2. URBDP 598A: Land Use Planning I, Winter AY 2006-2007 Notable Case Law (cont.) and Zoning Basics Announcements and news –Policy memos, SoCRs, Jan (Coase) and Joe, presentations, TIF? Case examples (cont. from last lecture) Zoning

3. URBDP 598A: Land Use Planning I, Winter AY 2006-2007 Going “too far” (Penn coal v. Mahon 1922) Three factor balancing test: character of the regulation; the economic impact on the landowner; and the extent of interference with investment-backed expectations (Penn Central v. NYC 1978) Two-part test: substantially advances state interest and not deny all economic use (Agins v. Tiburon 1980) (Questioned in Lingle v. Chevron 2005 on first part of test) Logical nexus: means and end to be achieved need to be linked (Nollan v. California Coastal Comm. 1987) Temporary taking=taking (First English Lutheran v. County of Los Angeles 1987) If regulation prevents all economic use, it’s a taking (Lucas v. South Carolina Coastal Council 1992) Judicial tests and some cases (woo!)

4. URBDP 598A: Land Use Planning I, Winter AY 2006-2007 More cases! Rough proportionality of impact to dedication as condition of development (Dolan v. Tigard 1994) Rough proportionality inapplicable in denial of development permit (City of Monterey v. Del Monte Dunes 1999) Acquisition of title after the effective date of a regulation does not automatically bar a regulatory taking claim (Palazzolo v. Rhode Island 2001) (However, Lucas logic applied, case remanded for Penn Central three factor balancing test) No per se rule regarding the issue of whether a temporary land use restriction (even if a complete denial of all use is imposed for a finite and reasonable period), such as a moratorium, can constitute a taking. (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning 2002) Land can be condemned for public good even if turned over to private interest. (Kelo v. New London 2006) GREAT REFERENCE: http://www.mrsc.org/Subjects/Legal/takings.aspx

5. URBDP 598A: Land Use Planning I, Winter AY 2006-2007 Zoning First in 1916 NYC, defining court case 1926 (Euclid) Conceptually in conflict with equal protection clause but courts rationalized uniformity is achieved within/between zones (all R zones regulated similarly) Came out of urban areas and separation of uses for nuisance reasons. –3 main uses: Residential, Commercial, Industrial Historically cumulative, or hierarchical –R into I&C, C into I

6. URBDP 598A: Land Use Planning I, Winter AY 2006-2007 Zoning Ordinance (handout) Article 1: Preamble –References enabling legislation and police power Allow for local govt as creatures of the state Express power of Feds (war, treaties, coin money, interstate commerce, etc.) and all other powers go to states. Home rule states: State-municipality relationship mimics that of fed-state. State holds onto some powers. –Police power: to protect public health, safety, general welfare

7. URBDP 598A: Land Use Planning I, Winter AY 2006-2007 Zoning Ordinance II Article 2: Definitions –Attempt to limit ambiguity of terms. Can be used to change law without changing statutes Article 3: Land Use Zones –Separate incompatible land uses –Ordinance will include map and text –Zone descriptions and purposes for the zones. In simple areas boundaries are referenced.

8. URBDP 598A: Land Use Planning I, Winter AY 2006-2007 Zoning Ordinance III Article 4: Principle Zone Regulations –3 types of uses: permitted, conditional, prohibited –Historically specifications were for access to air, light, fire protection. Currently, privacy, limit nuisance, internalize externalities as possible. –Administratively 4 parts: Legislative body-enacts and amends ordinances Staff (Zoning Administrator)-handles permitted uses, no discretionary authority Zoning board/appeals-conditional uses, discretionary, functions in quasi-judicial fashion. Original jurisdiction for conditional uses, variances, appellate jurisdictions Courts-handle appeals (after board of appeals)

9. URBDP 598A: Land Use Planning I, Winter AY 2006-2007 Zoning Ordinance IV Article 5: Supplementary Zone Regs –Non-conforming: use was conforming prior to zoning change. Generally allowed to continue in perpetuity. Not allowed “more non-conforming,” and amortization schedule to phase out use is possible –Non-complying structure: similar to above, but if destroyed >50%, not allowed to rebuild non-compliantly –Discontinued use ok if limited time (specified in ord.) –Zoning applied to land not ownership: transfers with title –Accessory uses: incidental to primary use, special setbacks or supplemental regulations relative to use with primary use

10. URBDP 598A: Land Use Planning I, Winter AY 2006-2007 Zoning Ordinance V Article 6: Administration and Enforcement –Enforced compliance –Conditional use permit will specify criteria of health, safety, welfare to protect against arb & capricious charge and inform applicant –Variances: 2 types—use and site Granted only on basis of hardship, no fault of owner Use variances are the sticky wickets Subject to de minimus concept: the minimum allowed variance to mitigate problem Spot zoning, or the granting of use variances, is not appreciated by courts Miscellaneous: –Validity or separability clause: if any portion is found invalid, only that portion is invalid, not whole ordinance –Effective date: key, for non-con uses –Map: on TOC, reaffirms presence, validity

11. URBDP 598A: Land Use Planning I, Winter AY 2006-2007 Other Zoning Types: Variations on a Theme Post WWII moved to exclusive—not cumulative—zones, making cities delightfully sterile (question: how to allow for multi-use while maintaining principle of separation of incompatible uses?) Floating Zone: described in ordinance text, unmapped. Can be placed if allowed as conditional use, described in definitions, is descriptive of what it includes. Takes expertise, rarely used Performance zoning: with regard to land, area, structures, make standards explicit, allow anything that meets standards –People want certainty, FZ and PZ don’t give it Extraterritorial zoning: city zones outside boundaries Interim, holding, emergency zones: short process for adoption of simple form for specific time