Outline - Land Use

Downloaded From OutlineDepot.
com
LAND USE OUTLINE

Who are the players in Land Use?
1. Property owner
2. Lawyers
3. Experts
4. Planners
5. Engineers
6. Environmental consultants
7. Developmental regional impact
8. Local government decision makers (county commissioners and city council)
9. Water management district
10. Department of environmental protection
11. State and federal wildlife
Land use is both law and politics.
Delay is the surest way of denial.
1. THREE STANDARDS OF REVIEW

1) Strict Scrutiny:
(a) Under the strict scrutiny standard, the burden of persuasion is on the government
to prove that the measure being challenged is necessary to further a compelling
interest.
(b) The word "necessary" means that there is no less restrictive alternative means
available. There must be a very close "fit" between the means and the end.
(c) The government usually fails to prove its burden under strict scrutiny, so the
Equal Protection challenge to the law is generally a winning argument (i. e. the
law is presumptively invalid).
(d) Strict scrutiny review applies to:
(i. suspect classesrace, alienage, and national origin;
(ii. fundamental rights casesright to vote, right to travel, right to privacy; and
(iii.protected 1st Amendment rights.
2) Middle-tier or Intermediate Scrutiny:
(a) Under the middle-tier standard, the burden of persuasion is generally placed on
the government to prove that the measure being challenged is substantially related
to an important interest.
(b) The key term, "substantially related", means that an exceedingly persuasive
justification must be shown.
(c) Middle-tier scrutiny is much closer to strict scrutiny than it is to rational basis.
(d) Intermediate scrutiny applies to classifications based on the following quasisuspect areas:
(i. Gender
(ii. Illegitimacy;
Downloaded From OutlineDepot.com
(iii.Regulation of free speech.

3) Rational Basis Scrutiny:
(a) Under the rational basis standard of review, the burden of persuasion is on the
plaintiff to show the measure being challenged is not rationally related to any
legitimate interest.
(b) Rational relationship is a minimal requirement which means that the law cannot
be arbitrary or unreasonable.
(c) Practically any police power regulation which furthers a health, safety, or welfare
purpose will be found "legitimate". For this reason, laws scrutinized under
rational basis are almost always upheld.
(d) From the plaintiff's standpoint rational basis is traditionally a default test (i.e. an
equal protection challenge under rational basis is generally a losing argument).
(e) Rational basis review applies to all classifications not falling under strict or
intermediate scrutiny, namely such classifications as those based on:
(i. Age
(ii. Poverty
(iii.Wealth
(iv. Mental retardation
(v. Necessities of life (food, shelter, clothing, medical care), and
(vi. Social and economic welfare measures.
INTRODUCTION: ZONING AND THE LAW OF NUISANCE
CHAPTER 1 SETTING THE STAGE: THE PLANNED ENVIRONMENT
A. Introduction and Historical Overview
1. Land use deals with the way in which we plan how, when, what, and where land
development will occur.
2. Land use regulations affect constitutional rights (i.e. property rights).
3. Usually courts give deference to the rules made by the legislature and will not get
involve unless there is an abuse of power.
B. Nuisance as a Land Use Control Device
1. Nuisance law is also sometimes referred to as judicial zoning, available when
legislative controls are absent.
2. Nuisance An unreasonable interference with the use or enjoyment of land. A
condition or situation that interferes with the use or enjoyment of the property.
3. Bove v. Donner-Hanna Coke Corporation
i. Facts: Bove (P) suffered health problems as a result of Donner-Hanna
Coke Corporations (Donner-Hanna) industrial pollution and appealed to
the court to have its coke plant declared a private nuisance.
ii. BLR: Pollution causing industrial operations do not have to be
interrupted or curtailed, even if they result in irritation and discomfort to
another, when the complaining party builds residence in an area that was
already industrialized.
4. To determine whether a nuisance exists, the restatement (second) of torts, sec.

827 and 828, weighs the gravity of the harm to the plaintiff against the utility of
the defendants use.
i. Analysis of the Plaintiff harm:
1. The character of the harm
2. The social value of the use invaded
3. The suitability of that use to the character of the area
ii. Analysis of the Defendants Utility.
1. The social value of the use
2. The impracticability of avoiding the harmful invasion
3. The suitability of the use in the area.
5. Nuisance can be private or public; per se (at law) or per accidens (in fact).
i. Private Nuisance A condition that interferes with a persons enjoyment
of property, but does not involve trespass. Standing rules are more
stringent for public nuisances, but injunctive relief is more likely to be
granted in a public nuisance case. (barking dog)
ii. Public Nuisance An unreasonable interference with a right common to
the general public, such as a condition dangerous to health, offensive to
community moral standards, or unlawfully obstructing the public in the
free use of public property.
iii. Nuisance Per Se (at law) An action, occupation, or building that is a
nuisance at any time and under any condition. A conduct that is a
nuisance itself (the sale of illegal drugs or prostitution house.)
iv. Per Accidens (in fact) A lawful conduct that is wrongful because of the
particular circumstances of the case. (barking dog)
C. The Rise of Planning and Zoning
1. In part due to shortcomings of nuisance law (since it brought problems to the
courts after the fact), the late nineteenth and early twentieth centuries witnessed a
surge in legislative activity to regulate specific problems such as overcrowding,
fire prevention, and safety. Zoning regulations avoided problems from the
beginning.
2. Hadacheck v. Sebastian (USSC 1915)
i. Facts: Hadacheck (P) was convicted of violating a Los Angeles city
ordinance prohibiting operation of a brickyard in a certain district of the
city.
ii. BLR: Regulation of a use for property is not an arbitrary use of police
power even if the use precedes the regulation, the use is not a nuisance per
se, and the regulation is not an absolute prohibition (since he could still
remove brick clay.).
iii. Holding for the city.
iv. Police Power The power of a government to impose restrictions on the
rights of private persons, as long as those restrictions are reasonably
related to the promotion and protection of public health, safety, morals,
and the general welfare.
CHAPTER 2 ZONING: CLASSIC TO CONTEMPORARY
A- Local Zoning: The Classics

1. The Classic Cases these cases upheld the constitutionality of Zoning.
i. Village of Euclid. Ohio v. Ambler Realty Co. (USSC 1926)
1. Facts: The Village of Euclid (D) zoned property of Ambler Realty
Co. (P) in a manner that materially reduced the propertys potential
value.
2. BLR: A zoning ordinance, as a valid exercise of the police power,
will be declared unconstitutional only when its provision are
clearly arbitrary and unreasonable, having no substantial
relation to the public health, safety, morals, or general welfare.
3. Holding: Judgment for Euclid.
4. Note: This is also known as Euclidian Zoning, which consists in
the division of areas into zones, in which building use, height, and
area are regulated in a manner designed to guarantee homogeneity
of building patterns.
5. Zoning Ordinance A statute that divides land into defined areas
and which regulates the form and use of buildings and structures
within those areas.
6. Note: Euclid did not foreclose the possibility that government land
use regulations may constitute a taking which requires
compensation.
7. Pennsylvania Coal Co. v. Mahon (Page 308, 1922) the USSC
held that an anti-mining restriction which totally destroy the
interest of a party who owned only the mineral rights constituted a
taking as to that person which had to be compensated.
ii. Nectow v. City of Cambridge (USSC 1928)
1. Facts: The City of Cambridge (D) restricted a portion of Nectows
(P) land for residential use only.
2. BLR: A zoning ordinance, as applied, must bear a substantial
relation to the public health, safety, morals, or general welfare in
order to be constitutional.
3. Holding for Nectow.
2. Classic Zoning Enabling Legislation
i. The US Dept of Commerce issued the Standard State Zoning Enabling
Act (SZEA) in 1926.
ii. According to the SZEA, zoning must be done in accordance with a
comprehensive plan. very important
iii. Udell v. Haas
1. Facts: The Village of Lake Success (D) passed an ordinance
changing a commercial zone to a residential zone shortly after
receiving a proposal from developer Udell (P) to expand
commercial activity in the area.
2. BLR: Zoning ordinances must (1) be accomplished in a proper,
careful and reasonable manner; (2) conform to an entitys general
developmental policy; and (3) be consistent with the

fundamental rationale of the entitys zonings law and map.
3. Holding for Udell.
B- Zoning Districts
1. A local zoning ordinance consists of two parts: Text and Map.
i. On the map the various use districts are delineated, usually in three
general categories: residential, commercial, and industrial.
ii. The text is divided into four parts: (1) zoning district standards, (2)
provisions for change (amendments and variances), (3) nonconformities,
and (4) definitions.
iii. A basic list of zoning districts. R for residential; C for commercial; I for
industrial; O&R for Office and Research; P for Public uses and
Universities; O for Parks and Open Space; and A for agriculture. (Page
49)
2. Uses and Use Districts.
i. Compatibility of uses in Zoning districts has been a major issue since
Euclid.
ii. Pierro v. Baxendale
1. Facts: Palisades Park (D) sought to prevent a property owner (P)
from building a motel because it claimed the motel violated the
zoning regulations.
2. BLR: Zoning classifications are valid as long as they are based
upon reasonable grounds.
3. Holding for Palisades Park.
iii. Manalapan Realty, L.P. v. Township Committee of the Township of
Manalapan (SC NJ 1994)
1. Facts: Manalapan Realty, LP (P) the owner of a shopping center
where a Home Depot store was to open, challenged the validity of
a zoning ordinance prohibiting retail stores selling lumber or
building materials from regional commercial shopping centers.
2. BLR: A zoning ordinance prohibiting certain uses in a zoning
district is presumed valid if a rational basis exists for the
prohibition of such uses and if the definition of the prohibited uses
is not overbroad.
3. Holding for the Township (D).
3. Home Occupations and Accessory Uses
i. Home occupations describe the type of occupations that are allowed to be
performed in ones home, according to the zoning laws.
ii. Accessory Uses are accessory activities that are necessary or convenient
to principal listed uses that are allowed per the zoning laws. For example,
a self-service gasoline pump as accessory to a convenient store in a
commercial zone, a day care center as accessory to a religious or
institutional use, and recreational uses (i.e. tennis courts or swimming
pools) as accessory to residential uses.
iii. The uses are limited by limiting occupancy to persons who are related to
the owners of the principal unit by blood, marriage, or adoption.
4. Height and Bulk Controls, Far, and Form-Based Zoning.

