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A NOTE ON BRIBERY AND CORRUPTION IN ZONING
Downzoning
Stone v. City of Wilton
NOTES AND QUESTIONS
Add to Note 2: “Good or bad?” at p. 623:
Avenida San Juan Partnership v. City of San Clemente, 135 Cal. Rptr. 3d 570 (Cal. App. 2011) (upholding trial court decision that downzoning to permit one dwelling on 20 acres in middle of four to an acre zoning is spot zoning and regulatory taking).
Add to Note 5: “Purposes” at p. 625:
Mombaccus Excavating, Inc. v. Town of Rochester, 89 A.D.3d 1209 (NY App. 2011) (Upholding Town’s new zoning districts for mining areas and division of mining company’s property into two zoning districts, with only one permitting unlimited gravel mining).
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OTHER FORMS OF FLEXIBLE ZONING
With Pre-Set Standards: The Floating Zone
NOTES AND QUESTIONS
Without Pre-Set Standards: Contract and Conditional Zoning
Collard v. Incorporated Village of Flower Hill
NOTES AND QUESTIONS
Add to end of Note 3: "Good or bad?" at p. 634:
Morgan v. Nash County, 731 S.E. 2d 228 (N.C. App. 2012), approved 738 S.E.2d 379 (N.C. 2013) (County commission approval of rezoning application with the knowledge of potential developer’s interest in the subject property is not sufficient to establish that the Board engaged in illegal contract zoning, where no evidence that the Board obligated itself to, or entered into a reciprocal agreement with, the landowners or potential developer in exchange for approval of the rezoning application; potential developer was being recruited by county to establish poultry farm facility).
Add to end of Note 7: "Statutory authority" at p. 636:
Golder v. City of Saco, 45 A. 3d 697 (Me. 2012) (City approval of contract zoning agreement authorized under state statute complied with statute even where condition of the agreement required off-site improvements related to access to beach).
Update Citation at Note 9 at p. 637:
Been, Vicki. Community Benefits Agreements: A New Local Government Tool or Another Variation on the Exactions Theme? 77 U. Chi. L. Rev. 5-35 (2010).
Add to Note 10 “Sources” at p. 637:
Article. Fazio & Wallace. Legal and Policy Issues Related to Community Benefits Agreements. 21 Fordham Envtl. L. Rev. 543-558 (2010).
Note. Why Marginalized Communities Should Use Community Benefit Agreements as a Tool for Environmental Justice: Urban Renewal and Brownfield Redevelopment in Philadelphia, Pennsylvania. 29 Temp. J. Sci. Tech. & Envtl. L. 31-51 (2010).
Camacho, Community Benefits Agreements: A Symptom, Not the Antidote, of Bilateral Land Use Regulation,78 Brooklyn L. Rev. 355 (2013).
Add to end of Note 10: "Sources" at p. 638:
Nadler, Michael L. 27th Smith-Babcock-Williams Student Writing Competition winner. The Constitutionality of Community Benefits Agreements: Addressing the Exactions Problem. 43 Urb. Law. 587-625 (2011).
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SITE PLAN REVIEW
Charisma Holding Corp. v. Zoning Board of Appeals of the Town of Lewisboro
NOTES AND QUESTIONS
Add to Note 2 “Permitted uses as a site plan issue” at p. 642:
Bagga v. Stanco, 90 A.D.3d 919 (N.Y. App. 2011) (Denial of site plan for use of second floor as residential uses allowed by zoning; the record contradicted the community's concerns over traffic congestion, access to the property, and parking).
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THE ROLE OF THE COMPREHENSIVE PLAN IN THE ZONING PROCESS
Add to p. 643:
White Oak Prop. Dev., LLC v. Washington Twp., 2012 Ohio App. LEXIS 354 (Feb 6, 2012) (Zoning resolution and map were, in fact, a comprehensive plan for purposes of statutory requirement that zoning be in accordance with a comprehensive plan; denial of development plan upheld).
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NOTES AND QUESTIONS
Haines v. City of Phoenix
NOTES AND QUESTIONS
Add to end of Note 3: “Consistency not found” at p. 651:
Town of Ponce Inlet v. Pacetta, LLC, 2013 Fla. App. Lexis 10752 (Proposed mixed use marina project not vested where inconsistent with the existing comprehensive plan).
