2009 UPDATE LETTER FOR
PLANNING AND CONTROL OF LAND DEVELOPMENT
Daniel R. Mandelker
Howard A. Stamper Professor of Law,
WashingtonUniversitySchool of Law
Peter W. Salsich, Jr.
McDonnell Professor of Justice in American Society,
Saint LouisUniversitySchool of Law
Nancy E. Stroud
Lewis Stroud & Deutsch, P.L.,
Boca Raton, Florida
Stuart Meck
Associate Research Professor and Director, Planning Practice Program,
EdwardJ.BlousteinSchool of Planning and Public Policy at RutgersUniversity
Dwight H. Merriam
Robinson & Cole LLP,
Hartford, Connecticut
Julie A. Tappendorf
Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C.,
Chicago, Illinois
2009 UPDATE LETTER FOR
PLANNING AND CONTROL OF LAND DEVELOPMENT
By Daniel R. Mandelker, Peter W. Salsich, Jr., Nancy E. Stroud
Stuart Meck, Dwight H. Merriam and Julie A. Tappendorf
Lauren Ashley Smith, J.D. Cand. 2010, WashingtonUniversitySchool of Law, General Editor.
We welcome our new authors to the casebook team. Stuart Meck is a member of the faculty at the Edward J. Bloustein School of Planning and Public Policy at RutgersUniversity. Stuart is the coauthor of a treatise on Ohio land use law and a longstanding author of books and articles on land use planning and law. Dwight is a partner at Robinson & Cole, a law firm in Hartford, Connecticut. Julie is a partner in the law firm of Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer in Chicago, Illinois. Both Dwight and Julie take on teaching assignments, and both have published extensively on land use law.
We report with regret the passing of John Payne, a longtime coauthor of this casebook. His contributions to our book are unmatched for their depth of insight, knowledge and humor. He will be truly missed.
Additional Resources from the Authors
Additional resources can be found on the Land Use Law website, available at The website contains casebook updates, model codes, comprehensive plans, and many more up-to-date materials related to the topics covered in the casebook.
1
TABLE OF CONTENTS
Chapter 1 ...... 1
Chapter 2 ...... 4
Chapter 3 ...... 19
Chapter 4 ...... 30
Chapter 5 ...... 38
Chapter 6 ...... 52
Chapter 7 ...... 56
Chapter 8 ...... 64
Chapter 1
An Introduction to Land Use Controls
A. Why Land Use Controls?
1. The Challenge of Land Use Policy
Insert at the end of Notes and Questions on p. 8:
6. Changes in urban structure. Urban geographers and others have tied changes in the pattern of land use in a city to the relationship of the city to its surrounding area, the type and extent of transport and changes in the nature of industries and the technologies they use. In an influential article written at the end of World War II, urban geographers Chauncy D. Harris and Edward J. Ullman focused on three generalized forms of internal city structure in the U.S.
In the first, the concentric zone, the city was described as a series of simple circular zones, with a central business district at the heart, and zones of successively less intensity emanating outward.
In the second, the city was seen as series of sectors, and growth takes place along main transportation routes and usually consisted of similar types of land use. Under this concept, for example, upper-end residential growth in the eastern quadrant of a city would tend to migrate outward, but always staying in the same quadrant.
In the third, the multiple nuclei, the land use pattern is not built around a single center, but around several discrete nuclei. This pattern reflects a combination of the need for specialized support facilities(such as access to ports) the benefits certain businesses obtain by being close to one another (such as law offices being near a court building), the undesirability of land use conflict (such as a prohibition of heavy industry near high-end residential uses), and the inability for certain businesses to pay high rents(such as wholesaling and storage businesses that require much horizontal space.)
Harris and Ullman observed: “Most cities exhibit . . . aspects of the three generalizations of the land-use pattern.” However, they noted that the concentric theory and the sector theory emphasize the general tendency of central residential areas to decline in value as new construction takes place on the outer edges, with the sector model being “more discriminating” in its analysis of that movement. Harris & Ullman, The Nature of Cities, 242 Annals Am. Acad. of Pol. Soc. Sci. 16-17 (1945).
