PLANNING AND CONTROL OF
LAND DEVELOPMENT:
CASES AND MATERIALS
EIGHTH EDITION
ANNUAL UPDATE
AUGUST 15, 2013
Note: This update incorporates the updates for the two prior years, 2011 and 2012. It follows the casebook outline. The updates are inside the text boxes.
TABLE OF CONTENTS
AN INTRODUCTION TO LAND USE CONTROLS
WHY LAND USE CONTROLS
THE LAWS OF THE INDIES
Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine Nelson, Leadership in a New Era
NOTES AND QUESTIONS
Insert at Notes and Questions at the end of 3. Restricting nuisances and promoting segregation on p. 13:
Using two datasets of land regulations for the largest U.S. metropolitan areas, Rothwell found that anti-density regulations are responsible for large portions of the levels and changes in segregation from 1990 to 2000. A hypothetical switch in zoning regimes from the most exclusionary to the most liberal would reduce the equilibrium gap between the most and least segregated Metropolitan Statistical Areas by at least 35%. Rothwell, Racial Enclaves and Density Zoning: The Institutionalized Segregation of Racial Minorities in the United States, 13 Am Law Econ Rev. 290 (2011). He concludes:
Whatever the motivations [for enacting zoning regulations], however, the disparate impacts of zoning are becoming clear. Anti-density zoning is strongly associated with the segregation of the three largest minority groups in the United States; moreover, evidence and straightforward logic suggest that its effect is causal. After so many years of enabling and protecting the elite local interests that create and enforce low-density regulatory regimes, liberalizing federal policy action will likely be necessary if this continuing barrier to racial equality is to be dismantled. [Id., 59.]
Insert at the end of 4, on page 14:
Note: Professor Nelson has broadened this article into a book, A.C. Nelson, Reshaping Metropolitan America: Development Trends and Opportunities to 2030 (2013).
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The Challenge of Land Use Policy
R. PLATT, LAND USE AND SOCIETY: GEOGRAPHY, LAW AND PUBLIC POLICY,
W. FISCHEL, THE ECONOMICS OF ZONING LAWS: A PROPERTY RIGHTS APPROACH TO AMERICAN LAND USE CONTROLS,
NOTES AND QUESTIONS
Conflict and Conflict Resolution in the Use of Land
PROBLEM
A NOTE ON VARIOUS APPROACHES TO THE RESOLUTION OF LAND USE DISPUTES
Efficiency and Equity: Government Intervention and Its Alternatives
E. HEIKKILA, THE ECONOMICS OF PLANNING,
NOTES AND QUESTIONS
Michelman, Property, Utility and Fairness: Comments on the Ethical Foundations
of “Just Compensation” Law, NOTES AND QUESTIONS
Other Private Ordering Solutions to Land Use Conflict Problems: Covenants and Nuisance
NOTES AND QUESTIONS
LAND USE CONTROLS: AN INTRODUCTION TO PLANNING
The Local Comprehensive Plan
The Idea of Planning
NOTES AND COMMENTS
A NOTE ON THE RATIONAL MODEL AND ALTERNATIVES TO
TRADITIONAL PLANNING APPROACHES
Insert at A Note on the Rational Model and Alternatives to Traditional Planning Approaches on p. 40 before the last sentence in the third full paragraph 3 under Participatory planning:
Since the publication of this article, Fainstein has further developed her ideas into a book. S. Fainstein, The Just City (2010).
