UPDATE LETTER FOR PLANNING AND CONTROL OF LAND DEVELOPMENT

The Takings Issue: The Balancing Test The United States Court of Appeals for the Federal Circuit, in Amerisource Corp.. 2008, affirmed a dismissal by the Court of Federal Claims which h

2009 UPDATE LETTER FOR PLANNING AND CONTROL OF LAND DEVELOPMENT

Daniel R MandelkerHoward A Stamper Professor of Law,Washington University School of Law

Peter W Salsich, Jr

McDonnell Professor of Justice in American Society,

Saint Louis University School of Law

Nancy E StroudLewis Stroud & Deutsch, P.L., Boca Raton, FloridaStuart MeckAssociate Research Professor and Director, Planning Practice Program, Edward J Bloustein School of Planning and Public Policy at Rutgers University

Dwight H MerriamRobinson & Cole LLP,Hartford, ConnecticutJulie A TappendorfAncel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C.,

Chicago, Illinois

2009 UPDATE LETTER FOR

PLANNING AND CONTROL OF LAND DEVELOPMENT

By Daniel R Mandelker, Peter W Salsich, Jr., Nancy E Stroud

Stuart Meck, Dwight H Merriam and Julie A Tappendorf

Lauren Ashley Smith, J.D Cand 2010, Washington University School of Law, General Editor

We welcome our new authors to the casebook team Stuart Meck is a member of the faculty at the Edward J Bloustein School of Planning and Public Policy at Rutgers University Stuart is thecoauthor of a treatise on Ohio land use law and a longstanding author of books and articles on land use planning and law Dwight is a partner and chair of the land use group at Robinson & Cole, a law firm in Hartford, Connecticut Julie is a partner in the law firm of Ancel Glink in Chicago, Illinois Both Dwight and Julie take on teaching assignments, and both have published extensively on land use law

We report with regret the passing of John Payne, a longtime coauthor of this casebook His contributions to our book are unmatched for their depth of insight, knowledge and humor He will be truly missed

Additional Resources from the Authors

Additional resources can be found on the Land Use Law website, available at

http://law.wustl.edu/landuselaw/index.html The website contains casebook updates, model codes, comprehensive plans, and many more up-to-date materials related to the topics covered in the casebook

ii

TABLE OF CONTENTS

CHAPTER 1 1

CHAPTER 2 3

CHAPTER 3 17

CHAPTER 4 28

CHAPTER 5 35

CHAPTER 6 49

CHAPTER 7 53

Chapter 8 60

iii

Chapter 1

An Introduction to Land Use Controls

A Why Land Use Controls?

1 The Challenge of Land Use Policy

Insert at the end of Notes and Questions on p 8:

6 Changes in urban structure Urban geographers and others have tied changes in the pattern

of land use in a city to the relationship of the city to its surrounding area, the type and extent of transport and changes in the nature of industries and the technologies they use In an influential article written at the end of World War II, urban geographers Chauncy D Harris and Edward J Ullman focused on three generalized forms of internal city structure in the U.S

In the first, the concentric zone, the city was described as a series of simple circular

zones, with a central business district at the heart, and zones of successively less intensity

emanating outward

In the second, the city was seen as series of sectors, and growth takes place along main

transportation routes and usually consisted of similar types of land use Under this concept, for example, upper-end residential growth in the eastern quadrant of a city would tend to migrate outward, but always staying in the same quadrant

In the third, the multiple nuclei, the land use pattern is not built around a single center,

but around several discrete nuclei This pattern reflects a combination of the need for specialized support facilities, such as access to ports, the benefits certain businesses obtain by being close to one another (such as law offices being near a court building), the undesirability of land use conflict (such as a prohibition of heavy industry near high-end residential uses), and the inability for certain businesses to pay high rents (such as wholesaling and storage businesses that require much horizontal space.)

Harris and Ullman observed: “Most cities exhibit aspects of the three generalizations

of the land-use pattern.” However, they noted that the concentric theory and the sector theory emphasize the general tendency of central residential areas to decline in value as new

construction takes place on the outer edges, with the sector model being “more discriminating”

in its analysis of that movement Harris & Ullman, The Nature of Cities, 242 Annals Am Acad

of Pol & Soc Sci 16-17 (1945)

The impact of circumferential expressways and airports in the U.S compelled Harris to

formulate an additional theory of form, the peripheral city, to supplement the previous three

models in an article published in 1997 Here, Harris described a peripheral model that differed from the concentric zone model “in that its patterns are defined with other parts of the peripheral zone, not in terms of distance to the central city but in its relation with other parts of the

iv

peripheral zone ” The peripheral zone includes diverse clusters of economic activities in both new development and recently transformed older centers It is tied together with a

circumferential highway, large blocks of land for development and similar social, economic and housing characteristics The area, according to Harris, is characterized by “the absence or lesser severity of problems of the inner city.” Around this peripheral road are airports, airport-related businesses (such as motels and car rental agencies), regional shopping malls, distribution and warehouse clusters and well-landscaped office parks that are often home to national corporations

In addition, the area includes “large tracts of relatively homogenous private homes and some specialized communities offering well-advertised amenities such as hills, lakes, or woods with names such as ‘country-club estate.’” Harris commented that the peripheral model did not exist

when Ullman and he wrote their original article in 1945 Harris, The Nature of Cities and Urban Geography in the Last Half Century, 18 Urb Geography 18-19 (1997); see also J Garreau, Edge City: Life on the New Frontier (2001).

More recently—in part as a reaction to rising energy costs and the impacts of the nationalrecession, including the subprime mortgage crisis, on real estate markets—some have questionedwhether the outer edges of metropolitan areas will remain viable or turn into a depressed zones,

and whether the next cycle of urban growth will be redirected at central cities Leinberger, The Next Slum?, The Atlantic, March 2008, http://www.theatlantic.com/doc/200803/subprime

(maintaining that “much of the future decline is likely to occur on the fringes, in towns far away from the central city, not served by rail transit, and lacking any real core”); see

also Nelson, Leadership in a New Era, 72 J Am Plan Ass’n 395 (2006) (contending “[t]he

challenge for planners in the outer suburbs is to organize land uses and infrastructure investments

to meet current development pressures while preparing for future down cycles and shifts in market demand”)

B Land Use Controls: An Introduction to Planning

2 State and Regional Planning

b Regional Planning Agencies and Plans

Insert at the end of Notes and Questions on p 47.

6 Regional planning legislation in Connecticut In 2008, Connecticut amended its regional

planning statute to establish a “regional performance incentive program,” by which grants are made available to study the potential for services to be provided on a multijurisdictional basis The purpose of the legislation is to determine whether there are any economies that might result from regional delivery of services In addition, the legislation gives authority to the Secretary of the Office of Policy and Management to establish uniform criteria by which to evaluate regional plans for conservation and development for consistency with the state plan of conservation and development and the state economic strategic plan Conn Gen Stat § 4-124s (session law

available at http://www.cga.ct.gov/2008/ACT/PA/2008PA-00182-R00HB-05324-PA.htm)

v

Material for this chapter was prepared by Stuart Meck.

vi

Rankin v FPL Energy, LLC, 266 S.W.3d 506, (Tex App 2008), concluded that “an emotional

reaction to the sight of [lawful] wind turbines” was an insufficient basis for a nuisance claim The court stated

We do not minimize the impact of FPL's wind farm by characterizing it as an emotional reaction.Unobstructed sunsets, panoramic landscapes, and starlit skies have inspired countless artists and authors and have brought great pleasure to those fortunate enough to live in scenic rural settings The loss of this view has undoubtedly impacted Plaintiffs A landowner's view, however, is largely defined by what his neighbors are utilizing their property for Texas caselaw recognizes few restrictions on the lawful use of property If Plaintiffs have the right to bring a nuisance action because a neighbor's lawful activity substantially interferes with their view, they have, in effect, the right to zone the surrounding property Conversely, we realize that Plaintiffs produced evidence that the wind farm will harm neighboring property values and that it has restricted the uses they can make of their property FPL's development, therefore, could be characterized as a condemnation without the obligation to pay damages

Texas caselaw has balanced these conflicting interests by limiting a nuisance action when the challenged activity is lawful to instances in which the activity results in some invasion of the plaintiff's property and by not allowing recovery for emotional reaction alone Altering this balance by recognizing a new cause of action for aesthetical impact causing an emotional injury

is beyond the purview of an intermediate appellate court Alternatively, allowing Plaintiffs to include aesthetics as a condition in connection with other forms of interference is a distinction without a difference Aesthetical impact either is or is not a substantial interference with the use and enjoyment of land If a jury can consider aesthetics as a condition, then it can find nuisance because of aesthetics Because Texas law does not provide a nuisance action for aesthetical impact, the trial court did not err by granting FPL's motion for partial summary judgment and by instructing the jury to exclude from its consideration the aesthetical impact of the wind farm

Id at 512-13 Contra Burch v Nedpower Mount Storm, LLC, 647 S.E.2d 879 (W Va 2007) See generally Andriano, The Power of Wind: Current Legal Issues in Siting for Wind Power,

Planning & Envtl L., May 2009, at 3

The Takings Issue: Eminent Domain

While the court in Kelo stressed that deference must be given to the legislative declaration of

public purpose, the legislative discretion is not absolute The Supreme Court of Hawaii, applying

vii

Justice Stevens’ warning that “the City would [not] be allowed to take property under the mere

pretext of a public purpose, when its actual purpose was to bestow a private benefit,” Kelo, 545

U.S at 477, remanded a challenge to condemnation of a condominium development for

construction of a public highway bypass that was to be built by a private developer for a

determination whether the stated public purpose was a pretext County of Hawaii v C&J Coupe Family Ltd P’ship, 198 P.3d 615, 620 (Haw 2008) (“[A]lthough our courts afford substantial

deference to the government’s asserted public purpose for a taking in condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a

landowner’s defense of pretext.”)

