Land Use Planning Outline
Spring 2011
Baker-Roski
I. Administrative & Zoning
a. Governed by local, state & federal laws
b. At local level: planning department
i. Planning department governs, local regulations, zoning map.
c. Euclid v. Amber Realty
i. Had cumulative zoning (hierarchy of restrictions)
ii. 3 dimensions of use (height, area, use)
iii. SDP Claim claiming lost right to property value of land
iv. Court relies on
1. Nuisance law: we are attempting to alleviate prospectively
2. State’s concern with safety & health
a. Apartment complexes are parasites
d. Variances
i. Go to ZBA to ask for either a
1. Use variance: asking to use land for a different purpose than what is written in regulation. Essentially an amendment. Not allowed in Georgia.
2. Area variance: changing physical restrictions on land.
ii. Matthew v. Smith: general standard for getting a variance is that strict compliance with the letter of the code would create practical difficulties OR unnecessary hardship.
1. This is sometimes written in the conjunctive
2. GA code is written in the conjunctive.
iii. 4 General Principles
1. unique to character of property at issue
2. unnecessary hardship
3. strict compliance w/ ordinance not necessary to carry out purpose of plan
4. substantial justice in granting variance
iv. Must also state that if not granted no reasonable return of investment on land (or that you lost the beneficial use), that this is unique to your specific piece of land, and that the variance will not alter the essential character of the locality.
1. Reasonable return=doesn’t have to be a total wipeout, but you must show in dollars and cents that all beneficial use is gone.
v. Janssen v. Holland: landowners wanted a variance on a big parcel of land. It was granted. Court said that size of land is immaterial because not in the statute. As to the ZBA’s decision to allow the variance, unless it was contrary to law, based on improper procedure, no material facts or an abuse of discretion. That was not found here.
vi. Zaniewski case: woman did not get her requested variances by the board because they subdivided land. ZBA did not act irrationally. Cannot look for a variance if the situation was created out of your own fault.
vii. Variances are attached to the land.
e. Special Use Permits
i. Jones v. City of Carbondale: special uses do not require the same procedural checks that variances might need. The Board was able to grant a special use in this case, along with certain requirements, even though the requirements are not specifically in ordinance.
1. Variance: allows a landowner, upon a special showing, to alter use or area of land that is inconsistent with the zoning ordinance to avoid undue hardship.
2. Zoning Amendment: changes the zoning ordinance in place.
3. Special Use: is written into the ordinance itself; in the code it explains that some uses are okay but only if a special use is found and certain conditions met.
ii. Gladden v. BZA: a group home is okay even though socially undesirable by neighbors. However, neighbors have to be able to view the security plan, which was a requirement for the special use.
1. Court did not feel that this proposed use combined with other areas will have a negative impact on the neighborhood.
2. Court has a rational basis standard.
f. Broad versus Narrow Ordinances
i. Broad: standard-like. Tell you what is something that could be permitted.
ii. Narrow: rule-like. Specific list of uses or requirements; no judging eye involved.
g. Comprehensive Plan
i. Provides an overall rational scheme for a zoning ordinance
ii. Wolf v. City of Ely: City wanted to stop the Wolfs from operating a junkyard so City sues and says under the zoning ordinance this is not okay.
1. Court notes that the City has “to give full consideration to the problem presented, including the needs of the public, changing conditions and the similarity of other land in the same area, then it has zoned in accordance with a comp plan.”
2. Here the comprehensive plan was thrown together, in crayon, etc. Thus it did not meet the low bar standard of a comprehensive plan.
iii. Nuisance is still a wide open standard.
iv. Hector v. City of Fargo: sometimes the statutes will say that a comprehensive plan must be written and authorized. Policy statements here were adopted in a formal resolution (but not in ordinance) so those do not suffice, however the Land Development Code constitutes a comprehensive plan that explains to landowners rights and boundaries for zoning.
1. Some states require comprehensive plans, others regulated the content, others condition grants of plans. Otherwise, in some states they are not required.
v. Georgia Planning done by the Department of Community of Affairs
1. OCGA 50-8-31 requires a comprehensive plan that must have certain requirements
2. Often if a person wants to rezone, one element of that decisions is whether the rezoning is in accordance with the comprehensive plan.
vi. Twaine Hart v. County of Tuolumme: Challenge here is to the consistency of plan to elements of state law. The alleged problems are that no population density given, no circulation element, and no housing element. Court agreed that land use elements and circulation elements did not substantially comply with the government code regulations.
vii. Pinecrest Lakes v. Shidel: Comprehensive Plan in this case has a tiering structure (says that the density next to residential zones must be one layer back). City felt development complied with the plan but the court makes the company tear down the apartment building based upon the neighbor who is being harmed asking for an injunction.
1. Injunction was the only relief the statute provided for.
Big Theme: Euclid establishes that zoning enabling statutes and schemes are constitutional. After this time, plaintiffs begin to make “as applied” challenges. This is accomplished by finding legal hooks to show how application is incorrect: look to local and state regulations, federal statutes, the Constitution (takings clause & due process of 14th amendment).
