulation of speech before reaching its conclusion
 decision was 9-0 in favor of the landowner
Underinclusive?
 Court notes that it is “surprising” that a law could be unconstitutional under
the First Amendment because it was “underinclusive,” meaning that it did not
regulate enough types of speech.

Linmark and “stable neighborhoods”

 Court noted somewhat cryptically that the Linmark case of 1977 allowed the
banning “for sale” or “sold” signs outside houses in order to “maintain stable,
integrated neighborhoods"
 in the 1960s and 1970s, when racial discrimination in the housing market
became unlawful in most instances, some white homeowners would panic if
they believed that large numbers of black persons were moving into their
mostly white neighborhoods
o this belief sometimes led to a rapid sale of houses
o It was thought that banning these signs, homeowners would be less likely
to panic

“A special respect for individual liberty in the home …”

 There is no doubt that Ladue’s anti-sign law was content-neutral and that it
was a “place” restriction.

Reed v. Town of Gilbert

 complicated law of free speech got even more complicated with Reed v. Town
of Gilbert, 135 S. Ct. 2218 (2015)
 government of Gilbert, Ariz., had a complex sign ordinance that attempted to
give greater freedom to place “political signs,” but very strict rules on
“temporary directional signs” – that is, signs telling people where to go for a
specific event
 Reed was the pastor of a small religious organization that held Sunday services
in different locations; he placed signs directing people; the signs ran afoul of
the town’s law
 Supreme Court reasoned that the law was content-based because it regulated
the content of directing people to events
 As a content-based regulation, it was subject to strict scrutiny that it could not
withstand
 court cited the controversial Citizens United v. Federal Election Comm'n, 558
U.S. 310 (2010), which held that a corporation had a constitutional right to
speak on political issues
 Although the decision was 9-0 in favor of the speaker, several justices
concurred separately, expressing skepticism about the “content-based”
reasoning
 Justice Elena Kagan wrote in concurrence that the case could have been
handled in a simpler way: “The majority could easily have taken Ladue's tack
here
 Town of Gilbert's defense of its sign ordinance—most notably, the distinctions
between directional signs and others—does not pass strict scrutiny, or
intermediate scrutiny, or even the laugh test.”
 As a result, governments across the nation have been worrying whether their
sign laws are vulnerable to challenge.
Exercise in Regulating Speech
Please come up with the rough draft of a law that would constitutionally regulate:
 signs that might interfere with motorists’ vision
 political campaign signs after election day in November
 placing signs in public parks
 parade permits for simultaneous parades on nearby streets for anti-
immigration group and an anti-racism group

Zoning Against “Adult” Land Uses

 A small line of cases addresses First Amendment issues concerning so-called
“adult” land uses – meaning pornographic theaters and bookstores. (Such land
uses are dying off in the Internet age.) Courts have held that these land uses
are entitled to some First Amendment protection as expressive speech.
 the city of Renton, Wash., a Seattle suburb, restricted the locations of adult
movie theaters; an owner of such businesses argued a violation of freedom of
speech.
 Supreme Court upheld the law, reasoning:
o The Renton ordinance … does not ban adult theaters altogether- properly
analyzed as a form of time, place, and manner regulation.
o Describing the ordinance as a time, place, and manner regulation is only
the first step in court's inquiry
o Court has long held that regs enacted for the purpose of restraining
speech on the basis of its content presumptively violate the First
Amendment, on the other hand, so-called “content-neutral” time, place,
and manner regulations are acceptable so long as they are designed to
serve a substantial governmental interest and do not unreasonably limit
alternative avenues of communication
o At first glance, the Renton ordinance does not appear to fit neatly into
either the “content-based” or the “content-neutral” category
o ordinance treats theaters that specialize in adult films differently from
other kinds of theaters.
o as the District Court concluded, the Renton ordinance is aimed not at
the content of the films shown at “adult motion picture theatres,” but
rather at the secondary effects of such theaters on the surrounding
community.
o The District Court's finding as to “predominate” intent, left undisturbed by
the Court of Appeals, is more than adequate to establish that the city's
pursuit of its zoning interests here was unrelated to the suppression of
free expression
o ordinance by its terms is designed to prevent crime, protect the city's
retail trade, maintain property values, and generally “protec[t] and
preserv[e] the quality of [the city's] neighborhoods, commercial districts,
and the quality of urban life,” not to suppress the expression of unpopular
views
 GOVT INTEREST
o Renton ordinance is consistent w/ court's definition of “content-neutral”
speech regulations as those that “are justified without reference to the
content of the regulated speech.”
 o ordinance does not contravene the fundamental principle that
“government may not grant the use of a forum to people whose views it
finds acceptable, but deny use to those wishing to express less favored or
more controversial views.”
o Secondary effects = rational basis

Adult Use Venues and Expressive Speech

 Ex. pornographic theaters and bookstores
 Subject to time, place, and manner restrictions
 Supreme Ct has held that restrictions aren’t content based, they just target
“secondary effects” upon neighborhood such as increased crime,
decreased property values (secondary effects = rational basis)
 Dispersal of adult venues - if they are concentrated people don’t want entire
sections of cities/towns to be dangerous or gross, lower property values
o But see Baltimore’s approach, where they confined adult use to one
block

How to regulate?
 Rational basis test - opposite approaches are okay as long as govt provides
good explanation for their decision
o Ex. Times Square adult theatres - govt gave them one year to leave
(non-conforming use)
o Ex. abortion clinics, ban on protestors outside - time, place, & manner
restriction on free speech
o Ex. billboards - have gone from little signs to huge neon signs,
government has an interest in regulating them to promote safety
 Could be Lucas claims if govt removes all economically
beneficial use by over-regulating billboards
Regulation of free speech in shopping malls
 FL view - private property, can’t do it
 CA view - public, not a taking of right to exclude
 St. Pete example - anti war protests
 Business owners complained to city because protestors were
blocking sidewalks, etc.
 City solved problem by selling portions of sidewalk to business
owners, then business owners could legally kick protestors off
their property

“Free Speech Zones”

 many colleges established “free speech zones” to funnel controversial speech
to certain areas on campus
 it is interesting that both left-wing and right-wing libertarians oppose free
speech zones.

