Land Use Attack Plan Outline - Fall 2007 - Selmi & Kushner - Iglesias.doc

Affords local jx an opportunity to undertake a

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: Retention of discretionary authority. Affords local JX an opportunity to undertake a detailed analysis of precise features of a development project, designed to reduce adverse impacts from unforeseen issues, even with permitted uses, not accounted for in general plan or zoning regulations. Subdivision Regulation – Platting statutes Legal Standard : “substantial evidence in the record.” A subdivision must meet all requirements established through subdivision regulation, zoning or the comprehensive plan based on: 1. Evidence in the record 2
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2. Findings of fact 3. Decision based on findings of fact 4. If the plan does NOT meet these requirements, it MUST be denied. 5. If it DOES meet these requirements, the city may still exercise its discretion and deny it anyway. Purposes of subdivision development review (always an adjudicatory act): 1. allow disclosure and mitigation of environmental harm 2. assure adequacy of infrastructure 3. cost-shifting of development and infrastructure to developer by imposition of conditions on subdivision and permit approval 4. ensure compliance with planning & subdivision standards 5. assure that the site is well planned, attractive, safe and compatible with adjacent development Vested Rights HW&S outweighs private property rights - Vesting of rights is discretionary and NOT guaranteed at ANY stage of the process. Vesting rights: a. Are PERSONAL and generally non-transferable or alienable b. Can be lost through i. Abandonment ii. Recoupment; or iii. Overriding benefit to the public makes it necessary to remove vesting Common law - "vest on submission" or “vest on building” (EARLY VESTING) a. Government is estopped from interfering with already approved projects which have progressed to a point where the hardship from investment of time, capital and resources forecloses a change of rules. Subdivision rules may NOT be changed following tentative or preliminary tract approval because that's when vesting of rights occurs, creating a POINT OF ESTOPPEL. b. Rationale: Developer wants vesting early before heavy expenses accrue Statutory law - "zoning estoppel" - (LATE VESTING) a. State level, majority rule – after final approval of tentative map but before final permit approval i. Act by Government ii. Reasonable and good faith reliance on act iii. Reliance takes form of substantial change in position (expenditures) iv. Equity dictates that it would be unfair to force the developer to follow new rule b. Rationale: Municipality wants proof of substantial financial investment in project and commitment to community that project will be completed as agreed. California – vest upon completion (approval) of tentative map. Statutory requirement that a developer must have a "substantial investment" in hard costs based on reliance in representations made by the government regarding permits before vesting occurs Kaufman & Broad : reasonable notice of all applicable rules must be present at vesting; method of escalating fees cannot be restructured (can’t dramatically change the rules) Primary Issue : What law is applicable if changed? (a right to develop under a certain set of standards)
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  • Fall '18
  • Robert Strouse
  • developer, Zoning

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