Land Use - LAND USE OUTLINE threshold issues: - consider...

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LAND USE OUTLINE threshold issues: -- consider all levels of law i) Federal constitution ii) Federal statute esp. Federal Fair Housing Act NEPA iii)State constitution iv)State Statute esp. CEQA v) State common law esp. takings doctrine vested rights doctrine vi)Local ordinance incl. procedures for land use decisionmaking as well as policy… -- facial v. as applied challenges AS APPLIED challenge attacks application of regulation to particular piece of property… need to show ripeness, exhaustion, final determination ( see Williamson County , where landowner had not sought variance) for FACIAL, mere enactment of the challenged regulation deprives the landowner of all economically viable use of the property. Ripe the moment the regulation is enacted. Does not need to meet final determination prong of Williamson County. -- compare and contrast jurisdictions’ approaches…federal? California? other states we studied such as OR or NJ?
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O. Background A. The Land Development Process 1-36 B. Markets and Planners p. 37-83 C. Regulators: Local Governments I. ZONING A. Early Zoning Efforts Lochner (1905) era – state power to regulate tightly delimited, reg’s commonly overturned as not a close enough fit between legislative goal and means. strong protection of common law property rights. 1916 – NYC major zoning initiative, trying to confine Eastern Euro. garment workers 1926 – SZEA, Standard State Zoning Enabling Act -- allows state reg. “for the purpose of promoting health, safety, morals, or the general welfare of the community.” -- authorizes creation of use districts -- provides for height and bulk restrictions -- implemented by most states, has held true to varying degrees -- rejected by a few courts as SDP violatiive B. Euclid Village of Euclid v. Ambler Realty Co . (S. Ct. 1926) (Sutherland) (p. 89) Zoning is valid under rational basis standard of review. P’s property zoned multi-fam res. in newly enacted comprehensive zoning ordinance. P wanted to build industrial Facial challenge on SDP and =P court compares to noxious use but says prophylactic regulation is reasonable rejects argument that apartments are “parasitic” and as harmful as industry to be Invalid, law must be “clearly arbitrary and unreasonable, having no substantial relationship to the public health, safety, or general welfare.” C. The Adjudicative/Legislative Distinction 1. JUDICIAL/ADJUDICATIVE/ ADMINISTRATRIVE LEGISLATIVE Requires notice and opp’y to be heard under procedural due process (PDP) Does not require notice or hearing b/ c generally applicable under PDP Less deferential standard of rev. – req’s substantial findings and evidence Deferential standard of review – arbitrary and capricious Narrow in scope, focused on individuals Open-ended, affecting lots of people
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Application of general rule Formulation of general rule Retrospective Prospective Initiative process not available Initiative process available No immunity Immunity 2. In CALIFORNIA, -- Arnel – any rezoning is legislative in CA
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Land Use - LAND USE OUTLINE threshold issues: - consider...

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