LAND USE BIRKEY SPRING 2017
General Plan Amendment (map and text) – legislative, discretionary
Rezoning (aka Zoning Amendment) (map and text) – legislative, discretionary
Conditional Use Permit/Authorization – administrative, discretionary
Planned Unit Development Zoning/Permit – legislative (zoning), administrative (permit), discretionary
Overlay and Floating Zones – legislative, discretionary
Variance – administrative, discretionary
Development Agreement – legislative, discretionary
Subdivision Maps – Parcel Map (4 or fewer lots) (administrative, discretionary/ministerial), Vesting Tentative Map/Tentative Map (more than 4 lots) (administrative, discretionary), Final Map (administrative, ministerial)
CEQA clearance – associated with discretionary land use action (not per se land use action)
INTRODUCTION AND ALTERNATIVES
Bove v. Donner-Hanna Coke Corporation, Supreme Court, Appellate Division (1932) – The smoke and odor inevitably generated by a regulation-compliant industry does not constitute a private nuisance.
COMPREHENSIVE PLANNING
Udell v. Haas, Court of Appeals of New York (1968) – Under zoning law, rezoning must be performed in accordance with a comprehensive plan.
Santa Margarita Area Residents Together v. County of San Luis Obispo, Cal. Court of Appeal (2000) – Under land-use law, a development agreement between a landowner and a local government that requires conformity with a specific plan is valid.
Nassau County v. Willis, District Court of Appeal Florida (2010) – Under land-use law, a local government may change wetlands designations in accordance with the government’s comprehensive plan.
Comprehensive Plan treated as a “constitution for all future development” within the County.
[This principle applies in Florida, California, and elsewhere, but not everywhere!]
ZONING
Village of Euclid, Ohio v. Ambler Realty Co., SCOTUS (1926) – 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. Municipalities authorized to establish zoning districts. Municipalities authorized to establish permitted and non-permitted uses within zoning districts.
Nectow v. City of Cambridge, SCOTUS (1928) – A zoning ordinance constitutes an unconstitutional restriction upon private property rights if the ordinance does not bear a substantial relation to public health, safety, morals or general welfare.
Zoning ordinance will be found unconstitutional “if it does not bear a substantial relation to the public health, safety, morals, or general welfare” (citing Euclid)
Hernandez v. City of Hanford, Supreme Court of California (2007) – A zoning ordinance regulating economic competition for public purposes is valid, provided that the ordinance does not violate equal protection.
Local governments can enact a zoning ordinance that directly impacts economic competition so long as the ordinance is intended to advance a legitimate public purpose.
Public purposes can include preventing urban decay and attracting certain business interests.
ZONING FLEXIBILITY
People’s Counsel for Baltimore County v. Loyola College in Maryland, Court of Appeals of Maryland (2008) – Under zoning law, 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. Conditional uses are conceptually compatible within a zone so long as local government determines that, at a given location, no actual incompatibility would occur.
Plains Grains Limited Partnership v. Board of County Commissioners of Cascade County, Supreme Court of Montana (2010) – Does impermissible spot zoning exist if the requested use differs from the prevailing use in the area, even if the requested use may be permissible under existing zoning law?
Typical elements of impermissible spot zoning: requested use differs significantly from land uses in the area, area to be rezoned is “rather small,” “special legislation” benefiting one landowner at expense of others
Variances: Relief from hardships caused by literal application of zoning ordinance
Types of variances: Use Variance [caution!] Development (or “Bulk”) Variance
Conditions can be attached to the granting of a variance
Nonconformities – Nonconforming structures and uses are existing structures and uses that at one time complied with zoning but now no longer do as a result of zoning changes.
General concepts: Often allowed to continue, so long as same use remains in operation, and use is amortized after a certain period of time.
If structure is destroyed – often may be restored, so long as replacement structure does not exceed original footprint, floor area, or height, and replacement structure constructed within a short period of time
Generally, not possible to expand an existing legal nonconforming use.
Topanga Association for a Scenic Community v. County of Los Angeles, Supreme Court of California (1974) – An administrative grant of a zoning variance must be accompanied by administrative findings of fact sufficient to satisfy the variance’s requirements.
Agency rendering variance decision must set forth findings to bridge the “analytical gap” between evidence and decision.
Variance requires evidence relevant to disparities between properties, not merely qualities of the property in the abstract.
City of Los Angeles v. Gage, District Court of Appeal California (1954) – The reasonable amortization of nonconforming uses of private property is a constitutional exercise of a municipality’s police power.
Elimination of nonconforming uses within a reasonable time (amortization) does not amount to a taking or restrict the use of property so that it cannot be used for any reasonable purpose.
Not arbitrary or unreasonable, or have no substantial relation to public’s health, safety, morals, or general welfare.
Evans v. Teton County, Supreme Court of Idaho (2003) – A local board’s interpretation and application of its own zoning ordinances is presumed to be valid under land-use law.
Usually a base zoning serving as underlying land use control.
PUDs allow for departures from development standards.
BALLOT BOX PLANNING: VESTED RIGHTS
City of Eastlake v. Forest City Enterprises, Inc. – A referendum to determine whether to allow a zoning change is constitutional because all governmental power derives from the people.
Referendum is a power reserved to the people, not a delegation of legislative power.
Nonetheless, referendum will not be upheld if substantive results are arbitrary and capricious.
No distinction drawn here as to legislative approvals and administrative approvals.
Avco Communtiy Developers Inc. v. South Coast Regional Commission, Supreme
dments, courts should consider the economic impact of the regulation on the owner, the extent to which the regulation has interfered with the owner’s reasonable investment-backed expectations, and the character of the government action involved in the regulation.
NY historic landmark law did not go “too far” in regulating land use, because it did not interfere with present use and did not prohibit any and all construction above the structure.
LAND USE EXACTIONS
Nollan v. California Coastal Commission, SCOTUS (1987) – A condition placed on the approval of a building permit that acts as a taking will be treated as such, requiring the government to provide just compensation for acceptance of said condition.
Establishes the “essential nexus” test.
There must be an essential nexus between the condition and the impact of the project.
Dolan v. City of Tigard, SCOTUS (1994) – 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.
Establishes the “rough proportionality” test.
There must be a rough proportionality in the degree of the connection between the exaction and the impact of the project.
LAND USE GROWTH CONTROLS
Bradfordville Phipps Limited Partnership v. Leon County, District Court of Appeal Florida (2001) – A temporary moratorium on a particular use of a property is not a compensable regulatory taking under the Fifth Amendment if the moratorium does not result in the complete deprivation of all economically beneficial uses of the property.
Temporary moratorium on development in this case did not amount to a “categorical taking.”
Factors to consider include duration of the moratorium and whether the property loses any of its present value.
Deer Creek Developers, LLC v. Spokane County, Washington Court of Appeal (2010) – A developer must submit a valid and fully completed building-permit application to garner the protections of the vested-rights doctrine and have the application considered under the ordinances that are in effect on the date of the application.
No vested rights as to Phase II because no complete building permit application had been submitted when proposed use was prohibited.
Had the Phase II rights vested, developer would have been protected against moratorium.
Golden v. Planning Board of Town of Ramapo, Court of Appeals of New York (1972) – Zoning ordinances designed to assimilate population growth over time are lawful.
Ordinance controlling timing and phasing of development by linking development approvals with availability of adequate public facilities is not unconstitutional.