For an argument that the Religious Land Use and Institutionalized Persons Act (RLUIPA) shouldnot be viewed as giving religious institutions any extraordinary ability to resist condemnation,

see Serkin & Tebbe, Condemning Religion: RLUIPA and the Politics of Eminent Domain, 85 Notre Dame L Rev - (2009), Brooklyn Law School Legal Studies Paper No 127, available at

http://papers.ssrn.com/so13/papers.cfm?abstract_id=1328921

The Takings Issue: Regulatory Takings

Woodyard & Boggs, Public Outcry: Kelo v City of New London—A Proposed Solution, 39

Envtl L 431 (2009), believe that

[T]he Supreme Court should trust local governments to use eminent domain in these types of cases properly, but verify their actions by increasing the standard of review to the intermediate level Using only the rational basis standard trusts local governments too much, and strict

scrutiny does not trust them enough Raising the level of review to the middle level standard, that is ‘intermediate scrutiny,’ offers the advantages of increasing the standard to afford greater protection to property owners, but not unnecessarily hamstringing the legislative branch and local governments

Id at 450

The Takings Issue: The Balancing Test

The United States Court of Appeals for the Federal Circuit, in Amerisource Corp v United States, 525 F.3d 1149 (Fed Cir 2008), affirmed a dismissal by the Court of Federal Claims

which held no compensable taking occurred when pharmaceutical drugs belonging to a

wholesale distributor were seized from a pharmacy by the United States Attorney Id at 1150

The Federal Circuit reasoned that “the government’s seizure, retention, and damaging of the property did not give rise to an actionable claim for a taking because ‘items properly seized by the government under its police power are not seized for ‘public use’ within the meaning of the

Fifth Amendment.’” Id at 1153.

In Tennessee Scrap Recyclers Ass'n v Bredesen, 556 F.3d 442 (6th Cir 2009), the Sixth Circuit

Court of Appeals affirmed the denial of a “motion for a preliminary injunction to enjoin the

viii

enforcement of a city ordinance requiring scrap metal dealers to ‘tag and hold’ the scrap metal

they acquire for a period of ten days.” Id at 446 The ordinance also required “that the tagged scrap metal be open to inspection ‘by anyone desiring to investigate.’” Id at 453 Citing Loretto

v Teleprompter Manhattan CATV Corp., 458 U.S 419 (1982), the court found

The holding period does not constitute a “direct governmental appropriation or physical

invasion” of the scrap dealers' property protected by the Fifth Amendment Neither the

government nor a third party authorized by the government physically invades the scrap dealers' property by means of the holding period Nor does the holding period physically appropriate the scrap dealers' property-either their scrap metal or their premises Rather, the holding period limits

the scrap dealers' use of their scrap metal (and derivatively, wherever they choose to keep it) for

a period of ten days Regulations of a party's use of its property are not physical takings (“So long as these regulations do not require the landlord to suffer the physical occupation of a portion

of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity.”)

The inspection requirement does not physically take the scrap dealers' property either The scrap dealers analogize the inspection requirement to the Supreme Court's decisions in Loretto and

Nollan v Cal Coastal Comm'n; however, those cases are not on point-they involve complete,

permanent appropriations of the owner's right to exclude others that are fundamentally unlike thelimited, temporary intrusion at issue here

556 F.3d at 453 (internal citations omitted)

The Illinois Supreme Court, in Empress Casino Joliet Corp v Giannoulias, 896 N.E.2d 277 (Ill

2008), held that an act imposing a 3 percent surcharge on casinos with adjusted gross receipts in excess of $200 million and the proceeds being distributed to the five horse racing tracks in

Illinois is not subject to a takings challenge Id at 282 “The Act does not involve an interest in

physical or intellectual property, nor does it operate upon or alter an identifiable property

interest The case at bar does not involve the state's exercise of its eminent domain powers, but

rather involves its exercise of its taxing powers.” Id at 293

An Ohio court, in reversing and remanding a summary judgment against a plaintiff’s partial taking claim based on the rezoning of adjacent property, held that a trial court cannot enter

summary judgment on a partial taking claim without considering the Penn Central partial taking factors Clifton v Vill of Blanchester, 2008 WL 4058098 (Ohio App Sep 2, 2008)

A Utah court held that denial of a rezoning application from single to multifamily for a small house and lot in an area that had been down-zoned from multifamily to single family several

years earlier was not a taking because the owner was not deprived of all economic use Tolman v Logan City, 167 P.3d 489 (Utah App 2007) The owners’ claims—that they were not able to sell

their house (appraised at $130,000) because the only offers they received ($70, 000 and

$100,000) were for substantially less than the appraised value and that renting the house had proved unsatisfactory—were unpersuasive to the court

ix

A similar result was reached in Haisley v Mercer County Bd of Zoning Appeals, 2007

WL 3342768 (Ohio App 2007), in which an Ohio court held that denial of a variance to enable construction of a single family house on an undersized lot was not a taking

Robert Meltz, Legislative Attorney with the Congressional Research Service, has written

an “attempt to comprehensively set out the highlights of current substantive takings law as succinctly as possible [which] [t]akings mavens may find useful as a checklist for missed

arguments.” Meltz, Takings Law Today: A Primer for the Perplexed, 34 Ecology L.Q 307, 310

(2007)

For an argument that “‘Average Reciprocity of Advantage’ is a legal term of art without a

settled definition,” see Wade & Bunting, Average Reciprocity of Advantage: "Magic Words" or Economic Reality Lessons from Palazzolo, 39 Urb Law 319 (2007).

Partial regulatory claims are discussed in Goodin, The Role and Content of the Character of the Governmental Action Factor in a Partial Regulatory Takings Analysis, 29 U Haw L Rev 437 (2007) and Armstrong Coffey, Recent Developments in Land Use, Planning and Zoning Law: High Hopes, Hollow Harvest: State Remedies for Partial Regulatory Takings, 39 Urb Law 619

(2007)

First English : The Inverse Condemnation Remedy

For an argument that a compensation requirement “could improve environmental

conservation efforts” rather than hinder them, see Adler, Money or Nothing: The Adverse

Environmental Consequences of Uncompensated Land Use Controls, 49 B.C.L Rev 301 (2008).

The citation to Wennsmann Realty, Inc v City of Eagan on pages 139, 178, and 621 of the casebook should be updated as follows: Wennsmann Realty, Inc v City of Eagan, 734 N.W 2d

623 (Minn 2007)

The Lucas Case: A Per Se Takings Rule

In an opinion that amounts to a short course in the law of takings, the Court of Federal

Claims recognized a Lucas categorical takings claim as well as a Penn Central ad hoc takings

claim of a solid waste disposal site as a result of a wrongful assertion of jurisdiction by the ArmyCorps of Engineers under § 404 of the Clean Water Act However, the court remanded on

causation and delay as taking issues, primarily because of the overlapping federal, state and localregulations involved in the case and because neither party had confronted the causation issue at

the summary judgment stage Resource Invs., Inc v United States, 85 Fed Cl 447 (Fed Cl

2009)

For a discussion of Lucas by the private practitioner hired by the South Carolina Coastal Council

to develop a strategy for defending the state’s Beachfront Management Act, including allowing South Carolina to avoid additional liability for hundreds of beachfront lots after the Court’s

x

ruling, see Want, The Lucas Case: The Trial Court Strategy and the Case's Effect on the

Property Rights Movement, 27 Stan Envtl L.J 271 (2008) The practitioner states

I realized that even a restriction as severe as the South Carolina construction prohibition should survive a takings challenge if the state allowed for variances In some cases, a taking would probably be found if a variance was not allowed, but, at least, the prohibition itself would not be deemed a taking in every case The state could decide when to reject a variance and, as a

consequence, likely incur takings liability Further, I reasoned that the variance provision could

be fashioned to allow for some use, but one which minimized adverse impacts to the beach environment

I talked with coastal engineers at the Coastal Council and reviewed literature on the subject and developed three ideas First, I concluded that the state should grant variances where a property owner's entire lot fell within the no-construction zone In these situations, the owner would not

be able to build at all, and the value of her property would be essentially destroyed However, if aproperty straddled the no-construction zone and the limited construction zone, the property owner might be able to build, even without a variance In these cases, the state need not grant a variance