2. FREE EXERCISE OF RELIGION

 First amendment both prevents the "establishment" of religion (govts cannot
create a national religion or favor one religion over another) and commands
that the govt may not infringe on the "free exercise" of religion
 Landowners rarely argue that a law violates the "establishment" clause
 o A Massachusetts law gave churches and schools a veto power over the
permitting of any liquor store within 500 feet of a church or school. A
liquor store owner sued, and the Supreme Court ruled that giving a church
power to decide nearby land uses was an unconstitutional establishment
of religion. Larkin v. Grendel’s Den, 459 U.S. 116 (1982).
 Case more commonly assert "free exercise" of religion
o Rectors of St. Bartholomew's Church v. City of New York, 14 F.2d 438 (2d
Cir. 1990): Church wanted to replace small community house which had
been designated by city govt as a landmark. Landmarks commission said
no. The church sued and the 2nd circuit held that the landmark
commission's restriction on church land did not violate the first
amendment. Govt may not coerce an individual to adopt certain beliefs or
punish him for religious views but it may restrict certain activities
associated with the practice of religion pursuant to its general regulatory
powers. critical distinction between a neutral, generally applicable law
that happens to bear on religiously motivated action, and a regulation that
restricts certain conduct because it is religiously oriented. Landmarks law
is facially neutral. question in identifying an unconstitutional burden is
whether the claimant has been denied the ability to practice his religion or
coerced in the nature of those practices.
o “[T]he right of free exercise does not relieve an individual of the obligation
to comply with a ‘valid and neutral law of general applicability on the
ground that the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes).’” Employment Division v. Smith, 494 U.S. 872 ,
110 S.Ct. 1595, 1600 (1990).

"neutral law of general applicability"

 St. Bart’s opinion relied on Smith, a Supreme Court case that upheld a
government’s firing of an employee who tested positive for illegal drug use; the
employee argued that his Native American Church used peyote (an illegal
hallucinogenic drug) for religious sacramental purposes. court reasoned that if
a law is a “neutral law of general applicability” – meaning a law that applies to
everyone and does not target religion – it may be enforced, even if interferes
with someone’s religious practices.
 But see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
546 (1993) (law of Hialeah, Fla., that banned the “ritual” slaughter of animals
was not “neutral” because it was adopted for the apparent purpose of
targeting the Santeria religion, which kills chickens in a religious ritual).
 Congress enacted a federal statute called the Religious Land Use and
Institutionalized Persons Act (RLUIPA, usually pronounced “rill-OO-puh”), a
rare example of a federal law directly addressing land use. The statute relied
on First Amendment doctrine that existed before Smith, which stated that
government could not “substantially burden” religion. Sherbert v. Verner, 374
U.S. 398 (1963).
 RLUIPA:
a. Substantial burden: No government shall impose or implement a land use
regulation in a manner that imposes a substantial burden on the religious
exercise of a person, including a religious assembly or institution, unless
the government demonstrates that imposition of the burden on that
person, assembly, or institution--
 i. Is in furtherance of a compelling govt interest; and
ii. Is the least restrictive means of furthering that compelling govt
interest
b. Discrimination and exclusion:
i. Equal terms: no govt shall impose or implement a land use regulation
in a manner that treats a religious assembly or institution on less
than equal terms with a nonreligious assembly or institution
ii. Nondiscrimination: no govt shall impose or implement a land use
regulation that discriminates against any assembly or institution on
the basis of religion or religious denomination
 Courts have struggled with how to interpret RLUIPA, including the “substantial
burden” term, which Congress did not define.
 most religious freedom land use cases push RLUIPA more than the First
Amendment.
Exercise about RLUIPA b/c it is designed to give landowners more rights than
those granted by the First Amendment, as interpreted by Smith

 RLIUPA and institutionalized persons - mental patients, prisoners - ensures

that they get religious rights
o Ex. beard in prison case - ct held that forcing him to shave his beard
entirely wasn’t “least restrictive” method since the guy offered to cut
his beard short (prison was concerned w/ people hiding things in their
facial hair) (strict scrutiny for things involving religion)

WESTCHESTER DAY SCHOOL v. VILLAGE OF MAMARONECK

 Rule: The government may not impose a land use regulation in a manner that
substantially burdens religious exercise unless the regulation furthers a
compelling government interest and is the least restrictive means of furthering
that interest.
 Reason:
o A substantial burden will generally coerce a religious institution or
individual to change its behavior
o burdens that are neutrally imposed and generally applicable are not
considered substantial.
o religious exercise is not substantially burdened if the claimant has
alternative means of exercising its religious purpose, or if the
government’s denial of a permit application is conditional.
o district court correctly determined that WDS’s proposed expansion was
for the exercise of religion.
o Without the proposed expansion, WDS would be coerced to either not
teach religion in the expanded portion of the school or continue to be
cramped in its existing building.
o the zoning board’s denial was not conditional as it left no opportunity
for WDS to alter its application or come to a negotiated agreement.
o WDS has no alternative means of meeting its religious needs because
it had not room left in its existing building.
 o the Village’s decision needed to have furthered a compelling
government interest and needed to have been the least restrictive
means of furthering that interest
 The decision does not meet this standard.
o The Village’s interest of traffic regulation is not sufficiently compelling
and was not substantiated in the record.
o the Village’s application denial left no room for alteration or
negotiation, so it was not the least restrictive means of achieving the
government’s interest.
o Integrated education
o 1st amend precedent, ironic b/c RULIPA meant to be different

