11763442-v4

08/17/12 1:48 PM

PLANNING AND CONTROL OF

LAND DEVELOPMENT:

CASES AND MATERIALS

EIGHTH EDITION

ANNUAL UPDATE

AUGUST 15, 2012

Upda tes for 2011 a re in Y e l low

Upda tes for 2012 a re in B lue

2

TABLE OF CONTENTS

Chapter 1 AN INTRODUCTION TO LAND USE CONTROLS

A. WHY LAND USE CONTROLS THE LAWS OF THE INDIES

Hart, Colonial Land Use Law and Its Significance for Modern Takings Doctrine Nelson,

Leadership in a New Era

NOTES AND QUESTIONS

[1.] The Challenge of Land Use Policy R. PLATT, LAND USE AND SOCIETY: GEOGRAPHY, LAW AND PUBLIC

POLICY,

W. FISCHEL, THE ECONOMICS OF ZONING LAWS: A PROPERTY RIGHTS

APPROACH TO AMERICAN LAND USE CONTROLS,

NOTES AND QUESTIONS

[2.] Conflict and Conflict Resolution in the Use of Land PROBLEM

A NOTE ON VARIOUS APPROACHES TO THE RESOLUTION OF LAND USE

DISPUTES

[a.] Efficiency and Equity: Government Intervention and Its Alternatives E. HEIKKILA, THE ECONOMICS OF PLANNING,

NOTES AND QUESTIONS

Michelman, Property, Utility and Fairness: Comments on the Ethical Foundations

of “Just Compensation” Law, NOTES AND QUESTIONS

[b.] Other Private Ordering Solutions to Land Use Conflict Problems: Covenants and Nuisance

NOTES AND QUESTIONS

B. LAND USE CONTROLS: AN INTRODUCTION TO PLANNING [1.] The Local Comprehensive Plan

Insert at Notes and Questions at the end of 3. Restricting nuisances and promoting segregation on p. 13:

Using two datasets of land regulations for the largest U.S. metropolitan areas, Rothwell found that anti-

density regulations are responsible for large portions of the levels and changes in segregation from 1990 to

2000. A hypothetical switch in zoning regimes from the most exclusionary to the most liberal would reduce

the equilibrium gap between the most and least segregated Metropolitan Statistical Areas by at least 35%.

Rothwell, Racial Enclaves and Density Zoning: The Institutionalized Segregation of Racial Minorities in the

United States, 13 Am Law Econ Rev. 290 (2011). He concludes:

Whatever the motivations [for enacting zoning regulations], however, the disparate impacts of zoning

are becoming clear. Anti-density zoning is strongly associated with the segregation of the three largest

minority groups in the United States; moreover, evidence and straightforward logic suggest that its

effect is causal. After so many years of enabling and protecting the elite local interests that create and

enforce low-density regulatory regimes, liberalizing federal policy action will likely be necessary if

this continuing barrier to racial equality is to be dismantled. [Id., 59.]

3

[a.] The Idea of Planning NOTES AND COMMENTS

A NOTE ON THE RATIONAL MODEL AND ALTERNATIVES TO

TRADITIONAL PLANNING APPROACHES

[b.] Statutory Authorization for Comprehensive Planning NOTES AND QUESTIONS

[2.] State and Regional Planning [a.] State Planning Agencies and Plans

AMERICAN PLANNING ASSOCIATION, GROWING SMART LEGISLATIVE

GUIDEBOOK: MODEL STATUTES FOR PLANNING AND THE MANAGEMENT

OF CHANGE,

NOTES AND QUESTIONS

A NOTE ON ENVIRONMENTAL JUSTICE

[b.] Regional Planning Agencies and Plans AMERICAN PLANNING ASSOCIATION, GROWING SMART LEGISLATIVE

GUIDEBOOK: MODEL STATUTES FOR PLANNING AND THE MANAGEMENT

OF CHANGE

NOTES AND QUESTIONS

Insert at A Note on the Rational Model and Alternatives to Traditional Planning Approaches on p. 40

before the last sentence in the third full paragraph 3 under Participatory planning:

Since the publication of this article, Fainstein has further developed her ideas into a book. S. Fainstein, The

Just City (2010).

Insert at Notes and Questions at the end of 3. “Transportation planning”, on p. 61:

For a fascinating technical account of how the Atlanta Regional Commission (ARC), the designated

metropolitan planning agency for the seven-county Atlanta, Georgia, area, formulated its 1975 regional

development plan, see Basmajian, Projecting Sprawl? The Atlanta Regional Commission and the 1975

Regional Development Plan of Metropolitan Atlanta, 9 J. Plng. His. 95 (2010). Basmajian contends that the

development policies ARC ultimately adopted encouraged the building of a vast, low-density landscape,

exactly as the urban transportation model it employed predicted.

4

Chapter 2 THE CONSTITUTION AND LAND USE CONTROLS: ORIGINS, LIMITATIONS AND FEDERAL REMEDIES

A. NUISANCE LAW Bove v. Donner-Hanna Coke Co.

NOTES AND QUESTIONS

B. THE TAKINGS ISSUE [1.] Eminent Domain

Kelo v. City Of New London

NOTES AND QUESTIONS

Insert in the third full paragraph on p. 81, beginning with “Lavine, supra,” immediately before the sentence

beginning with “For an argument that the Kelo decision really is an example…”:

Further discussion of New York‟s struggle to prevent abuse of the blight standard can be found in Racketa,

Takings for Economic Development in New York: a Constitutional Slam Dunk?, 20 Cornell J.L. & Pub. Pol‟y

191 (2010).

5

[2.] Regulatory Takings

Add at end of Notes and Questions 4. State legislative responses, page 83:

Although many states have adopted new laws, little change has taken place in what local and state

governments are actually doing. Jacobs & Bassett, All Sound, No Fury? The Impacts of State-Based Kelo

Laws, in American Planning Association: Planning & Environmental Law, 1, 7 (2011). This could be

because Kelo-style takings seldom occur, and when they do, they appear to be voluntary. Id.

Add at end of Notes and Questions 5. State judicial responses, page 85:

The court in County of Los Angeles v. Glendora Redevelopment Project, 185 Cal. App. 4th 817 (Cal. Ct. App.

2010) used a California statute to determine blight in Glendora‟s redevelopment plan. The statute, effective

2008, explains four requisites for a proper blight finding: the area must be “predominantly urbanized”; the

area must be “characterized by” one or more conditions of physical blight; the area must be “characterized

by” one or more conditions of economic blight; and these “blighting conditions must predominate in such a

way as to affect the utilization of the area, causing a physical and economic burden on the community.” Id. at

832-33. The court found that Glendora had not met the “physical blight” test (unsafe and unhealthy

buildings; code violations; dilapidation and deterioration; and/or defective design or construction) and

therefore the area was not blighted. Id. at 837-41. For a discussion of the court‟s willingness to scrutinize

blight findings, rather than deferring to the agency‟s determination, as in Kelo see Rick E. Rayl, New

Published Decision Strikes Down Blight Findings, California Eminent Domain Report (June 6, 2010)

available at www.californiaeminentdomainreport.com/2010/06/articles/court-decisions/new-published-

decision-strikes-down-blight-findings.

For a review of state court interpretations of state constitutional public use clauses since Kelo and a

consideration of judicial interpretations of Kelo‟s “pretext” standard see Ilya Somin, The Judicial Reaction to

Kelo, 4 Alb. Govt. L. Rev. 1 (2011).

6

[a.] The Early Supreme Court Cases Pennsylvania Coal Co. v. Mahon

NOTES AND QUESTIONS

Village Of Euclid v. Ambler Realty Co.

Ambler Realty Co. v. Village Of Euclid

Village Of Euclid v. Ambler Realty Co.

Add at end of textual note on Judicial takings? on p. 87 immediately before [a]:

Though not technically a judicial takings issue, state courts have contended with “rolling” easements. For

example, the Supreme Court of Texas in Severance v. Patterson, ruled that “rolling” easements were not

recognized when the land and attached easement were “swallowed” by the adjacent body of water (the Gulf

of Mexico in this case). 345 S.W. 3d 18, at *1 (Nov. 5, 2010), rehearing granted 2010 Tex. LEXIS 854. The

court noted that a new easement on adjoining private properties may be established if proven pursuant to the

Open Beaches Act or the common law. Id. at *15. Based on the history of the land, the court held that

Texas does not recognize a “rolling” easement on Galveston‟s West Beach. Easements for public use

of private dry beach property do not change along with gradual and imperceptible changes to the

coastal landscape. But, avulsive events such as storms and hurricanes that drastically alter pre-

existing littoral boundaries do not have the effect of allowing a public use easement to migrate onto

previously unencumbered property.

Id. at *11.

A strong dissent emphasized that the public in Texas has used the beaches continuously for nearly 200 years.

Id. at *15. The dissent noted that hurricanes and tropical storms are frequent occurrences on the Texas

coasts, and by failing to recognize rolling easements, the court has placed a costly and unnecessary burden on

the state if it is to preserve the heritage of open beaches. Id. at *18. The dissent is concerned with the court‟s

decision because it “defies not only existing law but logic as well.” Id.

For a discussion of Justice Scalia‟s conclusion that “the Takings Clause bars the State from taking private

property without paying for it, no matter which branch [of government] is the instrument of the taking” see

Somin, Stop the Beach Renourishment and the Problem of Judicial Takings, 6 Duke J. Con. L.& Pol‟y 91

(2011). See also Mulvaney, The New Judicial Takings Construct, 120 YALE L.J. ONLINE 247 (2010)

http://yalelawjournal.org/2011/2/15/mulvaney.html (arguing that the plurality opinion may have articulated a

new category of per se takings).