Second, I thought that, even if the state did grant a variance, it should constrain the size of the structure to limit the environmental impact Without the variance, all the vacant lot owners wouldsue and win; with the variance, some lot owners who only were allowed to build a 5,000 square foot house might sue, but they would lose because the regulation allowed for some viable

economic use

Third, drawing on several cases from North Carolina, I decided that the variance provision should require the landowner to move the structure landward once the beach had eroded to the point that the structure was on the beach This provision would discourage homeowners from building too close to the beach since it would force them to consider the costs of erosion up-front Also, it would rid the beach of structures that would otherwise interfere with the public's use of the beach

27 Stan Envtl L.J at 280

In Huffman, Background Principles and the Rule of Law: Fifteen Years after Lucas, 35 Ecology

L.Q 1 (2008), the author argues that

[T]here is nothing extraordinary in Justice Scalia's statement that background principles of the common law are relevant to the definition of property rights What is extraordinary is the claim that, consistent with the historic evolution of the common law, these principles are almost

infinitely malleable in the hands of courts and legislatures It is this claim that creates the

deception of a pot of gold at the end of the Lucas rainbow, and it reflects a misunderstanding of the common law process, a distortion of Justice Scalia's meaning in Lucas, and disregard for the requirements of the Fifth Amendment takings clause

xi

Penn Central Vindicated

The United States Court of Appeals for the Federal Circuit, in Rose Acre Farms, Inc v United States, 559 F.3d 1260 (Fed Cir 2009), reversed a United States Court of Federal Claims

decision that held Rose Acre was entitled to compensation for a taking affected by a United States Department of Agriculture regulation “that restricted egg sales from its farms and caused

the loss of egg-laying chickens that tested positive for the presence of salmonella bacteria.” Id at

1261 The court stated

[U]nder Lingle v Chevron U.S.A Inc. , 544 U.S 528 (2005), the regulatory takings paradigm has

changed We can no longer ask whether the means chosen by government advance the ends or whether the regulation chosen is effective in curing the alleged ill All those concerns, albeit relevant concerns in many cases dealing with governmental regulations, are now confined to a substantive due process inquiry [T]he Supreme Court instructed that, instead of looking at the rationality of the regulation, we must consider ‘the actual burden imposed on property rights,

or how that burden is allocated

Returning to the touchstone of regulatory takings law, we conclude that, as analyzed under Penn Central Transportation Co v New York City, 438 U.S 104 (1978), the USDA regulations were

not functionally comparable to government appropriation or invasion of private property and thatthe regulations properly placed the burden on Rose Acre to bear the costs associated with

ensuring that their eggs did not injure the public

Id at 1278, 1283-84

Denial of a conditional use permit for sand and gravel extraction on a tract of land surrounded byresidential properties did not amount to a compensatory taking because, applying the “parcel as awhole” standard, the denial did not deprive the landowner of all economically viable use, the

Supreme Court of Ohio ruled in State ex rel Shelly Materials v Clark County Bd of Comm’rs,

875 N.E.2d 59 (Ohio 2007) In so doing, the court distinguished State ex rel R.T.G., Inc v State,

780 N.E.2d 998 (Ohio 2002), which treated coal rights as severable for takings analysis “if the property owner’s intent was to purchase the property solely for the purposes of mining the coal,"

780 N.E.2d at 1008 The court declined to apply R.T.G because the deed to the property on

which the sand and gravel lay “did not specify a transfer of mineral rights alone, but transferred fee simple to Shelly Materials, Inc.,” 875 N.W.2d at 68, thereby requiring, in the court’s view, a

“parcel as a whole” analysis

Echeverria, Making Sense of Penn Central, 39 Envtl L Rep News & Analysis 10471 (2009):

This attempt to inject more determinative meaning into the Penn Central analysis has not yielded

a neat and tidy doctrine But it has hopefully succeeded in articulating a somewhat more

xii

manageable set of rules to guide regulatory takings claims The analysis of economic impact should consider not only “with and without” values, but also the value of the regulated property today compared with its original cost basis Under the expectations factor, courts should considerwhether the owner has been able to carry out her original intentions in acquiring the property, whether the claimant purchased the property with notice of the regulatory constraint, the

regulatory environment at the time the claimant purchased the property, and the foreseeability of public concerns associated with a particular property use Under the character factor, apart from special cases involving interferences with the ability of owners to exclude or to devise, the primary questions are whether the regulation applies broadly across the community and creates a reciprocity of advantage, the magnitude of the benefits conferred by the regulatory program, and whether the program is designed to protect the community or individuals citizens from harm Forbetter or for worse, applying these various factors, individually and as a package, will continue todepend to a significant degree on sound judicial judgment

Id at 10486.

Miller, Penn Central for Tomorrow: Making Regulatory Takings Predictable, 39 Envtl L Rep

News & Analysis 10457 (2009):

In the years just after Penn Central, the Supreme Court attempted to refine the jurisprudence, creating per se rules and bright-line tests to aid the Penn Central ad hoc factual inquiry After

laying down several per se rules, however, the Supreme Court began to back away from

bright-line rules and retreated to the amorphous Penn Central test Although it is clear the Supreme

Court is hesitant to create bright-line legal formulas to bind its regulatory takings jurisprudence, the past 30 years of case law have illustrated patterns to regulatory takings cases Under the modified two-prong approach, the emerging patterns can be analyzed more usefully than under the traditional three-prong approach While it is unlikely that the Supreme Court will decide regulatory cases any differently than it has in the past, by analyzing factual situations under the suggested two-prong approach, those in the legal field may be better able to predict how

regulatory takings cases will be decided in the future

Id at 10470

For a critique of the physical and regulatory takings distinction in Tahoe-Sierra, see Peterson, The False Dichotomy Between Physical and Regulatory Takings Analysis: A Critique of Tahoe- Sierra's Distinction Between Physical and Regulatory Takings, 34 Ecology L.Q 381 (2007).

Removal of the “Substantially Advances” Test from Takings Jurisprudence

Applying Lingle v Chevron, U.S.A., Inc., 544 U.S 528 (2005), an Ohio court held in Haisley v Mercer County Bd of Zoning Appeals, 2007 WL 3342768 (Ohio App Nov 13, 2007),

that denial of a variance to enable construction of a single family house on an undersized lot was

not a taking The court remanded to give the plaintiffs an opportunity to establish the Lingle

xiii

standard that the variance denial “completely deprived the owners of all economically beneficial

uses of the property.” Id at *4

Romero, Ends and Means in Takings Law after Lingle v Chevron, 23 J Land Use &

Envtl Law 333 (2008):

[T]he Court's rejection [in Lingle] of an independent takings test of rationality should not be

taken more broadly than that The substantial advancement test could be understood as different

from substantive due process Lingle does not address such possible alternative meanings of the test Even though Lingle may require abandoning the language of the substantial advancement

test, it does not require abandoning other ideas that language might have represented In fact,

Lingle itself implicitly reaffirms some of the ideas that other courts and commentators have

understood the substantial advancement test to represent

Florida Beach and Shore Preservation Act, Fla Stat §§ 161.011 to 161.45 The statute directs theFlorida Department of Environmental Protection “to properly manage and protect Florida

beaches from erosion,” § 161.088, and to pay “up to 75 percent of the actual costs for

restoring and renourishing a critically eroded beach,” § 161.101(1)

As a result of hurricanes, the beaches of Walton County were listed as “critically eroded.”The County, under the Beach and Shore Preservation Act, applied for a permit from the Florida Department of Environmental Protection to renourish the beach The renourishment is

accomplished by dredging sand from an offshore site and depositing it at the site of the beach restoration Private upland owners objected to provisions of the statute directing the

establishment of an erosion control line (ECL), which was located at the surveyed mean high water line, and would become the boundary between public and private land once it was

at 1112 But implementation of the ECL would prevent such accretion or reliction from taking place, thus the argument that the statute caused a taking of upland owners’ property without just

xiv

compensation The judicial taking argument was based on the court’s construction of the right toaccretion and reliction as merely a contingent future interest In reversing the appellate court, the Supreme Court of Florida held “the Act, on its face, does not unconstitutionally deprive upland owners of littoral rights without just compensation”, but limited its decision “to the context of

restoring critically eroded beaches under the Beach and Shore Preservation Act.” Id.

A strong dissent asserted that the majority had “butchered” Florida law in a way that

“simply erased well-established Florida law without proper analysis.” Id The petition for a writ

of certiorari asserted that “[t]his case presents a unique opportunity for this Court to address an ever-increasing question whether a state court’s ruling that eliminates long established common law property rights by declaring such rights ‘never existed’ under state property law solely to avoid a takings claim is a ‘judicial taking.’”

The Federal Takings Executive Order and Federal and State Takings Legislation

In Citrus County v Halls River Dev., Inc , 8 So.3d 413 (Fla Dist App 2009), a Florida

court refused to accept a statutory compensation claim resulting from a county’s erroneous advice to a developer that its condominium proposal was a permitted use, finding no “inordinate burden” caused by the mistake because the developer, “like the County, should have known that the property’s designation in the Plan would control over the [Land Development Code’s]

designation.” Id at 421

For a discussion of Arizona’s Proposition 207, described as the “only regulatory

takings ballot initiative [approved] in the wake of the Kelo decision [and] the new standard in the ongoing regulatory takings march,” see Stephenson & Lane, Arizona’s Regulatory Takings Measure: Proposition 207, Planning & Envtl L., Nov 2008, at 12.