CH 9: HOUSING
 Cost-burdened: person spends more than 30% of their income on housing
 More than 47% of Americans are cost burdened
o Double the share of the cost burdened households back in the 1960s
 Accounting for inflation, rents are 50% more expensive than they were 50
years ago
 Housing quality is better than ever
o b/c state and local housing codes and implied warranty of habitability

What possible drawback might such housing laws have on low-income Americans?
 housing quality has improved, costs have risen tremendously

Housing Sale Prices have risen

 One reason is the nation is richer than it once was; as of 2019, the economy
was booming and unemployment was low; more affluent Americans seeking
housing causes prices to rise
 Another reason is a growing population – the nation adds more than one million
new households per year; this means that we need to add more than a million
new housing units each year.
 With increasing demand for housing and rising prices, one might logically think
that developers would be rushing to build new houses (and thus make money)

Why aren’t there more SFHs being built?

 report concludes that “new regulatory barriers have also served to limit the
supply of land available for homes and increased the time, complexity, and
risks of housing development.”
 when a lot more people want to buy houses, but laws restrain the supply of
houses for sale, this will cause prices to go up

1. “EXCLUSIONARY” ZONING
How does the bias in favor of SFH zoning make housing less “affordable”?
 By legally limiting the supply of apartments – remember than Ambler Realty
wanted to build some apartments on Euclid Avenue – law constrains the supply
of the major source of low-cost housing
 If a neighborhood’s zoning law allows only SFHs and the typical SFH costs
$200K, only those people who can afford a $200K house will be able to live
there
  People who don’t earn this will have to live someplace else.
 One way to look at this effect is that the law “excludes” people who don’t have
big incomes. This is referred to as the exclusionary effect of Euclidian zoning.

SOUTHERN BURLINGTON COUNTY N.A.A.C.P., and Ethel Lawrence et al., v.

TOWNSHIP OF MOUNT LAUREL
 Rule: municipality has an obligation to afford opportunity for decent and
adequate low- and moderate-income housing to a fair share of the present and
prospective regional need, therefore.
 Reason: adequate housing of all categories of people is an absolute essential
to promotion of general welfare. Townships ordinances permits only SFH. Low-
& moderate-income housing intentionally excluded. Mt. laurel has some
multifamily housing is PUDs but only for relatively affluent- no benefit to low
and moderate income. This is contrary to the general welfare and outside the
intended scope of the zoning powers.

"fair share"
 Mt. Laurel I imposed an obligation on all "developing" NJ jurisdictions to change
their zoning laws to allow for a "fair share" of the regions low cost housing
needs
 Decision was based on the court's interpretation of the general welfare
obligation under the police power
 NJ suburbs opposed this obligation
o Some jurisdictions engage in clever moves such as zoning for apartments
in the middle of farms or swamps
 Plaintiffs went back to court 14 ys after original case began

SOUTHERN BURLINGTON COUNTY N.A.A.C.P., et al., v. TOWNSHIP OF MOUNT

LAUREL
 Rule: doctrine requires municipals provide a realistic opportunity for low and
moderate income housing.
 Affirmative devices: subsidies, inclusionary zoning devices- mandatory set
asides & incentive zoning
o municipals must remove all municipally created barriers to the
construction of their fair share of lower income housing

Affirmative measures
 Court ordered that local govts both remove AND impose affirmative measures.
 Affirmative measure/inclusionary zoning

Set asides
 Some jurisdictions have had success by imposing low-cost set asides on new
private development
 In metro areas, most successful set asides are for apartments
o Note in Mt. Laurel- problem keeping set aside SFHs low bc over time some
to new owners

Picking Judges
 NJ SC ruled that only certain judges would hear Mt. Laurel cases
o Judges favorable to the doctrine
Junking SFH zoning

Filtering:
 Building new apartments, old apartments become more affordable in the long
run

1) Subsidies - acknowledges that construction of lower income housing is

practically impossible without some kind of government subsidy
2) Inclusionary zoning devices
 Incentive zoning - saw this earlier in the course, offering incentives for
developers that increase permitted density as amount of lower income housing
provided increases, or provides bonuses for participating in lower income
housing program
 Mandatory set-asides - requires a certain percentage of new housing units to
be affordable
 Favorable, puts onus on developer, government can’ achieve goal of more
affordable housing without spending any money
 Problem: developer may end up losing $ on “affordable units”, could raise
the price of other units (Lucas/Penn Central - developers have made these
arguments and lost)
Irony of inclusionary zoning - if its too expensive or not profitable, developers
just won’t build housing
 NYC set-asides example - rich door/poor door, separate lobbies for market rate
units and “affordable” units
 Oregon example - politically difficult, hard to help poor people by making
landlords charge less for certain apartments, discourages people from building
houses, too expensive for landlords
 Minneapolis - has eliminated SFH and allowed for three units per lot, idea is
that homes can be divided into units or town down and new units can be built
 Landowners argue that this changes the character of neighborhood
 “Filtering” - idea that as new buildings are built, older ones become more
affordable - but doesn’t always work, takes a long time for prices to go down
 All of the above are state law - Using federal law:
o 14th amd, equal protection - best P’s are protected class
 Low income people not a protected/suspect class, though
 Rational basis scrutiny when P’s are not protected class
 Arlington Heights, Chicago - mostly SFH, 99% white, P’s argued that no
affordable housing meant black people couldn’t move there, made a
race-based 14th amd argument - court said that they had to show govt’s
policy had discriminatory intent, Arlington Heights alleged that SFH ≠
intent to discriminate
 Buchanan v. Wohrle - struck down “separate but equal” racial zoning
 Redlining - certain areas where lenders would refuse loans to home
buyers (areas w racial minorities), attempt to discourage racial mixing
 These laws didn’t really change until 1960

