Land Use - Nolon

LAND USE OUTLINE

Fall 2007

I. LOCAL CONTROL OF LAND USE AND ITS CONSTITUTIONAL LIMITS

A. THE LAND USE SYSTEM

1. Intro to the land use system
i. Applicable regulations:
a) Constitutional
b) Administrative
c) Local government law
ii. 2 basic concepts:
a) police power
b) takings clause
iii. 3 levels
a) Federal  Constitutional Limits

Article 3 1st Amend 5th Amendment 10th Amendment 14th Amendment

interstate Freedom of takings clause Reserved power Due
commerce clause Speech clause Process/Equal
Protection Clause
Congress can pass Local regs No person shall be All powers not Applies the 5th
any law that has can’t abridge …”deprived of life, delegated to federal Am. to the states;
an affect or relates freedom of liberty, or property government are ≠Discriminate
to interstate speech, without due process reserved to the
commerce clause; expression, of law; nor shall states
Must be necessary and exercise of private property be
and proper relgion taken for public use
w/o just
compensation.”

b) State
↓
They give local legislatures the power to adopt laws to protect the public health, safety, morals, and
general welfare of the people. **NY→ over 1600 villages, towns and cities have been authorized
↓
c) Local:
can be regional, county, or municipal→ developing land use laws from the state’s authority
*can only exercise powers delegated to them by the state legislature

Specific Authority: General Authority: General Municipal Law:

Adopt comprehensive
plans and zoning laws &
to adopt subdivision and
site plan regulations under
Village, Town and City
Law
w/ regard to the public
health, safety, welfare,
and to the physical
environmental is
delegated to them under
Municipal Home
Adopt laws relating to the
protection of trees,
preservation of historic
districts and landmarks, and
the creation of conservation
advisory boards

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2. OVERVIEW OF GOVERNMENT SYSTEM

ADJUDICATORY
ACTIONS
Substantial
“Police Power” STATE CONSTITUTION Evidence
Local Gov. may BOP
adopt a
comprehensive LEGISLATIVE
plan/zoning LEGISLATURE COURTS ACTIONS
Pres. of Validity
Deference
BOP on Challenge
Town Law Enabling Acts STANDARDS Fairly Debatable
Village Law Planning → reserved for
General City Zoning legislature
Council Subdivision
SEQRA

Declaratory Judgment
REMEDIES Injunction
Authorize
Local Certiorari
Legislatures Mandamus
$$ Damages

Comprehensive Plan Creates Boards

Zoning Law Planning APPEALS COURTS
Zoning Amendments Zoning Board of Appeals
Subdivions & Site Others
Plan Regulations

APPLICANTS

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3. Local Boards: procedures in reviewing and approving project proposals are

contained in specific enabling statutes adopted by state legislature as
supplements by the provisions of local law

4. Judicial Review: courts defer to local land use decisions particularly those of
local legislatures declaring that those decisions are given a presumption of
constitutionality and correctness
i. Heavy BOP→ decisions were unreasonable, arbitrary and capricious
ii. Ambiguities→ deference to the property owners who challenge them

B. HISTORICAL OVERVIEW
1. Planning/Zoning
Comprehensive i. Zoning came b/f planning
plan: master ii. Zoning is the essential part of comprehensive plan; the precise
plan used as a relationship among the comprehensive plan, zoning map, and the official
guide map was never entirely agreed upon
2. Local Control of Land Development
i. Planning Board: comprised of appointed (vs. elected members)
a) Less pressure of electorate n decisions
3. Codification of Land Use Control System
i. 1916→ NYC passed the first comprehensive zoning ordinance in the US;
other cities followed
ii. 1922→ US Dept. of Commerce published a model statute, the Standard
State Zoning Enabling Act, to promote zoning
a) Recommended that plans be adopted by planning boards while
zoning ordinances were to be adopted by the local legislative
bodies
4. What affects a land use plan?
i. 6 principal, non-exclusive elements:
a) pattern of land uses
b) mass-transportation system
c) public facilities for the fast movement of passengers and goods
d) street system
e) park and recreational system
f) location of public buildings

C. THE NATURE OF PROPERTY RIGHTS

1. Balancing Property Rights and the Public Interest: Limiting Doctrines

i. Local land use decisions affect the right of landowners to use their land
in the interest of protecting the health, safety, welfare, and morals of the
public as a whole
Localities must
a) Substantive Due Process: requires that land use regulations serve
avoid improperly
a legitimate public purpose
discriminating
b) Procedural Due Process: administrative process by which
regulations are adopted and enforced