i. Euclidean zoning controls building height and bulk by establishing
setbacks, minimum lot size, lot coverage limitations, and permissible floor
to area ratios.
1. Bulk Control Example, minimum lot size requirement of 1
house per acre.
2. FAR Floor to area ratio.
ii. Rumson Estates, Inc. v. Mayor & Council of the Borough of Fair
Haven. (SC NJ 2003)
1. Facts: Rumson Estates, Rand Associates, and Ferraro Builders (P)
sought to invalidate zoning ordinances enacted by the County (D).
2. BLR1: A municipality may enact a zoning ordinance that alters
the non-mandatory definitions in the Municipal Land Use Law
(MLUL)
3. BLR2: A municipality may enact a zoning ordinance that makes
reasonable classifications within a zoning district as long as
similarly situated property receives the same treatment, without
violating uniformity standards.
4. Holding for D
5. Overlay Zones (or District) - definition
i. An overlay zone is a zone or district created by the local legislature for
the purpose of conserving natural resources or promoting certain types of
development. Overlay zones are imposed over existing zoning districts
and contain provisions that are applicable in addition to those contained in
the zoning law.
ii. It is also an area designated as historic or worthy of conservation under
local authority. Overlay zones have reference to the underlying zoning,
which restricts development and use of properties. A historic or
conservation overlay recognizes and conforms to zoning, but may be more
restrictive than the underlying zoning.
6. Buffer Zones comes from the zoning pyramid so popular after Euclid decrees that
zoning extremes should be separated one from the other, if not by natural features
(rivers and streams) or surface infrastructure (highways) then perhaps by
intervening medium intensity zones.
7. Performance Zoning
i. Performance or impact zoning establishes criteria to measure a land
uses spillover effects onto neighbors. In theory, it is an alternative to use
zoning, but in practice, it serves as a supplement to, rather than a substitute
for, use zoning.
ii. Establishes minimum criteria to be used when assessing whether a
particular project is appropriate for a certain area; ensures that the end
result adheres to an acceptable level of performance or compatibility. This
type of zoning provides flexibility with the well-defined goals and rules
found in conventional zoning.
C- Zoning Administration
With an ordinance zoning ordinance in place, the focus of the process is typically directed
toward efforts to acquire development permission. However, due to constant changes in
the use of land, applications to zoning changes became the norm.
For the one seeking the change the question is what avenue to follow? An amendment,
a special use permit, or a variance?
For the neighbors the question is how to prevent the change from being made?
For the government the question is (1) whether the request is in accord with the plan,
(2) how to accommodate the request for change while protecting the neighbors from
undue harm, and (3) how to assess the impact of the project infrastructure.
1. Zoning Amendments
i. A Zoning Amendment is a legislative act for the good of the community,
regardless of the advantages or disadvantages to the owner and neighbors
of the property affected by the amendment.
ii. Bartram v. Zoning Commission of City of Bridgeport (SC
Connecticut, 1949)
1. Facts: The zoning commission of the city of Bridgeport (D)
approved rezoning for limited commercial use because of its policy
to decentralize business.
2. BLR: Where rezoning is based on an exercise of discretion that
the change would benefit the entire community, it is valid.
3. Holding for D
4. Spot Zoning - The practice of applying zoning ordinances or
bylaws to specific properties when neighboring lands may be
under a different classification.
2. Floating Zones and Quasi-Judicial Decisions
i. A Floating Zone is initially created as a text amendment providing for
certain uses if specified criteria are met. Then, at a later date, typically
upon the application of a landowner for a map amendment, a specific tract
is rezoned for the prior unmapped use.
1. Example, in order to encourage affordable housing, the
government will allow a mobile home park, but will not say where
they are and will mention it only on paper. The owner will have to
apply for a permit, and the government will approve it or not.
ii. Fasano (property owners) v. Board of County Commissioners of
Washington County (SC Oregon 1973) V.I. Page 90
1. Facts: The board of county commissioners of Washington County
(D) alleged that its decision to authorize rezoning of residential to
mobile home park usage was a presumptively valid legislative act.
2. BLR:
a. Decisions made as to zoning restriction on specific places
of property are judicial in nature (versus legislative in
nature requiring judicial deference) and
b. the party seeking the change bears the burden of proving

that it is in accordance with the comprehensive plan.
3. Holding for P
4. NOTES:
a. It is the nature of the proceedings, and not who is making
the decision, that defines whether the decision is judicial or
legislative in nature.
b. When the comprehensive plan is applied it is judicial
because it affects the entire County. However, when the
comp plan is applied to a, say, a 5-acre lot, it is legislative
in nature.
5. VERY IMPORTANT MAKE SURE TO BE ABLE TO
WRITE A STEP BY STEP PROCEDURE FOR JUDICIAL
VS. LEGISLATIVE.
3. Special Uses, Conditional Uses and Exceptions
i. Gorham (P) v. Town of Cape Elizabeth (D)
1. Facts: The local zoning board rejected Gorhams (P) application
to convert his single family residence to a multi-unit dwelling.
2. BLR: The maintenance of property values is a legitimate interest
served by zoning restrictions and comports with the due process
requirement that it bear a reasonable relationship to the public
health, safety, morals, or general welfare.
3. Special Use Permits are discretionary in nature and may allow,
among other things, the placement of a church or a day care center
in a residential area. It is difficult to challenge a refusal to grant
special use permits since they are discretionary.
4. Holding for D
4. Contract and Conditional Zoning
i. Contract Zoning
1. Contract Zoning Definition - In the classic contract-zoning
situation, the local government and the landowner enter into a
written agreement (sometimes recorded as a deed restriction) that
if the government rezones the property to a specified new zoning
district, the owner will carry out a particular use and accept
specified limits or conditions on that use.
2. Cederberg (P) v. City of Rockford (App ct Illinois, 1972)
a. Facts: The city of Rockford (D) passed an ordinance
rezoning certain property from residential to business on
the condition that the landowner execute a restrictive
covenant limiting the business uses permitted on the land.
b. BLR: Zoning ordinances may not be subject to bargaining
or contract.
c. Holding for P
ii. Conditional Zoning
1. Conditional Zoning Explained - Conditional-use-district zoning
is not contract zoning per se because a promise is unilateral (the
owner offers to use the property according to a subsequently issued

conditional use permit; the local government makes no reciprocal
promise), and the governing board retains its independent
judgment because it has not make a reciprocal promise.
2. Conditional Zoning definition The rezoning of property
whereby the owner is subjected to specified conditions in order to
receive the benefit of the rezoning.
3. Goffinet v. County of Christian (SC Illinois 1976)
a. Facts: A manufacturer of natural gas petitioned the zoning
court of appeals of Christian County (D) to rezone land
from agricultural use to heavy industrial use.
b. BLR: Placing restrictions upon certain properties that do
not apply to other tracts in the same zoning classification is
not invalid conditional zoning where (1) the conditions set
forth do not constitute an abrupt departure from the
comprehensive zoning plan, (2) no hardship or decline in
property values would be borne by neighboring
landowners, and (3) the general welfare, safety, and health
would be served.
c. Holding for D
D- The Variance
1. Variance definition (also called a variation or a special exemption)
Exemption from the application of zoning laws.
2. Topanga Association for a scenic community (P) v. County of Los Angeles (D)
(SC Ca. 1974)
i. Facts: The Los Angeles County Regional Planning Commission (D)
granted to the Topanga Canyon Investment Company a variance to the
local zoning ordinance to establish a mobile home park.
ii. BLR: Rulings to grant a variance must include facts sufficient to satisfy
the variance requirements of state and local law.
iii. Holding for P
E- Non-Conformities
1. A nonconformity is what happens when the initial imposition of a zoning
ordinance in an established community causes some existing structures and uses
to no longer be permitted in the new use district in which they find themselves.
2. City of Los Angeles v. Gage (Ct appeals Ca. 1954)
i. Facts: Gage (D) owned and maintained a plumbing business on adjacent
lots. He challenged a new zoning ordinance that would compel him to
terminate his business at the current location within a specified period of
time.
ii. BLR: A zoning ordinance that eliminates existing nonconforming uses by
setting forth a reasonable amount of time to allow the owner of the
nonconforming use to make new plans is a constitutional exercise of the
police power.
iii. Holding for D
F- Vested Rights
1. Definition The point at which a developer-landowner has proceeded sufficiently

far enough with a project so that his right to proceed is vested (authorized).
2. Definition Rights in pension or other retirement benefits that are attained when
the employee satisfy the minimum requirements necessary in order to be entitled
to the receipt of such benefits in the future.
3. Avco Community Developers, Inc. (P) v. South Coast Regional Commission
(D) (SC CA, 1976)
i. Facts: Avco Community Developers, Inc. (P) had begun to develop a
large parcel of land that became subject to a newly enacted zoning
regulation.
ii. BLR: A developer of a subdivision who has subdivided, graded, and
made certain improvements on the land but has not applied for or received
a building permit for any structures on the land cannot acquire a vested
right to build.
iii. Holding for D
4. County of Kauai (P) v. Pacific Standard Life Insurance Co. (D)
i. Facts: D applied for a permit to build a resort and condominiums on its
property shortly before the citizens of the area passed a referendum
overturning the ordinance that had zoned the parcel for resorts.
ii. BLR: Approvals or permits for a proposed development issued after
certification of a referendum to repeal a zoning ordinance, but before
termination of the referendum procedure, may not be relied upon.
iii. Holding for P
iv. Equitable Estoppel a doctrine that precludes a person from asserting a
right to which he or she was entitled due to his or her actions, conduct or
failing to act, causing another party to justifiably rely on such conduct to
his or her detriment.
5. Notes:
i. Zoning Estoppel When a property owner in good faith, upon some act
or omission of the government, has made such a substantial change in
position or has incurred such extensive obligations and expenses that it
would be highly inequitable and unjust to destroy the right he acquired.
1. A vested right usually requires a valid building permit, or its
functional equivalent.
ii. Factors the courts look at when balancing the public and the private
interests with regards to vesting rights.
1. Existing uses and zoning of nearby properties
2. Extent to which the desired nonconformity will diminish property
values
3. Extent to which destruction of plaintiffs property value promotes
the public health, safety, morals, or general welfare.
4. Relative gain to the public compared to hardship imposed on
property owner
5. Suitability of the property for zoned purposes
6. Length of time the property has been vacant under present zoning.
G- Development Agreements V.I.
1. Definition - Development agreements are contracts negotiated between project