2. SINGLE “FAMILY” HOUSING

 SFH zoning is exclusionary both b/c it keeps out lower cost housing and b/c
many jurisdictions restrict the people who may live in such houses
 o Do so by law that define family

Village of Belle Terre v. Boraas

 Rule: Zoning regulations may be used to enhance and preserve public welfare.
 Reason: Economic and social regulations are generally upheld against equal
protection challenges where the law is reasonable and bears a rational
relationship to a proper state objective. The government’s police power to
enact zoning restrictions applies not only to its efforts to eliminate filth and
unsanitary conditions, but extends also to enact restrictions designed to
further positive goals such as fostering an environment conducive to families
and childrearing. In this case, the ordinance was not arbitrary because it was
designed to reduce noises and traffic, and to provide quiet and open spaces for
children to play. No constitutionally-protected interest was implicated by the
regulation; for example, the ordinance does not prohibit racial minorities from
living within the city. The ordinance also does not burden fundamental rights
such as the right to vote, the right of association, the right of access to the
courts, or any right of privacy. The definition of “family” is an exercise of
legislative discretion, and is outside the realm of judicial second-guessing.
 Dissent: discrimination

3. SUBSIDIZED HOUSING
 Mt laurel mentions subsides as a means of ensuring lost cost housing gets built
o Most effective when programs come from federal gov't
 Us dept of housing and urban development
 ~10 million americans (5 million households) receive some federal housing
assistance
o Typically handled at the local level by a local public housing authority
(PHA)
 Five programs:
o Housing choice vouchers (section 8)
o Public housing projects
o HOPE VI projects
o Low-income housing credit
o Rent control

Housing choice voucher program

 housing choice voucher program is the federal government's major program
for assisting very low-income families, the elderly, and the disabled to afford
decent, safe, and sanitary housing in the private market
 housing assistance is provided on behalf of the family or individual
 participants are able to find their own housing, including single-family homes,
townhouses and apartments
 participant is free to choose any housing that meets the requirements of the
program and is not limited to units located in subsidized housing projects
 Housing choice vouchers are administered locally by public housing agencies
(PHAs)
 PHAs receive federal funds from the U.S. Department of Housing and Urban
Development (HUD) to administer the voucher program
  housing subsidy is paid to the landlord directly by the PHA on behalf of the
participating family
 family then pays the difference between the actual rent charged by the
landlord and the amount subsidized by the program
 Under certain circumstances, if authorized by the PHA, a family may use its
voucher to purchase a modest home
 Housing vouchers cost the government a lot of money: $18 billion in 2014 (as
you might imagine, the budget tends to rise with Democratic congresses and
falls with Republican congresses)
 this amount cannot help all the low-income people who want vouchers
 According to one source, the typical waiting time to receive a housing voucher
is 1.5 years, with a wait of more than seven years in some places with high
demand, and that about half of all PHAs are not accepting any new applicants.

Public housing project

 most straightforward way of providing for low-cost housing is for the
government to build it (well, hire a contractor to build it) and maintain it
 There are about 2 million public housing residents -- at a cost of about $7
billion, as of 2014, mostly with money provided by HUD to local PHAs, who
manage the buildings
 PHP have bad public image
 Pruitt-Igoe apartment complex in St. Louis, built in the 1950s, which was
allowed to deteriorate into broken windows, garbage, and crime, and which
met this ignominious end in the 1970s

HOPE VI
 In the 1990s, HUD began a program called HOPE VI, which involved replacing
some public housing complexes with smaller mixed-income projects.
 The idea was to include some middle-income people in the project and to
house low-income people mostly in row houses, not apartments.
 Critics on the left pointed out that HOPE VI projects, while attractive to look it
and live in, did not house as many people as old-fashioned public housing
projects did
 Critics on the right have called for cuts in funding for all public housing
assistance

Low income housing credit

o LIHTC - began in 1980s
o Most successful federal program to boost low income housing
o Private sector pays for, builds, operates housing, receives tax credit as an
incentive to make equity investments in affordable rental housing
o Requires affordable rent to low income household for term of 30 years,
some states require longer
o Incentivizes development in areas where it is most difficult due to high
construction costs, etc.
o Downsides:
 Units not required to be permanently affordable, needs additional
investment when equity investors take their money out of property
when tax benefits end
  Does not serve lowest-income demographic, who still need federal
rental assistance
 Drives up transaction costs, can promote concentration of units in
poorer places
Rent control
 Law restrains the percentage by which a landlord can increase rent from
year to year, can also restrict rents for new tenants
 Allows people with modest incomes to stay in their rentals for years even
when market rates rise in surrounding area
 Criticisms: decreases attractiveness of rental housing for the private
sector (ex if landlords can’t make a profit), which could be a net detriment
for low-income people as a whole