Add at end of textual note on Judicial takings?, p. 87:

For an analysis of common misconceptions in the Stop the Beach Renourishment case and for an argument

against the use of judicial takings, see Underkuffler, Judicial Takings: A Medley of Misconceptions, 61

Syracuse L. Rev. 203 (2011). Additionally, for an in-depth look at the evolution of property rights in the

wake of Stop the Beach, see Blumm & Dawson, The Florida Beach Case and the Road to Judicial Takings,

35 Wm. & Mary Envtl. L. & Pol‟y Rev. 713 (2011).

http://yalelawjournal.org/2011/2/15/mulvaney.html

7

NOTES AND QUESTIONS

Tarlock, Euclid Revisited, Land Use Law & Zoning Digest,

NOTES AND QUESTIONS

[b.] The Balancing Test Penn Central Transportation Co. v. City Of New York

NOTES AND QUESTIONS

A NOTE ON THE KEYSTONE CASE

A NOTE ON PHYSICAL OCCUPATION AS A PER SE TAKING

A NOTE ON “FACIAL” AND “AS-APPLIED” TAKINGS CHALLENGES

Add at end of third full paragraph beginning “Yee seems to limit…” on p. 123:

In Harmon v. Markus, 412 Fed.Appx. 420, 421 (2nd Cir. 2011), the court affirmed that a New York “Rent

Stabilization Law” (RSL) did not effect a permanent physical occupation of the property because “where a

property owner offers…rental housing…governmental regulation of the rental relationship does not constitute

a physical taking.” Id. at 422 (citing Yee). The court also affirmed the dismissal of the Harmons‟ due process

and equal protection claims based on Stop the Beach Renourishment, infra. (the Due Process Clause “cannot

do the work of the Takings Clause”). The Supreme Court declined to hear an appeal.

Add at end of A Note on Physical Occupation as a Per Se Taking, p. 124:

Where government use of a railroad easement exceeds the easement scope and results in a taking, “the

measure of just compensation is the difference between the value of [the] land unencumbered by a railroad

easement, and the value of [the] land encumbered by a perpetual easement for recreational use.” Ybanez v.

United States, 102 Fed. Cl. 82, 84, 88 (Fed. Cl. Ct. 2011)). In its opinion and order, the court granted partial

summary judgment in favor of plaintiff‟s claim that a Notice of Interim Trail Use resulted in a taking of a

reversionary right and instructed both parties to retain experts to conduct joint appraisals of the property for a

final determination of damages. Id.

8

Nollan v. California Coastal Commission

NOTES AND QUESTIONS

[3.] First English: The Inverse Condemnation Remedy First English Evangelical Lutheran Church Of Glendale v.

County Of Los Angeles

NOTES AND QUESTIONS

Add at end of A Note on “Facial” and “As-Applied” Takings Challenges, p. 126:

The Ninth Circuit Court of Appeals vacated its earlier opinion in Guggenheim v. City of Goleta: a claim

based on a Penn Central analysis. 638 F.3d 1111, 1120-21 (9th Cir. 2010) (en banc), cert. denied, 131 S. Ct.

2455 (2011). The court emphasized that plaintiffs lacked investment-backed expectations: “[s]peculative

possibilities of windfalls do not amount to „distinct investment-backed expectations‟ unless they are shown to

be probable enough materially to affect the price.” Id.

The court stated

Ending rent control would be a windfall to the Guggenheims, and a disaster for tenants who bought

their mobile homes after rent control was imposed in the 70‟s and 80‟s. Tenants come and go, and

even though rent control transfers wealth to “the tenants,” after a while, it is likely to affect different

tenants from those who benefitted from the transfer. The present tenants lost nothing on account of

the City‟s reinstitution of the County ordinance.

Id. at 1122.

Add at end of Notes and Questions 2, The nexus test, p. 132:

In St. Johns River Water Mgmt. v. Koontz, 77 So. 3d 1220, 1222 (Fla. 2011), the Florida Supreme Court

refused to extend the Nollan/Dolan test to exactions or conditions that “do not involve the dedication of real

property for a public use.” Id. at 1230. There, Koontz was denied a permit to develop an area of wetlands

after he refused to comply with the district‟s condition that Koontz reserve part of his property as a

conservation area or pay for offsite mitigation. Id. The court noted that even if Nollan/Dolan did apply,

Koontz “never expended any funds towards the performance of offsite mitigation, and nothing was ever taken

from Mr. Koontz.” Id. at 1231. The district‟s denial was based upon existing regulations, so an exactions

analysis did not apply. Id.

Then immediately add:

See Radford & Wake, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology L.Q.

731, 743-45 (2011) for a discussion of how Guggenheim serves as “a model of how Penn Central might be

applied” to rent control takings scenarios.

9

[4.] The Lucas Case: A Per Se Takings Rule Lucas v. South Carolina Coastal Council

NOTES AND QUESTIONS

A NOTE ON HOW THE COURTS HAVE DRAWN THE TEETH OF THE LUCAS

DECISION

Add at end of Notes and Questions 5. Delay as a taking, page 143-144 before the paragraph that starts

“A somewhat different problem arises….”

For a case discussing extraordinary delay as a taking, see Res. Investments, Inc. v. United States, 85

Fed. Cl. 447 (Fed. Cl. 2009). The court traces the concept of a regulatory taking emanating from

extraordinary delay beginning with Agins v. City of Tiburon, 447 U.S. 255 (1980) and through Appolo Fuels, Inc. v. United States, 381 F.3d 1338 (2004), cert. denied, 543 U.S. 1188 (2005). After observing that First English Evangelical governed, the court stated that: "If permit denial were the only way

for an agency to effect a regulatory taking, agencies could avoid implicating the Takings Clause by refusing

to deny a permit, instead consigning it to regulatory limbo by not acting. The precept of 'extraordinary delay'

is thus an exception to the general ripeness rule."

Add at end of Notes and Questions 1. All use?, p. 141:

Can an action of inverse condemnation be found where the government did not “intend” to take the private

property, and where the damage was “reparable”? The Oregon Court of Appeals found that evidence brought

by plaintiff against the City of Milwaukie for raw sewage coming through her bathroom fixtures when the

city “hydrocleaned” a nearby sewer line was sufficient to prove a claim of inverse condemnation. Dunn v.

City of Milwaukie, 250 P.3d 7(Or. Ct. App. 2011).

The court determined that an action for inverse condemnation is satisfied if the harm is a “natural and

ordinary consequence” of the government‟s action. Id. at 12. The government did not have to “intend” to

take the property or damage the property. Id. The court also held that a “substantial interference” with the

plaintiff‟s use and enjoyment of her property includes damage to the property: in this case because the

damage “significantly diminished the value” of the plaintiff‟s home. Id. at 16.

Add to Notes and Questions 3, What constitutes deprivation of “all economic use,” page 152 in second

paragraph, immediately after Friedenburg v. New York State Dep’t of Envtl. Conservation:

In DeCook v. Rochester Int’l Airport Joint Zoning Bd., 796 N.W.2d 299 (Minn. 2011), the court applied

Minnesota caselaw (McShane v. City of Faribault, 292 N.W.2d 253 (Minn. 1980) and held that a zoning

ordinance that extended the size of the runway safety zone over the landowners‟ property and reduced their

property value by $170,000 caused a taking under the Minnesota constitution. According to McShane,

“ʻthere must be compensation to landowners whose property has suffered a substantial and measurable

decline in market value as a result of the regulations.‟” DeCook, 796 N.W.2d at 307 (citing McShane).

Add to Notes and Questions 5, Sources, page 153:

Patrick C. McGinley, Bundled Rights and Reasonable Expectations: Applying the Lucas Categorical Taking

Rule to Severed Mineral Property Interests, 11 Vt. J. Envtl. L. 525, (2009-2010).

The City of Milwaukie appealed the judgment in favor of plaintiff and the Supreme Court of Oregon

approved its petition for review. Dunn v. City of Milwaukie, 350 Or. 532 (2011). As of the time of

publication of this update, the Supreme Court of Oregon had yet to hear the case.

https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1980116772&pubNum=708&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2004959673&pubNum=506&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2004959673&pubNum=506&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2005939035&pubNum=708&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)

10

[5.] Penn Central Vindicated Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning

Agency, Inc.

NOTES AND QUESTIONS

Insert Page 157, second paragraph, Guggenheim citation—change “see” to “but see” and change citation

to “638 F.3d 1111 (9th Cir. 2010)” and delete the parenthetical and replace it with the following (vacating the

earlier court of appeals opinion on rehearing en banc and holding that no taking occurred in facial Penn

Central challenge of rent control ordinance as applied to mobile home park as mobile home park owners

made return on investment and property was subject to same rent control ordinance at the time of park

owners‟ acquisition). The en banc court reversed a rather unusual interpretation of the Penn Central factors

by the panel.

Insert page 169 end of paragraph 2, Vindication for Penn Central?: Cordes, The Fairness Dimension in

Takings Jurisprudence, 20 Kan. J.L. & Pub. Pol'y 1 (Fall 2010) (discussing the application of the Penn

Central factors in light of fairness and justice concerns).

Notes and Questions 1. Insert page 168 end of note 1, paragraph 1:

For a discussion on the interaction between Penn Central and the Tahoe-Sierra, Lucas, and First English

decisions, see Radford, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology

L.Q. 731 (2011) (analyzing whether preexisting notice of land use regulations trump the Penn Central

balancing test).

Add at end of Notes and Questions 2, page 169 , Vindication for Penn Central?: Cordes, The Fairness

Dimension in Takings Jurisprudence, 20 Kan. J.L. & Pub. Pol'y 1, 2 (Fall 2010) (opining that the Tahoe-

Sierra opinion, combined with the Lucas and Palazzolo opinions, “establish the ascendency of Penn

Central as the primary vehicle for takings analysis”).

Insert page 158 at the end of the paragraph that starts “Mandelker, Investment-Backed Expectations. .

