TOPICS KEY QUESTIONS POLICE POWER & PLANNING EMINENT DOMAIN AND PLANNING TAKINGS & PLANNING HOW IS THE “PUBLIC INTEREST” BEING DEFINED? WHAT ARE THE LIMITS OF PLANNING? HYPOTHETICAL CASES TRANSBORDER PLANNING AND THE LAW
KEY QUESTIONS What legal authority do governments have to regulate land? Which level of government has the legal power to regulate land? What legal parameters does regulation of land need to meet?
POLICE POWER & PLANNING POLICE POWER: “An authority conferred by the American constitutional system in the Tenth Amendment upon the individual states, and, in turn, delegated to local governments, through which they are enabled to establish laws and regulations…[to] secure generally the comfort, safety, morals, health and prosperity of its citizens…” (Black’s Law Dictionary)
POLICE POWER & PLANNING POWER DELEGATION (10 TH Amendment) “ The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people.” The Constitution only recognizes two levels of government, federal and state. How do local governments get their authority? Local governments get their authority from the State to make use of the police power through what it is known as the Dillon’s rule.
EMINENT DOMAIN AND PLANNING “The power to take private property for public use by the state, municipalities, and private persons or corporations authorized to exercise functions of public character.” If property (land) taken away through valid application and use of police power, owners are entitled to “just compensation” as guaranteed by the 5 th & 14 th Amendments of the U.S. Constitution. “ No person shall be…deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.” (5th Amendment) “…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (14 th Amendment)
PLANNING LEGAL FRAMEWORK THE U.S. CONSTITUTION THE BILL OF RIGHTS 5 th Amendment, 14 th Amendment & 10 th Amendment STATE CONSTITUTION EXPANDED BILL OF RIGHTS POLICE POWER EMINENT DOMAIN ZONING ORDINANCE SUBDIVISION CONTROLS EXACTIONS FEDERALFEDERAL STATESTATE LOCALLOCAL
TAKINGS & PLANNING Physical taking (Eminent Domain) Regulatory taking (Penn Coal Co. vs. Mahon:1920) “If regulation goes too far it will be recognized as a taking.” How far would be too far? “ Reasonable use vs. highest and best use” (Penn Central Transportation Co. vs. New York City:1978) The “ nuisance exception ” Use of property which amounts to a “nuisance” may be forbidden despite a complete deprivation of economic use (Lucas vs. South Carolina Coastal Council: 1992)
HOW IS THE “PUBLIC INTEREST” BEING DEFINED? The judicial system, through case law, is the one that incrementally has been defining and bounding the planning profession. Zoning: (Village of Euclid vs. Ambler Realty Co.:1926) Historical Preservation: (Penn Central Transportation Co. vs. New York City:1978) Public Safety & the Nuisance exception: (Lucas vs. SCCC)
WHAT ARE THE LIMITS OF PLANNING? Planning is bounded by the inalienable rights of people recognized in the Bill of Rights such as: Freedom of religion Freedom of speech Due Process Substantive process
HYPOTHETICAL CASE 1 Type of regulation billboard ordinance: Facts: The city prohibits a suggestive Victoria Secrets billboard in a busy intersection. Which constitutional issue would be involved? What arguments would the city make to approve this ordinance as a valid police power? Under what conditions would the city ordinance be upheld or strike down by the court?
HYPOTHETICAL CASE 2 City ordinance regulating the use of dead animals in Santeros rituals. Question: Which constitutional issue would be involved? Question: What arguments would the city make to approve this ordinance as a valid police power? Question: Under what conditions would the city ordinance be upheld or strike down by the court?
HYPOTHETICAL CASE 3 The city revokes the liquor license of an establishment because it is located within 50 meters of a school which, by ordinance, is not allowed. The owner claims that this constitutes a regulatory taking and therefore s/he is entitled to just compensation. Is s/he right? If the case goes to court, what arguments would be used by the city lawyer?
HYPOTHETICAL CASE 4 A city requires that a developer should dedicate part of the land as a park to benefit the city residents in order to obtain a permit. What legal arguments would the developer make against the exaction? What legal arguments would the city make? Under what context or conditions would the court upheld or strike down such exaction?
FEDERAL STATE LOCAL USA MEXICO 10 TH AMENDMENT DILLON’S RULE ARTICLE 26 ARTICLE 73 ARTICLE 115 LGAH ARTICLE 26 ARTICLE 73 ARTICLE 115 LGAH POLICE POWER 10 TH AMENDMENT ARTICLE 27 ARTICLE 27 EMINENT DOMAIN 5 TH AMENDMENT 14 TH AMENDMENT 5 TH AMENDMENT 14 TH AMENDMENT ARTICLE 14 TRANSBORDER PLANNING AND THE LAW
Key differences: Why do urban landscape differ greatly in the U.S. and Mexico despite some similarities in the constitutional framework? 1.The role of the judicial system -Check & balance -Dispute resolution & the judiciary 2.Decision making models: -Incremental legalistic -Discretional /clientelistic
THE FEDERAL ROLE ON THE USA-MEXICO BORDER THE JURISDICTIONAL ISSUE Communities on the border lack the authority to enter into legally biding treaties, consequently, the federal government affects strongly land use patterns (water, transportation, etc.) Article 89 section X & Article 117 section I of the Mexican constitution and Article I section 10 and 10 th Amendment of the U.S. constitution
CHALLENGES & ALTERNATIVES 1.LACK OF A VISION: FRAGMENTED VS. CONSOLIDATED URBAN LANDSCAPES FREE FLOW OF CAPITAL, GOODS & SERVICES AND LABOR 2.INSTITUTIONAL DEVELOPMENT: COORDINATION VS. CO-MANAGEMENT BILATERAL VS. BINATIONAL ORGANIZATIONS INTER-LOCAL AGREEMENTS 3.FINANCING MECHANISMS: A “REAL” DEVELOPMENT BANK CO-ISSUANCE OF BONDS SHARE REVENUE FOR BINATIONAL INFRASTRUCTURE (El Paso Tax rebate)
HOMEWORK 1 The objective of this homework is to introduce the student to do basic legal research that is related to planning. Furthermore, the student will analyze in detail a legal case in which planning issues are involved and write a brief report on the cases emphasizing the following: Type of regulation Land use issue Type of legal challenge Remedy sought Constitutional issues Important cases cited if any Facts Decision Opinion of the court Personal opinion with regard the importance of the case for the planning profession. What did you learn?
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