The impact of circumferential expressways and airports in the U.S. compelled Harris to formulate an additional theory of form, the peripheral city, to supplement the previous three models in an article published in 1997. Here, Harris described a peripheral model that differed from the concentric zone model “in that its patterns are defined with other parts of the peripheral zone, not in terms of distance to the central city but in its relation with other parts of the peripheral zone . . . .” The peripheral zone includes diverse clusters of economic activities in both new development and recently transformed older centers. It is tied together with a circumferential highway, large blocks of land for development and similar social, economic and housing characteristics. The area, according to Harris, is characterized by “the absence or lesser severity of problems of the inner city.” Around this peripheral road are airports, airport-related businesses (such as motels and car rental agencies), regional shopping malls, distribution and warehouse clusters and well-landscaped office parks that are often home to national corporations. In addition, the area includes “large tracts of relatively homogenous private homes and some specialized communities offering well-advertised amenities such as hills, lakes, or woods with names such as ‘country-club estate.’” Harris commented that the peripheral model did not exist when Ullman and he wrote their original article in 1945. Harris, The Nature of Cities and Urban Geography in the Last Half Century, 18 Urb. Geography 18-19 (1997); see also J. Garreau, Edge City: Life on the New Frontier (2001).
More recently—in part as a reaction to rising energy costs and the impacts of the national recession, including the subprime mortgage crisis, on real estate markets—some have questioned whether the outer edges of metropolitan areas will remain viable or turn into a depressed zones, and whether the next cycle of urban growth will be redirected at central cities. Leinberger, The Next Slum?, The Atlantic, March 2008, (maintaining that “much of the future decline is likely to occur on the fringes, in towns far away from the central city, not served by rail transit, and lacking any real core”); see alsoNelson,Leadership in a New Era, 72 J. Am. Plan. Ass’n 395 (2006) (contending “[t]he challenge for planners in the outer suburbs is to organize land uses and infrastructure investments to meet current development pressures while preparing for future down cycles and shifts in market demand”).
B. Land Use Controls: An Introduction to Planning
2. State and Regional Planning
b. Regional Planning Agencies and Plans
Insert at the end of Notes and Questions on p. 47:
6. Regional planning legislation in Connecticut. In 2008, Connecticut amended its regional planning statute to establish a “regional performance incentive program,” by whichgrants are made available to study the potential for services to be provided on a multijurisdictional basis. The purpose of the legislation is to determine whether there are any economies that might result from regional delivery of services. In addition, the legislation gives authority to the Secretary of the Office of Policy and Management to establish uniform criteria by which to evaluate regional plans for conservation and development for consistency with the state plan of conservation and development and the state economic strategic plan. Conn. Gen. Stat. § 4-124s (session law available at
Material for this chapter was prepared by Stuart Meck.
Chapter 2
The Constitution and Land Use Control: Origins, Limitations and Federal Remedies
Nuisance Law
The search for energy alternatives that reduce the threat of global warming is leading to wind farms in many parts of the country, particularly in the west and southwest. But do wind farms, featuring rows of 400-foot tall wind turbines, raise nuisance law problems? A Texas court, in Rankin v. FPL Energy, LLC, 266 S.W.3d 506, (Tex. App. 2008), concluded that “an emotional reaction to the sight of . . . [lawful] wind turbines” was an insufficient basis for a nuisance claim. The court stated
We do not minimize the impact of FPL's wind farm by characterizing it as an emotional reaction. Unobstructed sunsets, panoramic landscapes, and starlit skies have inspired countless artists and authors and have brought great pleasure to those fortunate enough to live in scenic rural settings. The loss of this view has undoubtedly impacted Plaintiffs. A landowner's view, however, is largely defined by what his neighbors are utilizing their property for. Texas caselaw recognizes few restrictions on the lawful use of property. If Plaintiffs have the right to bring a nuisance action because a neighbor's lawful activity substantially interferes with their view, they have, in effect, the right to zone the surrounding property. Conversely, we realize that Plaintiffs produced evidence that the wind farm will harm neighboring property values and that it has restricted the uses they can make of their property. FPL's development, therefore, could be characterized as a condemnation without the obligation to pay damages.