. .”:

Ruppert, Reasonable Investment-Backed Expectations: Should Notice of Rising Seas Lead to Falling

Expectations for Coastal Property Purchasers?, 26 J. Land Use & Envtl. L. 239 (2011).

11

Add at end of Notes and Questions 3, page 170, Applying the Penn Central test:

For a discussion of an inverse condemnation claim arising from a nuisance conducted by an entity that has

the eminent domain power, see Rader Family Limited Partnership, L.L.L.P v. City of Columbia, 307 S.W.3d

243 (Mo. App. 2010) stating that in inverse condemnation cases, the appropriate measure of damages is lost

fair market value immediately after the taking.

Insert page 170 at the end of the second paragraph in Note 3 (p. 169):

In Zimmerman v. Hudson, 264 P.3d 989, 992 (Kan. 2011), the Board of County Commissioners of

Wabaunsee County, Kansas enacted a moratorium on conditional use permits for commercial wind farms in

order to conduct a comprehensive study for the sake of determining the overall impact of such commercial

wind facilities. The plaintiff property owners and intervening wind-power royalty owners claimed this

moratorium constituted a taking of their vested right in pursuing a conditional use permit. The Kansas

Supreme Court found that the Board's moratorium was not a taking, because the plaintiff property owners and

intervening wind-power royalty owners did not have a vested right in obtaining a conditional use

permit. Id. at 1005.

But see DeCook v. Rochester Intern. Airport Joint Zoning Bd., 796 N.W.2d 299, 301 (Minn. 2011), in

which the Minnesota Supreme Court held that a zoning ordinance extending an airport “safety zone” onto

private property constituted a taking under the Minnesota Constitution‟s broader “taken,

destroyed or damaged” provision (Minn. Const. art. I § 13 (emphasis added)) when the burdened property

suffered a $170,000 diminution in value. The court applied the rule from a previous airport takings case,

declaring that “when an airport ordinance regulates land use within runway safety zones, there must be

compensation to landowners whose property has suffered a substantial and measurable decline in market

value as a result of the regulations.” Id. at 307 (internal citations omitted). The “substantial and measurable

decline” test differs from the Penn Central test, which also takes into account the diminution of value relative

to the overall property value. Without the additional Penn Central factors, the court found that even when

the entire property was worth several million dollars, the $170,000 diminution was substantial “by any

definition,” and constituted a regulatory taking. Id. at 308-309. For a discussion of whether states can

provide greater protection from uncompensated takings than Penn Central offers, including the

Minnesota McShane and DeCook cases, see Radford & Wake, Deciphering and Extrapolating: Searching

for Sense in Penn Central, supra.

12

Insert at end of the last paragraph of Note 3, beginning on p. 169 and ending on p. 170 as a new

paragraph:

Does damage caused by temporary flooding constitute a taking, or a tort? Property located in flooding zones

below dams often are subject to flowage easements, which allow the dam to release water into the flood zone

on a comprehensive schedule designed to enable maximum agricultural usage of the land and minimal

damage to the environment. However, deviations from these plans are sometimes necessary to prevent

widespread flooding, or for other special purposes, and such deviations can disrupt the landscapes below.

In Arkansas Game & Fish Com’n v. U.S., 637 F.3d 1366, 1367 (Fed. Cir. 2011), the Army Corps of

Engineers approved several deviations in a dam release schedule from 1993-2000 in southern Missouri,

which increased the average duration of flooding during the “critical” tree growing period of June to August

each year in an Arkansas “management area” downriver. Id. at 1372-73. As a result, timber trees in the flood

zones weakened by excessive flooding over the six year period did not survive a subsequent drought. Id. at

1373. The Federal Claims court awarded $5.5 million in damages for the dead and damaged timber for the

temporary taking. Id. at 1374. On appeal, the court reversed the decision and held that “a flooding must be a

permanent or inevitably recurring condition, rather than an inherently temporary situation, to constitute the

taking of a flowage easement.” Id. at 1378. The court reasoned that the Army Corps of Engineers' deviations

from the plan were “by their very nature temporary” and “cannot be „inevitably recurring‟ or constitute the

taking of a flowage easement,” Id. at 1367, and that “an injury that is only in its nature indirect and

consequential” is a tort, not a taking. Id. at 1374 (internal quotations omitted). See also State ex rel. Doner v.

Zody, 130 Ohio St. 3d 446, 446, 463-64 (Oh. 2011) (where the Ohio Supreme Court held that intermittent

flooding caused by spillway construction satisfied the two part test for takings-by-flooding claim because the

claimants had clear and convincing evidence that the flooding of their property was the “direct, natural, or

probable result of respondents‟ actions,” and that the flooding was “inevitably recurring.” The court granted

writ of mandamus to compel appropriation proceedings to determine the amount of taking that occurred.

Id. at 464-65.)

13

[6.] Removal of the “Substantially Advances” Test From Takings Jurisprudence Lingle v. Chevron U.S.A. Inc.

NOTES AND QUESTIONS

Insert at the end of note 2, p. 178:

Under Lingle, a facial challenge to the validity of a regulation is properly brought under the Due Process

Clause, not under the Takings Clause. In Alto Eldorado P’ship v. County of Santa Fe, 634 F.3d 1170, 1175-

76 (10th Cir. 2011), developers sought to circumvent the Williamson County ripeness requirements for final

decision and denial of compensation by presenting a facial challenge under the Takings Clause. The Tenth

Circuit court applied the Lingle distinction and determined that the developers‟ allegedly-facial takings claim

was a regulatory claim. Because the developers had not sought compensation or alleged that compensation

was unavailable, their challenge to the ordinance at issue (requiring a percentage of all new developments be

made available as affordable housing) was not ripe. Though Lingle held that due process should not be a part

of the takings analysis, some feel the opposite is true. Ostler, Restoring Due Process as the Essential First

Step in Every Takings Case, 13 Loy. J. Pub. Int. L 1 (2011).

Add at end of Notes and Questions No. 3, Page 179 at the end of the paragraph:

For a case in which the court found that the property owner's substantive due process claim was ripe but that

the property owner still could not move forward on the claim because it failed to "plead a plausible arbitrary

and capricious substantive due process claim" see Acorn Land, L.L.C. v. Baltimore County, 2010 LEXIS

19582 (4th

Cir. 2010). The court held that, in order to establish a substantive due process claim based upon

arbitrary and capricious conduct, Acorn had to prove '" (1) that [it] had property or a property interest; (2) that

the state deprived [it] of this property or property interest; and (3) that the state's action falls so far beyond the

outer limits of legitimate governmental action that no process could cure the deficiency.'" Acorn's complaint

failed the third prong because a state court remedy was available and Acorn failed to allege that its injury

could not be rectified by seeking relief in state court.

Add to the end of Notes and Questions No. 5, at the end of the paragraph ending on p. 180:

See also Lewyn, Character Counts: The “Character of the Government Action” in Regulatory Takings

Actions, 40 Seton Hall L. Rev. 597 (2010) (arguing that “courts should continue to follow pre-Lingle

precedent holding that the „character‟ factor includes the public interest supporting the government action at

issue”).

Insert page 180 at the end of note 5:

14

[7.] Federal Takings Executive Orders and Federal and State Takings Legislation Note on Takings Legislation in the Oregon State Land Use Program.

See also Sullivan & Eber, Protecting our Farmlands: Lessons from Oregon 1961-2009, 62 Plan. & Env. Law

3 (2010) (explaining Oregon‟s updated zoning laws).

Ostler, Restoring Due Process as the Essential First Step in Every Takings Case, 13 Loy. J. Pub. Int. L. 1

(2011); Spohr, Cleaning Up the Rest of Agins: Bringing Coherence to Temporary Takings Jurisprudence

and Jettisoning "Extraordinary Delay", 41 Envtl. L. Rep. News & Analysis 10435 (2011); Lewyn,

Character Counts: The “Character of the Government Action” in Regulatory Takings Actions, 40 Seton

Hall L. Rev. 597 (2010); Siegel & Meltz, Temporary Takings: Settled Principles and Unresolved

Questions, 11 Vt. J. Envtl. L. 479 (2010);

Add to end of second full paragraph on p. 186 that starts “To achieve its purpose…”:

See also Friends of Yamhill County, Inc. v. Bd. of Comm’rs, 264 P.3d 1265 (Or. 2011), where the Oregon

Supreme Court upheld the application of the six-factor test from Clackamas Co. v. Holmes, 508 P.2d 190 (Or.

1973) (nicknamed the “Holmes test”) in determining when a common law vested right to complete a

development exists.

Insert page 187 after first sentence of paragraph that starts “The future of Measure 49…”:

It appears that many cases are being resolved against landowners. For example, in Friends of Yamhill Cnty.,

Inc. v. Board of Comm’rs of Yamhill Cnty., 351 Or. 219 (2011), the Supreme Court of Oregon held that the

landowners holding a Measure 37 waiver did not have a vested right to complete a partially constructed

subdivision that they did not complete before the effective date of Measure 49, when the area was rezoned

such that a subdivision would be impermissible. The Oregon Supreme Court noted that Measure 49

reatroactively extinguished Measure 37 waivers that had been previously issued. For four other recent

Measure 49 cases, see Campbell v. Clackamas Cnty., 270 P.3d 299 (Or. App. 2011) (holding that 4.7%

expenditure ratio failed to establish a vested right for landowner to complete a partially constructed 41 lot

subdivision); Fischer v. Benton Cnty., 260 P.3d 647 (Or. App. 2011) (remanding case to county on the

grounds that county failed to properly calculate the expenditure ratio in relation to the use that the landowners

sought to vest in determining whether the landowners had a vested right in the continued use and completion

of the use described in the Measure 37 waiver); Curry v. Clackamas Cnty., 248 P.3d 1 (Or. App. 2011)

(holding that retroactive application of Measure 49 did not amount to a taking and that landowners did not

have a vested right in the continued use of the property); Bruner v. Josephine Cnty., 246 P.3d 46 (Or. App.