Alex Popatov evaluates Oregon’s Measure 37 in Making Regulatory Takings Reform Work: The Lessons of Oregon’s Measure 37, 39 Envtl L Rep News & Analysis 10516 (2009)

He concludes that

[Measure 37] ultimately failed to provide any significant relief to property owners The

difficulties the Measure encountered can be traced to two primary causes: poor drafting and the hostile attitude of government officials While these problems are likely to cause difficulties for any regulatory takings initiative, they are not necessarily insurmountable It is also possible for a regulatory takings initiative to succeed in another way—by forcing the state government to take the problem of excessive regulation seriously In this respect, Measure 37 has arguably been a success

Id at 10516.

Substantive Due Process Limitations Under the Federal Constitution

xv

The Ninth Circuit Court of Appeals has held in several recent cases that the Takings Clause does

not preempt a substantive due process claim, North Pacifica LLC v City of Pacifica, 526 F.3d

478, 484-85 (9th Cir 2008); Action Apartment Ass’n, Inc v Santa Monica Rent Control Bd., 509 F.3d 1020, 1025 (9th Cir 2007); Crown Point Dev., Inc v City of Sun Valley, 506 F.3d 851, 856 (9th Cir 2007) In Crown Point, the court noted that the Supreme Court, in Lingle v Chevron U.S.A., Inc., 544 U.S 528 (2005), “pull[ed] the rug out from under our rationale for totally

precluding substantive due process claims based on arbitrary or unreasonable conduct.” 506 F.3d

at 855

In Shanks v Dressel, 540 F.3d 1082 (9th Cir 2008), the court held that the City of

Spokane had no constitutional duty to protect residents of a historic district from an improvident decision to grant a building permit; thus a substantive due process claim, although not

preempted, failed

The First Circuit, in Mongeau v City of Marlborough, 492 F.3d 14 (1st Cir 2007), held that the

proper standard for evaluating substantive due process claims is whether the action complained

of “shocks the conscience” rather than whether it is “arbitrary and capricious” when

administrative action is involved Applying the standard, the court affirmed a rejection of a claimthat a building commissioner’s persistent opposition to issuance of a building permit, even though the zoning board of appeals had granted a variance, amounted to a substantive due process violation

The Second Circuit Court of Appeals, in Cine SK8, Inc v Town of Henrietta, 507 F.3d

778 (2nd Cir 2007), held that allegations of racial animus by town officials, as well as

allegations of fundamental procedural irregularities such as amending a special permit without authorization to do so, were sufficient to state a substantive due process claim

Denial of a special use permit for a tattoo studio, after the city’s Zoning Board of Appeals

recommended approval, did not rise to the level of a due process or equal protection violation,

the Northern District of Illinois court held in Hold Fast Tattoo, LLC v City of North Chicago,

580 F Supp.2d 656 (N.D Ill 2008) Agreeing with other courts that have decided the question,

the court held that “the act of tattooing is not an act protected by the First Amendment,” id at

660, nor does the city council’s reason for denial, that “it was ‘not the kind of business’ the council wanted in North Chicago” give rise to a constitutional claim

J Peter Byrne, argues in Due Process Land Use Claims After Lingle, 34 Ecology L Q 471

Id at 520.

Procedural Due Process

The granting of a building permit in a historic district, without first conducting a public hearing, does not give rise to a procedural due process claim on behalf of residents opposed to the

development in question, the Ninth Circuit ruled in Shanks v Dressel, 540 F.3d 1082, 1089-92 (9th Cir 2008) Because the ordinance in question “does not mandate any outcome,” it does “not

create a constitutionally cognizable property interest in the denial of a third party’s building

permit,” a necessary precondition to a procedural due process claim, the court concluded Id at

1091-92 (emphasis in original)

Equal Protection Limitations Under the Federal Constitution

The United States Supreme Court, in Engquist v Oregon Dept of Agriculture, 128 S.Ct 2146 (2008), held that the class-of-one theory of equal protection recognized in Vill of Willowbrook v Olech, 528 U.S 562 (2000), could not be applied to state actions, such as employment decisions,

in which officials are called on to make discretionary decisions “based on a vast array of

subjective, individualized assessments.” Id at 2154 In so doing, the Court limited Olech to

situations in which a “clear standard” existed “against which departures, even for a single

plaintiff, could be readily assessed.” Id at 2153.

The Seventh Circuit Court of Appeals, in Flying J, Inc v City of New Haven, 549 F.3d 538 (7th

Cir 2008), elaborated on the standards for successfully pleading a class-of –one case:

Allegations of animus, while sufficient to establish that an equal protection claim may be ripe,

“do not overcome the presumption of rationality and the court evaluates those allegations once a plaintiff has pled facts that show the irrationality of the government action in question This standard reflects the fairly intuitive idea that a given action can have a rational basis and be a perfectly logical action for a government entity to take even if there are facts casting it as one taken out of animosity It is only when courts can hypothesize no rational basis for the action thatallegations of animus come into play

xvii

Id at 547.

Conflicting enforcement orders under the Massachusetts Wetland Protections Act directed to the developer of a condominium project, but not to purchasers of completed units, and which caused the developer’s lenders to cut off funding stated a class-of-one equal protection claim, the First

Circuit Court of Appeals held in SBT Holdings, LLC v Town of Westminster, 547 F.3d 28 (1stCir.2008) The requisite showings that plaintiff was treated differently from similarly-situated

persons and that defendants’ actions were motivated by malice or bad faith were established by allegations that the enforcement orders in question were not being enforced against purchasers ofcompleted units even though the purchasers were subject to the enforcement orders because violations of environmental regulations run with the land, and by derogatory emails sent by the chair of the state commission seeking enforcement

William D Araiza, in Irrationality and Animus in Class-of-One Equal Protection Cases,

34 Ecology L Q 493 (2007), argues that

[C]lass-of-one claims must include allegations of animus or ill will in order to proceed [and] that class-of-one claims lacking such allegations, such as claims simply alleging irrational, if

‘innocent,’ government action, should be relegated to the Due Process Clause for review under standards developed to ensure that government action satisfies some minimal level of substantivereasonableness

Id at 495

Federal Remedies for Constitutional Violations: Relief under Section 1983 of the Federal Civil Rights Act

The United States Court of Appeals for the Federal Circuit in Ingrum v U.S., 560 F.3d 1311 (Fed.

Cir 2009), affirmed the Court of Federal Claims dismissal of the action as time-barred under the applicable six-year statute of limitations From March through April 1999 the government made road repairs using materials excavated from Ingrum’s property Ingrum didn’t visit his property between April 1999 and 2005, so he was unaware the government took fill material from his land In 2006, Ingrum filed a takings claim in the Court of Federal Claims The Court of Appealsfound that

Ingrum therefore seeks the benefit of the “accrual suspension” rule Under that rule, the accrual

of a claim against the United States will in some situations be suspended when an accrual date has been ascertained, but the plaintiff does not know of the claim However, a plaintiff's

ignorance of a claim that he should have been aware of is not enough to suspend the accrual of a claim The accrual suspension rule is “strictly and narrowly applied,” and the accrual date of a cause of action will be suspended in only two circumstances: “[the plaintiff] must either show that defendant has concealed its acts with the result that plaintiff was unaware of their existence

or it must show that its injury was ‘inherently unknowable’ ” at the time the cause of action accrued

xviii

Id at 1314–1315 (internal citations omitted)

The Court of Appeals agreed with the trial court that a landowner is on inquiry as to open

and notorious activities conducted on his property Id at 1317 “That principle applies regardless

of how far the landowner resides from the disputed property.” Id “A property owner is charged

with knowledge of what happens on his property even if the land is remote and difficult to

access.” Id Because the government’s actions were open and notorious and it was not

“inherently unknowable”, Ingrum’s claim was time-barred Id.

In Loosli v City of Salem, 193 P.3d 623 (Or 2008) (en banc), the Supreme Court of

Oregon held that the city incurred no tort liability for the economic loss occasioned by an

associate city planner’s mistaken certification that the plaintiffs’ business complied with the city’s land use ordinance The court applied section 552 of the Restatement of Torts and

concluded that, because the land use law compliance certification was for the protection of the public and not to benefit the plaintiffs specifically, the city was not liable for purely economic loss

For a review of the absolute immunity doctrine, see Chemerinsky, Absolute Immunity: General Principles and Recent Developments, 24 Touro L Rev 473 (2008) Qualified immunity

is discussed in Blum, The Qualified Immunity Defense: What's "Clearly Established" and What's Not, 24 Touro L Rev 501 (2008).