Add to end of Note 4: “Effect on Zoning” at p. 651:
In re Jerome County Board of Commissioners, 2012 Ida. Lexis 176 (Comprehensive plan is simply a policy guide and animal feeding operation on 1000 acres is not required to be consistent with the plan even though county zoning ordinance so requires).
Add to end of Note 7: “Spot Planning” at p. 653:
As part of its reform of the state growth management statute to reduce the state role in planning, the Florida legislature in 2011 among other things eliminated the restriction on amending the comprehensive plan more than twice a year. Stroud, A History and New Turns in Florida’s Growth Management Reform, 45 The John Marshall L. Rev. 397 (Winter 2012).
Add to A Note on Alternative Dispute Resolution: “Sources” at p. 658:
Nolon, Ferguson, and Field, Land in Conflict: Preventing and Managing Land Use Disputes, Lincoln Institute of Land Policy, Cambridge, Massachusetts (2013), ISBN 978-1-55844-246-7.
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Add to Note 3 “Consistency not found” at p. 651:
Heffernan v. Missoula City Council, 255 P.3d 80 (Mont. 2011) (City's approval of a 37-unit subdivision in a rural area at five times the density set out in the adopted growth policy was unlawful. Although the growth policy is not regulatory, the state statute requires that the city be guided by the growth policy).
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HNS Dev., LLC v. People’s Counsel for Baltimore County, 42 A.3d 12 (Md. App. 2012) (When county development regulations require compliance with the development policies of the master plan, even though master plan itself is phrased as an advisory document, subdivision plan must be in compliance with the master plan; upholding rejection of subdivision as inconsistent with the plan’s policy regarding scenic views of historic places).
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A NOTE ON SIMPLIFYING AND COORDINATING THE DECISION MAKING
PROCESS
A NOTE ON ALTERNATIVE DISPUTE RESOLUTION
Add to “Case Studies” at p. 657:
See Abrams, The Zoning Dispute Whisperer, Planning, Vol. 77, No. 9, at 20 (2011) (discussing several mediation programs).
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INITIATIVE AND REFERENDUM
Township of Sparta v. Spillane
NOTES AND QUESTIONS
Add to Note 1 “Referendum” at p. 663:
Grant County Concerned Citizens v. Grant County Bd. of Comm'rs, 794 N.W. 2d 462 (S.D. 2011) (County board’s rejection of a zoning amendment is not subject to referendum).
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Add to end of Note 3: “Initiative” at p. 664:
Carter v. Lehi City, 269 P.3d 141 (Utah 2012) (upholding initiative regulating salaries and residency requirements for certain city employees as legislative decision; reconsidering Utah judicial precedent with concern about protecting citizen initiative power, containing an excellent analysis of the initiative and referendum power and adopting the traditional legislative v. administrative distinction).
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The Florida legislature recently expanded its prohibition on referenda for development orders and comprehensive plan amendments from that limited to five or fewer parcels, to any amendments. Fla. Stat. Ann. Sec. 163.3167(8) (2011).
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Add to Note 7 “Sources” at p. 667:
Article. Stahl, The Artifice of Local Growth Politics: At-large Elections, Ballot-box Zoning, and Judicial Review. 94 Marq. L. Rev. 1-75 (2010) (Using a case study from Yorba Linda, California).
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City of Eastlake v. Forest City Enterprises, Inc.
NOTES AND QUESTIONS
STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION (SLAPP SUITS)
TRI-COUNTY CONCRETE COMPANY V.HUFFMAN-KIRSCH 2000 Ohio App. LEXIS 4749 (2000)
NOTES AND QUESTIONS
Add to Note 2 “The First Amendment” at p. 679:
Oasis West Realty, LLC v. Goldman, 250 P.3d 1115 (Ca. 2011) (Applying the California Anti-SLAPP statute, the court found that Goldman’s activity in publicly working in support of a referendum seeking to overturn a redevelopment project was not protected by the statute. Goldman represented Oasis earlier in the redevelopment project. Goldman’s Motion to Strike the complaint was denied because Oasis stated and substantiated the sufficiency of its legal claims against Goldman for breach of fiduciary duty. A lawyer’s misuse of confidential information is not protected speech).
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Add to Note 5 “Sources” at p. 680:
Comment. A Cure for a "Public Concern”: Washington's New Anti-SLAPP Law. 86 Wash. L. Rev. 663-693 (2011).