proponents and public agencies that govern the land uses that may be allowed in a
particular project. Although subject to negotiation, allowable land uses must be
consistent with the local planning policies formulated by the legislative body
through its general plan, and consistent with any applicable specific plan.
2. Santa Margarita Area Residents Together (P) v. County of San Luis Obispo
(D) (CA. ct. app. 2000)
i. Facts: P sought to invalidate an agreement between D and a developer,
Santa Margarita Limited, the real party in interest.
ii. BLR1: The development agreement statute authorizes the creation and
execution of development agreements that cover only the planning stage
of a real estate development, before buildings or other structures have
been designed or approved.
iii. BLR2: A zoning freeze in an agreement does not unconstitutionally
contract away police powers.
1. The freeze is usually about density.
2. A development agreement is a legislative act.
iv. Holding for D
H- Planned Unit Development (PUD or PD)
1. Definition (Book) The precise planning of a development, usually in whole or
in part residential, as a unit on one parcel of land. A PUD works as a flexible
but detailed zoning device, either legislatively by rezoning to a floating zone or
administratively through a special or conditional use.
2. Definition Colorado Statute An area of land, controlled by one or more
landowners, to be developed under unified control or unified plan of development
for a number of dwelling units, commercial, educational, recreational, or
industrial uses, or any combination of the foregoing, the plan for which does not
correspond in lot size, bulk, or type of use, density, lot coverage, open space, or
other restriction to the existing land use regulation.
3. What is a PUD? (wikipedia)
i. Planned Unit Development is a means of land regulation which promotes
large scale, unified land development by means of mid-range, realistic
programs in chase of physically-curable, social and economic deficiencies
in land and cityscapes. Where appropriate, this development control
promotes:
1. A mixture of both land uses and dwelling types with at least one of
the nonresidential land uses being regional in nature
2. The clustering of residential land uses providing public and
common open space
3. Increased administrative discretion to a local professional planning
staff while setting aside present land use regulations and rigid plat
approval processes
4. The enhancement of the bargaining process between the developer
and government municipalities which in turn strengthens the
municipalitys site plan review and control over development for
potentially increased profits due to land efficiency, multiple land

uses, and increased residential densities.
ii. Frequently, PUDs take on a variety of forms ranging from small cluster of
houses combined with open spaces to new and developing towns with
thousands of residents and various land uses. However, the definition of a
PUD does not take into consideration these types of developments unless
they fit into a category of size ranging from 100 acres to 2,500 acres.
4. Evan (P) v. Teton County (D) (SC Idaho 2003)
i. Facts: P filed a petition for judicial review of the county board of
commissioners approval of a large PUD proposed by Teton Springs.
ii. BLR1: When the language of a zoning statute governing PUD is
ambiguous, the decision of local government agencies concerning zoning
are presumed valid and the agencies have discretion to make reasonable
zoning classifications and definitions.
iii. BLR2: Comprehensive plan are not zoning ordinances and do not provide
a legal basis for zoning decisions.
iv. BLR3: A legislative body may adopt Findings of Fact and Conclusions
issued by another agency.
v. Holding for D
Chapter 3 - Subdivision Controls and Infrastructure Financing
A- Introduction: Hard Choices
1. National Model Subdivision Regulations: Planning & Law
a. The history of Subdivision Regulations
b. Four periods of changing development regulations
c. One trend in land use control is to require consistency between specific
subdivision and site plan land use decisions and the comprehensive or master
plan for the community.
d. The final trend has been to simplify the presently complex and time
consuming land use approval process through the adoption of Unified
Development Codes, merging zones, subdivision, and site plan improvement
standards.
e. Case law and state statutes are promoting simplified development approval
processes and greater vesting of rights at the time of development approval
application.
2. Unified Development Ordinances: A Coordinated Approach to Development
Regulations
a. A Unified Development Ordinance (UDO) is generally defined as a single
land-use ordinance that combines the provisions usually found within a
jurisdictions zoning code and subdivision regulations.
b. The UDO typically incorporates other development-related regulations that
jurisdictions traditionally maintained as freestanding ordinances, such as sign
regulations, design standards, and floodplain ordinances.
B- Subdivision Controls
1. Antiquated Subdivisions (a.k.a paper subdivisions)
a. Gardner v. County of Sonoma (SC CA 2003)

i. Facts: Based on an 1865 map, Gardner (P) sought certification of 12
parcels of land under the Subdivision Map Act. Ps petition was
denied and he appealed.
ii. BLR: Without the clear creation of individual parcels, subdivisions
shown on maps recorded before the enactment of a comprehensive
regulatory scheme are not valid.
iii. Holding: Affirmed.
iv. Anti-Merger Legislation Anti-merger provisions are designed to
prevent new zoning regulations increasing the lot size of subdivision
lots from applying to prior approved subdivisions.
2. The Planning Context
a. Under the authority of the Standard City Planning Enabling Act (SPEA),
the planning commission regulates subdivision approval.
i. DRC in Orange County?
b. Notes:
i. Local Government: When a local government regulates subdivision
development, it must act pursuant to, and in the manner prescribed by,
state law.
ii. Extraterritorial Subdivision Review: A state statute may authorize a
municipality to reject a preliminary plat under its extraterritorial
jurisdictional authority based upon a subdivision ordinance that
considers the plats proposed use.
iii. Extraterritorial Zoning Authority is the authority granted to some
local government to regulate portions of land that are not initially
under its original jurisdiction. For example, a city may be granted the
sole authority to regulate a one mile area surrounding the city. This is
also known as perimeter zoning. For more information click here.
3. Authority to Regulate: Privilege & Police Power Theories
a. Privilege Theory Owner of a subdivision voluntarily dedicates sufficient
land for streets in return for the advantage and privilege of having the plat
recorded. Under the privilege theory, the law gives him the right to have it
recorded.
b. Police Power is serves as the authority to regulate the subdivision of land.
4. When Subdivision Controls are Activated
a. In order for a local governments subdivision controls to be activated, a
subdivision of land must be contemplated by an owner or developer.
b. The definition of subdivision is not clear and varies by jurisdiction.
c. According to wikipedia, a Subdivision is the act of dividing land into pieces
that are easier to sell or otherwise develop, usually via a plat.
C- SUBDIVISION APPROVAL PROCESS V.I.
1. Sketch Plat The sketch plat is essentially a rough design map of the proposed
subdivision to alert the reviewing agency and concerned citizens to any potential
problems.
2. Preliminary Plat This is the first formal step of subdivision approval. The
preliminary plat shows the detailed plan of the subdivision.
3. Final Plat After preliminary approval, the developer post its bond, prepares the
dedication and final map, and submits it for approval.
a. Youngblood (P) v. Board of Supervisors of San Diego County (D)
i. Facts: The Board of Supervisors (D) approved a tentative subdivision
map, but by the time it approved the final subdivision map, it did not
conform to the existing general plan. P sued and the court ruled for D.
ii. BLR: Planning boards should judge tentative maps for subdivisions
against the conditions existing at the time.
iii. Holding for D - Affirmed.
iv. PN: The board approved the final plan
4. Notes:
a. The Youngblood case establishes the principles that the approval of the
preliminary plat, for all intents and purposes, vests the subdivision through to
final approval and recordation.
b. Effect of Vested Rights Statutes Texas also protects development
applications from subsequent zoning or subdivision regulation changes, by
entitling them to the law as it exists as the time the first application is
submitted.
c. Administrative Costs The developer is required to pay for the
administrative cost incurred in reviewing subdivision applications.
d. Procedural Due Process The extent of due process rights that must be
afforded to interested parties at the time of subdivision approval depends on
the purpose of the hearing.
e. Judicial Review of Final Subdivision Determinations Courts will go to
great lengths before intervening in a subdivision dispute if a property owner
has not exhausted all administrative remedies available.
D- Requirements for Internal Subdivision Improvements
1. On Site Improvements
a. Brous (P) v. Smith (D)
i. Facts: P applied to the local Building and Zoning Inspector (D) to
build on his property, but the inspector refused to issue a permit unless
P constructed roads giving access to the proposed residences. P
appealed to the trail court, but his case was dismissed.
ii. BLR: Where adequate roads have not been constructed at the time of
subdivision, the builder must lay such streets and highways as
necessary to render his dwellings accessible before he may obtain a
building permit.
iii. Holding: for D.
2. Ensuring Completion
a. The planning commission has the authority to require the subdivider to install
all of the required public improvement before a subdivision plan is finally
approved and recorded.
b. Final Subdivision plat approval may be granted prior to completion of
improvements, which take the form of requiring the subdivider to post some
type of security for its promise to complete improvements following final plat
approval (i.e. corporate surety bond).
E- Official Map
1. A local government may use the official map (often referred to as the corridor map)
for land that is needed to build or widen transportation facilities.
2. Palm Beach County (D) v. Wright (P) (FL SC 1994)
a. Facts: Wright (P), a landowner, claimed that a map reserving land for future
road development as part of Palm Beach Countys (D) Comprehensive
development plan was facially unconstitutional as a taking. The lower court
ruled for P.
b. BLR: Whether the filing of a map of reservation results in a taking of
particular property depends upon whether its effect is to deny the owner of
substantially all of the economically beneficial or productive use of the land.
c. Holding: Quashed Decision for D.
3. Notes: If compliance with the official map regulations will not leave the landowner a
reasonable use, then either the city must condemn and pay compensation or a
variance must be granted to the landowner.
F- Financing of Capital Facilities Generated by New Development
1. Introduction: New development creates a need for capital facilities, and numerous
techniques are employed to make those who create these needs pay for them.
2. Exactions: Reasonably related, uniquely attributable, nexus and
proportionality: The Constitutional Quadruplets
a. Subdivision Exaction dictionary definition A fee, reward, or other
compensation arbitrarily or wrongfully demanded. In the book, it means an
amount of land demanded by the governmental agency for roads or
improvements in exchange of allowing the development of the land.
b. When exactions falter it is usually for the reason that express statutory
authority is missing.
c. In the constitutional realm, the courts have used Three tests to determine the
validity of exactions and Impact Fees:
i. The specifically and uniquely attributable test (in other words, that
the needed improvements (i.e. roads) are uniquely attributable to the
development). It requires that the burden placed on a developer must
be directly and uniquely attributable to that development.
ii. The reasonable relationship test Requires that there be a
reasonable connection between the burden placed on the developer and
the needs generated by that development.
iii. The rational nexus (connection or bond) test. requires that there
must be proportionality between the amount of the fee and the type
and amount of facilities demand generated by the development and
that there must be a reasonable connection between the use of the fees
and the benefits accruing to the new development.
iv. A proportionality requirement (added by the USSC)
d. Nollan (P) v. California Coastal Commission (D)
i. Facts: D conditioned a building permit on the owners granting of a
public beach access easement. P sued and the trial court ruled for P.
The appeals court reversed and P appealed.
ii. BLR: A state may not condition a property use permit on an act
unrelated to the problem caused by the permitted use.
iii. Holding for P Reversed.
e. Dolan (P) v. City of Tigard (D)
i. Facts: P claimed that D had not established a sufficient nexus between
the conditions it set on granting a city permit and the proposed
development. The Oregon SC ruled for D and P appealed.
ii. BLR: A city may require a property owner to dedicate private
property for future public use when the required dedication is
roughly proportional both in nature and extent to the impact of the
proposed use.
iii. Holding for P; reverse and remanded.
f. Two principal formulas have been used by communities to determine the
amount of land that is required from the developer:
i. A fixed percentage of the total amount of land in the subdivision, and
ii. The money in lieu of the land, especially when the subdivision is
small. The amount of money is calculated by (1) the assessed or fair
market value of the land or percentage thereof, (2) a fixed dollar
amount per lot or dwelling unit, and (3) a variable amount of the fair
market value based on the density of the subdivision.
iii. Nollan and Dolan establish a form of heightened scrutiny for
regulations that constitute physical exactions.
3. Impact Fees and Assessments
a. Definition (wikipedia) - An impact fee is a fee most commonly assessed on
the construction of new buildings within a jurisdiction. The purpose is to pay
for expansion of new government buildings such as fire stations, police
stations, sewer and water supply systems, parks, libraries, and other
government agencies and services.
i. They can only be used for capital costs, not maintenance.
b. Taxes, Fees, and Assessement
i. Taxes are uniformly applied vased on the value of the property. You
do not have to show a particular benefit to the property that is taxed.
They are for the good of everybody. They become a lien on the
property.
ii. Impact Fees are only to cover the cost of improvement (capital cost)
that the new development is creating, but cannot be used for
maintenance. Examples of impact fees are water, roads, wastewater,
parks, fire, law enforcement, schools. ERU Equivalent Residential
Unit. If you charge more than you should, then it is a fee, and is not
legal. For a road, the study has to determine the amount of the
deficiency, and thats what the new development has to pay.
iii. Assessments are the cost of capital cost to serve a number of limited
owners. For example, lets say that 10 owners want a road to be
paved. The county will build the road and will bill them on their taxes
until the bill is paid. i.e. MSTU Municipal Service Tax Unit.
MSBU Municipal Service Benefit Unit It applies only to one

