THE AMERICAN LAW INSTITUTE

Continuing Legal Education

Land Use Institute:

Planning, Regulation, Litigation,

Eminent Domain, and Compensation

Cosponsored by the Center for Urban Redevelopment Education (CURE),School of Urban & Regional Planning, Florida Atlantic University

August 8 - 10, 2012

Chicago, Illinois

TABLE OF CONTENTS

Page

PROGRAM ix

FACULTY PARTICIPANTS xi

IN MEMORIUM xiii

STUDY MATERIALS

1. Zoning and Land Use Law 101: Just the Basics

By Patricia E. Salkin

1

2. Basics of Eminent Domain

By Amy Brigham Boulris

13

3. The Basics of Inverse Condemnation

By Michael M. Berger

25

4. Takings Cases

By Michael M. Berger

113

5. Developments in Eminent Domain — 2011-2012

By Gideon Kanner

125

6. Case Decisions

By Robert H. Freilich

133

7. Case Law Update: First Amendment

By Julie A. Tappendorf, Brent Denzin, and Dan Bolin

141

8. Case Law Update: Development Agreements

By Julie A. Tappendorf, Brent Denzin, and Dan Bolin

151

9. Zoning Opposition: How Far Can a Protester Go?

By Donna J. Pugh

163

10. Development Agreements

By David Callies and Julie A. Tappendorf

175

Study Material 177

Appendix: Table of Contents Development Agreement by David Callies, Julie

Tappendorf, and Cecily Talbert Barclay

188

11. Honey, It’s all the Buzz: Regulating Neighborhood Beehives

By Patricia E. Salkin

193

v

12. Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens

By Patricia E. Salkin

213

13. Land Use Incentives and Enforcement in Government "Green" Requirements

By Graham C. Grady

229

14.

Negotiating Leases in the Era of Green Building: Managing Risk and Merging

Expectations in Pursuit of the Deal

By Paul D'Arelli

239

15. Affordable Housing

By Elisa L. Paster

283

16. Affordable Housing

Robert H. Freilich

291

17. Preparing, Briefing, and Arguring an Appeal

By Michael M. Berger

311

18. NEPA 101: Introduction to the National Environmental Policy Act of 1969

By Gus B. Bauman

319

19. CEQ Finalizes Guidance to Improve NEPA Reviews

Submitted by Gus B. Bauman

333

20.

Statement of Gus Bauman, of counsel, Beveridge & Diamond, P.C., Washington, D.C.,

on the RAPID Act of 2012, H.R. 4377, before the Subcommittee on Courts, Commercial

and Administrative Law, Committee on the Judiciary, U.S. House of Representatives

By Gus B. Bauman

337

21.

Federal Laws, Regulations, and Programs Affecting Local Land Use Decisionmaking:

Hydraulic Fracturing

By David L. Callies

343

22. Federal Laws: Second Amendment Update

By Julie A. Tappendorf, Brent Denzin, and Dan Bolin

369

23. Federal Laws: Hazardous Materials/Environmental Update

By Julie A. Tappendorf and Brent Denzin

375

24. Supreme Court Rules Property Owners May Challenge EPA Compliance Orders

By Gus B. Bauman

381

25. Sackett v. EPA Oral Agrument E-Mail

By Gus B. Bauman

385

26. Waters of the United States: Post-Rapanos Draft Guidance

By W. Parker Moore, Gus B. Bauman, and Alexandra B. Sherertz

389

27. Oil and Gas Fracking Issues

By Robert H. Freilich

413

28. Land Use and Real Estate Issues Related to Medical Marijuana

By Elisa L. Paster

427

29. Planning and Permitting Health Care and Senior Facilities

By Donna J. Pugh

433

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30.

Redevelopment in California: Its Abrupt Termination and a Texas-Inspired Proposal

for a Fresh Start

By George Lefcoe

Submitted by Deborah M. Rosenthal

443

31.