2010) (holding that the retroactive application of Measure 49 in the rezoning of landowners‟ property for

agricultural use did not amount to a taking without just compensation).

15

A NOTE ON THE TAKINGS CLAUSE LITERATURE

C. SUBSTANTIVE DUE PROCESS LIMITATIONS UNDER THE FEDERAL CONSTITUTION George Washington University v. District Of Columbia

NOTES AND QUESTIONS

D. EQUAL PROTECTION LIMITATIONS UNDER THE FEDERAL CONSTITUTION

In February 2012, the House of Representatives passed a bill prohibiting states or political subdivisions of a

state from exercising eminent domain over property to be used for economic development “if that State or

political subdivision receives Federal economic development funds during any fiscal year in which the

property is so used or intended to be used.” The bill was referred to the Senate in February 2012 and has not

been enrolled by the Senate. Private Property Rights Protection Act of 2012, H.R. 1433, 112th Cong. § 2(a)

(2012).

Insert in the first paragraph on 189 beginning “The developer can appeal…” after the sentence

beginning with “She also has an equal protection claim…demands on other developments.”:

City Nat’l Bank of Fla. v. City of Tampa, 67 So. 3d 293, 297 (Fla. App. 2011) (denial with prejudice of a

substantive due process claim does not necessarily preclude § 1983 equal protection claims when new facts

concerning the “rational basis” for an alleged discriminatory application of zoning ordinances are discovered

post-cert).

Insert page 197 at the end of the paragraph that starts on page 196 “This is a difficult standard to meet”:

See also 49 WB, LLC v. Vill. of Haverstraw, No. 08CV-5784(VB), 2012 U.S. Dist. LEXIS 16518 (state

appellate court‟s rejection of an eminent domain action as not for a public purpose did not provide a basis for a

Federal substantive due process damages claim). The court held that the Village of Haverstraw's actions were

“neither arbitrary nor irrational as a matter of law; they were simply wrong" and granted judgment in favor of

the Village. Id. at *8.

Insert at the end of the first paragraph in “D. Equal Protection Limitations…” on p. 198:

An essential element of an equal protection claim is showing that the parties making the claim have been

treated differently from similarly situated parties. Harvey v. Town of Merriville, 649 F.3d 526, 532 (7th Cir.

2011) (residents of a predominantly African-American subdivision could not satisfy their § 1983 equal

protection claim when they failed to provide evidence of a similarly situated unprotected class in an action

concerning an under-maintained retention pond)

Insert page 187 at the end of the paragraph that starts “For a discussion of these laws”:

Carter, Oregon’s Experience with Property Rights Compensation Statutes, 17 Southeastern Envtl. L.J. 137

(2008);

Add to end of Note, Federal takings legislation, p. 188:

16

Village Of Willowbrook v. Olech

NOTES AND QUESTIONS

E. FEDERAL REMEDIES FOR CONSTITUTIONAL VIOLATIONS [1.] Relief Under Section 1983 of the Federal Civil Rights Act

[a.] The Scope of Section 1983 [b.] Custom and Policy [c.] Procedural Due Process Actions [d.] State Tort Liability Analogy [e.] Immunity from Section 1983 Liability

Add at end of Legislative immunity, p. 207:

Applying Kahuumanu in determining whether an action was legislative for the purposes of legislative

immunity, the Ninth Circuit concluded that decisions to approve and promote the lease and sale of property

were legislative in character and thus the mayor and city council members were entitled to absolute

immunity. Community House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 952 (9th Cir. 2010). Two municipal

employees also were entitled to qualified immunity because “a reasonable official would not have known that

such actions would violate the Establishment Clause or the FHA,” the court concluded.

Add as new paragraph after the first paragraph in Note 3, The “run-of-the-mill” zoning dispute, p. 203:

The Fifth Circuit affirmed the lower court‟s denial of plaintiff‟s application in Lindquist v. City of Pasadena,

669 F.3d 225, 227 (5th Cir. 2012). There, the plaintiff‟s application for a used car dealership license was

denied based on a zoning ordinance which limited the proximity of used car dealerships to each other and to

residential zones. Id. The plaintiffs asserted their class-of-one equal protection claim when they discovered

the zoning board had granted a used car dealership license for a property one block away despite the fact that

the approved property was also in violation of the proximity restriction. Id. at 232. Though the Lindquists

identified comparators who had also been denied licensure and who sought an appeal, they ultimately failed

the “similarly situated” analysis because each of the proposed comparators sought appeal for different

proximity violations, and because the Lindquists‟ argument during the zoning appeal was based upon yet

another ordinance altogether. Id. at 235. The court noted that in cases involving the application of an

ordinance or statute, “the plaintiffs‟ and comparators‟ relationships with the ordinance at issue will generally

be a relevant characteristic” in the similarly-situated analysis. Id. at 234 (emphasis added).

Insert after sentence beginning “See Kaahumanu… on page 207:

The Kahuumanu test consists of four factors in determining whether an act is legislative in character and

effect: (1) whether the act involves ad hoc decision-making, or the formulation of policy; (2) whether the

act applies to a few individuals, or to the public at large; (3) whether the act is formally legislative in

character; and (4) whether it bears all the hallmarks of traditional legislation. Id. at 1220.

17

[f.] Damages and Attorney‟s Fees

PROBLEM

[2.] Barriers to Judicial Relief: Ripeness Williamson County Regional Planning Commission v. Hamilton Bank Of Johnson City

NOTES AND QUESTIONS

Add to the end of the first full paragraph on page 209, “2. For discussion of § 1983, see…”:

For a critical stance on the judiciary‟s application of § 1983 and proposed corrective amendments, see

Bodensteiner, Congress Needs to Repair the Court’s Damage to § 1983, 16 Tex. J. on C.L. & C.R. 29

(2010).

Insert at the end of the second paragraph of Notes and Questions 2, More on the final decision

requirement, p. 216:

The Palazzolo ripeness case underscored that the land use agency - not a reviewing court - determines the

extent of development allowed on a property. The Federal Claims Court relied upon this point in Mehaffy

v. U.S., 98 Fed.Cl. 604, 621 (Fed. Cl. Ct. 2011), holding that where a regulatory scheme does not provide

for variance or an administrative appeal mechanism, a decision becomes final once the governing body

denies the merits of the application, leaving “no uncertainty as to the land‟s permitted use.” Id. at 623.

There, Mehaffy applied to fill wetland property based on its landfill easement, which was subject to

approval by the Army Corps of Engineers. Though Mehaffy offered little supporting documentation with

its application and further failed to satisfy the Corps‟ requests for testing and surveys, the Corps had

“sufficient information” to unconditionally deny Mehaffy‟s sparse application because it construed the

regulations (there, the Clean Water Act) as effectively foreclosing the possibility of any commercial

development on the wetlands in question. Mehaffy appealed and offered no new documentation, and the

Corps denied his appeal. Under Palazzollo, since no court can undermine the administrative agency‟s

decision regarding the types of permissive uses, Mehaffy had exhausted his administrative appeals process.

18

[3.] Barriers to Judicial Relief: Abstention PROBLEM

[4.] Review COPPLE v. CITY OF LINCOLN

NOTES AND QUESTIONS

[5.] Remedies in Land Use Cases [a.] Forms of Remedy [b.] Specific Relief

CITY OF RICHMOND v. RANDALL

NOTES AND QUESTIONS

Insert after the second sentence of Note 5, p. 217:

In Alto Eldorado Partnership v. County of Santa Fe, supra, the developers‟ claim was ultimately found to be

unripe because they had not utilized the available state procedure to seek compensation as required by

Williamson.

Add at end of Notes and Questions 5, The state compensation remedy, p.218:

The First Circuit in Downing/Salt Pond Partners, L.P. v. Rhode Island and Providence Plantations, 643 F.3d

16, 22 (1st Cir. 2011) held that a takings claim was unripe where the plaintiff had failed to pursue the state‟s

inverse condemnation cause of action, and that a party cannot be excused from the “state litigation”

requirement set forth in Williamson County unless it satisfies its burden to prove the absolute unavailability

or inadequacy of potential state remedies.

Add at end of Notes and Questions 2, More on the final decision requirement, p. 216:

Applying Williamson County and Palazzolo, the Fourth Circuit Court of Appeals in Acorn Land, LLC v.

Baltimore County, Maryland, supra, held that the County Council‟s refusal to act on a developer‟s petition to

amend its property‟s water/sewer classification to permit development, and the Council‟s subsequent

rezoning of the developer‟s property to a less dense classification “satisfied Williamson’s final decision

prong.” The court concluded that “it is clear that the Council has „dug in its heels‟ and will not allow Acorn

to receive necessary access to public water/sewer systems to residentially develop its property.” 402 Fed.

Appx., at 815.

Thus…it would be both futile and unfair to require Acorn to jump through any additional

administrative hoops to obtain a „final decision.‟…We are satisfied that the „permissible uses of

[Acorn‟s] property are known to a reasonable degree of certainty,‟ and Williamson’s first prong is

satisfied. Id.

The court then held that while Acorn “has sufficiently pled a regulatory takings claim that is plausible on its

face,” its substantive due process claim failed because it “did not plausibly plead that no state-court process

could cure Acorn‟s injury.” Id, at 817.

