In general, it is assumed that zoning (with all its flexibility and lack of flexibility) is under a "comprehensive plan" or "general plan", but in Platt’s discussion on p. 266, and the Critique of Zoning (pp. 273-274), we see some concerns that zoning is used to discriminate ("exclusionary zoning") or it is used willy nilly w/o much planning as a simple regulatory tool, in thoughtless fashion.

Subdivisions, and Fees and Land Acquisition

After the details on typical zoning, Platt goes onto related land use management tools, beginning with sub-division regulations and exactions and impact fees. We won’t bother to go into sub-div regs, but exactions and impact fees are important aspects of land use planning. The goal here is to have land owners and developers pay for or defray the effects of their development on government services. The most common is requiring a sub-div developer to set aside land for a school. The sub-div creates the need for the school, and the set-aside makes some sense.

• Land acquisition for public needs:
• Negotiated purchase
• Eminent domain
• Gift
• Dedication (usually small things like bike paths, utility easements, etc.)
• Zoning incentives (must have strong zoning regs in place first)

Tax default

Platt also discuses TDR here. Be sure to recognize Platt’s point that it only works in the context of firm zoning and subdivision limits.

More on Public Acquisition: local gov can buy land (by negotiation with willing sellers or by condemnation) and do with it as it pleases. Most cases include buying land to keep it out of development (thus a de facto limit on development, but this depends on how much land is still available), but sometimes land is bought for certain types of development. Finally, land is often given to local government (including some of Boulder’s open space). The title transfer in such cases may include a provision allowing current use to continue by the original owner and maybe their off-spring.

Growth Management, as it affects land use more broadly

Booming development, especially smaller cities, suburban sprawl, growth and spread of housing, etc.

Question: Does "Growth Management" = slowing growth or growth limits?

Growth management generally affects:

• Shape, type and location of land uses/development (density, pattern, etc.)
• Timing and progress of development in a jurisdiction
• Total amount of development (DUs; population; square footage; etc.)

May also include a mixture of goals:

• Affordability
• Balancing jobs, housing, and transportation
• Providing adequate public services
• Reducing natural hazards.
• "Community character"

These may blur together, or one may be hidden in another, and some are suspect (e.g., "community character" reeks of discrimination)

Platt gives us several three cases on which current growth management actions are based:

Ramapo, NY: decided growth was too fast, not always in palces desired; so set a rate at which city would provide infrastruture to new development, and where. This timing was seen as a slow-down/limit by some development interests and they sued, and lost. The court found that the jurisdiction, which is required by statute to provide services (e.g., a house cannot be occupied unless it has water and sewer connections), can reasonably set the pace and shape of growth so as to allow "concurrency" between development and infrastructure. The court mostly saw this, I think, as a health and safety issue (e.g., sidewalks for the kids to walk to school), and those have always been solid ground for land use regulation. Platt hints at the end, with quote from Fred Bosselman, that plans like this might be growth limits in "sheep’s clothing" as we discussed in class.

Petaluma, CA went further, though, and set a future total population goal backed by limiting number of development permits. Builders sued and the district court found the plan to limit personal freedoms by limiting housing in the Bay Area. On appeal, though, the 9^th Circuit Court of Appeals focused only on Petaluma and decided that communities might limit growth if they wish, as long as the plan was not outright discriminatory----usually meaning that it had the goal of limiting some segments of the housing market. Petaluma had anticipated this and designated some of the available permits for lower income housing (they had a good planner).

Livermore, CA placed a moratorium on new development until it could get services up to speed; the court had more trouble with a moratorium, which apepared to be exclusionary and discriminatory (lower income housing was needed desperartely), but the court upheld the moratorium based on a test that the impacts outside the jurisdiction on equity of the housing market was assessed and not major. This set up a judicial test for future growth limits: did the city assess the impacts of the restriciton; identify the competing interests affected by he decision; and determine that the ordinance is a reasonable accommodation of those interests. .

These were up-held but strict limits on DU’s in Boca Raton, FL and utility services in Boulder, CO, are sometimes struck down by the courts on due process and equal treatment principles.

We’ll talk more about these in our discussion of "sprawl" and the Gilham text.

What are the limits on state powers over land use?

As more communities and citizens have called for "growth management" (read: growth limits), local governments have started placing more limits on

development, and faced more complaints for development interests. Social goals and assessment of risks and losses associated with land use have changed, too: demand for species protection, open space, etc. Several complaints turned into law suits, some made it to Supreme Court

Three issues arise:

Due process

Equal protection

Takings

Basic issue: when are land use restrictions an unconstitutional takings (though some property rights theorists and advocates might say the basic question is whether gov can regulate land use at all, we’ll stick to the more practically relevant issue of when regulations violate property rights).

Platt lays out the judicial tests emerging on takings:

Strong et al. reading on "takings" for planners:

They go over much the same material but strengthen the discussion of two important criteria for land use regulations:

Rationally-based (does the restriction meet logical, well-supported community planning principles)

and

Nexus: does the particular restriction link directly to the impact of development of that property, and to the particular aspects of community development, planning and land use (i.e., what additional traffic is added directly by your particular retail development, and what is not mitigated by standard means like property and sales taxes). This also brought up "proportionality"---not as much the economic impact (above) but the proportion of public impact by your development.

First big case was challenge of Euclid’s zoning on equal protecitona ndd ue process grounds. A particua;lr parcel was zonign residential and industrial, but the owner wanted industrial all over for more money. The court up-held the right and the theory of zoning, while allowing for various aplicaitons sutied to lcoality.

Coal companies…..

Nollans vs. Calif. Coastal Commission: failed the nexus and logic test: The Nollan’s wish to rebuild their house did not have any link to the state’s interest in providing public beach access, even if the bigger house impacted the public’s view.

Lucas vs. SC Coastal Council: The govt does have the right t protect barrier beaches and san dunes as both a public safety and environmental protection, but this action devalued the land completely, and was not in keeping with previous development next door which was allowed under proper planning and zoning. So, either pay Lucas or otherwise compensate, or take care of the problem another way (e.g., maybe use state funds to reinforce the dunes).

Dollan vs. City of Tigard: hardware stores wants to enlarge, bigger parking lot, etc. City wanted bike path along stream instead of aprt of parking lot. Also, city claimed enlarged business cost extra traffic infrastructure (new turning lane), so Ok to ask for bike path. The obvious nexus and proportionality issues here made the city lose the case.

Penn Central vs. NYC: Landmark designation of grand central terminal, would it unconstitutionally limit re-development? NO, because the city did not obviate the typical use of the property (e.g., architectural requirements do not stop it from being a transport hub), did not deny all reasonable use. Does it keep the owner from re-developing for a totally different use? Yes, probably, but did the owner have investment backed, plan-backed expectations of big changes in use? According to the court, No.

Fair and rationally-based. It is OK to promulgate new regulations if they are rational and meet well-established social goals.

Regulation within a framework of comprehensive and detailed planning; no surprises (allow for adjustment), with open planning process, due process, appeals, etc.

Don’t’ devalue land completely or even mostly. Make any limits and exactions proportionate to the social impact.

If you really want to limit use, and it will devalue, then buy it outright; or otherwise meet the constitutional standard of "just compensation"