Extracting Value from Shopping Center Assets: Deploying a Redevelopment and

Repositioning Strategy

By Paul D'Arelli

483

32. Supreme Court Takings Rules

By Gus B. Bauman

509

33. Takings and Vested Rights

By David L. Callies

523

34. Recent Developments in Solar Energy Finance, Development and Litigation

By Robert H. Freilich

559

35. Public-Private Partnerships in Construction

By Ross J. Altman

571

36. Concession and Lease Agreement

By Ross J. Altman

591

37.

Failure to Articulate Clear Ethics Rules and Standards at the Local Level Continues to

Haunt Local Land Use Decision Makers

By Patricia E. Salkin

609

38.

Regional Transportation District and Denver Transit Partners, LLC Concession and

Lease Agreement-supplemental material

By Ross J. Altman

629

39. Table of Contents 875

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2

THE AMERICAN LAW INSTITUTE Continuing Legal Education

Land Use Institute:

Planning, Regulation, Litigation, Eminent Domain, and Compensation

Cosponsored by the Center for Urban Redevelopment Education, School of Urban & Regional Planning, Florida Atlantic University

August 8-10, 2012 Chicago, Illinois

PROGRAM (All times are Central Time.) Wednesday, August 8, 2012 3:30 p.m. Early Registration 4:00 p.m. Head Start Program* – Moderator: Mr. Schnidman; Panel: Dean Salkin, Ms. Boulris, and Messrs. Bauman and Berger 6:00 p.m. Adjournment for the Day Thursday, August 9, 2012 7:30 a.m. Registration and Continental Breakfast Video Webcast Segment A 8:30 a.m. Welcome and Course Overview – Mr. Schnidman In Memoriam: Professor Charles M. Haar, Brandeis Professor of Law Emeritus, Harvard Law School; Professor John M. DeGrove, Director, Florida Atlantic University/Florida International University, Joint Center for Environmental Problems, Retired – Mr. Schnidman 8:45 a.m. Update on Planning, Land Use, and Eminent Domain Decisions – Moderator: Mr. Schnidman; Panel: Dean Salkin, Professors Callies and Kanner, Mss. Boulris, Paster, Pugh, Rosenthal, and Tappendorf; Messrs. Berger and Freilich 10:15 a.m. Networking and Refreshment Break 10:30 a.m. Update on Planning, Land Use, and Eminent Domain Decisions (continued) 12:00 noon Lunch Break and Women in Land Use Law Dutch Treat Lunch Video Webcast Segment B 1:15 p.m. CONCURRENT SESSIONS

• Development Agreements – Professor Callies and Ms. Tappendorf • Land Use Regulation, Animals, Urban Farms and Food* – Dean

Salkin and Ms. Rosenthal • The Basics of Eminent Domain* – Professor Kanner and Ms. Boulris

2:45 p.m. Networking Break 3:00 p.m. CONCURRENT SESSIONS

• Risk and Reward in Green Building – Messrs. D’Arelli and Grady • Affordable Housing* – Ms. Paster and Mr. Freilich • Creating the Record for Appeal* – Ms. Rosenthal and Messrs. Berger

and McKenna 4:15 p.m. Networking and Refreshment Break

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4:30 p.m. Annual Richard F. Babcock Faculty Keynote Address Speaker: Robert I. McMurry Introduction by Mr. Schnidman Presentation: “RIP: The Death of Local Land Use Regulation” 5:30 p.m. Adjournment for the Day; Networking Reception for Registrants and Faculty Friday, August 10, 2012 8:00 a.m. Networking Session and Continental Breakfast Video Webcast Segment C 8:30 a.m. Federal Laws, Regulations, and Programs Affecting Local Land Use Decision Making – Moderator: Mr. Schnidman; Panel: Professor Callies; Mss. Rosenthal and Tappendorf; and Messrs. Bauman, Freilich, and McMurry 10:15 a.m. Networking and Refreshment Break 10:30 a.m. Federal Laws, Regulations, and Programs (continued) 12:00 noon Lunch Break Video Webcast Segment D 1:15 p.m. CONCURRENT SESSIONS