property.
c. Volusia County (D) v. Aberdeen at Ormond Beach, L.P. (P) (FL SC 2000)
i. Facts: P owns an age restricted mobile home park and paid public
school impact fees required by Volusia County (D). P sued D to
challenge the constitutionality of fees assessed on new homes
constructed by P.
ii. BLR: Public school impact fees are unconstitutional when assessed
against new construction in an age restricted community that neither
(1) contributes to the need for additional schools nor (2) benefits from
their construction. The court granted P summary judgment and D
appealed.
a. The constitutionality of impact fees is determined by the
dual rational nexus test, which requires the County to show
reasonable connections between:
i. The need for funds and population growth in the
subdivision, and
ii. The expenditure of the funds and the actual benefits to
the subdivision.
iii. Holding for P; affirmed.
d. Note 4 Page 268 Very Important
i. The use of impact fees is expanding throughout the country, and the
adoption of state impact fee enabling legislation has grown in
response.
ii. The local governments want the greatest flexibility in using the impact
fees and the developers wants the greatest restrictions on the use and
application of impact fees.
iii. In the constitutional realm, the courts have used Three tests to
determine the validity of exactions and Impact Fees:
a. The specifically and uniquely attributable test - It requires
that the burden placed on a developer must be directly and
uniquely attributable to that development.
b. The reasonable relationship test Requires that there be a
reasonable connection between the burden placed on the
developer and the needs generated by that development.
c. The rational nexus (connection or bond) test. requires that
there must be proportionality between the amount of the fee
and the type and amount of facilities demand generated by the
development and that there must be a reasonable connection
between the use of the fees and the benefits accruing to the new
development.
iv. Six Factors to determine the reasonableness of an impact fee.
a. Spatial (distance between the development and facilities)
b. Temporal (time between the impact fee and the construction of
facilities)
c. Amount (The amount v. the cost of the facilities)
d. Need (The burden created v. the increased facility need)

e. Benefit (how will the facility satisfy the need created)
f. Earmarking (assurance that the impact fee will be used only
for capital facilities and not maintenance or other things.)
e. Look at page 270, note 7, 8, and 9.
Chapter 4
CONSTITUTIONAL LIMITS ON LAND USE CONTROL
A. Class Notes:
1. Eminent Domain
i. In Florida, the process is statutory quick take
ii. The BCC creates a resolution that the property is needed for public use.
iii. A Lawsuit is filed and is divided in two.
iv. The order of taking (quick take) requires the government to prove necessity,
good faith appraisal, and good faith negotiation.
v. Value Trial jury trial
vi. If you do a slow take, you wait until the value of the property is settled before
the government is granted the property.
2. Inverse Condemnation
i. Done when the government takes property without paying for it.
3. The Regulatory Takings Doctrine is the idea that a police power regulation could, if
excessive, be declared by a court to be a fifth amendment taking.
B. Introduction
1. Though the USSC has endorsed the ability of state and local government to solve
problems through the use of a flexible police power, it has also increased federal
constitutional protections of private property.
2. In other areas where the USSC has found federal constitutional protection to be more
limited, state courts increasingly have turned to state constitutional provisions to
protect persons from intrusive land use regulations.
C. Takings
1. Introduction:
i. Taking (definition) A governmental action that substantially deprives an
owner of the use and enjoyment of his property, requiring compensation.
ii. Based on the 5th amendment that state nor shall private property be taken for
public use, without just compensation.
iii. Historically, only physical invasions were regarded as compensable under the
5th amendments taking clause, but the law gradually evolved to require
compensation for non-trespassory invasions as well.
2. Public Use
i. Although early state court decisions required actual use by the public in order
to satisfy the constitutional requirement, later decisions often found it satisfied
if the condemnation resulted in some public benefit.
ii. Hawaii Housing Authority (D) v. Midkiff (P) (USSC 1984)
a. Facts: The Hawaii legislature enacted a statutory framework
condemning large estates and transferring the land to tenants. P sued
and the district court refused to enjoin the State, and the court of
appeals reversed.
b. BLR: To remedy excessive concentration of land ownership, a state
may condemn large estates and transfer title to tenants.
c. Holding for D reversed and remanded.
iii. Note: Inverse condemnation is a cause of action against a governmental
defendant to recover the value of property which has been taken in fact by the
governmental defendant, even though no formal exercise of the power of
eminent domain has been attempted by the taking agency.
3. Physical Invasion
i. Introduction: The right to exclude is one of the most essential sticks in the
bundle of rights that are commonly characterized as property.
ii. Loretto (P) v. Teleprompter Manhattan CATV Corp. (D) (USSC 1982)
a. Facts: D cable installation occupied portions of Lorettos (P) roof and
the side of her building. P sued for injunctive relief and compensation,
and the state court ruled for D. P appeals.
b. BLR: A permanent physical occupation of property, no matter what
the size, is a taking regardless of whether the action achieves an
important public benefit or has only minimal economic impact on the
owner.
c. Holding for P reversed and remanded.
4. Non-Trespassory Invasions
i. Courts commonly recognize numerous landowners interests as property within
the meaning of the 5th amendment and find takings when there are nontrespassory, governmental invasions. Examples, interference with riparian
rights, easements, overflights, and lateral support may lead to a claim for
compensation.
ii. However, when one suffers harm from nuisance-like activity by the
government, but there is no physical invasion, there may be no taking.
5. Regulatory Impacts as Takings
i. The Regulatory Takings Doctrine is the idea that a police power regulation
could, if excessive, be declared by a court to be a fifth amendment taking.
ii. The USSC has been unable to develop any set formula for determining
regulatory cases.
iii. Pennsylvania Coal Co. (P) v. Mahon (D) (State) (USSC 1922)
a. Facts: P sought to invalidate a statute forbidding the mining of coal in
certain situations. The Pennsylvania courts upheld the statutes, and P
appealed to the USSC.
b. BLR: Although the state may regulate property to a certain extent by
virtue of its police power, when such regulation extends beyond an
acceptable limit, it is considered a taking.
c. Holding for P reversed.
iv. Partial Deprivation of Economic Use or Value as Takings
a. Penn Central Transportation Company (P) v. City of New York
(D) (USSC 1978)
a. Facts: D denied P application for a permit to construct an

office tower above grand central terminal on the ground that
the project would violate the Landmark Preservation Law. The
lower courts ruled for D and P appealed.
b. BLR: A Landmark Preservation Law does not effect a taking
of property if the restrictions are substantially related to the
promotion of the general welfare and permit reasonable
beneficial use of the land in question.
i. Distinct investment-backed expectations are relevant
consideration when considering whether or not a taking
has occurred.
ii. TDR Transferable development rights the owners
of Penn Central had other buildings, and they have
TDR, which allowed whatever rights they have in Penn
Central to be transferred to other properties.
c. Holding for D affirmed.
6. Total Deprivations of Use or Value as Takings
i. Lucas (P) v. South Carolina Coastal Council (D) (USSC 1992).
a. NATURE OF CASE: Appeal from denial of taking claim in action for
compensation of property value.
b. FACT SUMMARY: South Carolina (D) enacted a statute prohibiting
construction on the barrier islands where the Lucas's (P) lots were
located. P sued and the trial court agreed and ordered South Carolina
(D) to pay him $1,232,387. The Supreme Court of South Carolina
reversed, ruling that when an otherwise valid regulation respecting the
use of property is designed to prevent public harm, no compensation is
owed. Lucas (P) appealed, and the Supreme Court granted certiorari.
c. RULE OF LAW: The state must compensate a landowner when a
regulatory action eliminates all economically valuable use from his
land, unless prohibited use of the land constitutes a nuisance under
state common law.
d. Holding: Reversed and Remanded.
a. South Carolina (D) must either identify the relevant common
law principles of nuisance and property prohibiting
construction on Lucas's (P) beachfront property or compensate
him for the value of it.
D. Hollywood, Inc. v. Broward County, 431 So. 2d 606 (Fla. 4th DCA 1983)
1. PROCEDURAL POSTURE:
i. Appellant developer sought review of the decision of the trial court (Florida),
which concluded that a county ordinance enacted by appellee commission was
valid.
ii. The ordinance required a developer/subdivider, as a condition of plat
approval, to dedicate land or pay a fee to be used in expanding a county level
park system sufficiently to accommodate the new residents of the platted
development.
2. OVERVIEW:
i. Appellant developer challenged a county ordinance which required payment