Federal Remedies for Constitutional Violations: Barriers to Judicial Relief: Ripeness

Construing the ripeness rules of Williamson County Reg Plan Comm v Hamilton Bank,

473 U.S 172 (1985) “broadly,” the Seventh Circuit Court of Appeals held that a “bonafide equalprotection claim,” such as an allegation of ill will or malice by zoning officials toward the

plaintiff, is not subject to the Williamson County ripeness rules, Flying J, Inc v City of New Haven, 549 F.3d 538 (7th Cir 2008) But a procedural due process claim that is part of a takings claim is subject to the ripeness rules Braun v Ann Arbor Charter Twp., 519 F 3d 564 (6th Cir.), cert den., 129 S Ct 628 (2008).

For a strong criticism of the Williamson County rule, see Del-Prairie Stock Farm, Inc v County

of Walworth, 572 F Supp.2d 1031 (E.D Wis 2008):

The requirement that a federal takings plaintiff must first litigate its claim in state court has led to

a number of serious problems First, it prevents most plaintiffs from ever litigating their claims infederal court Title 28 U.S.C § 1738 requires that federal courts give “full faith and credit” to state court judgments Thus, issue preclusion bars federal court relitigation of any issue decided

in a state court, and claim preclusion bars relitigation of any issue that could have been raised

These doctrines are important in connection with federal takings claims because almost every

state has a compensation provision similar to the federal provision Thus, a takings plaintiff trying to get into federal court faces a “true ‘Catch 22’ conundrum”; it cannot bring its claim in

xix

federal court without litigating in state court, but once it litigates in state court, its federal claim

is precluded

A further problem is that the Williamson County Court appears to have mischaracterized the

state litigation requirement as a ripeness rule when, in actuality, it strips federal courts of

jurisdiction over federal takings claims .[T]he purpose of the ripeness doctrine is to ensure that a federal court does not hear a case unless the case involves a concrete injury, and the state litigation requirement does not serve that purpose This is so because a concrete takings injury can occur without state litigation A property owner can suffer a concrete injury-as the plaintiff in the present case allegedly did-whether or not a legal right was violated

Id at 1032-33 (internal citations omitted) Rather than dismissing the case for lack of subject

matter jurisdiction, which the court thought would be unfair, the court remanded the case to the state court

The Federal District Court for Utah, applying language from San Remo Hotel, L.P v City and

County of San Francisco, 545 U.S 323 (2005), held that the court could entertain alternate

federal claims, as well as state claims, because the defendant had removed the case to federal court The court found “no basis for dismissing the federal claims on the grounds of ripeness or

finality.” Merrill v Summit County, 2009 WL 530569 (D Utah Mar 2, 2009).

The author in Rohr, Note, Assessing the Scope of Williamson County: Why it Should be Applied

to Private Purpose Claims, 30 Cardozo L Rev 1809 (2009) believes the approach of the

Seventh Circuit in Covington Court, Ltd v Vill of Oak Brook, 77 F.3d 177 (7th Cir 1996) that

“private purpose claims as well as just compensation claims should be subject to Williamson County” is preferable to that of the majority of circuits, which apply Williamson County only to just compensation claims In Covington Court, the Seventh Circuit held that a developer’s

allegation—that $100,000 spent in settlement of a dispute with a well-connected neighbor over the developer’s plans amounted to an impermissible taking of property for a private purpose—was a premature due process claim because the developer had not exhausted possible state remedies “The Seventh Circuit's position is preferable not only because it ensures that state courts address issues of state law but also because it requires plaintiffs to assert both causes of action in the same proceeding.” 30 Cardozo L Rev at 1842

Material for this chapter was prepared by Professor Peter W Salsich The valuable research assistance of Doug Giles, 2L, Saint Louis University School of Law, is acknowledged with

gratitude

xx

from depicting the social, political and historical setting from which the landmark case emerged

to explaining the modern implications of Euclid and why it has stood the test of time See Wolf, The Zoning of America (2008)

For a proficient overview of the history of zoning and a keen analysis into the

assumptions underlying America’s zoning ordinances and the efficacy of zoning ordinances, see

Elliott, A Better Way to Zone (2008) (providing ten key principles for simpler, fairer, more

effective and more workable zoning laws)

The Third Circuit Court of Appeals held that a developer with an option to buy a property

has standing to challenge zoning restrictions that interfere with development plans In Toll Bros., Inc v Twp of Readington, 555 F.3d 131 (3d Cir 2009), the Toll Brothers purchased an option to

buy property with the intention of building an office park and residences according to the currentzoning scheme The Township denied the Toll Brothers’ application requesting approval for construction and issued a new ordinance that rezoned the parcel and precluded the development The Third Circuit recognized that an option is a valuable property right; the developer proved injury-in-fact through money spent in planning the development and lost profits; and

redressability was satisfied Agreeing with the Fourth, Ninth and Second Circuits, the court held that if a developer has an option to buy a property and plans to develop that land, the developer satisfies the injury-in-fact requirement for standing if zoning restrictions prohibit the planned development

The Virginia Supreme Court clarified third-party standing rights in that state In Logan v City Council, 659 S.E.2d 296 (Va 2008), the court held that aggrieved neighboring landowners

do not have the right to challenge local subdivision decisions In Logan, the subdivision agent

conditionally approved a fifty-acre subdivision plat in Roanoke and granted several exceptions

xxi

under the subdivision ordinance Neighboring landowners sought a declaratory judgment againstthe city council, the planning commission, the local subdivision agent and the developer The neighbors argued that the subdivision ordinances were facially invalid, the agent improperly granted the exceptions and the development would be unsafe The court held that the neighbors lacked standing because third parties do not have a right to challenge local land use decisions unless specifically authorized by statute In this case, the subdivision ordinance did not authorizethird parties to challenge a local subdivision decision, nor did the declaratory judgment statute create that right.

The Supreme Court of Connecticut held that residents lacked standing to seek a

declaratory judgment invalidating the town’s decision to enable development contrary to the neighborhood design plan The plaintiffs did not establish a specific, personal and legal interest

in the suit; they only showed injury suffered by the public at large See Andross v Town of W Hartford, 939 A.2d 1146 (2008).

The Supreme Court of New Hampshire held that a condominium association’s refusal to challenge a land use decision does not abrogate individual condominium owners’ standing rights.Individual landowners will have standing if they are sufficiently aggrieved by the contested

decision See Johnson v Town of Wolfeboro Plan Bd., 945 A.2d 13 (N.H 2008).

Neighboring property owners in South Carolina will not have standing rights merely

because they are competitors In ATC S., Inc v Charleston County, 669 S.E.2d 337 (S.C 2008),

the competitor and property owner contested a land use decision allowing a neighbor one mile away to have a cell-phone tower The court held that plaintiff’s competitor status alone did not make the controversy of public importance and did not confer standing rights

Density and Intensity of Use

To meet housing needs and increase housing opportunities, some cities have encouraged higher density development by eliminating regulatory barriers For example, Portland, Oregon’s

Living Smart Program promotes infill development on narrow lots by adopting skinny house

design standards, waiving parking requirements for skinny houses, streamlining the permitting process with permit-ready skinny houses and reducing permit fees Another example is Los Angeles’ Adaptive Reuse Ordinance, which promotes the conversion of commercial buildings into housing and live-work spaces by exempting the projects from a site plan review, waiving density restrictions, grandfathering in nonconforming aspects and limiting parking requirements

For more information, see Breakthroughs, Regulatory Barriers Clearinghouse (Sept 2007),

www.huduser.org/rbc/newsletter/Volume6Iss5Print.html

Many municipalities face the challenge of having to assemble smaller parcels to enable higher density development For a discussion of this problem and an insightful argument that graduated density zoning creates incentives for landowners to assemble parcels and consequentlyfacilitates the redevelopment of particular sites, the regeneration of urban areas and more

housing, see Shoup, Graduated Density Zoning, 28 J Plan Edu & Res 161 (2008)

xxii

Single Family Residential Use

The Iowa Supreme Court followed Belle Terre and upheld an ordinance limiting single

family dwellings to any number of related individuals or a maximum of three unrelated

individuals as permissible under the state constitution The court found that the government’s interests of “promot[ing] a sense of community, sanctity of the family, quiet and peaceful

neighborhoods, low population, limited congestion of motor vehicles and controlled transiency” were valid and rationally related to the ordinance Finding the city’s assertion that allowing largenumbers of unrelated people to live together leads to greater noise and traffic and households that

do not “take root” in the community to be credible, the court held it was rational for the city to

believe the law would lead to quieter, safer and less dense family-oriented neighborhoods See Ames Rental Prop Ass'n v City of Ames, 736 N.W.2d 255 (Iowa 2007).

Accessory Dwelling Units

In City of Wilmington v Hill, the Court of Appeals of North Carolina held

unconstitutional an ordinance requiring the owner of a garage apartment to live either in the apartment or in the primary residence The court held that the municipality could regulate the use of the property, but it was unauthorized to regulate the manner of ownership of the property

See City of Wilmington v Hill, 657 S.E.2d 670 (N.C App 2008) (holding contrary to the

Supreme Court of Utah in Anderson v Provo City Corp., 108 P.3d 701 (Utah 2005)).