Fair housing act

 Can bring a disparate impact claim under fair housing act
 Don’t have to show intent, just effect
o Can do that by statistics
 Dallas example, always putting low income housing in low income neighbors
o Court excepted statistics showing
o city PHA always put housing projects in low income/minority
neighborhoods, group sued, alleged FHA violation. “Or otherwise make
unavailable…” - FHA section crucial to this claim, govt has to make
public housing available. “Disparate impact” - don’t have to show
that govt had intent to discriminate, can offer statistical evidence to
establish prima facie claim against a facially neutral statute (ex.
Firefighters - bench lifting requirement basically discriminates against
women)
 If party succeeds in establishing a prima facie disparate impact
claim, govt can overcome by providing a compelling reason for
policy (burden shifting)
 Possible justification for Dallas example: cheaper to build in low
income neighborhoods, accessibility to low income people
increased

CH 10: CITIES
1. CITIES’ DEPENDENCE ON BUSINESS
 cities have always been centers of employment – unlike suburbs, which
traditionally have focused on residences – cities need to keep, and attract,
businesses
 Lure businesses- subsidies in exchange for coming to the city, bringing jobs
 Similar to incentive zoning
 FL scripts research institute (bio tech)

2. TAX INCENTIVES: ENTERPRISE, EMPOWERMENT, AND

OPPORTUNITY ZONES
 Sharp contrasts between rich and poor in cities than in suburbs
 Food deserts- parts of the country vapid of fresh fruit, vegetables, and other
healthful whole foods, usually found in impoverished areas
 o This is largely due to a lack of grocery stores, farmers’ markets, and
healthy food provider
o Not a full scale grocery store
 Grocery stores hesitant to open in food deserts b/c people might not go/cant
afford to shop there
 Many economists say that businesses can be spurred to do things by tax law
o if you tax something, some people avoid the thing; if you lower taxes on
something, more people will do the thing.
 In the 1980s and 1990s, federal programs were established to encourage
businesses to open up in poor city neighborhoods
o One program was pushed by Republicans when Ronald Reagan was
president; another was pushed by Democrats when Bill Clinton was
president
o They were called Empowerment (D) Zones-empowering poor people to
start their own businesses; and Enterprise (R) Zones-luring business to
poor areas
 Cities through zoning requiring convenience stores to carry groceries
o Downside-generally more expensive; grocery might just opt to go
elsewhere b/c afraid they wont sell/wont make money, quickly perishable,
costly.
 zones are usually delineated by census tract – areas that are smaller than zip
code areas
 In 2017, Congress included in a new tax law a program called Opportunity
Zones.
o Under the program, states will designate distressed neighborhoods (need
to meet eligibility requirements)
o Investors may be encouraged to invest money in businesses that open in
these neighborhoods because a tax break would be passed on to them
o Treasury will certify opportunity funds to make investments in opportunity
zones
o Investors receive tax benefits for placing unrealized capital gains into
opportunity funds
o Governors will nominate census tracts eligible for investment by march 21
o Hope to create startup businesses
o Hasn’t worked very well
 Cities pick places that are on the rise already-not the places that need them
the most

3. POVERTY AND HOMELESSNESS

 Mental illness & drug abuse
 No longer institutions and recovery programs for mentally unstable and
substance abuse
 Deinstitutionalized
 Nothing replaced it to give them help
 "housing first"
o Get them off the street first and put them in housing
o Then focus on treatment for drug abuse/mental treatment
 Carrot not stick
o Give them a benefit first
 Not getting people the help they need
 Neighbors don’t want to live next to these people
o Drug addicts generally need to steal to survive
o People worry about it
 Bridge shelters
o Not amazing/ideal housing
o But a halfway between the street and living on their own
 CA people not a fan of bridge shelters
 Perfect is the enemy of good
 Social & land use issue

4. MILLENNIALS AND GENTRIFICATION

 Infill- new construction inside the already built up areas of cities instead of
building at the suburban outskirts (Greenfields) of a metro area
 Infill city living popular w/ young people
o Apartments less expensive than SFHs
o Different lifestyles
 Change in preference about lifestyles over the past couple generations
o In the 70s most young people bought a SFH as soon as they had the
money
 Many cities are happy that people want to live in cities
o energize the city’s economy
 For many older cities that suffered through hard times in the late 20th century,
an influx of young people, especially young professionals, revitalizes the city,
some say.
 But there is a downside to college-educated young people’s desire to move to
city neighborhoods- gentrification
 Portland, Oregon has a growth boundary to prevent urban sprawl
o Good public transportation
o Sidewalks are high to aid in getting onto bus- walk right in without having
to step up
 Virtuous circle (v. vicious circle)
o More people living in cities, encourage public transportation
o More revenue -> run more efficiently and more often, which causes more
people to ride them, more convenience
 Gentrification: a process by which middle class people take residence in
traditionally working class area of the city changing the characteristic of it
 Houston example:
o Residents of third ward are being displaced by gentrification - shift
from rental to homeownership, low housing values, decrease of FHA
financing, increase in individuals wanting to move to cities, increase of
amenities that serve higher income individuals due to development of
downtown
o Houston has no zoning laws, essentially Euclid stuff never caught on,
they have a lot of covenants restricting what can be done on certain
pieces of property
 Options for residents: education/organization so that they can take action to
maintain the character of their neighborhood, avoid losing real estate due to
abandonment, liens, generation transfers, keep property in the hands of
 current residents via neighborhood association buyout programs, enforce deed
restrictions to stop certain types of construction, use Texas tax code to their
advantage
 Some people don’t think gentrification is a problem that government should try
to stop:
o Some say low income residents move a lot anyway, so having to move
neighborhoods is not an unexpected burden
o Some say influx of affluent/well educated residents is good for cities,
increases tax base, more people can buy stuff from local businesses,
participate politically, cities with more affluent residents can
afford/finance affordable housing
o Reduction of affordable housing isn’t gentrification’s fault, its the
governments for failing to secure affordable housing in general