for use of land.
ii. Appellant claimed that appellee commission lacked the authority under its
charter to enact this type of ordinance and that no Florida court had
countenanced the imposition of land or fee requirements for use by a county
in expanding its county level parks.
iii. Included in these attacks were allegations that the ordinance violates
fundamental constitutional rights including due process and equal
protection and allegations that the ordinance constituted an unconstitutional
taking without just compensation and was in fact, an illegal tax.
iv. The court found that the charter acted as the county's constitution and the
ordinance was in accordance with the charter.
v. This court affirmed and held that the dedication or impact fee ordinance was
valid because there was a reasonable connection between the required
dedication or fee and the anticipated needs of the community because of the
new development.
3. OUTCOME:
i. The court held that the ordinance did not violate the provisions of the Broward
County Charter.
ii. The subdivision exactions for parks were permissible as long they offset, but
did not exceed, the reasonable needs sufficiently attributable to new residents
and funds collected were adequately earmarked for the acquisition of capital
assets to sufficiently benefit those new residents.
4. Equal Protection Clause No person should be denied the same protection of the
laws enjoyed by other persons in like circumstances.
E. Mann v. Bd. of County Comm'Rs, 830 So. 2d 144 (Fla. 5th DCA 2002)
i. Petitioner developer petitioned for certiorari review of a decision by the
Circuit Court for Orange County (Florida) that denied certiorari, claiming that
respondent board of county commissioners did not follow the essential
requirements of law when affirming a denial of her zoning request.
2. OVERVIEW:
i. The developer claimed that the sole reason that her application for a change in
zoning classification was denied was an interoffice memorandum inviting the
board to support a new approach. The developer claimed that the approach
was arbitrary, discriminatory, and unreasonable, and that the board did not
follow the essential requirements of law. The appellate court held that the
county's comprehensive plan was a lawfully adopted ordinance. The zoning
request was inconsistent with that part of the plan regarding timing of zoning
and adequate facilities. The board's denial of the zoning request was not based
on the memorandum, but rather on its own findings that the rezoning was
inconsistent with specific policies and objectives of the plan. Therefore,
pursuant to Fla. Stat. ch. 163.3194, the board not only had authority to deny
the application, it observed the essential requirement of law.
3. OUTCOME: The petition for a writ of certiorari was denied.
F. Morgran v. Orange County (ct app Florida 2002)
i. Appellant real estate developer sued appellee county in the Circuit Court for
Orange County (Florida), for breach of contract and promissory estoppel.
ii. The trial court dismissed the complaint and denied the developer leave to
amend its complaint.
iii. The developer appealed.
2. OVERVIEW:
i. The developer sought to develop real estate that was zoned agricultural.
ii. The developer applied for an amendment to the county's comprehensive
policy plan.
iii. The amendment to the comprehensive policy plan was approved.
iv. The developer entered into an agreement with the county whereby the county
would rezone the development classification and expedite the rezoning
application.
v. However, the county denied the rezoning application.
a. Due to the Martinez freeze in developments where schools are
overcrowded.
vi. BLR: On appeal, the court found that the contract the developer sought to
enforce was void as it was an attempt at contract zoning, which was against
the public policy of Florida.
vii. BLR: Further, promissory estoppel could not be applied against the county to
enforce the contract zoning.
viii. However, the developer should have been given an opportunity to amend his
pleading on the possibility that he could identify a legitimate cause of action.
3. OUTCOME:
i. The judgment was affirmed as to the denial of the developer's breach of
contract and promissory estoppel claims, the judgment was reversed as to the
order to deny leave to amend the complaint, and the case was remanded for
further proceedings.
G. Kelo v. City of New London (USSC 2005)
i. Respondent development agent, on behalf of respondent city, initiated
condemnation proceedings with respect to land owned by petitioners, nine
property owners.
ii. The trial court prohibited the taking of certain properties, but the Connecticut
Supreme Court reversed that finding and upheld all of the takings.
iii. The owners petitioned for a writ of certiorari, which the United States
Supreme Court granted.
2. Overview:
i. The city approved a development plan that had been submitted by the
development agent.
ii. The plan called for construction of a waterfront hotel, restaurants, retail stores,
residences, and office space; also, portions of the development area were to be
used for marinas and for support services.
iii. The city authorized the agent to purchase property in the development area or
to acquire it by eminent domain.
iv. The agent purchased most of the required property, but the nine owners
refused to sell.
v. BLR: The Court found that the development plan served a public purpose and
therefore constituted a public use under the Takings Clause of the Fifth
Amendment.
vi. The plan was not adopted to benefit a particular class of identifiable
individuals.
vii. Although the owners' properties were not blighted, the city's determination
that a program of economic rejuvenation was justified was entitled to
deference.
viii. BLR: There was no basis for exempting economic development from the
broad definition of "public purpose."
ix. The Court declined to require a reasonable certainty that the expected public
benefits would accrue, nor was it proper to second-guess the city's
determination of the boundary of the development area.
3. OUTCOME: The judgment of the Connecticut Supreme Court was affirmed.
Chapter 4
5. Regulatory Impacts as Takings
a. Tahoe-Sierra Preservation Council, Inc. (P) v. Tahoe Regional Planning
Agency (D) (USSC 2002)
i. Facts: P represented persons who purchased land that was subsequently
subjected to a 32 month temporary moratorium on development. P
brought action in federal court seeking compensation pursuant to the
Takings Clause of the US Constitution.
ii. BLR: A moratorium on development imposed during the process of
devising a comprehensive land use plan does not constitute a per se taking
of property requiring compensation under the Taking Clause of the US
const.
iii. Holding: Holding for D
iv. V.I. - Note: In Florida, in order to enforce a moratorium, it needs to have
(1) a definite time, (2) definite regulation, and (3) follow through.
6. Remedies
a. The Compensation Remedy
i. When a taking is found, there is debate about the remedy for a regulatory
taking (such as in Pennsylvania Coal). Should the remedy be (1) just
compensation or (2) a declaration of invalidity of the regulation?
ii. The USSC confirmed in the First English Evangelical Lutheran Church v.
County of Los Angeles case that a regulatory taking was a taking within
the meaning of the 5th amendment and that compensation must be paid for
the period of the take.
iii. What may constitute a temporary regulatory taking?
1. A permanent restriction may, at the option of the state, become a
temporary taking after a judicial finding that the restriction goes
too far.
2. A challenged regulation that terminates prior to the time the

takings questions reaches the court, i.e. a moratorium.
iv. When a regulatory taking is found, the remedy compensation is
calculated as the owners loss, not the takers gain, is the basic
measure of just compensation.
1. Fair Market Value is what a willing buyer would pay a willing
seller. Fair market value can be determine in three ways:
a. Comparable sales
b. Reproduction or replacement cost
c. Capitalization of income or rental value.
2. In Temporary Cases, the value can be measured in various ways:
a. Rental return for the period of the take.
b. Lost use of sale proceeds
c. Option Price to buy the land during the take.
d. Before and After valuation
v. The Denominators Test to determine the loss of the value of the
property? Note 3 page 379 (See below)
The demoninator problem and conceptual severance:
(Wikipedia
http://en.wikipedia.org/wiki/Regulatory_taking)
One ambiguity of the takings doctrine is the "denominator problem," or the issue of "conceptual
severance." The basis of the takings doctrine is relational: when a regulation takes away a certain
proportion of rights in a piece of property, such regulation effects a taking. The question then
arises: What is the denominator of that proportion? For example: in Pennsylvania Coal Co. v.
Mahon, Pennsylvania Coal owned the mineral rights to a property, and Mahon owned the surface
rights to that property. If one takes the denominator to be a person's individual property interest,
or a particular marketable interest or portion of property, then Pennsylvania Coal suffered a
100% taking, because all of its property rights had been effectively extinguished by the
regulation. The majority took this position, referred to as conceptual severance because the
various interests had been conceptually severed from one another; takings analysis is conducted
on each interest individually. On the other hand, if one defines the denominator as the total
property rights in a particular parcel of property, then Pennsylvania Coal suffered only a minor
taking, because the mineral rights were only a small proportion of the total rights in the property
(even if those rights were distributed between two owners). The minority took this position,
arguing that allowing conceptual severence would lead individuals and companies to divide the
interests in land into smaller pieces to enhance the claim of a regulatory taking for each.
a. Vertical Penn. Coal (subsurface rights)
b. Horizontal Tahoe and First Evangelical
c. Temporal
vi. Note 4 Page 380 The proper role of the Taking Clause is to require
compensation in those circumstances where the government legitimately
targets merely one or a few owners to bear a unique legal burden for the
benefit of the general community.
vii. Very important Page 384, Note 4.
viii.
b. When and where to sue (ripeness)
i. Williamson County Regional Planning Commission (D) v. Hamilton

Bank of Johnson City (P) (USSC 1985)
1. Facts: Hamilton Bank (P) owned a tract of land it was developing
as a residential subdivision and applied for a permit to implement
its plans. The Commission (D) denied Hamilton Bank's (P)
application, citing eight specific grounds for rejection. Choosing
not to apply for variances to the applicable ordinances, Hamilton
Bank (P) sued the Commission (D), alleging that the Commission's
(D) application of various zoning laws and regulations to Hamilton
Bank's (P) property amounted to a taking of that property. The jury
agreed and awarded $350,000. The Commission (D) appealed.
2. BLR1: Takings claims under the just compensation clause of the
US Const. cannot be evaluated and are not ripe until the
administrative agency has arrived at a final definitive position
regarding how it will apply the regulations at issue.
3. BLR2: If a State provides an adequate procedure for seeking just
compensation, the property owner cannot claim a violation of the
just compensation clause until it has been denied just
compensation.
a. Note: After this decision, all the states had to provide a
compensation remedy.
4. Holding: Reversed (D won.)
c. Notes: In MacDonald, Sommer & Frates v. Yolo County, the court said that
useless and futile efforts were not required to make a case ripe.
d. Personal Question: A taking suit must be brought first in State courts before
Federal courts. But if I bring a suit in State court, and I lose, I cannot sue in
Federal court because of res judicata. However, if I first sue in Federal court, the
court will apply Williamson County and say that my case is not ripe. This sounds
like a catch 22.
i. Can I first sue in Federal court and ask for a declaratory judgment that my
case is ripe or unripe, then go to the State courts, and if I find no
satisfaction, sue in federal court?
PAGES 397 TO 419 read everything
C DUE PROCESS: Substantive and Procedural
Added by the professor but not in Syllabus
Read Page 397 and 398; and the notes on 402 to 405
1. Introduction:
a. Many constitutional claims are based on the due process clause of the fourteenth
amendment rather than, or in addition to, the fifth amendment taking because the
fifth is applied to the states through the fourteenth.
b. Two Due Process Claims
i. Substantive Due Process Claim Protection against arbitrary state
action. A requirement that a law promote a legitimate public end in a
rational manner.
ii. Procedural Due Process Claim A requirement that a fair process