19

PROBLEM

Add as a new paragraph at the end of Note 7 on p. 218:

When a state court damages award on a takings claim does not appear to the plaintiff to be "just

compensation," an owner who reserved his federal takings claims in a state court action may bring that claim

in federal court unless state preclusion statutes prohibit it. Edwards v. City of Jonesboro, 645 F.3d 1014,

1016, 1019 (8th Cir. 2011). In Edwards, the plaintiff brought an inverse condemnation action in Arkansas

state court alleging that invasive methane gas from a city landfill reduced the value of his property. Id. at

1016. Edwards obtained a judgment awarding him over $400,000 for his state claim, but plead a

“reservation of rights” in hopes of preserving federal rights and remedies. Id. at 1017. Dissatisfied with the

judgment, Edwards filed a state court appeal, which was rejected as untimely, and subsequently brought an

inverse condemnation action under § 1983 in federal district court. Id. The Arkansas federal court found

that Edwards‟ state judgment precluded him from bringing the claim in federal court, and the Eighth Circuit

federal court affirmed. Id. at 1020. Since the Full Faith and Credit Act requires federal courts to give state

court judgments the same effect as they would have in another court in the same state, 28 U.S.C. § 1738, the

court applied the Arkansas preclusion statute and the Supreme Court holding from San Remo Hotel to

determine that Edwards‟ claim was precluded because “there is no exception to the full faith and credit

statute under which property owners may reserve their federal rights for a later federal suit.” Id.

20

Chapter 3 CONTROL OF LAND USE BY ZONING

A. THE HISTORY AND STRUCTURE OF THE ZONING SYSTEM [1.] Some History [2.] Zoning Enabling Legislation

NOTES AND QUESTIONS

A NOTE ON CONTEMPORARY APPROACHES TO ZONING ENABLING

LEGISLATION

NOTES AND QUESTIONS

Sustainability has become a leading theme in zoning ordinances. The Rocky Mountain Land Use Institute

early on in the emergence of sustainability provided a useful overview entitled “Sustainable Zoning: A New

Imperative – The Sustainable Community Development Code,” draft dated February 13, 2007, prepared by

James van Hemert, available on-line at http://www.law.du.edu/images/uploads/rmlui/rmlui-sustainable-

SustainableZoningFramework%206.pdf

The City of Madison, Wisconsin is often a leader in land use planning and regulation. The Zoning Code

Rewrite Advisory Committee has promulgated some “Zoning Codes Sustainability Ideas” available at

http://www.cityofmadison.com/neighborhoods/zoningrewrite/documents/sustainability.pdf. Importantly,

they identify what types of sustainable ideas can be addressed through zoning, such as energy, water, green

infrastructure/urban agriculture, public health, density, mixed-use/transit oriented development, and parking.

Equally important, they point out what sustainable ideas cannot be addressed through zoning, such as

providing incentives for construction that meet green building standards, prohibiting heated sidewalks, and

requiring solar in all commercial and institutional buildings.

Even zoning to help reduce obesity involves issues of what is enabled: Paul A. Diller and Samantha Graff

SYMPOSIUM ARTICLE: EMERGING TOPICS IN PUBLIC HEALTH LAW AND POLICY: Regulating

Food Retail for Obesity Prevention: How Far Can Cities Go? Special Supplement Spring 2011, 39 J.L. Med.

& Ethics 89:

“Even if, as the Town contends, Town Code § 198-21.2 requires that development of lot 73 include a

swimming pool and community center not to exceed 5,000-square feet, such a provision would be ultra vires

and void as a matter of law (see BLF Assoc., LLC v Town of Hempstead, 59 AD3d 51, 55-56 [2008])….

While the enabling statutes in Town Law article 16 confer authority upon a town to enact a zoning ordinance

setting forth permitted uses, nothing in the enabling legislation authorizes the Town to enact a zoning

ordinance which mandates the construction of a specific kind of building or amenity (see BLF Assoc., LLC v

Town of Hempstead, 59 AD3d at 55; Blitz v Town of New Castle, 94 AD2d 92, 99 [1983]).” 82 A.D.3d 1203

(2011); 920 N.Y.S.2d 198.

Town of Huntington v. Beechwood Carmen Bldg. Corp., 920 N.Y.S.2d 198 (N.Y. App. Div. 2d Dep‟t 2011).

http://www.law.du.edu/images/uploads/rmlui/rmlui-sustainable-SustainableZoningFramework%206.pdfhttp://www.law.du.edu/images/uploads/rmlui/rmlui-sustainable-SustainableZoningFramework%206.pdfhttp://www.cityofmadison.com/neighborhoods/zoningrewrite/documents/sustainability.pdfhttp://scholar.google.com/scholar_case?case=5028585389368272042&q=zoning+enabling+legislation&hl=en&as_sdt=2,7&as_ylo=2011

21

[3.] The Zoning Ordinance NOTES AND QUESTIONS

PROBLEM

B. ZONING LITIGATION IN STATE COURTS PROBLEM

[1.] Standing Center Bay Gardens, Llc v. City Of Tempe City Council

NOTES AND QUESTIONS

[2.] Exhaustion of Remedies

Ben Lomond, Inc. v. Municipality Of Anchorage

NOTES AND QUESTIONS

What happens when a use straddles two districts? It may be a good case for a variance: “We conclude that

BSA's finding that the proposed building satisfies each of the five criteria for a variance set forth in § 72-21

has a rational basis and is supported by substantial evidence (see Matter of SoHo Alliance, 95 NY2d at 440).

BSA rationally found that there are "unique physical conditions" peculiar to and inherent in the zoning lot

such that strict compliance with the zoning requirements would impose "practical difficulties or unnecessary

hardship" (Zoning Resolution § 72-21[a]). Among the physical conditions BSA considered unique was that

the zoning lot in question straddles two zoning districts:…”

Kettaneh v. Board of Stds. & Appeals of the City of New York, 2011 NY Slip Op. 5410 (N.Y. App. Div. 1st

Dep‟t 2011).

Generally, a property owner will not be found to be aggrieved if they have “failed to demonstrate any legally

cognizable interest aside from increased business competition….”

In the Matter of Hadland v. Zoning Board of Appeals of The Town of Southhampton, 2012 N.Y. App. Div.

LEXIS 2867; 2012 NY Slip Op 2877.

The issue of presumptive standing often comes up in these cases. In March of 2012, the Supreme Judicial

Court of Massachusetts handed down a decision affirming the standing of a neighbor. The neighbors, as

abutters, are presumed to have standing to appeal a land use decision; and the burden is on the developer in

the first instance to produce evidence to the contrary.

81 Spooner Road, LLC v. Zoning Board Of Appeals Of Brookline, 461 Mass. 692 (2012)

An abutter is presumed aggrieved with standing, but once challenged must “present credible evidence to

substantiate their particularized claims of harm to their legal rights.”

Kenner v. Zoning Bd. Of Appeals, 459 Mass. 115 (Mass. 2011).

22

[3.] Securing Judicial Review

Copple v. City Of Lincoln

NOTES AND QUESTIONS

[4.] Remedies in Land Use Cases [a.] Forms of Remedy

The Rhode Island Supreme Court recently had an opportunity to address the exhaustion of remedies question

and found that property owners failed to exhaust their remedies when they first requested a special permit

along with a dimensional variance and were denied that permit because the zoning laws did not authorize the

special permit in conjunction with a dimensional variance. The zoning ordinances were later amended to

allow a special permit with a dimensional variance but the plaintiffs never re-applied. Under these

circumstances, they failed to exhaust their remedies, held the court.

Tolias v. Cash, 2012 R.I. Super. Lexis 5

“[T]he crucial test for determining what is legislative and what is administrative [quasi-judicial] is whether

the ordinance is making a new law, or one executing a law already in existence … Clearly, adoption of

amendments under the Ordinance constitutes the creation of new law and is therefore a legislative act by the

City Council.”

King’s Ranch of Jonesboro, Inc. v. City of Jonesboro, 2011 Ark. 123 (Ark. 2011).

“Generally, „one who objects to the act of an administrative agency must exhaust available administrative

remedies before being permitted to litigate in a court of law` „[A]bsent extraordinary circumstances, courts

are constrained not to interject themselves into ongoing administrative proceedings until final resolution of

those proceedings before the agency‟ The doctrine of exhaustion of administrative remedies applies to actions

for declaratory judgments However, there are exceptions to the exhaustion doctrine applicable where the

agency's action is challenged as either unconstitutional or wholly beyond its grant of power, or where resort

to administrative remedies would be futile or would cause irreparable injury.”

Town of Oyster Bay v. Kirkland, 917 N.Y.S. 2d 236 (N.Y. App. Div. 2d Dep‟t 2011).

23

[b.] Specific Relief City of Richmond v. Randall

NOTES AND QUESTIONS

PROBLEM

C. JUDICIAL REVIEW OF ZONING DISPUTES A PRELIMINARY NOTE ON JUDICIAL REVIEW

Krause v. City Of Royal Oak

NOTES AND QUESTIONS

A NOTE ON FACIAL AND AS-APPLIED CHALLENGES: NECTOW v. CITY OF

CAMBRIDGE

Mandamus continues to be an occasional remedy available to claimants in zoning matters. The Supreme

Court of Georgia upheld the trial court‟s grant of a writ of mandamus as the only avenue for relief for this

property owner: “When local zoning ordinances do not establish a means by which an aggrieved party may

gain judicial review of an adverse decision by a zoning appeal board, a petition to the appropriate superior

court for a writ of mandamus is the proper remedy.”

Haralson County V. Taylor Junkyard Of Bremen, Inc., 2012 Ga. Lexis 641

“Abuse of discretion” standard of review applied where trial court denied preliminary injunction in zoning

enforcement case.

Town of Coventry v. Baird Props., 13 A.3d 614 (R.I. 2010)

Appellate court ordered site-specific relief for a methadone clinic.

Habit OPCO v. Borough of Dunmore, 17 A.3d 1004 (Pa. Commw. Ct. 2011)

Equitable remedies, including estoppel: “a landowner must establish the following elements of good faith

action on the landowner's part: (1) that he relied to his detriment, such as making substantial expenditures, (2)

based upon an innocent belief that the use is permitted, and (3) that enforcement of the ordinance would

result in hardship, ordinarily that the value of the expenditures would be lost.”

