Chap. 10 and Strong et al.

Land use and the Courts (Takings, etc.)

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 have 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 basic fee simple property rights: to develop, subdivide, etc.).

Platt lays out the judicial tests emerging on takings:

The character of the gov action (is it legitimate public interest?)

The economic impact on the property owner (can’t totally devalue land w/o full compensation), and their "reasonable, investment-backed expectations"—

The question of “expectations” of an owner gets tricky in many current cases: does every farmer have reasonable expectations that their land will some day be a shopping mall or airport worth millions epr acre? NO, but just what is their expectation, and how can it be assessed. “Investment backed” means that the owner has invested some money in prep for the new land use, and if local gov takes that away, it is close to a “takings.”

This also brings up "proportionality" : what impact or costs would the owner’s use of the land as proposed have on the goals of society? Then, is the restriction or exaction imposed by society roughly proportionate?

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.

Some cases:

First big case was challenge of Euclid’s zoning on equal protection and due process grounds. A particular parcel was zoned 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 applications suited to locality.

But other cases did not go in gov’s favor:

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 part 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.

SO: planning actions to avoid takings:

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 any owner investing due dilligence in the use and planned uses of his/her land should be aware of the evolving restrictions.

Allow for adjustment: with open planning process, due process for appeals, variances, 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"