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Statutory Authorization for Comprehensive Planning
NOTES AND QUESTIONS
State and Regional Planning
State Planning Agencies and Plans
AMERICAN PLANNING ASSOCIATION, GROWING SMART LEGISLATIVE GUIDEBOOK: MODEL STATUTES FOR PLANNING AND THE MANAGEMENT OF CHANGE,
NOTES AND QUESTIONS
A NOTE ON ENVIRONMENTAL JUSTICE
Regional Planning Agencies and Plans
AMERICAN PLANNING ASSOCIATION, GROWING SMART LEGISLATIVE GUIDEBOOK: MODEL STATUTES FOR PLANNING AND THE MANAGEMENT OF CHANGE
Insert at Notes and Questions at the end of 3. “Transportation planning”, on p. 61:
For a fascinating technical account of how the Atlanta Regional Commission (ARC), the designated metropolitan planning agency for the seven-county Atlanta, Georgia, area, formulated its 1975 regional development plan, see Basmajian, Projecting Sprawl? The Atlanta Regional Commission and the 1975 Regional Development Plan of Metropolitan Atlanta, 9 J. Plng. His. 95 (2010). Basmajian contends that the development policies ARC ultimately adopted encouraged the building of a vast, low-density landscape, exactly as the urban transportation model it employed predicted.
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NOTES AND QUESTIONS
THE CONSTITUTION AND LAND USE CONTROLS: ORIGINS, LIMITATIONS AND FEDERAL REMEDIES
NUISANCE LAW
Bove v. Donner-Hanna Coke Co.
NOTES AND QUESTIONS
THE TAKINGS ISSUE
Eminent Domain
Kelo v. City Of New London
NOTES AND QUESTIONS
Insert in the third full paragraph on p. 81, beginning with “Lavine, supra,” immediately before the sentence beginning with “For an argument that the Kelo decision really is an example…”:
Further discussion of New York’s struggle to prevent abuse of the blight standard can be found in Racketa, Takings for Economic Development in New York: a Constitutional Slam Dunk?, 20 Cornell J.L. & Pub. Pol’y 191 (2010).
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Add at end of Notes and Questions 4. State legislative responses, page 83:
Although many states have adopted new laws, little change has taken place in what local and state governments are actually doing. Jacobs & Bassett, All Sound, No Fury? The Impacts of State-Based Kelo Laws, in American Planning Association: Planning & Environmental Law, 1, 7 (2011). This could be because Kelo-style takings seldom occur, and when they do, they appear to be voluntary. Id.
Add at end of Notes and Questions 5. State judicial responses, page 85:
The court in County of Los Angeles v. Glendora Redevelopment Project, 185 Cal. App. 4th 817 (Cal. Ct. App. 2010) used a California statute to determine blight in Glendora’s redevelopment plan. The statute, effective 2008, explains four requisites for a proper blight finding: the area must be “predominantly urbanized”; the area must be “characterized by” one or more conditions of physical blight; the area must be “characterized by” one or more conditions of economic blight; and these “blighting conditions must predominate in such a way as to affect the utilization of the area, causing a physical and economic burden on the community.” Id. at 832-33. The court found that Glendora had not met the “physical blight” test (unsafe and unhealthy buildings; code violations; dilapidation and deterioration; and/or defective design or construction) and therefore the area was not blighted. Id. at 837-41. For a discussion of the court’s willingness to scrutinize blight findings, rather than deferring to the agency’s determination, as in Kelo see Rick E. Rayl, New Published Decision Strikes Down Blight Findings, California Eminent Domain Report (June 6, 2010) available at www.californiaeminentdomainreport.com/2010/06/articles/court-decisions/new-published-decision-strikes-down-blight-findings.
For a review of state court interpretations of state constitutional public use clauses since Kelo and a consideration of judicial interpretations of Kelo’s “pretext” standard see Ilya Somin, The Judicial Reaction to Kelo, 4 Alb. Govt. L. Rev. 1 (2011).
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Regulatory Takings
Add at end of textual note on Judicial takings? on p. 87 immediately before [a]:
Though not technically a judicial takings issue, state courts have contended with “rolling” easements. For example, the Supreme Court of Texas in Severance v. Patterson, ruled that “rolling” easements were not recognized when the land and attached easement were “swallowed” by the adjacent body of water (the Gulf of Mexico in this case). 345 S.W. 3d 18, at *1 (Nov. 5, 2010), rehearing granted 2010 Tex. LEXIS 854. The court noted that a new easement on adjoining private properties may be established if proven pursuant to the Open Beaches Act or the common law. Id. at *15. Based on the history of the land, the court held that
Texas does not recognize a “rolling” easement on Galveston’s West Beach. Easements for public use of private dry beach property do not change along with gradual and imperceptible changes to the coastal landscape. But, avulsive events such as storms and hurricanes that drastically alter pre-existing littoral boundaries do not have the effect of allowing a public use easement to migrate onto previously unencumbered property.