Texas caselaw has balanced these conflicting interests by limiting a nuisance action when the challenged activity is lawful to instances in which the activity results in some invasion of the plaintiff's property and by not allowing recovery for emotional reaction alone. Altering this balance by recognizing a new cause of action for aesthetical impact causing an emotional injury is beyond the purview of an intermediate appellate court. Alternatively, allowing Plaintiffs to include aesthetics as a condition in connection with other forms of interference is a distinction without a difference. Aesthetical impact either is or is not a substantial interference with the use and enjoyment of land.If a jury can consider aesthetics as a condition, then it can find nuisance because of aesthetics. Because Texas law does not provide a nuisance action for aesthetical impact, the trial court did not err by granting FPL's motion for partial summary judgment and by instructing the jury to exclude from its consideration the aesthetical impact of the wind farm.
Id. at 512-13. ContraBurch v. Nedpower MountStorm, LLC, 647 S.E.2d 879 (W. Va. 2007). See generally Andriano, The Power of Wind: Current Legal Issues in Siting for Wind Power, Planning & Envtl. L., May 2009, at 3.
The Takings Issue: Eminent Domain
While the court in Kelo stressed that deference must be given to the legislative declaration of public purpose, the legislative discretion is not absolute. The Supreme Court of Hawaii, applying Justice Stevens’ warning that “the City would [not] be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit,” Kelo, 545 U.S. at 477, remanded a challenge to condemnation of a condominium development for construction of a public highway bypass that was to be built by a private developer for a determination whether the stated public purpose was a pretext. County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615, 620 (Haw. 2008) (“[A]lthough our courts afford substantial deference to the government’s asserted public purpose for a taking in condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner’s defense of pretext.”).
For an argument that the Religious Land Use and Institutionalized Persons Act (RLUIPA) should not be viewed as giving religious institutions any extraordinary ability to resist condemnation, see Serkin & Tebbe, Condemning Religion: RLUIPA and the Politics of Eminent Domain, 85 Notre Dame L. Rev. --- (2009), Brooklyn Law School Legal Studies Paper No. 127, available at
The Takings Issue: Regulatory Takings
Woodyard & Boggs, Public Outcry: Kelo v. City of New London—A Proposed Solution, 39 Envtl. L. 431 (2009), believe that
[T]he Supreme Court should trust local governments to use eminent domain in these types of cases properly, but verify their actions by increasing the standard of review to the intermediate level. Using only the rational basis standard trusts local governments too much, and strict scrutiny does not trust them enough. Raising the level of review to the middle level standard, that is ‘intermediate scrutiny,’ offers the advantages of increasing the standard to afford greater protection to property owners, but not unnecessarily hamstringing the legislative branch and local governments.
Id.at 450.
The Takings Issue: The Balancing Test
The United States Court of Appeals for the Federal Circuit, in Amerisource Corp. v. United States, 525 F.3d 1149 (Fed. Cir. 2008), affirmed a dismissal by the Court of Federal Claims which held no compensable taking occurred when pharmaceutical drugs belonging to a wholesale distributor were seized from a pharmacy by the United States Attorney. Id. at 1150. The Federal Circuit reasoned that “the government’s seizure, retention, and damaging of the property did not give rise to an actionable claim for a taking because ‘items properly seized by the government under its police power are not seized for ‘public use’ within the meaning of the Fifth Amendment.’” Id. at 1153.
In Tennessee Scrap Recyclers Ass'n v. Bredesen,556 F.3d 442 (6th Cir. 2009), the Sixth Circuit Court of Appeals affirmed the denial of a “motion for a preliminary injunction to enjoin the enforcement of a city ordinance requiring scrap metal dealers to ‘tag and hold’ the scrap metal they acquire for a period of ten days.” Id. at 446. The ordinance also required “that the tagged scrap metal be open to inspection ‘by anyone desiring to investigate.’” Id.at 453. Citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), the court found
The holding period does not constitute a “direct governmental appropriation or physical invasion” of the scrap dealers' property protected by the Fifth Amendment. Neither the government nor a third party authorized by the government physically invades the scrap dealers' property by means of the holding period. Nor does the holding period physically appropriate the scrap dealers' property-either their scrap metal or their premises. Rather, the holding period limits the scrap dealers' use of their scrap metal (and derivatively, wherever they choose to keep it) for a period of ten days. Regulations of a party's use of its property are not physical takings. (“So long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity.”).