CH 11: SUBURBS
 Suburbs: places in metropolitan areas that are not the central city
 Complaints suburbs lead to conformity
o Same cars, cookie cutter houses, obsession w/ lawns & crabgrass,
same opinions
 History has led to sprawl
o When first ppl came to America no need to conserve space

1. SUBURBAN “SPRAWL”
 Suburban sprawl: new low-density developments on the outskirts if a
metropolitan area
 Controversies around suburban growth
 Ziegler definition of suburban sprawl: low-density suburban and exurban
growth that expands in an unlimited and noncontiguous (leapfrog) manner
outward from the built-up core of metropolitan area
 In the United States, however, the densities of this sprawling development
pattern are generally so low that by a worldwide standard the resulting built
environment can appropriately be called “hypersprawl.”
 Criticisms:
o Health
 Physical- not walking/drive everywhere, pollution
 Mental- people are less happy
 no sense of community, isolated, not connecting w/ other
humans, alienation
o Increased economic cost:
 Cars/gas
 Big houses are expensive
o Ugly once you leave the house
 Commercial strips = hideous
o Sprawling communities bad for the environment
 Loss of farms
 More electricity use
 Loss of wetlands, forests, habitat, nature
o clumsy, expensive, and increasingly hard to enjoy or even use
  Benefits:
o Space
o Quiet/no city noise
o Backyards
o Space for kids
o Other families
o Invested in the house/community
 Care about issues
 The “American dream” caused suburban sprawl
 Govt encourages sprawl
o Euclid- separate land uses
o Interstate highway system
 No federal role in building highways prior to 1950s
o Tax policy
 Mortgage interest deduction encourages people to buy houses
(subsidizing SFHs)
 Protecting capital gains on home sales
o Minimum lot sizes
o Ownership society (HW Bush)

2. GROWTH CONTROLS: ZONING, QUOTAS, AND PERMANENT CAPS

 Zoning laws can limit sprawl
 Prohibit new construction
o Takings argument
 Limit number of houses built in an area
o Minimum lot sizes
o Large lot laws have been very popular, both for new suburban
development and even for already-built-up areas
o Because large-lot zoning may accelerate the conversion of farm or
forest acreage to house sites, some governments use the technique of
trying to use zoning use districts to limit sprawl, such as demanding
that land stay in agricultural use

Montgomery County, Md.

 zoning map to encourage new construction near the big city, but not in the
north
 ag reserve
 50 acre lot size minimum
 Drawback: developers move to other counties that don’t have similar zoning
laws

3. NEW HOUSING QUOTAS

 Cap/quota: allowing but limiting new housing construction to a specific set
number of houses that may be built w/i a specific time

Ramapo, NY
 Town growing rapid, concern about infrastructure
 town adopted a plan that allowed new development through a point system –
subdivisions would be allowed only if they collected enough points, which
were awarded based on proximity to existing infrastructure
 If new sewers weren’t needed, for example, the development would earn five
points; if a major highway was close, it would get three points; if an existing
park was nearby, it would collect one point.
 This system allowed developments with low infrastructure costs and
disallowed those with high infrastructure costs.
 The plan was upheld in the landmark case of Golden v. Planning Board of
Ramapo, 30 N.Y.2d 359 (N.Y. 1972).
 Rationally related