Id. at *11.
A strong dissent emphasized that the public in Texas has used the beaches continuously for nearly 200 years. Id. at *15. The dissent noted that hurricanes and tropical storms are frequent occurrences on the Texas coasts, and by failing to recognize rolling easements, the court has placed a costly and unnecessary burden on the state if it is to preserve the heritage of open beaches. Id. at *18. The dissent is concerned with the court’s decision because it “defies not only existing law but logic as well.” Id.
For a discussion of Justice Scalia’s conclusion that “the Takings Clause bars the State from taking private property without paying for it, no matter which branch [of government] is the instrument of the taking” see Somin, Stop the Beach Renourishment and the Problem of Judicial Takings, 6 Duke J. Con. L.& Pol’y 91 (2011). See also Mulvaney, The New Judicial Takings Construct, 120 YALE L.J. ONLINE 247 (2010) http://yalelawjournal.org/2011/2/15/mulvaney.html (arguing that the plurality opinion may have articulated a new category of per se takings).
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Add at end of textual note on Judicial takings?, p. 87:
For an analysis of common misconceptions in the Stop the Beach Renourishment case and for an argument against the use of judicial takings, see Underkuffler, Judicial Takings: A Medley of Misconceptions, 61 Syracuse L. Rev. 203 (2011). Additionally, for an in-depth look at the evolution of property rights in the wake of Stop the Beach, see Blumm & Dawson, The Florida Beach Case and the Road to Judicial Takings, 35 Wm. & Mary Envtl. L. & Pol’y Rev. 713 (2011).
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The Early Supreme Court Cases
Pennsylvania Coal Co. v. Mahon
NOTES AND QUESTIONS
Village Of Euclid v. Ambler Realty Co.
Ambler Realty Co. v. Village Of Euclid
Village Of Euclid v. Ambler Realty Co.
NOTES AND QUESTIONS
Tarlock, Euclid Revisited, Land Use Law & Zoning Digest,
NOTES AND QUESTIONS
The Balancing Test
Penn Central Transportation Co. v. City Of New York
NOTES AND QUESTIONS
A NOTE ON THE KEYSTONE CASE
A NOTE ON PHYSICAL OCCUPATION AS A PER SE TAKING
Add at end of third full paragraph beginning “Yee seems to limit…” on p. 123:
In Harmon v. Markus, 412 Fed.Appx. 420, 421 (2nd Cir. 2011), the court affirmed that a New York “Rent Stabilization Law” (RSL) did not effect a permanent physical occupation of the property because “where a property owner offers…rental housing…governmental regulation of the rental relationship does not constitute a physical taking.” Id. at 422 (citing Yee). The court also affirmed the dismissal of the Harmons’ due process and equal protection claims based on Stop the Beach Renourishment, infra. (the Due Process Clause “cannot do the work of the Takings Clause”). The Supreme Court declined to hear an appeal.
Add at end of A Note on Physical Occupation as a Per Se Taking, p. 124:
Where government use of a railroad easement exceeds the easement scope and results in a taking, “the measure of just compensation is the difference between the value of [the] land unencumbered by a railroad easement, and the value of [the] land encumbered by a perpetual easement for recreational use.” Ybanez v. United States, 102 Fed. Cl. 82, 84, 88 (Fed. Cl. Ct. 2011)). In its opinion and order, the court granted partial summary judgment in favor of plaintiff’s claim that a Notice of Interim Trail Use resulted in a taking of a reversionary right and instructed both parties to retain experts to conduct joint appraisals of the property for a final determination of damages. Id.