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SUBDIVISION CONTROLS AND PLANNED UNIT DEVELOPMENTS
SUBDIVISION CONTROLS
In General
NOTES AND QUESTIONS
Add to the end of Note 2, P. 688:
In addition, some statutes allow for “constructive endorsement” of “approval not required” (ANR) plans, which propose changes to land falling outside the scope of the applicable subdivision control laws. An example of this is a Massachusetts statute that grants constructive approval to ANR plans, as a matter of law, when a planning board fails to act within twenty-one days after submission of an ANR plan. M.G.L.A. 41 § 81P. The applicable statute requires the applicant to file the plan and pay a fee to the town clerk, notify the planning board, and then have a chance to appear at a planning board meeting. In Peters v. Labonte, 2012 Mass. LOR LEXIS 21, the planning board failed to act within twenty-one days, but nevertheless the court rejected Plaintiff’s argument for constructive approval. The court strictly construed the statute, which specifically requires that the applicant give written notice to the town clerk after submitting the plan to the planning board, which Plaintiff failed to do. Plaintiff argued the law was redundant because local law requires filing with the town clerk prior to notifying the planning board. The court rejected this argument because the statute requires that the notification to the town clerk include the exact date she submitted the plan to the planning board (which Plaintiff did not know until she actually submitted it) and found that Plaintiff failed to comply with a “critical statutory prerequisite.”
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A NOTE ON SUBDIVISION COVENANTS AND OTHER PRIVATE CONTROL DEVICES
Add to the end of “A Note on Subdivision Covenants…” just above [2], P. 692: Are Restrictive Covenants Private Contracts or Zoning Orders? For an interesting case on the overlap between restrictive covenants and zoning ordinances, see Benjamin Crossing Homeowners' Ass'n, Inc. v. Heide, 961 N.E.2d 35 (Ind. App. 2012). There, a restrictive covenant on a PUD prohibiting the operation of a child care home in a residence subsequently became law when the plan commission passed it through a resolution. The question was whether the covenant’s subsequent adoption into the PUD ordinance rendered it a zoning ordinance. The distinction is important given that Indiana state law prohibits zoning ordinances that would ban the operation of a child care home in a residence. The court found that a county’s approval of a PUD ordinance did not impair the legality or the contract right of a homeowners association to enforce a restrictive covenant; restrictive covenants exist independent of a zoning ordinance and do not cease to exist independently when they are adopted into a PUD ordinance.
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The Structure of Subdivision Controls
Add to the end of Note 1 “Vested Rights” at p. 696
Subdivision approval, while ministerial in some instances, can be denied for failure to comply with local requirements, including conditions on the provision of utility services. In Rose Woods, LLC v. Weisman, 2011 N.Y. App. Div. LEXIS 4967, the Planning Board approved petitioners’ application for a four-lot residential development, but held final approval subject to certain specific conditions, including that one sewer pump must serve all four lots. Petitioners modified their subdivision design to a four-pump system and filed a mandamus action to compel the Planning Board to sign the subdivision plat. The court determined that mandamus was inappropriate because in this case, approval involved the performance of a discretionary act by a municipal agency. (http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D31599.pdf); see also Nexum Development Corp. v. Planning Board of Framingham, 943 N.E.2d 965 (Mass. App. 2011) (upholding planning board’s denial of a subdivision where the applicant failed to conduct required soil tests and plan did not comply with board of health conditions for water supply).
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Add to Note 5, NOTES AND QUESTIONS, P. 697:
An interesting factor that may impact the attitudes and practices of subdivision regulators and developers is the influence open space has on home prices. The Wall Street Journal reported that a Colorado State University study of home prices in conservation developments sell for 29 percent more than homes built in traditional rural developments. Open Spaces = Higher Prices, Wall St. J., May 3, 2013, at M4.
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Add to Notes and Questions 10 “Sources” at p. 698:
Article. Fazio, Christine A. and Judith Wallace, Legal and Policy Issues Related to Community Benefits Agreements. 21 Fordham Envtl. L. Rev. 543-558 (2010).
Student article. Why Marginalized Communities Should Use Community Benefit Agreements as a Tool for Environmental Justice: Urban Renewal and Brownfield Redevelopment in Philadelphia, Pennsylvania. 29 Temp. J. Sci. Tech. & Envtl. L. 31-51 (2010).