(notice and hearing) accompany deprivations.
2. Marks (Home business owner (P)) v. City of Chesapeake (City (D)) Cir. 1989).
a. NATURE OF CASE: Appeal of a district court ruling that denial of conditional
use permit was arbitrary and capricious.
b. FACT SUMMARY: Marks (P) attempted to open a palmistry and fortune-telling
business but was denied a conditional use permit by the Chesapeake City Council
(Council) (D) after some people complained based on moral and religious
reasons. The district court held that the denial was arbitrary and capricious, and
hence, found a deprivation of property without due process of law. The city
appealed.
c. RULE OF LAW: Where local officials have singled out a permit applicant for
adverse treatment due to illegitimate political or personal motives, such
purposeful discrimination violates the Fourteenth Amendment, even where no
recognized class-based or invidious discrimination is involved.
d. Holding: Affirmed.
i. Out of concern over due process issues, courts' standards of review
emphasize decision-making rather than motivation.
ii. Generally, courts require government entities to (1) act impartially without
substantial outside pressure; (2) allow all parties an opportunity to be
heard and notice, so they may present and challenge evidence; (3) make
decisions based on conclusions of law and findings of fact; and (4) keep a
record of the proceedings.
D - EQUAL PROTECTION
1- Introduction Claims brought pursuant to the Equal Protection clause have a major
advantage over substantive due process claims. No property interest need be shown.
2- Village of Willowbrook (D) v. Olech (P) (USSC 2000)
a. NATURE OF CASE: Appeal from reinstatement of claim by circuit court of
appeals.
b. FACT SUMMARY: Grace Olech (P) and her late husband asked the Village (D)
to connect their property to the municipal water supply. The Village (D) agreed,
provided the Olechs (P) granted the Village (D) a 33-foot easement. Olech (P)
objected, claiming the other property owners had to grant only a 15- foot
easement. After three months, the Village (D) finally agreed to provide the water
connection for the 15-foot easement. Olech (P) sued the Village (D) claiming
violation of the Equal Protection Clause and suggested that the Village's (D)
demand was in retaliation for the Olechs' (P) previous filing of a successful
lawsuit against the Village (D). The district court dismissed the present suit for
failure to state a claim. The circuit court of appeals reversed, holding that an equal
protection violation can be alleged unrelated to any legitimate state objection. The
Supreme Court granted certiorari.
c. RULE OF LAW: In zoning cases, the Equal Protection Clause applies to
"classes of one."
i. The Equal Protection Clause gives rise to a cause of action for a class of
one.
ii. The purpose of the clause is to secure everyone against a state's intentional
and arbitrary discrimination, whether precipitated by express terms of a
statute or by improper exercise of the state's agents.
iii. The claim in this case alleges intentional discrimination by the Village (D)
and is enough to state a claim for relief under traditional equal protection
analysis.
E LAND USE CLAIMS UNDER SECTION 1983 OF THE CIVILS RIGHTS ACT
1- Introduction:
a. Section I of the Civil Rights Act of 1871, 42 USCA Sec. 1983 provides that every
person who, under the color of any statute or law, subjects any citizen of the US to the
deprivation of any rights secured by the constitution and laws, shall be liable to the party
injured in an action at law or equity.
b. The court held that property rights as well as personal rights are protected by statute, and
that municipalities are persons covered by the act.
c. Four Principals concerning municipal liability in Sec. 1983 claims:
i. A municipality is only liable under Sec. 1983 for acts which the municipality has
officially sanctioned or ordered.
ii. Only municipal officials who have final policymaking authority may subject the
municipality to liability.
iii. Whether an official has final policymaking authority is a question of state law; and
iv. The challenged action must be in accordance with the policy adopted by the particular
official for that officials designated area of the citys business.
2- Kaahumanu v. County of Maui (USCA 2003)
a. NATURE OF CASE: Appeal from denial of a motion to dismiss on immunity
grounds.
b. FACT SUMMARY: Kaahumanu (P) and a partner ran a commercial wedding
business and sought a conditional use permit from the County of Maui (County)
(D) to use residential beachfront property for wedding ceremonies. When they
were denied the permit, they sued the County (D) and each member of the city
council individually. The County (D) moved for dismissal of the individual claims
on grounds of legislative immunity. Kaahumanu (P) brought suit against the
County and members of the city council in their individual and official capacities
under RLUIPA The district court denied the motion and the County (D) appealed.
c. RULE OF LAW: City council members are not entitled to legislative immunity
when (1) the council's decision to deny a permit is ad hoc (for this purpose), (2)
affects only the plaintiffs, and (3) does not bear all the hallmarks of traditional
legislation, even if it is formally legislative in character.
i. Four factors determine whether an act is legislative: (1) whether the act
involves ad hoc decision-making, as opposed to formulation of policy; (2)
whether the act applies to a few individuals or the public at large; (3)
whether the act is formally legislative in character; and (4) whether the act
bears all the hallmarks of traditional legislation.
CHAPTER 4 Pages 419 to 440
F THE FIRST AMENDMENT
1. Introduction
a. Constitutional provision: The 1st Amendment provides "Congress shall make no
law... abridging the freedom of speech, or of the press; or of the people peaceably
to assemble, and to petition the government for a redress of grievances."
i. Application to states: The 1st Amendment has also been held applicable
to the states through the Due Process Clause of the 14th Amendment.
ii. The 1st Amendment - freedom of speech, freedom of press, the right to
assemble, the right to petition the government, the free exercise of
religion, and the prohibition against the establishment of religion.
b. Land use controls frequently implicate First Amendment rights. Land use deals
with both civil rights and property rights.
c. Three principal activities that raise 1st amendment issues are (1) sexually oriented
business, (2) billboards and other signs, and (3) religious uses.
d. A fourth claim is that of alleging a violation of the right to petition government
when the government retaliates against property owners and developers who seek
development permission.
e. The USSC stated in addressing the validity of regulation on adult movie theaters
that the mere fact that the commercial exploitation of material protected by the
first amendment is subject to zoningis not a sufficient reason for invalidating
these ordinances. Young v. American Mini Theaters, 1976).
f. However, the court clarified the statement in Young by stating that the zoning
power is not infinite and unchallengeable.
i. The standard of review is dictated by the nature of the right affected
rather than by the power being exercised, and
ii. When a zoning law infringes upon a protected liberty, it must be
narrowly drawn and must further a sufficiently substantial government
interest. Schad v. Borough of Mount Ephraim.
2. REGULATING SEXUALLY ORIENTED BUSINESS (SOBs) V.I.
a. In the case of Young, the courts stated that non-obscene sexually oriented speech
receives less protection than other forms of speech.
b. City of Renton (D) v. Playtime Theatres, Inc. (P) (USSC 1986)
i. Facts: D passed a zoning ordinance prohibiting adult movie theaters from
locating within 1,000 feet of any residential zone, single or multiple
family dwelling, church, park or school. P sought a permanent injunction
of the ordinance claiming a violation of the 1st and 14th amendments. The
court ruled for D and the appeals court reversed. The Supreme Court
granted certiorari.
ii. BLR: Zoning ordinances intended to combat the undesirable secondary
effects of adult movie theaters are content-neutral time, place, and manner
restrictions and are valid if designed to serve a substantial government