• Wetlands Practice, and Oil and Gas Fracking Issues – Messsrs. Bauman and Freilich

• Planning and Permitting Health Care and Senior Facilities* – Mss. Paster and Pugh and Mr. Grady

• Redevelopment* – Ms. Rosenthal and Mr. D’Arelli 2:45 p.m. Networking and Refreshment Break 3:00 p.m. CONCURRENT SESSIONS

• Takings and Vested Rights – Professor Callies and Messrs. Bauman and Berger

• Energy and Land Use* – Messrs. Freilich and Grady • Public-Private Partnerships (PPP)* – Ms. Tappendorf and Mr. Altman

4:15 p.m. Networking and Refreshment Break 4:30 p.m. Ethical and Professionalism Considerations for the Land Use Practitioner and Government Lawyer – Moderator: Mr. Schnidman; Panel: Ms. Tappendorf and Mr. Grady; and a panel of selected Land Use Institute registrants 5:30 p.m. Closing Comments and Adjournment *Sessions not recorded or webcast. Total 60-minute hours of instruction: (including the Head Start Program): 16.5, including one hour of ethics

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ALI-ABA Course of Study Land Use Institute:

Planning, Regulation, Litigation, Eminent Domain, and Compensation

Cosponsored by the Center for Urban Redevelopment Education, School of Urban & Regional Planning, Florida Atlantic University

August 8-10, 2012 Chicago, Illinois

PLANNING CHAIR

Frank Schnidman, Esquire Director, Center for Urban Redevelopment Education (CURE)

School of Urban & Regional Planning, Florida Atlantic University 111 East Las Olas Boulevard, HEC 1008A

Fort Lauderdale, FL 33301

PLANNING CO-CHAIR

Professor Gdeon Kanner Professor of Law Emeritus, Loyola Law School

P.O. Box 1741 Burbank, CA 91507

FACULTY

Ross J. Altman, Esquire Dykema Gossett PLLC 10 South Wacker Drive Chicago, IL 60606 Gus B. Bauman, Esquire Beveridge & Diamond, P.C. Suite 700 1350 I Street, N.W. Washington, DC 20005 Michael M. Berger, Esquire Manatt, Phelps & Phillips, LLP 11355 W. Olympic Boulevard Los Angeles, CA 90064

Amy Brigham Boulris, Esquire Gunster, Yoakley & Stewart, P.A. 2 South Biscayne Boulevard 34th Floor Miami, FL 33131 Professor David L. Callies Benjamin A. Kudo Professor of Law University of Hawaii at Manoa William S. Richardson School of Law 2515 Dole Street Honolulu, HI 96822 Paul D'Arelli, Esquire Florida Zoning Law Group 8201 Peters Road Planation, FL 33324

xi

Robert H. Freilich, Esquire Freilich & Popowitz LLP Suite 56 10580 Wilshire Boulevard Los Angeles, CA 90067 Graham C. Grady, Esquire Shefsky & Froelich, Ltd. Suite 2800 111 East Wacker Chicago, IL 60601 William J. McKenna, Esquire Foley & Lardner LLP Suite 2800 321 North Clark Street Chicago, IL 60654 Robert I. McMurry, Esquire Gilchrist & Rutter, P.C. Suite 900 1299 Ocean Avenue Santa Monica, CA 90401 Elisa L. Paster, Esquire Gilchrist & Rutter, P.C. Suite 900 1299 Ocean Avenue Santa Monica, CA 90401

Donna J. Pugh, Esquire Foley & Lardner, LLP Suite 2800 321 North Clark Street Chicago, IL 60654 Deborah M. Rosenthal, Esquire Sheppard Mullin Richter & Hampton LLP Fourth Floor 650 Town Center Drive Costa Mesa, CA 92626 Professor Patricia E. Salkin Dean and Professor of Law Touro College Jacob D. Fuchsberg Law Center 225 Eastview Drive Central Islip, NY 11722 Julie A. Tappendorf, Esquire Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C. 6th Floor 140 South Dearborn Street Chicago, IL 60603

Please go to www.ali-aba.org/cu010 for biographical information about this faculty.