II. Judicial Review
a. Three Basic Kinds of Challenges
i. Inefficiency: this attacks the merits of regulation. Court must second-guess the legislative body. However, we know that judiciary gives deference to the legislature.
ii. Distributional Unfairness: the law may make sense but it burdens too much one person. Not necessarily saying unconstitutional, but like in takings cases, saying this burden goes too far in putting a legitimate objective on one person.
iii. Autonomy Violation: regulation has the effect of too much control over important aspects of someone’s autonomy.
b. Substantive Due Process
i. Nectow v. City of Cambridge (Sutherland): after the city rezones property, the person buying Nectow’s property backs out. The Master reports the finding that there is no reasonable return on property. He also says that the zoning here does not promote the orthodox quartette because there is a big loss that does not seem to derive any benefit around drawing this line around the property.
1. Orthodox Quartette=health, safety, welfare & morals
2. This is not a singling-out claim, but rather a claim that the legislature did something stupid.
3. Standard: Action that has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in a proper sense.”
a. This seems a bit higher than rational basis.
4. Oourt determines that based on the master’s findings and the fact that the plaintiff will suffer severe injury determines that this is a violation of the 14th.
a. Under RB, this would have likely come out different.
ii. Coniston v. Village of Hoffman Estates (Posner): goes through the theory of takings and due process. States that the plaintiffs are not using land for a private purpose. Garden variety zoning disputes are not SDP violations. If we made them as such, then they would all come to federal court.
1. If there is no public benefit, then maybe we have a SDP violation.
2. Three ways to look at SDP
a. Against extreme deprivations
b. Against even de minimum deprivations w/ invidious aims
i. We do not want government to enact bad purposes
c. Against particularly irrational decisions
i. Some circuits view this under a shock the conscience standard
ii. Some use a grave unfairness standard.
iii. Twigg v. County of Will (State Court Review): Twigg claim is based on an efficiency ground. He says by now allowing the rezoning of his property to smaller parcel for his family, the value of the land is restricted to less than half versus interference on surrounding areas which is questionable (in other words, the benefit to the total community is not in proportion to the harm we are causing this piece of property). Again court here says that a zoning ordinance will be held constitutional and its validity upheld if it bears a substantial relationship to the quartette.
1. Legal Hook: SDP.
2. How should this review occur? We want to remember Federalism & Separation of Powers.
a. Uses an 8 Factor Balancing Test
i. The existing uses and zoning of nearby property
ii. The extent to which property values are diminished by the particular zoning restrictions
iii. The extent to which the destructio
remedies will be subsumed within this rule, and board has burden of showing that the refusal to rezone is not arbitrary, discriminatory, or unreasonable.
iv. Formulation to Determine Legislative (fairly debatable standard) or Adjudicative
1. Small Group or Large Group?
2. Are we deciding policy or applying policy?
3. Kind of decision
4. Prospective versus application of existing law
a. Prospective is more legislative
v. Due Process Rights & Mathews v. Eldridge (provides a balance between individual’s interest and the government’s interest in efficiency). Provides a Multi-Factor Balancing Test
1. Importance of government interest in being free of additional burden (cost of government in providing more process)
2. Importance of the private interest at stake
3. Risk of erroneous deprivation of rights without the procedure
d. Procedure
i. Griswold v. City of Homer: conflict of interest case whereby a board member did not recuse himself from a vote in which he may have had an interest.
1. Statutes: “must declare a substantial financial interest”
2. 2 lines of cases
a. Ordinance is not void unless the conflicted vote makes a mathematical difference
b. Other courts say we automatically disqualify if an interested member votes. This poisons the vote.
3. This court looks at factors. First, if disqualifying interest member cast the deciding vote, ordinance is invalidated. If without the vote it would have passed, then
a. Whether the member disclosed the interest or the other council members were fully aware of it
b. The extent of the member’s participation in the decision
c. The magnitude of the member’s interest.
4. Substantial Financial Interest=in a special way. Not just a general benefit passed on to the city.
ii. 1000 Friends case: Judge sold cattle to a ranch cult hoping to be incorporated into a city. Looks like a sham deal.
1. Test/Standard to apply for PDP rights
a. How court-like is this action?
b. How much do the issues look adjudicatory?
c. How direct and actual is the conflict?
2. LUBA reviewed this decision and said it does not meet the standard of conflict under statute. COA reverses
3. These board members wear 2 hats: policy-making and adjudication. There has to be different standards in terms of conflicts of interest.
4. Factors
a. More agency purports to act like a court
b. The loser issues and interests at stake remember those in traditional adjudication
c. More actual personal interest in the outcome of the decision
iii. Kearns-Tribune v. Salt Lake County Commission: a Commission closed a staff meeting and the newspapers sued under the Open and Public Meetings Act. The Act has an exception in the Act for strategy sessions to discuss pending or reasonably imminent litigation.
1. The 7 exceptions in the statute show a clear legislative intent to ensure that the public’s business is done in full view except in the specific instances where either the public, or a specific individual who is the subject of the meeting may be significantly disadvantaged by premature public disclosure.
2. When interpreting statues, we give effect to the legislative intent, as evidenced by the plain language, in light of the purpose the statute was meant to achieve.
3. The Court said this was a strategy session because the point was to devise a plan as to how to respond to the petition, given a recommended course of action and decided on the course of the action.
4. Court decided that the method of resolving boundary disputes is quasi-judicial and it constitutes litigation for purposes of the Meetings Act.
5. The point here is that commissions cannot deliberate secretly. But we also trade accuracy for fairness in some degree.
6. You MUST be strategizing for pending litigation.