California, Massachusetts, Vermont and Washington have paved the way for accessory dwelling units (“ADUs”), and local governments in other states have begun to follow suit Arlington County, Virginia, for example, adopted a zoning ordinance permitting ADUs in single family detached homes The ordinance mandates owner occupancy and limits occupancy in

ADUs to two people See Arlington County, Va., Accessory Dwellings Ordinance (Jan 1, 2009).

As another example, York, Maine amended its zoning ordinance to allow single family homes to have ADUs York allows no more than one ADU per lot, and the ADU may be in the same building as the principle dwelling unit or in a building accessory to the principle dwelling unit

See York, Me., General Accessory Dwelling Unit Ordinance (May 29, 2009) See also Cobb & Dvorak, Accessory Dwelling Units: Model State Act and Local Ordinance, AARP (2000),

Mobile Homes

The North Carolina Court of Appeals struck down an ordinance requiring that mobile homes not be ten or more years old on the date of application for a building permit Although a North Carolina statute authorizes ordinances regulating appearances and design, the court held that the age restriction did not fall under the statute, and the county therefore exceeded its

authority under its zoning powers See Five C’s, Inc v County of Pasquotank, 672 S.E.2d 737

(N.C App 2009)

Elder Cottage Housing Opportunities

Shifting demographics and changing economic circumstances are making Elder Cottage Housing Opportunities (ECHO) an attractive housing option for seniors ECHO housing units are small, temporary, manufactured homes that can be added to the property of single family homes usually owned by relatives It is a cost effective way for seniors to live near family and maintain independence For examples of ordinances allowing for ECHO housing, see Hamburg, Mich., Zoning Ordinance § 15.1 (2009); Lompoc, Cal., Municipal Code § 17.088.190 (2009) Formula Businesses

Courts generally accept preservation of community character as a valid purpose for formula business ordinances, but communities will likely have a more difficult time asserting this justification if formula retail is already present and the ordinance allows other buildings that

do not preserve the asserted character In Island Silver & Spice, Inc v Islamorada, the Eleventh

Circuit Court of Appeals found that the true purpose of Islamorada, Florida’s ordinance was to protect local businesses from competition with national chain stores and was therefore

unconstitutional Islamorada already had many formula retail businesses and did not have a historical district, and the court found that prohibiting small retail formula stores while allowing other large buildings would not preserve small town character The court held that Islamorada’s ordinance violated the Dormant Commerce Clause by disproportionately burdening interstate

competitors without sufficient justification See Island Silver & Spice, Inc v Islamorada, 542

F.3d 844 (11th Cir 2008)

Nonconforming Uses

Virginia passed a statute prohibiting local governments from forcing property owners who lawfully constructed buildings to remove them as a result of future zoning laws as long as they have paid the requisite property taxes for at least fifteen years The law restricts a local government from forcing the removal of a non-conforming structure that had a building permit

and certificate of occupancy issued at the time it was built See H.B 1078 (Va 2008).

In Guy v Temple, the Supreme Court of New Hampshire held that a property owner’s

failure to obtain a license to conduct an activity on the property did not affect the property’s

nonconforming use status See Guy v Temple, 956 A.2d 272 (N.H 2008) The owner had failed

xxiv

to properly apply for a license to operate the junkyard, the nonconforming use Following the majority of courts, the court distinguished licensing requirements from zoning requirements

Significant renovations will likely change a property’s nonconforming use status The Supreme Judicial Court of Massachusetts, for example, held that increasing the size of the house fivefold increases the nonconforming nature of the building, acknowledging that many

municipalities do not appreciate the “mansionization” trend See Bjorkland v Zoning Bd., 878

N.E.2d 915 (Mass 2008) Renovations changing a seasonal dwelling to year-round use may alsoaffect nonconforming use status The Supreme Judicial Court of Maine held that renovations enabling a porch to be used for at least an additional month each year expanded the

nonconforming use status See Trudo v Town of Kennebunkport, 942 A.2d 689 (Me 2008) The

Supreme Court of New Hampshire, however, held that simply using a seasonal structure for round use did not impermissibly expand the property’s nonconforming use The court noted that the actual footprint of the building had not changed and held that merely increasing the amount

year-or intensity of the nonconfyear-orming use did not unlawfully expand that use See Severance v Town of Epsom, 923 A.2d 1057 (N.H 2007).

Adult Businesses

Federal Courts of Appeals have upheld ordinances restricting adult businesses to

industrial zones See Tollis Inc v County of San Diego, 505 F.3d 935 (9th Cir 2007) (rejecting conclusion that Justice Kennedy’s dissent in Alameda Books requires a higher standard of proof

for municipalities and holding that restricting adult businesses to industrial sites is permissible as

long as there is a sufficient number of reasonable alternative sites); Daytona Grand, Inc v City

of Daytona Beach, 490 F.3d 860 (11th Cir 2007) (restriction to business and industrial zones

upheld)

In 729, Inc v Kenton County Fiscal Court, the Sixth Circuit Court of Appeals upheld a

Kenton County, Kentucky ordinance that barred entertainers of a sexually oriented business fromareas of the establishment occupied by customers within one hour of a semi-nude performance The court applied intermediate scrutiny to determine whether the ordinance violated the First Amendment because that standard applies to issues involving secondary effects of sexually oriented businesses, and the court deemed prostitution a secondary effect The court found that the ordinance was intended to reduce prostitution, would likely have that intended effect, “leavessubstantially intact the amount of protected free speech,” and therefore does not violate the First

Amendment See 729, Inc v Kenton County Fiscal Court, 515 F.3d 485 (6th Cir 2008) For other cases applying the secondary effects analysis, see Independence News, Inc v City of Charlotte, 2009 U.S App LEXIS 11842 (4th Cir June 3, 2009); Doctor John’s v G Blake Whalen, 542 F.3d 787 (10th Cir 2008).

Do zoning ordinances regulating adult entertainment establishments extend to

cyberspace? Flava Works, Inc v City of Miami, 2009 U.S Dist LEXIS 7824 (S.D Fla Jan 27,

2009) addressed this issue Flava Works is a Miami-based corporation that transmits images of its residents engaging in sexual activity over the Internet to subscribed users The residents are

xxv

independent contractors of Flava Works and receive payment, room and board for their sexual activities The City of Miami alleged that Flava Works was illegally operating an adult

entertainment establishment in a residential zone The district court found that the zoning ordinance’s definition of adult entertainment establishment, as “an establishment which offers,” connotes an actual facility where customers could go to partake in the entertainment or services This definition did not apply to a business operating solely in cyberspace that did not have a physical location offering adult entertainment or services to the public

RLUIPA

In Living Water Church of God v Charter Twp of Meridian, 2007 U.S App LEXIS

29423 (6th Cir Dec 13, 2007), the Sixth Circuit Court of Appeals held that an ordinance

restricting the size of a religious building did not substantially burden the church’s exercise of religion The Township Board of Meridian, Michigan gave the Living Water Church of God a special use permit for an appropriately sized school in the residential district, but it denied a special use permit for a building greater than 25,000 square feet The district court held that the denial was a substantial burden on religious exercise and therefore violated the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) However, the Sixth Circuit reversed after considering all the facts and framing the issue as follows: “though the government action may make religious exercise more expensive or difficult, does the government action place substantialpressure on a religious institution to violate its religious beliefs or effectively bar a religious institution from using its property in the exercise of its religion?” The court emphasized that the question is whether the church is substantially burdened now rather than at some point in the future Because the church could still have a school on the property, worship, provide religious education and expand its building up to 25,000 square feet, the church was not substantially burdened by the size restriction, although it could not build its proposed gymnasium

The Third Circuit Court of Appeals held that a plaintiff claiming a violation of RLUIPA’s Equal Terms Clause does not need to establish that the regulation substantial burdens religious exercise, agreeing with the Eleventh and Seventh Circuits on that point However, unlike the Eleventh and Seventh Circuits, the Third Circuit held that a plaintiff claiming a violation of the Equal Terms Clause must identify a similarly situated secular counterpart that is better treated under the regulatory objectives The Third Circuit also deviated from the Eleventh Circuit by

applying a strict liability standard under the Equal Terms Clause rather than strict scrutiny See Lighthouse Inst for Evangelism, Inc v City of Long Branch, 510 F.3d 253 (3d Cir 2007); see also Digrugilliers v Consol City of Indianapolis, 506 F.3d 612 (7th Cir 2007) (holding that

plaintiff need not prove substantial burden of religious exercise for Equal Terms claim)

In Calvary Temple Assembly of God v City of Marinette, 2008 U.S Dist LEXIS 55500

(E.D Wis July 21, 2008), the district court found that a financial burden did not equal a

substantial burden on religious exercise The church had applied for a special exemption to allow a counseling center at the church, but the city determined that the use would be a

professional office and therefore unlawful under the zoning scheme The court found that the

xxvi

denial did not substantially burden the church’s exercise of religion, even though it would be prohibitively expensive for the church to rent space for counseling elsewhere.