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A NOTE ON “FACIAL” AND “AS-APPLIED” TAKINGS CHALLENGES
Add at end of A Note on “Facial” and “As-Applied” Takings Challenges, p. 126:
The Ninth Circuit Court of Appeals vacated its earlier opinion in Guggenheim v. City of Goleta: a claim based on a Penn Central analysis. 638 F.3d 1111, 1120-21 (9th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 2455 (2011). The court emphasized that plaintiffs lacked investment-backed expectations: “[s]peculative possibilities of windfalls do not amount to ‘distinct investment-backed expectations’ unless they are shown to be probable enough materially to affect the price.” Id.
The court stated
Ending rent control would be a windfall to the Guggenheims, and a disaster for tenants who bought their mobile homes after rent control was imposed in the 70’s and 80’s. Tenants come and go, and even though rent control transfers wealth to “the tenants,” after a while, it is likely to affect different tenants from those who benefitted from the transfer. The present tenants lost nothing on account of the City’s reinstitution of the County ordinance.
Id. at 1122.
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Then immediately add:
See Radford & Wake, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology L.Q. 731, 743-45 (2011) for a discussion of how Guggenheim serves as “a model of how Penn Central might be applied” to rent control takings scenarios. For further discussion of the applications of Penn Central, see Pomeroy, Adam R., Penn Central after 35 years: A three part balancing test or a one-strike rule? (August 31, 2012). Available at SSRN: http://ssrn.com/abstract=2139729. (Questioning the strong consensus that Penn Central is a three-part balancing test within academia while application data shows that the Courts are unlikely to reach all parts of the test).
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Nollan v. California Coastal Commission
NOTES AND QUESTIONS
First English: The Inverse Condemnation Remedy
First English Evangelical Lutheran Church Of Glendale v.
County Of Los Angeles
NOTES AND QUESTIONS
Add at end of Notes and Questions 2, The nexus test, p. 132:
In St. Johns River Water Mgmt. v. Koontz, 77 So. 3d 1220, 1222 (Fla. 2011), the Florida Supreme Court refused to extend the Nollan/Dolan test to exactions or conditions that “do not involve the dedication of real property for a public use.” Id. at 1230. There, Koontz was denied a permit to develop an area of wetlands after he refused to comply with the district’s condition that Koontz reserve part of his property as a conservation area or pay for offsite mitigation. Id. The court noted that even if Nollan/Dolan did apply, Koontz “never expended any funds towards the performance of offsite mitigation, and nothing was ever taken from Mr. Koontz.” Id. at 1231. The district’s denial was based upon existing regulations, so an exactions analysis did not apply. Id. The Supreme Court granted cert., oral argument was heard in January, 2013 and the Court decided the case on June 25, 2013 http://www.supremecourt.gov/opinions/12pdf/11-1447_4e46.pdf
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Add at end of Notes and Questions 2, The nexus test, p. 132:
In Koontz v. St. Johns River Water Mgmt. Dist., the Supreme Court held that a government’s demand for property from a permit applicant must satisfy the Nollan/Dolan requirements even when the demand is for money. Koontz v. St. Johns River Water Mgmt. Dist., No. 11-1447, 2013 LEXIS4918, at *14-5. There, Koontz was denied a permit to develop an area of wetlands after he refused to comply with the district’s condition that Koontz reserve part of his property as a conservation area or pay for offsite mitigation. Id at *12. The Court noted that a government authority cannot evade the Nolan/Dolan test simply by making demands for property condition precedents to permit approval. Id. at *19-20. Furthermore, since the government must provide only one alternative that satisfies the nexus and rough proportionality standards, and it is common to suggest an alternative fee equal to the requested easement’s value, “in lieu of” fees should be treated as other forms of exactions under the Nollan/Dollan standard. Id. at *30.
“[R]ecurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability.” The Court remanded the case for consideration of several factors including the extent to which the invasion was the foreseeable result of the government’s actions or was intended by the government, the land’s character, the severity of the government’s interference, and the duration of the interference. See also Livingston v. Virginia Dep’t of Transp., 726 S.E.2d 264 (Va. 2012) (stating that the Virginia Constitution does not “limit[] a property owner's right to just compensation for a damaging to only multiple occurrences of flooding” and that Virginia case law supports a holding “that a single occurrence of flooding can support an inverse condemnation claim.”
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