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Home / Recent News and Spotlights

Charles M. Haar [1920-2012]January 13, 2012

Professor Emeritus Charles M. Haar ‘48, a pioneer in land-use law whose scholarshipfocused on laws and institutions of city planning, urban development and environmentalissues, died on January 10, 2012. He was 91.

During his more than five-decade career, Haar influenced urban policy and planningthroughout the country, drafted key legislation for inner city revitalization, developedinfluential legal theories to support equality of services for urban dwellers and access tosuburbs, helped pioneer the modern environmental movement, and mentored a generationof scholars and activists.

“Charles Haar was a genuine pioneer who created new ways of making scholarship relevant to the improvement of thehuman condition through the improvement of the environment,” observed Harvard Law School Dean Martha Minow. “He wasa visionary leader in the field of land use law and urban planning with a focus on improving the lives of all Americans,regardless of race or economic status. His legacy includes major tenets of the modern-day environmental movement and theway we teach and study environmental law. It also includes the generations of students to whom he was a mentor and friend,and the contributions they made after learning from him. He will be deeply missed.”

Haar joined the Harvard Law School faculty as an assistant professor in 1952. He wasnamed a professor of law three years later and in 1972, he was appointed the Louis D.Brandeis Professor of Law.

Jerold S. Kayden ‘79, the Frank Backus Williams Professor of Urban Planning and Designand Director of the Master in Urban Planning Degree Program at the Harvard UniversityGraduate School of Design, who co-authored two books with Haar, said: “Charles was anenormously influential scholar in land-use and urban development law, more or lessresponsible for establishing land-use law as a distinct field within law school curricula. ForCharles, increasingly over his career, his scholarship was incomplete if it did not influencepublic policymakers, and his teaching was incomplete if it failed to incorporate the realities ofmaking public policy. He loved academic and political worlds and navigated comfortably between the two. A prolific, elegant,scholarly writer, Charles equally extolled the virtues of a crisp one-page memo.”

Early in his career, Haar served as an adviser on urban policy during John F. Kennedy’s presidential campaign, helping towrite speeches on housing law and policies. He went on to serve on several important presidential commissions during theJohnson and Carter administrations.

In 1964, he served as chairman of Johnson’s newly formed “National Task Force on the Preservation of Natural Beauty,” acommittee to explore how government action in public spaces and urban design shapes social experience. The task force’s

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report—which discussed cleaning up waterways, access to seashores and improving the availability and design of publictransit and cities as a new focus for the Department of the Interior—was described by Haar in a 1998 interview as “aforerunner for the environmental movement.” He was also an organizer of the first White House conference on theenvironment.

A noted expert on inner city revitalization, Haar was appointed by President Johnson to chair a “Commission on Formationand Organizing a Housing Department.” He also served on a task force for, and was a primary architect of, the Model CitiesProgram, an initiative developed by the Johnson Administration as a response to the urban riots of the mid-1960s. Haar wenton to serve as the first Assistant Secretary for Metropolitan Development in the newly formed Department of Housing andUrban Development, where he was responsible for administering planning programs for cities and metropolitan areas, sewerand water grants, urban mass transportation and land and water pollution programs.

In the late 1960s, Haar helped draft four important pieces of legislation: the Demonstration and Model Cities Act of 1966; theSafe Streets and Crime Control Act of 1968; Title IV of the Housing and Urban Development Act of 1968 (NewCommunities); and the Section 236 Affordable Housing Guarantee Program. He also worked on the creation of the FederalNational Mortgage Association in 1968.