interest and allow for reasonable alternative avenues of communication.
iii. Holding: Reversed. (D Won.)
3. CONTROLS ON THE DISSEMINATION OF INFORMATION (Signs)
a. For many years, challenges to municipal regulations of billboards and other signs
focused on whether they constituted aesthetic controls and, if so, whether such
controls were within the police power.
b. Today, most state courts recognize aesthetic considerations standing alone as
legitimate grounds for police powers control.
c. In the case of Metromedia v. City of San Diego, The USSC upheld an ordinance
that banned all billboards from the city, except (1) onsite signs and (2) a mix of
informational signs such as government signs, for sale signs, etc.
i. However the court objected to the citys preference for some type of
commercial speech (onsite signs) over noncommercial speech.
ii. Noncommercial speech was to receive greater, not lesser, protection than
commercial speech so that insofar as the city tolerated billboards at all, it
could not choose to limit their content to commercial messages.
d. In City of Cincinnati v. Discovery Networks, the city wanted to ban commercial
newsracks on public property, but the USSC ruled against the city and shifted the
burden to it to:
i. Show a reasonable fit between its legitimate and aesthetic goals and its
means, and
ii. Show that its regulation of speech was no more extensive than necessary.
iii. In other words, distinctions between types of commercial speech may not
be subjected to higher scrutiny.
e. City of Ladue (D) v. Gilleo (P) (USSC 1994)
i. Facts: When P was denied a variance so she could display an anti-war
sign from her house, she alleged that Ds ordinance prohibiting all signs
violated her first amendment right of free speech. The district court issued
an injunction against the enforcement of the ordinance. The city changed
the ordinance and P was allowed to amend the pleading claiming that D
treated commercial speech more favorably than noncommercial speech.
The court of appeals held the ordinance invalid, and D appealed.
ii. BLR: Government regulation of noncommercial speech in the form of
residential signs is unconstitutional as a violation of the first amendment.
iii. Holding: Affirmed (P Won)
4. Religious Freedom
a. In zonings early years, the land use implications of religious uses were
negligible. Some courts even viewed them as presumptively beneficial to
residential areas and put the burden on government to justify regulating them.
b. However, times have changed. Activities conducted by many religious
organizations are no longer limited to weekends. They may operate day care
centers or offer their buildings as homeless shelters, creating conflicts with
neighborhoods.
c. Other things that may spark a zoning battle may be the establishment of a nontraditional church or religion. Also, economics, such as when a church buys a
decrepit building in a place that could be used for an upscale restaurant, which
would bring more tax revenue.
d. Based on these factors, many communities have regulated religious uses more
stringently than in the past.
e. The court held in Sherbert v. Verner that government regulation of conduct that
substantially burden the free exercise of religion cannot be sustained unless it
furthers a compelling interest and uses the least restrictive means to advance this
interest.
i. Free exercise and establishment of religion requirment.
f. However, in Employment Division v. Smith, the court held that the strict
scrutiny test of Sherbert does not apply to claims challenging neutral laws of
general applicability. The right of free exercise does not relieve an individual of
the obligation to comply with a valid and neutral law of general applicability on
the ground that the law proscribes (prohibits) conduct that his religious prescribes
(orders)
g. Congress tried to pass the Religious Freedom Restoration Act (RFRA) which
purported to restore pre-Smith First Amendment Law, but the court held it was
unconstitutional. Congress again tried in 2000, by passing the Religious Land
Use and Institutionalized Persons Act of 2000 (RLUI-PA). V.I.
h. Civil Liberties for Urban Believers (P) v. City of Chicago (D) (USCA 7th Cir.
2003)
i. Facts: The Chicago Zoning Ordinance (CZO) required churches to
obtain special use permits in all zones except residential zones. P, a
coalition of churches, challenged the validity of the CZO under the
Federal Religious Land Use and Institutionalized Persons Act (RLUIPA) and the US Constitution. The district court granted summary
judgment to the city.
ii. BLR: The Special Use permit requirements of an amendment city zoning
ordinance do not place a substantial burden on religious exercise in
violation of RLUI-PA, the Equal Protection Clause, the Due Process
Clause, and the First Amendment.
1. RLUIPA (1) requires that land use regulations that substantially
burden religious exercise be the least restrictive means of
advancing a compelling government interest and (2) prohibits land
use regulations that either disfavor religious uses relative to
nonreligious uses or unreasonably exclude religious uses from a
particular jurisdiction.
iii. Holding: Affirmed (D won.)
5. Church of Lukumi Babalu Aye v. City of Hialeah Pre-Ralupa case
a. PROCEDURAL POSTURE:
i. Petitioners, a church and its president, appealed a decision of the United
States Court of Appeals for the Eleventh Circuit which affirmed a finding
in favor of respondent city in an action filed pursuant to 42 U.S.C.S.
1983 alleging violations of petitioners' rights under U.S. Const., amend. I.
b. OVERVIEW:
i. Petitioners, church and its president, applied for and received licensing,
inspection and zoning approvals to establish a church including a ritual of
animal sacrifice from respondent city.
ii. In response, an emergency public session of respondent's city council was
held and ordinances were passed which prohibited animal sacrifice.
iii. Petitioners filed an action pursuant to 42 U.S.C.S. 1983 alleging that
their rights under the Free Exercise Clause, U.S. Const., amend. I, were
violated.
iv. The trial court ruled for respondent finding no constitutional violations.
v. The appellate court affirmed.
vi. The United States Supreme Court reversed the judgment, holding that the
ordinances were unconstitutional.
vii. BLR: It found that they were not neutral nor of general application,
therefore it applied a strict scrutiny analysis.
viii. BLR: The Court determined that the governmental interests (1) were not
compelling, (2) the ordinances were not drawn in narrow terms, and (3)
were both overbroad and underinclusive in substantial respects.
c. Holding and BLR:
i. Decision for respondent city reversed where the Court held that ordinances
prohibiting animal sacrifice violated the Free Exercise Clause because the
ordinances
1. were not neutral, in that they had as their object the suppression of
religion;
2. were not of general applicability, in that
a. they pursued the city's governmental interests only against
conduct motivated by religious belief, and
b. the ordinance prohibiting the slaughter of animals outside
of areas zoned for slaughterhouses was underinclusive on
its face;
3. were not drawn in narrow terms to accomplish governmental
interests, in that all of the ordinances were overbroad or
underinclusive in substantial respects;
4. did not advance compelling governmental interests, in that
a. the ordinances were underinclusive to a substantial extent
with respect to each of the interests that the city asserted,
and
b. it was only conduct motivated by religious conviction that
bore the weight of the governmental restrictions; and
5. were void as contrary to the principles of the free exercise of
religion clause.
CHAPTER 5 - CRITICAL ISSUES
1. Notes: Important definitions to know for the test:
a. Comprehensive Plan
b. Consistency / CY
c. Concurrent
d. Urban Service Line
e. Development Order
2. Page 464 Fl Sta. 163.3177 - Required and optional elements of comprehensive plan;
studies and surveys.
a. Fl Stat. Sec. 163.3194 - Legal status of comprehensive plan.
i. Fl Stat. Sec. 163.3194 (4)(a) A court, in reviewing local governmental
action or development regulations under this act, may consider, among
other things, the reasonableness of the comprehensive plan, or element or
elements thereof, relating to the issue justiciably raised or the
appropriateness and completeness of the comprehensive plan, or element
or elements thereof, in relation to the governmental action or development
regulation under consideration. The court may consider the relationship of
the comprehensive plan, or element or elements thereof, to the
governmental action taken or the development regulation involved in
litigation, but private property shall not be taken without due process of
law and the payment of just compensation.
3. The Plan as Law: The Consistency Doctrine
a. The Standard Zoning Enabling Act provides that zoning be in accord with a
comprehensive plan, Sec. 3, but the act does not define plan.
i. Numerous courts have rejected the idea that any planning document or
planning process was required, but if a plan is adopted, it must be
followed.
ii. These documents are seen as non-binding guides.
iii. The term, in accord with has been interpreted as a demand that zoning
laws be reasonable.
iv. The courts have declared that the planning necessary to implement a
comprehensive zoning scheme need not be reduced to writing; it may be
found in the ordinance itself.
v. Increasingly, courts and legislatures demand that planning be done prior
to, and apart from, the enactment of zoning regulations.
vi. The idea of the comprehensive plan as a constitution for growth, has
come to be known as the consistency doctrine.
4. Board of County Commissioners of Brevard County v. Snyder (Fla. Sup. Ct., (1993).
V.I.
a. NATURE OF CASE: Review of appellate reversal of a county's denial of a
rezoning request.
b. FACT SUMMARY: When the denial of the Snyders' (P) application for rezoning
by the local zoning board was found to be arbitrary and unreasonable (because the
County did not provide a reason for the denial), the County (D) sought review by
the state supreme court.
c. RULE OF LAW: The Consistency Doctrine: A landowner seeking to rezone
property has the burden of proving that the proposal is consistent with the
comprehensive plan and that it complies with all procedural requirements of the
zoning ordinance.
i. The burden then shifts to the governmental board to demonstrate that

maintaining the existing classification accomplishes a legitimate public
purpose, and that the decision was not was not arbitrary, discriminatory, or
unreasonable.
d. HOLDING: The lower court decision is squashed. The Snyders (P) may file a
new application for rezoning of the property which will be without prejudice of
the result reached by this decision.
e. NOTES:
i. Apply the Fasano case Legislative vs. Judicial zoning decision
ii. The court stated that the property owner should get the highest use he asks
for.
iii. Legislative action makes a rule or law.
iv. Judicial action applies the law use the appropriate quasi-judicial standard
of review.
5. Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. 4th DCA 2001)
a. PROCEDURAL POSTURE:
i. Plaintiff homeowners, objecting to the defendant developer's plans, sued
in the Martin County Circuit Court (Florida).
ii. The trial court's final judgment favored the developer. (D won)
iii. Appellate review reversed the trial court's decision and remanded for a
new trial. (P won)
iv. The trial court's judgment was unfavorable to the developer and the
developer appealed. (P won)
b. ISSUE: The question is whether a trial court has the authority to order the
complete demolition and removal of several multi-story buildings because the
buildings are inconsistent with the County's comprehensive land use plan.
c. OVERVIEW:
i. The developer purchased 500 acres of land and set about developing it in
phases, governed by the Martin County comprehensive plan.
ii. The developer sought approval of three different site plans before erecting
the buildings subject to the present litigation.
iii. Following a hearing at which a number of homeowners objected to the
proposal, the county commission issued a development order permitting
construction of 19 two-story buildings.
1. Note: The development order was inconsistent with the Countys
Comprehensive Plan.
iv. Claiming statutory authority, the homeowners filed a verified complaint
with the commission.
1. NOTE: 163.3215(1), Fla. Stat. (1995) ("Any aggrieved or
adversely affected party may maintain an action for injunctive or
other relief against any local government to prevent such local
government from taking any action on a development order . . .
which materially alters the use or density or intensity of use on a
particular piece of property that is not consistent with the
comprehensive plan adopted under this part.").
v. After a hearing, the commission confirmed its decision.
vi. The homeowners filed a civil action in the circuit court under the same
statutory authority.
vii. The trial court favored the developer, but on appeal it was reversed and
remanded for a new trial.
viii. The trial court ordered the buildings either torn down or moved, and the
developer appealed.
ix. BLR: The appellate court concluded consistency with the county's
comprehensive plan was not discretionary under the homeowners'
statutory authority.
d. OUTCOME:
i. The final judgment of the trial court was affirmed in all respects. (P won)
e. NOTES:
i. The homeowner did not have to prove damages in order to proceed with
the suit.
ii. Strict Scrutiny does not mean exact compliance.
CHANGING FROM SPRAWL TO SMART GROWTH CHAPTER 7
A. Introduction
1. Rationale for Growth Management
a. The Land Use Awakening 1. Urban Sprawl results in unpleasant aesthetic results and
premature characterization of the nature of an areas future land.
2. Urban Sprawl is caused by the search of cheaper land by
developers, which has created leap-frogging, the anti-thesis of
overall planning for an area, which causes scattered development,
soaring costs of municipal facilities and service to residents.
3. The National Commission on Urban Problems recommends that
local governments establish holding zones in order to postpone
urban development in areas that are inappropriate for development.
2. Smart Growth
a. The Smart Growth movement contends that the shape and quality of
metropolitan growth in America is no longer desirable or sustainable.
b. Across the country, a growing chorus of constituencies are demanding that
the market and the government change the way they do business and take
actions to curb sprawl, promote urban reinvestment, and build
communities of quality and distinction.
c. Smart growth reduces the consumption of land for roads, houses and
commercial buildings by channeling developments to areas with existing
infrastructures.
1. It centers growth around urban and older suburban areas and
preserves green space, wetlands, and farm land.
d. The danger of smart growth is that if growth gets too smart, it may
cause an unconstitutional taking of private property.
3. Plans and Techniques to Manage Growth
a. A key underpinning (support) to an effective and legally defensible growth