Construction Industry Association of Sonoma County v. City of Petaluma

 (Suing in fed court b/c substantive due process)
 Rule: An exclusionary zoning regulation is valid if the regulation is rationally
related to a legitimate state interest
 Reason:
o A zoning regulation, even a regulation that is exclusionary, is valid if
the regulation is rationally related to a legitimate state interest
o A legitimate zoning ordinance must be justified by some aspect of the
police power that may be asserted by a state for the public welfare
o A local entity’s zoning power is very broad.
o Euclid-zoning regulations “must find their justification in some aspect
of the police power, asserted for the public welfare.”
o In Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), the United States
Supreme Court held that an ordinance restricting land use to single-
family dwellings was valid, because the ordinance was rationally
related to the legitimate purpose of preserving an area’s quietness,
low population, and low motor-vehicle density.
o Ybarra v. City of Town of Los Altos Hills, 503 F.2d 250 (9th Cir. 1974),
held that a zoning ordinance requiring a housing lot to contain no less
than one acre and no more than one primary-dwelling unit was valid,
as the ordinance was rationally related to the legitimate purpose of
preserving the town’s rural environment
o In both prior cases, the ordinance in question suppressed population
growth and discouraged poor people from moving to the area
 The ordinances were still valid, however, because the
ordinances were rationally related to legitimate state interests.
o Petaluma’s goal of preserving the city’s small-town character, open
spaces, and low population density falls within the broad scope of the
public welfare and is therefore a legitimate state interest.
o It does not necessarily follow that the Due process rights of builders
and landowners are violated merely because a local entity exercises in
its own self-interest the police power lawfully delegated to it by the
state
o a state regulation validly based on the police power does not
impermissibly burden interstate commerce where the regulation
neither discriminates against interstate commerce nor operates to
disrupt its required uniformity
 o When there is a reasonable basis for legislation to protect the social, as
distinguished from the economic, welfare of a community, it is not for
this Court because of the Commerce Clause to deny the exercise
locally of the sovereign power of the (state)
o the local regulation here is rationally related to the social and
environmental welfare of the community and does not discriminate
against interstate commerce or operate to disrupt its required
uniformity
Notes on the case.
A Euclid-like deference to growth restraints
 court cited both Euclid and Belle Terre in upholding the plan to limit growth
 CO state courts approved the housing cap imposed in Pitkin County
(Wilkinson v. Pitkin County)
 A regional California moratorium to consider environmental and infrastructure
needs was upheld against a takings claim in the Tahoe-Sierra case, 535 U.S.
302 (2002).
Concurrency Requirements
 Some states require that all local governments disallow new housing permits
unless infrastructure will be available concurrently (at the same time), to
avoid local shortfalls. Florida’s law was once among the most prominent.
Fla. Stat. § 163.3180.
 the concurrency requirement was weakened in 2011, during the Great
Recession
Justice Mosk’s Skepticism of Suburban Growth Restraints
 A year after the Petaluma case, the California Supreme Court approved a
growth restraint of Livermore, another affluent outer suburb in the San
Francisco Bay area. (Associated Home Builders etc., Inc. v. City of Livermore,
557 P.2d 473 (Cal. 1976))
 Livermore’s law prohibited issuance of any housing permit until various
infrastructural needs were improved.
 Justice Mosk’s dissent:
o Easy to defer to govt for growth control, excluding new comers/ppl
generally
o CA has a history of excluding people
 Dust bowl/1930s Oakies
o Makes sense for certain places to restrict
o Rich people living in pretty places
o Can be lots of motives

4. A PERMANENT CAP?
 An extreme method of limiting growth would be a permanent cap on housing
units in the jurisdiction

City of Boca Raton v. Boca Villas Corporation

 Amended charter by referendum to reduce density in single and multi-family
residential zoning classifications
 Rule: cap needs a rational relationship
 Reason: reversed b/c cap bears no rational relationship to a permissible
municipal objective
“ … the cap lacks any rational relationship to a permissible municipal objective”
  Court found no rational reason for cap: city’s infrastructure and environment
seemed good
 Permanent caps are rare
 Interstate commerce does not apply

CH 12: NEW UBRANISM

 House growing population by infill of existing built-up areas
 New urbanism
o neighborhoods should be diverse in use and population; communities
should be designed for the pedestrian and transit as well as the car;
cities and towns should be shaped by physically defined and
universally accessible public spaces and community institutions; urban
places should be framed by architecture and landscape design that
celebrate local history, climate, ecology, and building practice
 Duany:
o When suburban residents leave their homes they are confronted by a
tawdry and stressful environment
o Motorist competing for asphalt

1. NEW URBANIST ZONING

New Urbanist Zoning for Dummies
 Zoning has created sprawl
 Policies have made it so few people can walk
 New urbanists argue that:
o Automobile-dependent sprawl reduces individual freedom by
immobilizing Americans too young or too old to drive
o Sprawling development increases driving, which in turn has led to
increased traffic congestion12 and pollution
o Sprawl is ugly, producing nothing in the public realm worthy of
aesthetic contemplation.
o Pedestrian-friendly communities might improve public health by
allowing their residents to get more exercise
o Pedestrian-friendly neighborhoods, unlike sprawling subdivisions,
foster community by encouraging chance meetings between their
residents
o Sprawling development consumes more land than more compact
development, thus reducing the supply of farmland, open space, and
wildlife habitat
 New urbanist remedy is to build Traditional Neighborhood Developments
(TNDs)
 TNDS conflict w/ conventional zoning and street design regulations
 New urbanists seek to build mixed-use, compact neighborhoods
“Smartcode”
 TNDs hard to build under conventional zoning laws
 Many have been build as PUDs, but they are subject to government approval
- so if municipality is unwilling to vary from conventional zoning standards,
New Urbanist developer won’t be successful
  Some developers might just want to take the easy road and build something
that is w/i zoning laws and automatically approved rather than wait for PUD
approval
 Form-based code - regulate building form more intensively than the activities
going on inside the buildings themselves
 Smartcode uses “Transect” - continuum of habitats ranging from rural to
urban
 Keeps urban structures in urban areas, creates “immersive environment”
 Arguably less intrusive than conventional zoning because landowner can use
their land in more ways under Smartcode:
 Can build fewer parking spaces, more housing/business
 Less land devoted to streets - more land can be devoted to building houses,
offices, etc.
 Some criticise New Urbanist ideals - think it will force people to live into
apartments when they might prefer SFH

2. NEW URBANIST DESIGN

 DPZ firm designed new town seaside on FL’s panhandle in the 90’s

CH 13: PROTECTED LANDS: HISTORY, FARMS, AND

NATURE
1. HISTORIC DISTRICTS
 govt reasoning for preserving historic buildings:
o tourist attraction
o maintaining character
o community pride
o history lesson
 SP §16.30.070 Historic preservation:
o In the interest of health, safety, economic welfare, prosperity of the
people
Maher v. City of NOLA
 Historic art distric, cant alter/destroy w/o permit
 Plaintiff argued due process (5th amend) & taking w/o just compensation
 Reason:
o Not random
o Deference to govt experts- people trained in history, architecture,
business
o Individualized determination
o Fits in w/ “overall scene” – tout ensemble
 tout ensemble - an assemblage of parts or details (as in a work
of art) considered as forming a whole
 would not feel immersed if destroyed
o elaborate decision making process w appeal
o w/in leg police power
 ordinance for the benefit of the people