A prolific author, Haar wrote a landmark casebook on Land-Use Planning. His many legal briefs and books focused on landuse, equitable distribution of municipal services and what he saw as the proper role of judges in cases involving conflictsbetween government and individual rights. His scholarship includes: “Land Planning in a Free Society” (1950), “Land andLaw” (1964) “Golden Age of American Law (1965), “Property and Law” with Lance Liebman (1977), “Cities, Law and SocialPolicy” (1984), “Landmark Justice: The Influence of William J. Brennan on America’s Communities,” with Jerold S. Kayden’79 (1989), and “Zoning and the American Dream,” with Jerold S. Kayden (1989).

In his 1996 work, “Suburbs Under Siege” (Princeton University Press), which won the Gustavus Meyers Award as the bestbook on human rights that year, Haar argued that all citizens no matter their ethnic background or socioeconomic statushave the right to live in the suburbs, and that a socially responsible judiciary must fight to uphold that right.

In a 2005 book “Mastering Boston Harbor: Courts, Dolphins, and Imperiled Waters” (Harvard University Press), Haar wrotethat his Washington experience left him with “the conviction that government action in the public interest can benefit people’slives.” In that book, Haar chronicled his involvement in a major environmental case, City of Quincy v. Massachusetts DistrictCommission, which resulted in the creation of the Massachusetts Water Resources Authority Act and the successful cleanupof Boston Harbor. Haar served as court-appointed Special Master, appointed by Massachusetts Superior Court Judge PaulG. Garrity, to oversee the suit against the Metropolitan District Commission over the pollution of Boston Harbor.

After taking emeritus status at Harvard Law in 1991, Haar taught as Distinguished Visiting Professor at the University ofMiami Law School, where he was instrumental in the creation of a graduate program in real property development. He wasalso actively involved in promoting cooperation between the U.S. the former Soviet Union, and Eastern Europe in areas ofprivatization, land-use reform and planning, housing and economic development.

Born in Antwerp, Belgium, Haar emigrated to the United States with his parents when he was six-months old. He was raisedin New York City and earned an A.B. from New York University, an M.A. in economics from the University of Wisconsin, andan LL.B. from Harvard Law School in 1948. As a recipient of a Sheldon Traveling Fellowship from Harvard University, hestudied at the London School of Economics.

During WWII, he served in the U.S. Navy in the Pacific as a Japanese language specialist in Naval intelligence, assigned tothe headquarters of Gen. Douglas MacArthur in Brisbane, Australia and New Guinea.

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A fellow of the American Academy of Arts & Sciences, he was also a member of the American Law Institute, The AmericanInstitute of Planners, the Department of Legal Studies of the National Academy of Sciences Highway Research Board andthe Building Advisory Council of the National Academy.

In a festchrift published in the Washington University Journal of Contemporary Law in 1996, Columbia Law School DeanLance M. Liebman and University of Richmond Professor Michael Allen Wolf described Haar as “one of our great scholar-entrepreneurs.” They wrote, “During five decades, the professional work of Charles Haar has investigated the ways in whichthe words formally uttered by judges, legislators, and regulators shape and affect the lives, fortunes and minds of Americans.No American law professor in the second half of the twentieth century has had more unerring taste (or smell) for the greattopic. Charles saw earlier than nearly anyone else the enigmatic nature of the takings clause, the intricacies for the masterplan, the racial and other inequalities in the provision of public services, the evolution of Anglo-American property law, theintergovernmental struggle of regulatory power, and the shape of the municipal landscape. “

For 30 years, Haar was married to Suzanne Keller, a sociologist and the first woman to hold a tenured position at PrincetonUniversity, who passed away in 2010. He is survived by his former wife, Natalie, his daughter Susan ‘78, his sons Jeremyand Jonathan, and five grandchildren.

© 2012 The President and Fellows of Harvard College. All rights reserved.

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Dr. John DeGrove, “Father of Growth Management,” passes away

The Board and staff of 1000 Friends of Florida deeply regret the passing of one of its most

eminent founders. A fifth generation Floridian, Dr. John DeGrove was born on May 4, 1924 in

St. Augustine, growing up on what he described as a “one-sick-mule farm” in nearby Palm

Valley.