The district court in Westgate Tabernacle, Inc v Palm Beach County, 2009 Fla App

LEXIS 5431 (Fla Dist App May 20, 2009), held that a requirement that a church apply for a special use permit to operate a homeless shelter was not a facial violation of RLUIPA The rule was neutral to religious and non-religious institutions alike and did not substantially burden the church’s exercise of its religion

A Maryland district court awarded over $3 million in damages to a congregation of Seventh Day Adventists on a RLUIPA claim The county made a series of decisions that

prevented the congregation from constructing their own building, and the court held that this substantially burdened the church’s exercise of religion without a compelling interest The court also upheld the jury instructions defining “substantial burden” according to the Fourth Circuit and consistent with the Second, Seventh, Ninth and Eleventh Circuits: “when a state or local government, through act or omission, puts substantial pressure on an adherent to modify his

behavior and to violate his beliefs.” See Reaching Hearts Int’l, Inc v Prince George’s County,

moratorium in this manner substantially burdened the church’s exercise of religion See City of Woodinville v Northshore, 2009 Wash LEXIS 725 (Wash July 16, 2009)

There continues to be no single formula for how the courts apply RLUIPA To avoid the

RLUIPA litigation quagmire, local governments should engage in good planning to prevent RLUIPA claims in the first place For valuable advice on preventing and successfully defending

against RLUIPA claims, see Merriam, One (1) Ounce of RLUIPA Prevention, 49 Municipal Lawyer, 10 (2008) See also Weinstein, How to Avoid a “Holy War”—Dealing with Potential RLUIPA Claims, Planning & Envtl L., March 2008, at 3 (advising local governments on how to

avoid claims under RLUIPA in light of legal, political and social considerations) For the

Municipal Lawyer article, see http://www.cml.org/pdf_files/cle_thurs_RLUIPA_merriam.pdf

Wetlands

The Food, Conservation and Energy Act of 2008 (the “2008 Farm Bill”) became law in June 2008 and continued both the Wetlands Reserve Program (“WRP”) and the Conservation Reserve Program (“CRP”) Congress funded the WRP, a wetlands restoration program, at about 25% less than the 2002 Farm Bill and instituted several new rules including: the requirement thatlandowners must own their land for at least seven years to be eligible; the requirement that

xxvii

landowners receiving over $500,000 must be paid in installments of five to thirty years; a

$50,000 per year limitation on restoration cost sharing; and a prohibition on using WRP funds forstate or federal lands Under the CRP, farmers receive payments in return for converting

environmentally sensitive farmland to vegetative cover The 2008 Farm Bill cut the CRP’s acreage cap from 39.2 million acres to 32 million acres The legislation also restored the

Conservation Stewardship Program and allotted significant funds to energy efficiency and

bioenergy See Food, Conservation and Energy Act of 2008, Pub L No 110-234, 122 Stat 923 (2008); see also Sibbing, Mixed Results for Wetlands in the New Farm Bill, Nat’l Wetlands

navigation in the future The guidance also states that a protected, adjacent wetland must have

an unbroken hydrologic connection to jurisdictional waters, a beam or similar barrier must separate the waters from the wetland, or the wetland must be reasonably close to a jurisdictional

water See Clean Water Act Jurisdiction Following the U.S Supreme Court’s Decision in

Rapanos v United States, EPA (Dec 2, 2008), available at

http://www.epa.gov/owow/wetlands/pdf/CWA_Jurisdiction_Following_Rapanos120208.pdf

The EPA and the Corps also amended the Clean Water Act in December 2008 to modify the term

“discharge of dredged material” in Section 404, which authorizes the Corps to issue permits for the discharge of dredged or fill material into waters of the United States The agencies modified the term pursuant to a ruling by the Court of Appeals for the District of Columbia that the

previous definition of the term exceeded the Corp’s statutory authority The previous rule

defined the term as “any redeposit,” which the court determined included incidental fallback The newly issued definition deletes the word “any” and explicitly excludes “incidental fallback.”

See 33 C.F.R § 323.2 (2008); 40 C.F.R § 232.2 (2008)

Floodplain Regulation

The Federal Emergency Management Agency (“FEMA”) has been criticized for failing toprotect endangered species when granting insurance for new development under the National

Flood Insurance Act (“NFIA”) In Florida Key Deer v Paulison, 522 F.3d 1133 (11th Cir 2008),

FEMA was enjoined from issuing insurance for development in the Florida Keys where FEMA’s administration of NFIA had jeopardized several endangered species The Eleventh Circuit Court

of Appeals held that Section 7(a)(1) of the Endangered Species Act applies to FEMA’s

administration of NFIA and requires FEMA to develop programs to protect endangered species

For a discussion of how zoning regulations can mitigate the risk of flood damage, such as

through overlay zones, setbacks, open space zones, density controls and nonconforming use

xxviii

regulations, see Roths, Using Zoning to Reduce Flood Damages, Zoning Practice, Mar 2008, at

2 Roths emphasizes that local governments should always engage in risk analysis when

preparing comprehensive plans and suggests that municipalities are underutilizing the land use tools available to mitigate the risk of flood damage

Groundwater and Surface Water Resource Protection

West Virginia passed a law establishing criteria for a state water resources management

plan and authorizing regional water resources management plans See S.B 641 (W Va 2008).

Low impact development (“LID”) can be utilized in urban areas to manage storm water and protect surface water resources LID allows the built environment to act as a forested site bycapturing rain and slowly returning it to the ground, reducing runoff on impervious surfaces and consequently reducing pollutants carried to local water resources For more information on how

LID management practices work, see Brophy-Price, Low Impact Development: A Case Study on Protecting Urban Streams, Nat’l Ass’n of Home Builders, at 32 (2007).

As water resources become increasingly scarce, especially in the face of climate change, some local governments have initiated water conservation efforts through land use regulations For example, Bernalillo County, New Mexico adopted an ordinance that requires all new

developments to have water conservation measures and significantly restricts water use for

landscaping, irrigation and recreation See Bernalillo County, N.M., Water Conservation

Ordinance (2007) For a compelling argument that linking land use law to water policy would most effectively conserve natural resources and prepare communities for climate change, see

Hirokawa, The Relevance of Land Use Law to Climate Change Preparedness: The Case of Sustainable Water Practices, Trends, May/June 2009, at 6

Climate Change and Sustainability

Many states’ recent statutory land use reforms have focused on climate change, green house gas emissions and green development, as well as linking those sustainability techniques to regional planning, transportation and affordable housing California is spearheading the charge against greenhouse gas emissions through land use planning Senate Bill 375, passed in 2008, requires regional targets for greenhouse gas emissions and regional plans (called sustainable communities strategies) to meet those targets Regional transportation and housing decisions, including funding, must be made according to the strategies It remains to be seen how effective the sweeping legislation will be as the regional strategies are not yet developed and S.B 375 will

not be fully implemented until 2011 See S.B 375 (Cal 2008); Shigley, California’s Aerial Combat: The State Tries a First-in-the-Nation Approach to Attacking Climate Change, Planning,

Also in 2008, the Washington Legislature passed a bill acknowledging that it is in the public interest to reduce the state’s dependence on foreign oil and that land use development patterns affect greenhouse gas emissions and consumption of foreign oil The bill mandates that the Department of Community, Trade and Economic Development provide local governments with mechanisms for responding to climate change and work with the Department of Transportation

to reduce greenhouse gas emissions See S.B 6580 (Wash 2008) For an overview of 2008 legislation addressing climate change and sustainability through land use, see Salkin, Zoning and Land Use Planning: Linking Land Use with Climate Change and Sustainability Topped State Legislative Land Use Reform Agenda in 2008, 37 Real Estate L.J 336 (2009).

Some states are encouraging alternative energy use through land use regulations and permitting requirements New Hampshire, for example, adopted a law allowing municipalities toregulate small wind energy systems Further, the law prohibits municipalities from unreasonably

limiting the development of renewable energy systems through their zoning powers See H.B

310 (N.H 2008) As another example, new legislation in Hawaii prohibits the issuance of building permits for single family homes that do not have a solar water heating system as of

January 1, 2010 See S.B 644 (Haw 2008)

Resources for the Chapter

Andriano, The Power of Wind: Current Legal Issues in Siting for Wind Power, Planning & Envtl L., May 2009, at 3; Dalton, Religious Land Uses, Zoning, and the Courts in 2008, Planning & Envtl L., July 2009, at 3; Durden, Sign Amortization Laws: Insight into Precedent, Property, and Public Policy, 35 Cap U L Rev 891-922 (2007); Evans-Cowley & Pearlman, Six Flags Over Jesus: RLUIPA, Megachurches, and Zoning, 21 Tul Envtl L.J 203-232 (2008);

Kozlowski, Note, Dams and Levees Are Not Enough: The Case for Recognizing a Cause of Action Against Non-Complying NFIP Communities, 32 Wm & Mary Envtl L & Pol'y Rev 245-

271 (2007); Ostrow, Judicial Review of Local Land Use Decisions: Lessons from RLUIPA, 31 Harv J.L & Pub Pol'y 717-760 (2008); Salkin & Lavine, The Genesis of RLUIPA and

Federalism: Evaluating the Creation of a Federal Statutory Right and Its Impact on Local Government, 40 Urb Law 195-267 (2008); Saxer, Faith in Action: Religious Accessory Uses and Land Use Regulation, 2008 Utah L Rev 593-634 (2008); Schach, Stream Buffer

Ordinances: Are Municipalities on the Brink of Protecting the Health of Streams or Opening the Floodgates of Takings Litigation?, 40 Urb Law 73-94 (2008); Thomas & Medlock, Mitigating Misery: Land Use and Protection of Property Rights Before the Next Big Flood, 9 Vt J Envtl L 155-188 (2008); Trevarthen, Best Practices in First Amendment Sign Regulations, Planning & Envtl L., June 2009, at 3; Wilson, “I Don’t Live Next Door, but I Do Drive by on the Nearby Highway”: Recent Developments in the Law of Standing in Court Cases Challenging Land Use Permits, 39 Urb Law 711-722 (2007).