Overlay districts = historic districts

 not a use district
  historic district lays on top of use district
 transparency?
 Sometimes regulates the construction of new buildings

New historic buildings

 Some laws require that new buildings be built in an architectural style that
resembles older buildings in an historic district
 In the historic district of Oakwood, in Raleigh, N.C., new buildings could not be
“incongruous” with the “Victorian” appearance of most of the buildings
 A state court upheld a rejection of a commercial architectural plan under the
“incongruous” standard, applying the tout ensemble rationale. A-S-P Associates
v. City of Raleigh, 298 N.C. 207 (1979).
 North Carolina court also noted approvingly Raleigh’s rationale of designating
the historic district in order to “revitalize” the neighborhood of Oakwood
 court noted that most of the houses in Oakwood were rentals and that it had
been in a “depressed economic state.”
 historic designation might attract attention and encourage people to buy the
houses and fix them up

Transferrable Development Rights

 New York City’s landmark law gave landowners transferrable development
rights
 The idea of TDRs is as follows: To soften the potential financial harm of having
one’s building designated as historic (and thus limiting its use or modification),
government awards the regulated landowner a TDR – sort of like a legal
voucher
 The voucher is for a certain amount of development – often in terms of square
feet
 The calculation might be based on the amount of land that the regulated
landowner cannot build, by virtue of the historic designation, as compared to
nearby unregulated buildings.
 The voucher then can be sold to other landowners in certain areas, which have
been designated by the government to receive vouchers
 A buyer of the voucher can build more than otherwise would be permitted by
law
 The two parcels do not have to be near each other
 In places with a hot real estate market, TDRs may be very valuable
 The owner of the “kitschy” Vagabond Motel (shown below) on Miami’s Biscayne
Boulevard, on which the government limited building heights to protect historic
appearances, reportedly sold more than 400,000 square feet of development
rights for $3 million to developers to extend condominium sizes beyond legal
limits in nearby neighborhoods. See Martin A. Schwartz, It’s Up in the Air: Air
Rights in Modern Development, FLA. BAR J., Mar. 26, 2015.
 idea of transferring rights could be used for a wide variety of land use
regulations

2. FARMS
 concern is that suburban sprawl is gobbling up land that was once farmland
  number of farms (which has plummeted since 1935) and the amount of land used as farms
(which has decreased, but only slightly

Moon v. North Idaho Farmers Association

 farmers would burn fields after harvest (Kentucky bluegrass), smoke drifted
over neighbors property, sued for nuisance. Farmers went to legislature and
asked them to pass “right to farm” law stating that smoke was not a nuisance
or trespass. Neighbors thought legislative action was unfair, pointed out that
farmers in other states don’t burn their fields. Issue: whether right to farm
law was unconstitutional, whether it was a taking. Ct held that it was not a
taking because landowners were not deprived of access/complete use of
property, also not a regulatory taking because they weren’t deprived of all
economically beneficial uses of their land, Idaho only recognized Lucas
takings (complete taking). Also not unconstitutional because legislature had
the power to pass the regulation.

Is the right to sue for nuisance an easement?

 Idaho had not adopted the restatement, so didn’t apply. Nuisance immunity
provision in regulation did not create an easement in favor of grass farmers.

3. NATURE
Fracking
 Method of extracting oil/gas out of the ground
 “Hydraulic fracturing” - shooting water/chemicals into the ground, breaks up
rock, oil and gas can then be extracted
 Issues w fracking:
o Can contaminate aquifers/water table
o Disrupts wildlife habitat
o Uses thousands of gallons of water a day
o Raises potential for earthquakes
 Local governments taking issue - NY localities have banned fracking or placed
moratoria on fracking - NY Ct of App has upheld local government’s ability to
restrict this kind of activity
 Feds argue that benefits outweigh risks - decreases our reliance on foreign oil,
stimulates our economy
Sea level rise
 Estimates of 1 meter rise in the next 80 years
 Solutions:
o Change zoning laws so people have to build in certain locations, to
certain specifications
o Get rid of subsidized flood insurance
o Pay people to relocate (eminent domain - would be expensive)
Wildlife habitats
 Federal law - ESA prohibits “taking” of endangered species
 Take = hunt, shoot, trap, kill, or harm
 o Includes harm by pollution, destruction of habitat
 Marbled Murrelet - take includes harm to endangered species habitat. Birds
don’t build nest, they lay eggs in big trees. Pacific Lumber Company was
going to start logging, would destroy bird habitat. Said they’d chop trees
down when birds weren’t nesting, so they weren’t actually going to kill any
birds, but by destroying habitat, they were effectively ensuring that the
species wouldn’t survive. ESA protects against significant habitat
modification/degradation which kills wildlife by impairing essential behavioral
patterns like feeding, breeding, and sheltering. Also, threat of future harm is
sufficient under ESA.
 States that are home to the most endangered species have unique
georgraphy and climate, also states with some of the greatest population
pressures - FL, CA, and HI
Wetlands
 Swamps, marshes, other places that are sometimes saturated with water
 Habitat for variety of wildlife - fish, birds, etc.
 Also store carbon, protect against weather events, filter water
 Wetlands afforded special protection in CWA - 404 permit to fill in wetland
 Mitigation banking: kind of like TDR system, lets people develop if they pay for
credits to restore wetlands elsewhere, market-based approach to regulation