The inspection requirement does not physically take the scrap dealers' property either. The scrap dealers analogize the inspection requirement to the Supreme Court's decisions in Lorettoand Nollan v. Cal. Coastal Comm'n; however, those cases are not on point-they involve complete, permanent appropriations of the owner's right to exclude others that are fundamentally unlike the limited, temporary intrusion at issue here.
556 F.3d at 453 (internal citations omitted).
The Illinois Supreme Court, in Empress Casino Joliet Corp. v. Giannoulias, 896 N.E.2d 277 (Ill. 2008),held that an act imposing a 3 percent surcharge on casinos with adjusted gross receipts in excess of $200 million and the proceeds being distributed to the five horse racing tracks in Illinois is not subject to a takings challenge. Id. at 282. “The Act does not involve an interest in physical or intellectual property, nor does it operate upon or alter an identifiable property interest. The case at bar does not involve the state's exercise of its eminent domain powers, but rather involves its exercise of its taxing powers.” Id. at 293.
An Ohio court, in reversing and remanding a summary judgment against a plaintiff’s partial taking claim based on the rezoning of adjacent property, held that a trial court cannot enter summary judgment on a partial taking claim without considering the Penn Central partial taking factors. Clifton v. Vill. of Blanchester,2008 WL 4058098 (Ohio App. Sep. 2, 2008).
A Utah court held that denial of a rezoning application from single to multifamily for a small house and lot in an area that had been down-zoned from multifamily to single family several years earlier was not a taking because the owner was not deprived of all economic use. Tolman v. LoganCity, 167 P.3d 489 (Utah App. 2007). The owners’ claims—that they were not able to sell their house (appraised at $130,000) because the only offers they received ($70, 000 and $100,000) were for substantially less than the appraised value and that renting the house had proved unsatisfactory—were unpersuasive to the court.
A similar result was reached in Haisley v. Mercer County Bd. of Zoning Appeals, 2007 WL 3342768 (OhioApp. 2007), in which an Ohio court held that denial of a variance to enable construction of a single family house on an undersized lot was not a taking.
Robert Meltz, Legislative Attorney with the Congressional Research Service, has written an “attempt to comprehensively set out the highlights of current substantive takings law as succinctly as possible [which] [t]akings mavens may find . . . useful as a checklist for missed arguments.” Meltz, Takings Law Today: A Primer for the Perplexed, 34 Ecology L.Q. 307, 310 (2007).
For an argument that “‘Average Reciprocity of Advantage’ is a legal term of art without a settled definition,” see Wade Bunting, Average Reciprocity of Advantage: "Magic Words" or Economic Reality--Lessons from Palazzolo, 39 Urb. Law. 319 (2007).
Partial regulatory claims are discussed in Goodin, The Role and Content of the Character of the Governmental Action Factor in a Partial Regulatory Takings Analysis, 29 U. Haw. L. Rev 437 (2007) and Armstrong Coffey, Recent Developments in Land Use, Planning and Zoning Law: High Hopes, Hollow Harvest: State Remedies for Partial Regulatory Takings, 39 Urb. Law. 619 (2007).
First English: The Inverse Condemnation Remedy
For an argument that a compensation requirement “could improve environmental conservation efforts” rather than hinder them, see Adler, Money or Nothing: The Adverse Environmental Consequences of Uncompensated Land Use Controls, 49 B.C.L. Rev. 301 (2008).
The citation to Wennsmann Realty, Inc. v. City of Eagan on pages 139, 178, and 621 of the casebook should be updated as follows: Wennsmann Realty, Inc. v. City of Eagan, 734 N.W. 2d 623 (Minn. 2007).