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Meck, Wack & Zimet, Zoning And Subdivision Regulation, In The Practice
of Local Government Planning 343, 362–369
NOTES AND QUESTIONS
Garipay v. Town Of Hanover
Baker v. Planning Board
NOTES AND QUESTIONS
Add to the end of Note 4, P. 704:
For an interesting discussion on the constitutionality of subdivision ordinances with regards to planning board discretion, see Guse v. City of New Berlin, 810 N.W.2d 838 (Wisc. App. 2012). There, a Wisconsin Court of Appeals found that an ordinance “may vest boards with some (and even significant) discretion” without being unconstitutionally vague, but may not grant a board “unfettered discretion.”
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Add to the end of Note 5, P. 705:
Incorporation of a master plan into subdivision regulations may render the master plan regulatory rather than advisory. In HNS Dev., LLC v. People's Counsel for Baltimore County, 42 A.3d 12 (Md. App. 2012), the question was whether non-compliance with the master plan of Baltimore County was a proper basis for denying a development plan when the potential developer had met all other applicable County development regulations. The Court of Appeals of Maryland found that while the master plan was indeed framed as advisory, a “clear and unambiguous” requirement of compliance with the master plan in the Baltimore County Code rendered the master plan regulatory. Specifically, the Code states that “all development of land must conform to the master plan and these regulations.” Baltimore County Code § 22-37. Additionally, the Code provides that the purpose of the development regulations is “to implement the future growth and development of Baltimore County in accordance with the master plan.” Baltimore County Code § 22–38(b). Therefore, under this design, a development plan could not be in compliance with the development regulations if not in compliance with the master plan.
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DEDICATIONS, EXACTIONS, AND IMPACT FEES
The Takings Clause and the Nexus Test
Add to the end of [1] The Takings Clause and the Nexus Test, P. 708:
In Home Builders Ass'n of Dayton & the Miami Valley v. Beavercreek, 729 N.E.2d 349 (Ohio 2000), the Supreme Court of Ohio adopted the dual rational nexus test to determine the constitutionality of an impact fee that sought to partially fund new roadways, finding it to be the test that best “balances the interests of the city and developers of real estate without unduly restricting local government.” In applying the nexus test, the court had to first determine whether there was a reasonable relationship between Beavercreek’s interest in constructing new roadways and the increase in traffic as a result of the new developments; whether the ordinance is an appropriate method to address Beavercreek’s stated interest in meeting increased traffic needs. Next, the court had to determine whether there was a reasonable relationship between the impact fee and the developer’s benefits from the construction of the new roadways; making sure Beavercreek and the developers would be paying their proportionate share of the cost. The court noted that the nexus test places the burden on the proponent of the impact fee. To satisfy the first prong, Beavercreek had to demonstrate that the methodology that determined the need for roadway improvements funded by the impact fee was based on generally accepted traffic engineering practices. The court found the trial court’s acceptance of the methodology sufficient asserting that the appellate court’s determination that the trial court erred in accepting the methodology was an impermissible disturbance of factual conclusions. Regarding the second part of the test, the court found that Beavercreek was indeed paying its proportionate share of the construction costs through a system of mandatory and permissive credits built into the ordinance.
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Immediately after Homebuilders addition, add on P. 708:
In Cook Rd. Invests., L.L.C. v. Cuyahoga Cty. Bd. of Commrs., 957 N.E.2d 330 (Ohio App. 2011), a developer of a senior housing project sought to recover sewer connection fees he had paid under protest to Cuyahoga County because he had already paid connection fees to the city of North Olmstead. The court found that the dual rational nexus test did not apply because Ohio statutes authorize the allocation of cost of a sewer system to all residents in a district regardless of direct benefit. Nevertheless, the court held that the impact fee was an unconstitutional taking of property without due process of law. A governmental taking of property must “bear a real and substantial relation to the public health, safety, morals or general welfare of the public” and must not be “unreasonable or arbitrary.” Because the County had entered into a valid agreement with the City making the City the “agent” of the County in providing sewer services and collecting connection fees, the court found the impact fee “arbitrary and unreasonable.”