Upon graduating from Duncan U. Fletcher High School he enrolled in the Citadel, majoring in

civil engineering. With the outbreak of the Second World War, he and his entire class left after

one semester to enlist in the military. Dr. DeGrove served from 1942 to 1946 in the U.S. Army

102nd

Infantry. He was awarded a Silver Star for gallantry in action and a Purple Heart for

wounds received in action.

Dr. DeGrove went on to receive his B.A. in History from Rollins College, M.A. in Political

Science from Emory University, and Ph.D. in Public Administration from the University of

North Carolina. After teaching with the University of Florida and the University of North

Carolina he joined FAU’s Department of Political Science and later served as Dean of the

College of Social Sciences.

Dr. DeGrove championed land use planning and water management in his beloved state of

Florida. He served as founding director of the FAU/FIU Joint Center for Environmental and

Urban Problems from 1971-1998, and retired in 2000 from FAU as Eminent Scholar Emeritus in

Growth Management and Development in the College for Design and Social Inquiry. The John

M. DeGrove Eminent Scholar Chair was established in his honor.

In 1971, Dr. DeGrove was one of the key advisors of then Governor Reuben Askew in

developing the national and internationally acclaimed five Water Management Districts. Among

his strongest advice to Governor Askew was that the Board of the Districts be held responsible to

the Governor with little interference from the legislature that has limited knowledge of water

resource issues.

From 1983 to 1985 Dr. DeGrove served as Secretary of the newly formed Florida’s Department

of Community with verve and distinction. He assembled superior staffs who were devoted to

him and their mission. As Secretary under Governor Bob Graham he was instrumental in the

conception and passage of Florida’s 1985 Growth Management Act and the State

Comprehensive Plan, becoming known as the “Father of Growth Management” in Florida.

Recognizing the need for an independent “watchdog” over the state’s newly created system of

managing growth, he was one of the founders of 1000 Friends of Florida, serving as its president

and then president emeritus. His fellow board members and staff will always remember his love

for Florida, passion for growth management, common sense approach to problem solving, and

infectious enthusiasm.

xvii

During 1000 Friends’ 15th

anniversary in 2001, Governor Jeb Bush and the Florida Cabinet

issued a resolution honoring Dr. DeGrove “for his decades of outstanding work on behalf of the

people and natural resources of Florida.” To commemorate the anniversary, Senator Bob

Graham wrote:

John, your clear sense of vision for Florida’s future, tempered with a balanced

mixture of tenacity and pragmatism, has served our state well. I cannot imagine

what problems would be facing our state today without your many years of wise

counsel to several generations of planners and public policy leaders. There are

few people in this state who have impacted each and every Floridian on a daily

basis with such positive force as you.

Nationally recognized as an authority in the fields of planning and public administration, Dr.

DeGrove was appointed by President Lyndon B. Johnson to the National Commission on Urban

Problems (the Douglas Commission) from 1967-1968. He served as advisor to the

state/regional/local planning and growth management systems in the states of California,

Georgia, Maine, New Jersey, North Carolina, Rhode Island, Vermont, Maryland, Virginia,

Washington, Oregon, Arizona, Minnesota, Pennsylvania, Texas and Canada, earning him the

distinction of “Grandfather of Growth Management.”

He authored numerous publications on growth management, including three definitive books,

Land, Growth and Politics in 1984, The New Frontier for Land Policy in 1992, and Planning

Policy and Politics: Smart Growth and the States in 2005. Professional memberships included

the National Academy of Public Administration and the American Planning Association, and he

was named a Fellow with American Institute of Certified Planners (AICP) in 2006.

Every citizen of this great state owes Dr. John DeGrove boundless thanks for his years of service

working to make water management effective and creating the tools for local government to

control unwanted growth in areas of genuine concern for sprawl and defense of special natural

areas.

His family is planning a memorial service in Florida at a yet-to-be-determined location and date.

John DeGrove will be sorely missed by his colleagues and the people of Florida.

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