Material for this chapter was prepared by Sorell E Negro, Robinson & Cole, Hartford,

Connecticut

xxx

Chapter 4

Equity Issues in Land Use: “Exclusionary Zoning” and Fair Housing

Exclusionary Zoning And Affordable Housing: State Law

Insert at end of A Note on Exclusionary Zoning Decisions in Other States on p 461:

The New York Supreme Court, Appellate Division, has held that new zoning restrictions, enacted pursuant to the comprehensive plan and two local laws, which eliminated the

multifamily (RM-1) zoning district, constituted exclusionary zoning In re Land Master

Montg I, LLC v Town of Montgomery, 862 N.Y.S.2d 292 (App Div 2008) See the trial

court case at 821 N.Y.S.2d 432 (N.Y 2006) for more details of the litigation.

A Pennsylvania appeals court has upheld a zoning ordinance's two-acre minimum lot restriction,

finding it rationally related to an open space purpose and, thus, was not invalid The challenge was brought under the curative amendment provisions in the Pennsylvania Municipalities

Planning Code (MPC) (53 P.S §§ 10609.1, 10916.1) and involved a community some 20 miles from Philadelphia The court noted that the MPC permits density restrictions, and no minimum

acreage requirement has been found to be per se unconstitutional The court applied a three-part

test used by the Pennsylvania courts in deciding whether an ordinance is exclusionary: (1) whether the community in question is a logical area for population growth and development; (2)

if the community is in the path of growth, the present level of development; and (3) if the

community is in the path of growth but is not already highly developed, whether the ordinance has the practical effect of unlawfully excluding the legitimate use in question Here the court record and the provisions of the ordinance itself did not support a finding that the ordinance was

exclusionary Keinath v Twp of Edgmont, 964 A.2d 458 (Pa Commw 2009).

Resources: For an examination using both qualitative and quantitative techniques of how

communities, through restrictive zoning policies, limit the supply of multifamily housing, a major source of affordable housing, see Knaap et al., Zoning as a Barrier to Multifamily Housing

Development, American Planning Ass’n Planning Advisory Serv Rep No 548 (2007), available

at http://www.huduser.org/Publications/pdf/zoning_MultifmlyDev.pdf; see also NAHB Research Center, Study of Subdivision Requirements as Regulatory Barrier (2007), available at

http://www.huduser.org/Publications/pdf/subdiv_report.pdf

3 Affordable Housing Legislation

Insert at p 463 after the first full paragraph.

An empirical study published by the Lincoln Institute of Land Policy, Ingram et al.,

Smart Growth Policies: An Evaluation of Programs and Outcomes (2007), available at

http://www.lincolninst.edu/pubs/smart-growth-policies.aspx, examined, among other areas, the impact of state smart growth programs on housing affordability for the period 1990-2000 The study compared Florida, New Jersey, Maryland and Oregon against Colorado, Indiana, Texas andVirginia The specific indicator for affordability (or its lack thereof) is the share of households in

a community whose housing cost burden exceeds 30% of household income, and how that share

xxxi

changed over the decade by each county (i.e., if the figure is 10% in 1990 and 15% in 2000, then the affordability problem is worsening) The study noted:

Statistical regressions were used to analyze the determinant of change in the shares of burdened owners and renters Smart growth programs were associated with increased shares

cost-of cost-burdened households Additional regressions that allowed each state to have an

independent effect found that the shares of the cost-burdened owners and renters increased the most in Oregon and the least in Texas But New Jersey and Florida—smart growth states that both require affordable housing elements in local plans—performed better than Oregon and Maryland, and better than Oregon, Maryland, Virginia, and Colorado for renters

Id

Insert at p 463.

1 New Jersey In 2008, the New Jersey legislature undertook a major overhaul of the 1985 Fair

Housing Act that created the administrative structure to manage the state’s affordable housing program The amendments eliminated the controversial regional contribution agreement (RCA), which had permitted a municipality to contract with another municipality to transfer (and pay for) up to 50% of its fair share of affordable housing Critics of the RCAs maintained that they

permitted wealthier communities to buy their way out of Mount Laurel obligations In addition,

the legislation established a statewide 2.5% nonresidential development fee to be used for

affordable housing purposes Another change was a requirement that 13% of a municipal fair share obligation be restricted to very low-income households (30% or less of median household income) The amendments establish a state housing commission and charge the commission with preparing an annual strategic housing plan for the state A set of special requirements apply

to areas of the state that are subject to comprehensive management plans (the Highlands,

Meadowlands, Pinelands and the Fort Monmouth area), where at least at least 20% of the

residential units constructed are to be reserved for low- and moderate-income households, “to the

extent this is economically feasible.” Public Laws of New Jersey, 2008, Ch 46, available at

http://www.njleg.state.nj.us/2008/Bills/PL08/46_.PDF

Apart from the legislation itself, the Council on Affordable Housing enacted new rules in 2008 for the third round of the program that established a growth share formula for the determination

of the individual municipal obligation Under the growth share formula, the municipal

obligation is tied to actual residential and nonresidential growth The rules, which revise

previously issued growth share ratios, update the affordable housing requirement for

municipalities based on the latest available data

Below is a summary of the major changes:

The use of a growth share approach is continued, with affordable housing need measured as a percentage of residential and non-residential growth from 2004 to 2018

xxxii

New ratios are 1 affordable unit among 5 units and 1 affordable unit for every 16 jobs

(previously ratios were 1 among 9 units and 1 for every 25 jobs)

New affordable housing need for the state is 115,000 affordable units (an increase from 52,000 units in previous adoption) The administrative rules establish payment in lieu standards (cost of constructing an affordable unit) averaging $161,000 per affordable unit N.J Admin Code §

5:96 (procedural rules), available at

http://www.state.nj.us/dca/affiliates/coah/regulations/thirdroundregs/596.pdf,

and N.J Admin Code § 5:97 (substantive rules), available at

http://www.state.nj.us/dca/affiliates/coah/regulations/thirdroundregs/597.pdf

The consultants’ reports that document the methodology behind these rules appear at N.J Admin

Code § 5:97—Appendix F, available at

http://www.state.nj.us/dca/affiliates/coah/regulations/thirdroundregs/597f.pdf

2 Other States—New Hampshire, New York, and Rhode Island In addition to the

comprehensive revision of the New Jersey Fair Housing Act, the year 2008 saw the enactment ofthree other state laws dealing with the planning and permitting of affordable housing A New Hampshire law requires municipalities that enact land use ordinances to provide “reasonable and realistic opportunities for the development of workforce housing, including rental multi-family

housing.” It states as its purpose the clarification the requirements of Britton v Town of Chester,

595 A.2d 492 (N.H 1991), an anti-exclusionary zoning decision interpreting the zoning

enabling act It defines “workforce housing” as “housing which is intended for sale and which isaffordable to a household with an income of no more than 100 percent of the median income for

a 4-person household for the metropolitan area or county in which the housing is located as published annually by the United States Department of Housing and Urban Development” (HUD) The term also “means rental housing which is affordable to a household with an income

of no more than 60 percent of the median income for a 3-person household for the metropolitan area or county in which the housing is located as published annually by HUD.”

The New Hampshire legislation contains a procedure by which developers of workforce housing can appeal, from the decision of a local land use board, denials of permits or approvals with conditions or restrictions that are alleged to have “a substantial adverse effect on the viability of the proposed workforce housing development.” The appeal is heard by the Superior Court, which may appoint a referee to oversee the case upon request by either of the parties The court

or referee can reverse the local decision or modify or waive the conditions or restrictions and canrequire that the municipality and developer negotiate in good faith to ensure that the project be

maintained as workforce housing for the long term N.J S.B 342—FN-Local, available at

http://www.gencourt.state.nh.us/legislation/2008/SB0342.html

New York’s legislation, which applies to Nassau and Suffolk Counties on Long Island, also addresses workforce housing Under this law, when a developer makes an application to a local government to build five or more residential units in those two counties, the local

government shall require one of the following in exchange for a density bonus of at least 10% or other incentives: (a) the set aside of at least 10% of those units for "affordable workforce

housing," defined as housing for individuals or families at or below 130% of Long Island's

xxxiii