management system is proper planning supported by detailed studies.
B. Interim Development Controls and Moratoria
1. See above - Tahoe-Sierra Preservation Council, Inc. (P) v. Tahoe Regional
Planning Agency (D) (USSC 2002)
2. Notes:
a. When determining whether a taking has occurred, one critical factor is the
significance of the duration of the restriction.
b. The reasonable use of land left by a temporary regulation depends on
whether the regulation left a reasonable use over a reasonable period of
time.
c. The municipalities have the authority to enact theses development
ordinances via state legislation which allow the municipalities to enact
interim zoning ordinances. If there is no legislation, the municipalities can
rely on its exercise of police power.
C. Timing Controls and Adequate Public Facilities
1. Ramapos Influence on Infrastructure Planning V.I.
a. Ramapo is the most influential case after Euclid.
b. Ramapo is the seminal decision establishing the legality of regulations,
which control the timing and phasing of development by linking
development approvals with the availability of adequate public facilities.
c. Florida requires every local government to adopt a growth management
system, which, among other things, ensures that public facilities and
services needed to support development shall be available concurrent with
the impacts of such development.
2. Golden (Building Developer) v. Planning Board of Town of Ramapo (N.Y. Ct.
App. (1972). V.I.
a. NATURE OF CASE: Appeal from summary judgment declaring a local
zoning ordinance unconstitutional.
b. RULE OF LAW: When it is clear that the existing resources of a
community are inadequate to furnish the essential services and facilities
that a substantial increase in population requires, ordinances regulating
this growth are constitutionally valid.
c. FACTS: Experiencing the pressures of an increase in population and the
ancillary problem of providing municipal facilities and services, Ramapo
(D) passed ordinances mandating that residential development proceed
according to the provision of adequate municipal facilities and services
and that any restraint upon property use be of a "temporary" nature. The
ordinances contained a plan for controlled growth over an eighteen-year
period. Golden (P) and other landowners in the area challenged the
ordinances on constitutional grounds. The trial court granted Ramapo's (D)
motion for summary judgment, sustaining the Board's denial of
preliminary plat approval. The appellate court, treating the proceeding as
an action for declaratory judgment, reversed. D appealed to the Ct App.
NY.
d. HOLDING: Reversed. D won.
1. Before a special permit use would be approved for a

development, five essential facilities or services had to be available
to serve the development: (1) Sewer facilities, (2) Drainage
facilities, (3) Public Parks, (4) Roads, (5) Firehouses.
2. This case opened the door for the concurrency concept.
AESTHETICS - Page 520 to 533
1- Introduction:
a. There is a tendency to regulate the aesthetics of the community by using police
power. The issue is, who decides what is aesthetically pleasing?
2- Architectural Controls:
a. Is there a difference in the use of police power for aesthetics (what is beautiful) and
historic preservation (preserving what is)?
b. Reid v. Architectural Board of Review of City of Cleveland Heights (Ohio Ct.
App. 1963).
i. NATURE OF THE CASE: Appeal from a decision prohibiting the
construction of a house because its architecture would violate a local
ordinance.
ii. FACT SUMMARY: The architectural plans for Reid's (P) proposed home
were not approved because they were deemed inconsistent with the character
of the houses in the area.
iii. RULE OF LAW: An ordinance designed to protect values and to maintain a
"high character of community development" is a constitutional exercise of the
police power by a city if it is in the public interest and contributes to the
general welfare.
iv. Holding: Affirmed. D won.
3- Signs
a. Signs have traditionally been one of the easiest areas to regulate.
b. In early cases, aesthetics regulations were not accepted. Therefore, other ways were
used such as public safety and traffic safety.
c. The courts have accepted beauty as a proper community objective, attainable
through the use of police power when regulating billboards and signs.
d. However, the courts may find that vague standards may run afoul of due process.
e. The Federal Highway Beautification Act prohibits signs within 660 feet of
interstate and primary highways in rural areas, but does not apply to areas zones
commercial or industrial.
i. The court has stated that the Act does not violate freedom of expression or a
taking without just compensation.
ii. The court applied a balance between the interest furthered (safety and
recreation of public travel) and the right of free speech.
iii. In 1978, Congress amended the act to compensate the owner 75 % of the
value for the taking of a legally erected billboard and/or the land.
REGULATING NONTRADITIONAL LIVING ARRANGEMENTS
1- Introduction:
a. Traditional living arrangements are those of a single family home with a father,
mother, and children.
i. They try to keep their neighbors traditional by enforcing existing zoning
laws, political pressure, nuisance laws, and private covenants.
b. Non-traditional living arrangement includes groups of college students renting
houses, people that live together for religious reasons, houses for battered wives,
AIDS patients, foster homes, etc.
i. They gain entry by invoking state and federal constitutional protections, or
state and federal fair housing acts.
c. Constitutional Considerations
i. Village of Belle Terre (D) v. Boraas (P) (USSC 1974)
1. Facts: P and other co-lessees of a house in the Village of Belle
Terre (D) brought this action for an injunction declaring an
ordinance restricting land use to one-family dwellings
unconstitutional because it violates the equal protection clause.
The district court held the ordinance constitutional, and the appeals
court reversed. The USSC granted certiorari.
2. BLR: Zoning legislation does not violate the equal protection
clause if it is reasonable, not arbitrary, and bears a rational
relationship to a permissible state objective.
3. Holding: Reversed. D won.
ii. City of Cleburne (D) v. Cleburne Living Center (P) (USSC 1985)
1. Facts: D denied a special-use permit to P under an ordinance
requiring permits for group homes for the mentally retarded. P
sued and the district court held the ordinance constitutional. The
court of appeals reversed, and the USSC granted certiorari.
2. BLR: Legislation that distinguishes between the mentally retarded
and others must be rationally related to a legitimate government
purpose.
3. Holding: Affirmed. P won.
d. The Federal Fair Housing Act and Discrimination Against the Handicapped.
i. City of Edmonds (P) v. Oxford House, Inc. (D) (USSC 1995).
1. NATURE OF CASE: Appeal from an order holding that a family
definition statute was subject to the Fair Housing Act (FHA).
2. FACT SUMMARY: The City of Edmonds (Edmonds) (P) claimed
that a zoning code provision was exempt from FHA scrutiny for
discrimination. The district court held that the statute defining
"family" was exempt from the FHA. The United States Court of
Appeals for the Ninth Circuit reversed and remanded. The Ninth
Circuit's decision conflicted with an Eleventh Circuit decision, and
the Supreme Court granted certiorari.
3. RULE OF LAW: The FHA's ban on discrimination on the basis
of family status does not include total occupancy limits.
a. In other words, the FHA allows a city to limit the number

of occupants permitted to occupy a dwelling.
b. D was arguing that the recovering alcoholics were
handicapped.
4. Holding: Affirmed the lower courts decision to reverse and
remand to decide whether Edmonds's (P) actions against Oxford
House (D) violated the FHA's prohibitions against discrimination.
5. Notes:
a. Discrimination against persons who are handicapped is also
prohibited by the FHA.
b. Handicap is defined as either a physical or mental
impairment which substantially limits one or more of a
person's life activities, a record of having such an
impairment, or being regarded as having such an
impairment.
c. It does not include current, illegal users of controlled
substances, such as the occupants of the respondent house.
d. FHA 42 U.S.C.A. 3602 Bans discrimination on the
basis of family status and against persons who are
handicapped.
2- Read FL Stat. - Chapter 163.3161 and 163.3154 (definitions).
a. Definitions of public facilities; financial feasibility;
b. Look for consistency/coordination, concurrency, level of service, required
elements.
c. Remember comprehensive plans on acres of more than 10 acres can only be done
twice a year.

Outline - Land Use

Uploaded by

Copyright:

Available Formats

Outline - Land Use

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Outline - Land Use

Uploaded by

Copyright:

Available Formats

Downloaded From OutlineDepot.

LAND USE OUTLINE

1. THREE STANDARDS OF REVIEW

Downloaded From OutlineDepot.com

(iii.Regulation of free speech.

Downloaded From OutlineDepot.com

4. To determine whether a nuisance exists, the restatement (second) of torts, sec.

Downloaded From OutlineDepot.com

A- Local Zoning: The Classics

Downloaded From OutlineDepot.com

developmental policy; and (3) be consistent with the

Downloaded From OutlineDepot.com

4. Height and Bulk Controls, Far, and Form-Based Zoning.

Downloaded From OutlineDepot.com

Downloaded From OutlineDepot.com

b. the party seeking the change bears the burden of proving

Downloaded From OutlineDepot.com

owner offers to use the property according to a subsequently issued

Downloaded From OutlineDepot.com

1. Definition The point at which a developer-landowner has proceeded sufficiently

Downloaded From OutlineDepot.com

1. Definition - Development agreements are contracts negotiated between project

Downloaded From OutlineDepot.com

potentially increased profits due to land efficiency, multiple land

Downloaded From OutlineDepot.com

a. Gardner v. County of Sonoma (SC CA 2003)

Downloaded From OutlineDepot.com

Downloaded From OutlineDepot.com

Downloaded From OutlineDepot.com

Downloaded From OutlineDepot.com

MSBU Municipal Service Benefit Unit It applies only to one

Downloaded From OutlineDepot.com

d. Need (The burden created v. the increased facility need)

Downloaded From OutlineDepot.com

Downloaded From OutlineDepot.com

a. Facts: D denied P application for a permit to construct an

Downloaded From OutlineDepot.com

i. Appellant developer challenged a county ordinance which required payment

Downloaded From OutlineDepot.com

Downloaded From OutlineDepot.com

Downloaded From OutlineDepot.com

2. A challenged regulation that terminates prior to the time the

Downloaded From OutlineDepot.com

i. Williamson County Regional Planning Commission (D) v. Hamilton

Downloaded From OutlineDepot.com

ii. Procedural Due Process Claim A requirement that a fair process

Downloaded From OutlineDepot.com

Downloaded From OutlineDepot.com

Downloaded From OutlineDepot.com

restrictions and are valid if designed to serve a substantial government

Downloaded From OutlineDepot.com

Downloaded From OutlineDepot.com

Downloaded From OutlineDepot.com

Downloaded From OutlineDepot.com

i. The burden then shifts to the governmental board to demonstrate that

Downloaded From OutlineDepot.com

Downloaded From OutlineDepot.com

a. A key underpinning (support) to an effective and legally defensible growth

Downloaded From OutlineDepot.com