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Add to Note 2, Unconstitutional conditions, on p. 719 following the discussion of Lingle and the Fenster citation:
In Koontz v. St. Johns River Water Management Dist., supra, the Supreme Court applied the unconstitutional conditions doctrine in extending the Nollan/Dolan rule to impact fees and to denials of land use permits when applicants refuse to accept conditions attached to those permits. Koontz v. St. Johns River Water Mgmt. Dist., No. 11-1447, 2013 LEXIS 4918, at *14. Koontz sought a permit to develop some wetlands he owned. Id. at *12. The water management district denied the permit after Koontz refused to comply with the district’s condition that Koontz reserve a portion of his property as a conservation area or pay for offsite mitigation. Id. at 12-3. Stressing that Nollan & Dolan “involve a special application” of the unconstitutional conditions doctrine, the Court stated:
Our decisions in those cases reflect two realities of the permitting
process. The first is that land-use permit applicants are especially
vulnerable to the type of coercion that the unconstitutional conditions
doctrine prohibits because the government often has broad discretion
to deny a permit that is worth far more than property it would like to take.
By conditioning a building permit on the owner’s deeding over a public
right-of- way, for example, the government can pressure an owner
into voluntarily giving up property for which the Fifth Amendment would otherwise require just compensation…. So long as the building permit is
more valuable than any just compensation the owner could hope to receive
for the right-of-way, the owner is likely to accede to the government’s
demand, no matter how unreasonable. Extortionate demands of this sort
frustrate the Fifth Amendment right to just compensation, and the
unconstitutional conditions doctrine prohibits them.
A second reality of the permitting process is that many proposed land uses threaten to impose costs on the public that dedications of property can offset. Where a building proposal would substantially increase traffic congestion,
for example, officials might condition permit approval on the owner’s agreement to deed over the land needed to widen a public road. Respondent argues that a similar rationale justifies the exaction at issue here: petitioner’s proposed construction project, it submits, would destroy wetlands on his property, and in order to compensate for this loss, respondent demands that he enhance wet-
lands elsewhere. Insisting that landowners internalize the negative externalities of their conduct is a hallmark of responsible land-use policy, and we have long sustained such regulations against constitutional attack. See Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926).
Nollan and Dolan accommodate both realities by allowing the government to condition approval of a permit on the dedication of property to the public so long as there is a “nexus” and “rough proportionality” between the property that the government demands and the social costs of the applicant’s proposal….
Our precedents thus enable permitting authorities to insist that applicants
bear the full costs of their proposals while still forbidding the government
from engaging in “out-and-out . . . extortion” that would thwart the Fifth Amendment right to just compensation…. Under Nollan and Dolan the government may choose whether and how a permit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an
essential nexus and rough proportionality to those impacts.
B
The principles that undergird our decisions in Nollan and Dolan do not
change depending on whether the government approves a permit on the
condition that the applicant turn over property or denies a permit because
the applicant refuses to do so…. [W]e have recognized that regardless of
whether the government ultimately succeeds in pressuring someone into
forfeiting a constitutional right, the unconstitutional conditions doctrine
forbids burdening the Constitution’s enumerated rights by coercively
withholding benefits from those who exercise them.
A contrary rule would be especially untenable in this case because it would
enable the government to evade the limitations of Nollan and Dolan simply
by phrasing its demands for property as conditions precedent to permit
approval…. Our unconstitutional conditions cases have long refused to attach significance to the distinction between conditions precedent and conditions
subsequent….
Extortionate demands for property in the land use permitting context run
afoul of the Takings Clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation. As in other unconstitutional conditions cases in which someone refuses to cede a constitutional right in the face of coercive pressure, the impermissible denial of a governmental benefit is a constitutionally cog-
nizable injury….
Nor does it make a difference, as respondent suggests, that the government might have been able to deny petitioner’s application outright without giving him the option of securing a permit by agreeing to spend money to improve public lands…. Virtually all of our unconstitutional conditions cases involve a gratuitous governmental benefit of some kind…. Yet we have repeatedly rejected the argument that if the government need not confer a benefit at all, it can withhold the benefit because someone refuses to give up constitutional rights…. Koontz v. St. Johns River Water Mgmt. Dist., No. 11-1447, 2013 U.S. LEXIS 4918, *17-22.
Despite the Court’s focus on the Takings Clause, is this really a takings case? Or does a land use regulatory condition that is so onerous as to violate constitutional norms deprive the landowner of property without due process? Justice Kagan, in dissent, expressed concern that the application of the unconstitutional conditions doctrine in this context “places courts smack in the middle of the most everyday local government activity.” Id. at *70.
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