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Land Use
University of California, Hastings School of Law
Shute, E. Clement

Planning Issues:
* Sovereign local governments

* Fractured Individual agencies (i.e. CalTrans) with single purpose planning (embarcadero, freeways, etc.). Not looking at the big picture, only at current and/or small, individual issues, operate in a vacuum.
· Fragmented authority often creates conflicts and coordination problems in local government policies, programs, and services. In areas such as land use regulation, conflicting policies produce important positive and/or negative spillover effects or externalities at the regional level.

*Tragedy of the Commons: refers to the social and economic consequences of allowing individuals free and unlimited access to a form of commons, i.e. water.
· In a t-o-c scenario, individuals maximize their proclivity to exploit the commons, because they can benefit directly, while the costs can be distributed across all other resource users.
· The inevitable consequence of such free access is the complete depletion of the common resource
· Home as a castle is eroding b/c of t-o-c, comprehensive planning is on the rise

*Externalities: Something that causes a problem (cost to public), but has no cost to the offender (incentive). i.e. dumping factory waste into the river, ethanol/corn fuel distorted the market (intervention with unintended consequences).

Village of Euclid, p. 50

Facts

Property owner brought a facial challenge to a zoning ordinance that divided all land in the municipality into various use districts.

Rule

Rational Basis to support legislation à valid.

Analysis

Court upheld the ordinance, concluding that a zoning ordinance violates due process only if it is “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Moreover, “i]f the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.”

Notes

SC is deferring to city council the same as it would to Congress and state leg.

Camp, supp. 1

Facts

GP lacked standards (i.e. land use goals, housing, noise, etc.).

Analysis

Writ of mandate—ordered that because of the lack of standards, county had to vacate actions by the board that violated state law, including approval of all subdivisions at issue.

Conclusion

GP not internally consistent (horizontally) à everything below it invalid (vertical).

Notes

AG subsequently enjoined all approvals until a proper plan was made.

Incorporated City: Unlike counties, which are static, new cities are created fairly often.
Better than counties because city services, tax base, city has same power as state (constitutionally), so no state preemption of planning/zoning. Allows for more personalized control.
LAFCO: Local area formation
Local Governments have broad power to plan and classify

GENERAL PLAN (“constitution of the local government) Required Elements:
· Density Standards: are necessary for each designated areas (i.e. residents).
· Building Density: Ratio of floor area to lot size (i.e. 1:2); higher in urban areas, tend to be less than 1:1 in suburban areas. Serves as an indirect height limit.
· Land Coverage: Pervious surface restrictions. Tahoe restrictions are between 1-5% at most restrictive (leads to inverse condemnation) to about 20% (normal)
· Housing element: Increasing legislation to requirements for affordable housing. “Fair share” decided by ABAG in bay area (Regional planning agency for the bay area. Offers information on planning projects, the region, and services).
· Noise Element:
· Circulation: The relationship between landuse and transportation can be described as symbiotic—the condition of one directly affects the condition of the other. It has also been described as a cyclical development pattern, whereby transportation improvements spur land development and landdevelopment drives a new need for improved transportation
· Consistency Req’t: see below
· Also see “Volume to capacity ratio,” Selmi p. 20.

Calaveras, supp. 11 Emergence of the CONSISTENCY Doctrine

TEST

Elements must be correlated (between each other and the GP overall) in order for the GP to fulfill its function as an effective planning process.

Rule

GP must have a statement of dvp’t policies setting forth objectives, principles, standards, proposals, etc.
Land use and circulation elements must be sufficiently correlated.

Analysis

Calaveras GP called for growth without discussing adequacy of roads to handle increased traffic, and without a standar

ing”: local election measures that seek to control—through local initiatives or referenda—local planning decisions and regulations. Through this “direct legislative power,” voters may, for example, seek to enact growth management measures, approve or overturn specific development projects, change GP policies or enact new planning regulations.
· Ballot measures can sometimes do as much harm as good as relates to future planning and growth management, do not often strike a balance between the many competing local, regional, and statewide issues facing Californians, and focus on individual issues, i.e. traffic congestion. Also see Planning Issues, p. 1

Direct Democracy City of Eastlake v Forest City Enterprises, Inc., p. 475

Rule

The people have no more power than the elected body, but their power is equal to that body – so the voters cannot act any more arbitrarily than the elected body.

Analysis

· In many circumstances, a rezoning might affect just one piece of property, and it is labeled and passed as a zoning ordinance à does that necessarily mean its legislative b/c of the title?
Courts will consider something like this administrative, even if it is labeled as legislative, and this means there will be no power of referendum or initiative
· Look at the character of the act à just applying policy or is creating policy?
The normal process/procedure doesn’t apply to initiatives – it goes straight to the people – this is an argument against using initiatives. The counter is that the electoral process still provides people a chance to vote and be involved even though the normal process involved in legislative acts from the governing body aren’t there

AHB v. Livermore, notes p. 480: Ass’d Home builders challenged prop on the grounds that zoning cannot be amended by initiative/referendum. Court looked to constitution, and found that zoning is a legislative power, thus okay. Procedural requirements that apply to legislators do not apply to voters, who have a completely different set of procedures.