DeSantis v. Zoning Bd. Of Adjustment, 12 A.3d 498 (Pa. Commw. Ct 2011)

24

D. RECURRING ISSUES IN ZONING LAW [1.] Density and Intensity of Use

A NOTE ON THE BUSINESS OF DEVELOPMENT

[a.] Density Restrictions: Large Lot Zoning Johnson v. Town of Edgartown

NOTES AND QUESTIONS

A facial challenge in many states cannot be brought as part of an administrative appeal of a local zoning

decision.

See, Smith v. Richfield Township Board of Zoning Appeals, 2012 Ohio App. Lexis 1032.

The principal case in the book, Johnson v. Town of Edgartown, at Page 271 is one of those cases that keeps

on giving. The Commissioner of Internal Revenue claimed certain federal income tax deficiencies against

the Herring Creek Acquisition Co., L.L.C. and the Nature Conservancy as related in a recent tax court memo

The complexities of the tax situation demonstrate how difficult it is sometimes to structure charitable

contributions of land.

Tax Court Memo 2012-8, Marshall and Judith Cohan v. Commissioner of Internal Revenue, 2012 Tax Ct.

Memo LEXIS 8.

California has a statutory provision euphemistically referred to as the “no-net-loss-in-density law” codified at

Government Code section 65863, subdivision (b): “No city … shall… reduce… the residential density for

any parcel to, or allow development of any parcel at, a lower residential density, …unless the City… makes

written findings supported by substantial evidence of ….”

Quartz Hill Cares v. City of Lancaster, 2012 Cal. App. Unpub. LEXIS 2026.

D. Zhou, Rethinking the Facial Takings Claim, Yale Law Journal, Vol. 120, 2011,

available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1748847

Facial challenge under RLUIPA was upheld in Elijah Group Inc. v. City of Leon Valley, 2011 U.S. App.

LEXIS 11966 (5th

Cir. Tex. June 10, 2011).

Large-lot zoning to stop affordable housing challenged.

Berry v. Volunteers of Am., Inc., 2011 La. App. LEXIS 482 (La. App. 5th

Cir. Apr. 26, 2011).

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1748847####http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1748847

25

[b.] Site Development Requirements as a Form of Control NOTES AND QUESTIONS

Upheld waiver of floor area ratio waived to permit density bonus for affordable housing.

A NOTE ON OTHER APPROACHES TO REGULATING DENSITY AND INTENSITY OF USE

[2.] Residential Districts

[a.] Separation of Single-Family and Multifamily Uses

[b.] Single-Family Residential Use: The Non-Traditional “Family”

Village of Belle Terre v. Boraas

NOTES

Wollmer v. City of Berkeley, 2011 Cal. App. Unpub. LEXIS 1785 (Cal. App. 1st Dist. Mar. 11, 2011).

A “private motocross riding track” is not a “outdoor recreation” permitted in a single-family zone.

Cross-Up, Inc. v. Zoning Hearing Bd., 12 A.3d 497 (Pa. Commw. Ct. 2011).

Nadav Shoked, The Reinvention of Ownership: The Embrace of Residential Zoning and the Modern Populist

Reading of Property 28 Yale J. on Reg. 91 (2011).

Residential density bonuses are reviewed critically in a recent article “Cracking The Foundation:

Highlighting and Criticizing The Shortcomings of Mandatory Inclusionary Zoning Practices,” an article by

Michael Floryan in The Pepperdine Law Review (February 2, 2012) available at http://tinyurl.com/c9oxlzl

http://tinyurl.com/c9oxlzl

26

City of Cleburne v. Cleburne Living Center

NOTES AND QUESTIONS

A NOTE ON FAMILY ZONING IN THE STATE COURTS

A NOTE ON ALTERNATIVES TO SINGLE-FAMILY ZONING: THE ACCESSORY APARTMENT

The City of Cleburne decision is discussed in a recent article by Susannah W. Pollvogt, “Unconstitutional

Animus” Fordham L. Rev. 81 (2012) available at http://works.bepress.com/susannah_pollvogt/3

Use of the term “functional equivalent of a traditional family” in zoning is not void for vagueness.

Matter of Morrissey v. Apostol, 2010 N.Y. Slip Op 6714 (N.Y. App. Div. 3d Dep‟t(2010).

Upheld division of a house into two units housing a total of 11 Bowdoin students under accessory apartment

regulations, rejecting boarding house argument.

Adams v. Town of Brunswick, 987 A.2d 502, (Me. 2010).

The South Carolina Supreme Court, acknowledging the Belle Terre decision, upheld an ordinance in the City

of Columbia restricting all properties zoned as single family units to not more than three unrelated persons.

The court was swayed in some measure by the fact that the community had colleges and universities in the

area and that the zoning provision restricting the number of unrelated persons was reasonably related to

“controlling the undesirable qualities associated with „mass student congestion‟”.

McMaster v. Columbia Board of Zoning Appeals, 2011 SC LEXIS 394.

Believe it or not, Belle Terre gets cited in a fracking case in which the court upheld the constitutionality of

the state‟s statute preempting regulation of fracking by local governments. In stating that “zoning is an

extension of the concept of a public nuisance which protects property owners from activities that interfere

with the use and enjoyment of their property,” the court cites City of Edmonds v. Oxford House, Inc., 514 US

725, 732-33 (1995) quoting from Euclid v. Ambler Realty and the Belle Terre decision and going on to

describe the purposes of local zoning before concluding “the interests that justify the exercise [of] the police

power in the development of oil and gas operations and zoning are not the same.”

Robinson Township v. Commonwealth, 2012 Pa. Commw. LEXIS 222.

City violated the Fair Housing Act in refusing to waive the definition of family in the zoning ordinance to

enable group home operator to house eight children and two house parents in a single family unit.

King’s Ranch of Jonesboro, Inc. v. City of Jonesboro, 2011 Ark. 123 (Ark. 2011).

27

[c.] Manufactured Housing

PROBLEM

A NOTE ON ZONING AND THE ELDERLY

PROBLEM

A NOTE ON HOME OCCUPATIONS

“Trailer park” distinguished from manufactured housing.

Smith County Reg’l Planning Comm’n v. Hiwassee Vill. Mobile Home Park, LLC, 304 S.W. 3d 302 (Tenn.

2010).

See Wollmer under D.1.b above

Sometimes it is the local regulations which end up controlling whether an activity is a home occupation or

not. In a case that will likely prove to be an outlier in most jurisdictions, the Appellate Division of the

Superior Court in New Jersey recently held that a 2,150 square foot garage constructed accessory to a

residence and in which the owner operated a welding business was a home occupation under the local

regulations. The lot, at 6.4 acres, was non-conforming in the zone which required 7.5 acres for a single

family home and the three-bay garage at 2,150 square feet was almost half again as large as the 1,670 square

foot home on the site. As the court so aptly put it: “The meaning of „home occupation‟ requires

interpretation of the language of the municipal ordinance at issue in a given case.”

Colambro v. Lebanon Township ZBA, 424 N.J. Super 501 (2012)

The seniors housing exemption of the Fair Housing Act is discussed in detail in a recent Ninth Circuit

decision in which it upheld “a city zoning ordinance prohibiting any mobilehome park currently operating as

senior housing from converting to all-age housing.” The court upheld the law “[b]ecause the FHAA is silent

on whether such senior-housing zones are permissible and because federal regulations allow for them.”

Putnam Family Partnership V. City Of Yucaipa, 673 F. 3d 920 (9th Cir. 2012).

Pet sitting “kennel-like” business operated out of a single-family home is not a home occupation.

Lariviere v. Zoning Bd. of Review, 2011 R.I. Super. LEXIS 65 C.R.I. Super Ct. 2011).

28

[3.] Commercial and Industrial Uses

[a.] In the Zoning Ordinance BP America, Inc. v. Council of The City Of Avon

NOTES AND QUESTIONS

Loreto Development Co., Inc. v. Village Of Chardon

NOTES AND QUESTIONS

Roderick M. Hills, Jr. & David Schleicher, The Steep Costs of Using Noncumulative Zoning to Preserve Land

for Urban Manufacturing, 77 U.Chi. L. Rev. 249 (2010)

A winery at a single-family home is an agricultural use exempt from any regulation under Ohio law.

Terry v. Sperry, 956 N.E.2d 276 (Ohio 2011).

“The Downtown Business district (B-3) is intended to apply to the Village's downtown business district and

Village center. This area is typified by small lots, and buildings with minimal setbacks. The downtown

business district is intended to offer greater flexibility in area requirements and setback requirements than

other districts in order to promote the reuse of buildings and lots and the construction of new developments in

the downtown business district consistent with the existing scale of development. The character, appearance

and operation of any business in the downtown district should be compatible with any surrounding areas.”

Gage Inc., LLP, v. Vill. of Sister Bay, 2011 Wisc. App. Lexis 538 (Wis. Ct. App. July 6, 2011).

Formula retail:

Botwinick et al., Saving Mom and Pop: Zoning and Legislating for Small and Local Business Retention, 18

T. L. & Pol‟y 607 (2010).

At Page 333 of the Casebook there is a long quote from the Wall Street Journal. That matter involving the

activities of the Saint Consulting Group was played out further in the U. S. District Court for the District of

Massachusetts in 2012 as reported in a decision in which the court concluded that the insurance company was

not obligated to defend The Saint Consulting Group from claims against the company. Also, on March 27,

2012, Federal District Court Judge Harry D. Leinenweber of the United States District Court for the Eastern

District of Illinois issued a decision in Rubloff Development Group v. SuperValu (doing business as The

Saint Consulting Group), granting the defendants‟ motions to dismiss. The claims alleged federal and state

anti-trust violations, RICO violations, tortious interference with prospective economic advantage, common

law fraud, abuse of process and conspiracy to commit overt, tortious and unlawful acts. The court said that

Saint and SuperValu are protected in their First Amendment right to petition the government and under the

Noerr-Pennington Doctrine. This is a remarkable decision worth reading in the context of The Wall Street

Journal report and it probably describes the outer limits of the Noerr-Pennington Doctrine in the context of

business activities affecting land use decision making.

The Saint Consulting Group, Inc. v. Endurance American Specialty Insurance Company 2012 U.S. Dist.

Lexis 45474

29

A NOTE ON “BIG BOX” RETAIL ZONING

A NOTE ON INCENTIVE ZONING AND SPECIAL DISTRICTS IN DOWNTOWN AND

COMMERCIAL AREAS

[b.] Control of Competition as a Zoning Purpose Hernandez v. City Of Hanford

NOTES AND QUESTIONS

One of the significant problems coming out of the real estate recession has been the abandonment of big box

stores. What can be done with them through retail reuse, adaptive reuse, demolition and redevelopment, and

demolition and re-greening is described in a recent article.

Sarah Schindler, “The Future of Abandoned Big Box Stores: Legal Solutions To The Legacies Of Poor

Planning Decisions,” University of Colorado Law Review, Vol. 83, pp 471-548 (2012).

Special districts sometimes require covenants and restrictions in their implementation and later changes in

zoning can run afoul of those restrictions.

See, CMR D.N. Corp. v. City of Phila., 2011 U.S. Dist. LEXIS 25396 (E.D. Pa. Mar. 10, 2011).

The City of San Francisco Planning Department has an excellent discussion of formula retail use available

on-line entitled “Chain Stores (Formula Retail Use)” available at http://www.sf-

planning.org/index.aspx?page=2839

A trial court in New York late in 2011 upheld a “Formula Fast Food Restaurants” regulation in the Village of

Victor, New York. Meade Square Commons, LLC v. Village of Victor (2011).

Self-storage facility not permitted in the Village Commercial District: “In the same vein, the Environmental

Courts construction allowing any non-wholesale commercial establishment would provide little meaningful

limitation on the size or type of business facility allowed in the VC District, except to exclude wholesalers.

Carried to its logical end, the court's definition would allow so called big-box stores or other large-scale

businesses to intrude into the village environment, thereby undermining the VC District's express purpose.

Applicant's facility itself provides an example of how over-inclusive the standard is. The storage complex

would consist of three stand-alone buildings, with multiple bays and traffic at potentially any hour of the day

or night. There would be no retail activity or character, residentially compatible or otherwise, in such a

facility. Permitting this facility is inconsistent with both the language and purpose of the Bylaws.”

In re Tyler Self-Storage Unit Permits, 2011 VT 66 (Vt. 2011).

http://www.sf-planning.org/index.aspx?page=2839http://www.sf-planning.org/index.aspx?page=2839

30

PROBLEM

[c.] Antitrust Problems NOTES AND QUESTIONS

[4.] Districting and Nonconforming Uses A NOTE ON THE HISTORY OF NON-CONFORMING USES

Conforti v. City Of Manchester

NOTES AND QUESTIONS

The flip side of zoning to control competition is the federal intervention in matters of local land use to

increase competition through the Telecommunications Act. “Congress enacted the TCA so as to foster

competition and to accelerate the deployment of telecommunications services around the country. A

component of the TCA places limitations on local zoning boards, such that local governments cannot

unreasonably discriminate among service providers, cannot prohibit or have the effect of prohibiting the

provision of personal wireless services, cannot fail to act in a timely manner, and cannot deny a request to

provide services without substantial evidence.”

Arcadia Towers LLC v. Colerain Twp. Bd. of Zoning Appeals, 2011 U.S. Dist. LEXIS 27445 (S.D. Ohio Mar.

15, 2011).

Noerr-Pennigton immunity not extended to malicious prosecution action where argument was untimely and

issues could be decided on other grounds.

Baldau v. Jonkers, 2011 W. Va. LEIS 13 (W. Va. Mar. 10, 2011).

Parker doctrine protects local government “The Parker doctrine or "state-action" doctrine shields state

governments from antitrust liability for anti-competitive actions taken in their capacity as sovereigns.”

Comprelli v. Town of Harrison, 2011 U.S. Dist. LEXIS 5872 (D. N.J. Jan. 21, 2011).

Marina and yacht club are not “tandem” uses for determining whether nonconforming use was expanded.

Campbell v. Tiverton Zoning Bd., 15 A.3d 1015 (R.I. 2011).

The are hundreds of nonconforming uses cases every year, many of them entertaining oddities. One is those

is the case of whether a “tree house” (really an elevated storage building: “16 feet high, with doors on the first

and second levels, and a pulley for hoisting objects to the top level”) was a legal nonconformity. It was

determined to be illegal.

Buckley v. City of Solon, 2011 Ohio 3468 (Ohio Ct. App., Cuyahoga County July 14, 2011).

31

Eighteen years after a couple moved in next door to a single family home with a non-conforming accessory

use, they complained to the zoning enforcement officer. The non-conforming use was upheld by the trial

court but reversed on appeal which noted that the property which had been used as a publishing house ceased

to be used as such in 1986 and then began as a machine shop use and given that fact, the trial court judge said

the appellate court “was required to conclude that the property lost its protection as a prior non-conforming

use.” The court cited a three-part test where the use is changed: “(1) Whether the use reflects the nature and

purpose of the use prevailing when the zoning by-law took effect. (2) Whether there is a difference in the

quality or character, as well as the degree, of use. (3) Whether the current use is different in kind in its effect

on the neighborhood.”

Hambley v. Dalzell, 2012 Mass. App. Unpub. LEXIS 189.

The Supreme Judicial Court of Massachusetts recently addressed the issue of the expansion of a non-

conforming use in a case involving a non-conforming mobile home park that did not seek to expand its land

area, but wanted to increase the number of units from 65 to 79 mobile homes. The court upheld the trial

court‟s decision that the small increase in density would not have any impact on the neighborhood through

the addition of traffic and that the non-conformity was in the lot area, not the density or number of units and,

therefore, the proposed increase from 65 to 79 units was not an expansion of a non-conforming use.

Shirley Wayside Limited Partnership v. Zoning Board of Appeals of Shirley, 461 Mass. 469 (2012).

Regardless of who brings the claim, courts have consistently held that there is a heavy burden in proving

abandonment of a non-conforming use. The Court of Appeals of the State of Washington recently addressed

this issue in an instance where a neighbor claimed that a duplex had been abandoned and that could only be

continued as a single family unit. The court stated: “A legal non-conforming use is a vested right. The right

may be lost by abandonment or discontinuance, but a party so claiming has a heavy burden of proof.

Abandonment or discontinuance is a question of fact, and ordinarily depends upon a concurrence of two

factors: „(a) an intention to abandon; and (b) an overt act, or failure to act, which carries the implication that

the owner does not claim or retain any interest in the right to the non-conforming use.‟” The court held that

the party claiming the abandonment had not met its burden of proof.

Rosema v. City of Seattle, 2012 Wash. App. LEXIS 161.

There are many, many cases every year about expansion and intensification of non-conforming uses. One of

the more interesting decisions in the last year is one from Massachusetts where the Appeals Court held that

the vertical expansion of a non-conforming footprint for a single-family home was not as of right and might

not be reasonably required to make economic use of the property. The case is a classic one because it

involves an older, smaller non-conforming home that the owner attempted to reconstruct, but found that it

was uneconomic to do so. Instead, he tore it down and built new, unfortunately expanding the footprint and

making the building higher than the former one. One of the interesting aspects of the decision is the remedy:

should there be a tear down order or not?

Shepherd v. Zoning Board of Appeal of Boston, 81 Mass App. Ct. 394 (2012)

While courts are reluctant to overturn local land use decision making, they generally do look with disfavor on

use variances and consistent with that, an appellate court in New York recently set aside the local zoning

board‟s granting of a use variance because the “record was devoid of any evidence, in dollars and cents form,

of Veronicas Realty‟s inability to realize a reasonable return under the existing permissible uses ….”

Because of that, the court found that there was no rational basis for the ZBA‟s finding that the property could

not yield a reasonable return without the use variance. Edwards v. Davison, 94 Ad. 3rd

883 (NY App. Div.

2012).

32

CITY OF LOS ANGELES v. GAGE

NOTES AND QUESTIONS

NOTE ON ALTERNATIVE STRATEGIES FOR ELIMINATING NONCONFORMING USES

[5.] Uses Entitled to Special Protection

[a.] Free Speech-Protected Uses: Adult Businesses City Of Renton v. Playtime Theatres, Inc.

NOTES AND QUESTIONS

Truly bothersome uses, like nude dancing and medical marijuana dispensaries, are often amortized on rather

short timeframes. A mandatory amortization requirement for nude dancing establishments was upheld after

changes were made in certain provisions in Jacksonville Prop. Rights Ass’n v. City of Jacksonville, 635 F.3d

1266 (11th

Cir. Fla. 2011.)

A typical question in the regulation of adult entertainment uses is whether there are sufficient other outlets for

the activity when the activity is restricted or prohibited. The United States District Court for the District of

Minnesota this last year decided a case from the City of Florence, Minnesota, a remarkably small town, just

0.2 square miles, all of it residential and consisting of 16 single family homes, a small park, and a small

parcel owned by the City. There are only 36 residents of Florence; 5 of them are school-age children. The

local zoning ordinance restricted adult-oriented businesses to a commercial district and the required

separation of 250 feet between such businesses and from any residence, liquor license establishment,

“daycare facility, school, library, park, playground, state or federal wildlife area or preserve, religious

institution or other public recreational facility.” The operator of a sexually-oriented business which was the

subject of an enforcement action to close it down, sued and moved for summary judgment principally on the

ground that there were not adequate other locations. The federal district court denied the plaintiff‟s motion

for summary judgment finding that the City had demonstrated its zoning ordinances were content-neutral,

that they furthered a substantial government interest, and that they did not deny the operator of the adult

business reasonable alternative channels for that business because 73% of the commercial land in the

immediate county was available for adult uses. The court found the City‟s “small size, lack of resources,

limited infrastructure and its „interest in attempting to preserve the quality of urban life… must be accorded

high respect‟” quoting from Renton 475 US at 49.

Peterson v. City of Florence, 2012 U.S. District Lexis 107018

A Massachusetts federal district court found that an adult use ordinance was unconstitutional because it gave

excessive discretion to the local board of appeals. The decision largely turned on the use of the word “may”.

Showtime Entertainment LLC v. Amendolia, 2012 U.S. Dist. LEXIS 38869.

Citing Renton, court upheld prohibition on adult establishment in downtown development authority area

where 27 other sites were available.

Big Dipper Entm’t, LLC v. City of Warren, 641 F.3d 715 (6th

Cir. Mich. 2011).

33

[b.] Religious Uses Civil Liberties For Urban Believers, Christ Center, Christian

Covenant Outreach Church v. City Of Chicago

NOTES AND QUESTIONS

E. MIXED-USE ZONING, FORM-BASED ZONING, AND TRANSIT-ORIENTED DEVELOPMENT

[1.] Mixed-Use Development

[2.] Transit-Oriented Development

Ripeness continues to be an issue in RLUIPA cases. Late in 2011, the Ninth Circuit handed down a decision

finding that a religious institution‟s RLUIPA claim was not ripe for judication because it had not filed at least

one use permit application.

Guatay Christian Fellowship v. County of San Diego, 2011 U.S. App. Lexis 25581

Mixed use development held inconsistent with certain zoning and plan requirements.

Haro v. City of Solana Beach, 195 Cal. App. 4th

542 (Cal. App. 4th

Dist. 2011)

For issues arising out of Joint Development Agreements for TOD, see

Greenbelt Ventures, LLC v. Wah. Metro. Area Transit Auth., 2011 U.S. Dist. LEXIS 60824 (D. Md. June 17,

2011).

The Miami 21 Code, a form-based code, received the American Planning Association's 2011 National

Planning Award for Best Practice (among other national awards). Nancy Stroud was the legal counsel. The

code is the first city-wide form based code in a major American city.http://www.miami21.org.

In a case of “RLUIPA meets billboard law” the Court of Appeals of Kentucky found a compelling

governmental objective in restricting billboards and upheld limitations on billboards with religious speech

along certain highways as reasonable time, place and manner restrictions, and held that such restrictions did

not create a substantial burden under RLUIPA.

Harston v. Commonwealth Transp. Cabinet, 2011 Ky. App. LEXIS 40 (Ky. Ct. App. Mar. 4, 2011).

Requiring a religious use to get a conditional use permit, whereas bars did not need a permit, violated the

equal terms provision.

Centro Familiar Cristiano Buenas Nuevas v.City of Yuma, 2011 U.S. App. LEXIS 14247 (9th

Cir. Ariz. July

12, 2011).

34

[3.] New Urbanism, Neotraditional Development, Form-Based (and Smart) Codes

The following information is provided by Mark White of White & Smith LLC:

General Resources

The Codes Project: http://codesproject.asu.edu/

Codifying the New Urbanism. American Planning Association, Planning Advisory Service Report No. 526,

2004.

Form-Based Codes Institute: http://www.formbasedcodes.org/

Freilich, Robert & White, Mark. A 21st Century Land Development Code. American Planning Association,

2008.

Garvin, Elizabeth. Understanding Form Based Regulations (International Municipal Lawyers Association,

Portland, Oregon – September 18, 2006).

Moynihan, “Implementing Form-Based Zoning in Your Community,” Municipal Lawyer (July/Aug. 2006), at

14.

Slone, Daniel & Goldstein, Doris, eds. A Legal Guide to Urban and Sustainable Development for Planners,

Developers and Architects Hoboken, NJ: John Wiley & Sons, 2008.

D. Parolek, K. Parolek, and P. Crawford. Form-Based Codes: A Guide for Planners, Urban Designers,

Municipalities, and Developers (2008).

See: Garnett, Restoring Lost Connections: Land Use, Policing, and Urban Vitality, 36 Okla. City U. L. Rev.

253 (2011).

and

Selmi, The Contract Transformation in Land Use Regulation, 63 Stan. L. Rev. 591 (2011).

Form based codes have been criticized as possibly leading to “an ersatz Urbanism”

L.P. Inniss, “Back to The Future: Is Form Based Code An Efficacious Tool For Shaping Modern Civil

Life?”, Cleveland-Marshall Legal Studies Paper No. 07-135 (2007) available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=962354

http://codesproject.asu.edu/http://www.formbasedcodes.org/

35

Sitkowski & Ohm, “Form-Based Land Development Regulations,” 38 Urb. Law. 163 (2006).

Smartcode Central: http://www.smartcodecentral.com/

White, “Form Based Codes: Legal Considerations” (Institute on Planning, Zoning & Eminent Domain,

November 18, 2009), online at http://www.planningandlaw.com/Publications___Speaking.html.

White, Form Based Codes: Practical & Legal Considerations (Institute on Planning, Zoning & Eminent

Domain, November 18, 2009), online at http://www.planningandlaw.com/Publications___Speaking.html.

White, “Unified Development Codes,” Municipal Lawyer (July/Aug. 2006), at 14.

White & Jourdan, “Neotraditional Development: A Legal Analysis,” Land Use Law & Zoning Digest, at 3 (Aug.

1997).

Contrary Views:

White, “Improving Community Design without Form Based Codes” (American Planning Association, National

Conference, April 11, 2011), online at http://www.planningandlaw.com/Publications___Speaking.html.

Zyscovich, Bernard. Getting Real on Urbanism. Urban Land Institute, 2008.

Sample Codes

Green type (also *) indicates a hybrid code

Albuquerque, New Mexico Form-Based Code: http://www.cabq.gov/council/completed-reports-and-

studies/form-based-code

Arlington County, Virginia (Columbia Pike):

http://www.arlingtonva.us/departments/CPHD/forums/columbia/current/CPHDForumsColumbiaCurrent

CurrentStatus.aspx

Azusa, California Development Code:

http://library.municode.com/HTML/10418/level2/MUCO_CH88DECO.html

Benecia, CA Downtown Mixed Use Master Plan:

Bradenton, Florida Form-Based Code Land Use Regulations:

http://bradenton.govoffice.com/index.asp?Type=B_BASIC&SEC={22A39C69-2543-469F-9E3C-

DBB5B813967F}

Denver, Colorado: Denver Commons Design Standards (http://www.formbasedcodes.org/files/Denver-

CommonsDesignStandards.pdf) and Zoning Code

(http://www.denvergov.org/tabid/432507/Default.aspx)*

Farmers Branch , TX Station Area Form-Based Code: http://www.ci.farmers-

branch.tx.us/work/planning/ordinances/station-area-codes

http://www.smartcodecentral.com/http://www.planningandlaw.com/Publications___Speaking.htmlhttp://www.planningandlaw.com/Publications___Speaking.htmlhttp://www.planningandlaw.com/Publications___Speaking.htmlhttp://www.cabq.gov/council/completed-reports-and-studies/form-based-codehttp://www.cabq.gov/council/completed-reports-and-studies/form-based-codehttp://www.arlingtonva.us/departments/CPHD/forums/columbia/current/CPHDForumsColumbiaCurrentCurrentStatus.aspxhttp://www.arlingtonva.us/departments/CPHD/forums/columbia/current/CPHDForumsColumbiaCurrentCurrentStatus.aspxhttp://library.municode.com/HTML/10418/level2/MUCO_CH88DECO.htmlhttp://bradenton.govoffice.com/index.asp?Type=B_BASIC&SEC=%7b22A39C69-2543-469F-9E3C-DBB5B813967F%7dhttp://bradenton.govoffice.com/index.asp?Type=B_BASIC&SEC=%7b22A39C69-2543-469F-9E3C-DBB5B813967F%7dhttp://www.formbasedcodes.org/files/Denver-CommonsDesignStandards.pdfhttp://www.formbasedcodes.org/files/Denver-CommonsDesignStandards.pdfhttp://www.denvergov.org/tabid/432507/Default.aspxhttp://www.ci.farmers-branch.tx.us/work/planning/ordinances/station-area-codeshttp://www.ci.farmers-branch.tx.us/work/planning/ordinances/station-area-codes

36

Fort Myers Beach Land Development Code:

http://www.formbasedcodes.org/files/FortMyersBeachCode.pdf

Gulfport, MS Smartcode: http://homepage.mac.com/bounds/SmartCode/SmartCode.html

Hercules , CA Regulating Code for the Central Hercules Plan:

http://www.formbasedcodes.org/files/CentralHerculesFBC.pdf

Leander, Texas Leander TOD Code: http://www.leandertx.org/page.php?page_id=39

Miami 21: http://www.miami21.org/final_code_AsAdoptedMay2010.asp *

North St. Lucie County , FL Towns, Villages and Countryside:

http://www.formbasedcodes.org/downloads/StLucieFL_TVC_FBC.pdf

Overland Park, Kansas Vision Metcalf Form-Based Code: http://www.opkansas.org/Doing-

Business/Vision-Metcalf

Panama City Beach, Florida: http://www.pcb-formbasedcode.com/

Peoria, IL Heart of Peoria Form Districts: http://www.ci.peoria.il.us/development-codes

Petaluma , CA Central Petaluma SmartCode: http://cityofpetalum