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1) Must follow the procedural requirements of state statutes
and meet the fairness requirements
ii. Ultra Vires: land use regs ≠ be beyond the scope of local authority
iii. Local Authority
a) Action of municipality must be pursuant to the power delegated
to it
b) ≠ permitted if regulation has been preempted by the state
legislature
iv. Public Purpose: land use regulation must ≠ effect a taking of private
property for a public purpose w/o just compensation→ takings

2. When does a landowner have vested rights?

i. Doctrine of Vested Rights: limits the authority of municipalities in
certain cases to impose significant new regulations on existing
investments in land, such as completed structures or projects under
construction
ii. CL Vested Rights: judicially created; when ct finds vested rights, its
effect is to immunize the approved project from all changes in zoning or
other land use regulations
iii. Statutory Vested Rights: adopted by state legislature; immunized
approved subdivision plats from changes in dimensional or area
requirements of zoning for a period of 1-3 yrs

3. Euclidian Zoning: Village of Euclid v. Ambler Realty Co., 272 U.S. 365
(1926)
i. F: Ambler Reality purchases some land and after the purchase the town
Euclidian Zoning: council passed a regulation making it residential. ∏ sued against the
most fundamental statute as a whole (“facial challenge”) b/c there was no comprehensive
means by which plan
zoning accomplishes ii. Rational Basis Test: in order for a statute to be unconstitutional then it
its purpose is the must be arbitrary and have no substantial relation to the public health,
separation of safety, morals or general welfare
conflicting uses— a) BOP: ∏
classified on a scale iii. H: valid
from “highest” use
to “lowest” use

4. Nectow v. Cambridge, 277 U.S. 183 (1928)

i. F: town rezoned a 100’ strip of the ∏’s land from general use to
residential; as applied to this particular person
ii. A: applied the analysis of Euclid
iii. R: the determination of public officers in matters such as land use
regulations, should not be set aside unless it is clear that their action has
no foundation in reason, and is merely an arbitrary and irrational use of
power baring no substantial relationship to the public health, safety and
general welfare.
iv. H: reversed dismissal; will probably be held arbitrary and capricious

5. NY Town Law: p.30 in supplement

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i. § 261: Grant of Power

These statutory a) for purpose of promoting health, safety, moral of the general
provisions delegate welfare of the community
authority to adopt
zoning maps districts, ii. § 262: Districts
and a variety of other a) “town board may divide town … into districts”
things b) town bard may “regulate and restrict the erection, construction,
reconstruction, alteration or use of buildings, structures or land.
All such regulations shall be uniform for each class or kind of
buildings, throughout such district but regulations in one district
may differ from those in other districts
iii. § 263: Purposes in View
a) “such regulations shall be made in accordance w/ a
comprehensive plan … and encouraging the most appropriate use
of land through the municipality”

6. Wawa Zoning Ordinance:

i. Article I – General Provisions
ii. Article II – Definitions
iii. Article III – Establishment of Districts and Zoning Map
iv. Article IV – District Use, Lot and Bulk Regulations

D. REGULATORY TAKING
1. NY Constitution: Art. 1, §7
i. “private property shall not be taken for public use w/o just
compensation”
ii. see also 5th Am. (above)

2. What is a taking?
i. when impact of a regulation on private property rights is so burdensome
that it violates the constitutional guarantee that property shall not be
taken for a public use without just compensation.
ii. Regulatory Taking:
a) sometimes a land use regulation can be invalidated as a
“regulatory taking” and compensation awarded to the regulated
property owner for damages caused.
b) sometimes referred to as inverse condemnations or de facto
takings
iii. both types of takings are allowed under U.S. Const. but validity of public
purpose must be demonstrated & just compensation paid to owner of
condemned property.

3. Challenges:
i. when a govt. reg has effect of a public condemnation, owner may allege
that reg is a regulatory taking, a de facto taking, or inverse condemnation
of the affected parcel.

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ii. When land use regs are challenged as takings, court presumes
constitutionality.
iii. challengers carry a heavy burden of proof; all doubts resolved in favor of
the regulator
iv. property owners must produce dollars & cents evidence that all but a
bare residue of property’s value has been destroyed by regulation.

4. Types of takings:
i. Broadly Applicable Regulations:
ii. Particularized Regulations:
iii. Forced Conveyances:
iv. Total Takings
v. Preexisting Regulations:

5. General Rule: Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)
i. Holmes: “while property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking

6. Confiscatory:
i. To take private property w/o just compensation; to transfer property from
a private use to a public use

7. Analysis:
i. FIRST, establish if it was a legitimate public purpose
ii. SECOND, what kind of taking is it?

Total Taking
Lucas v. South
Carolina Coastal
Council, 505 U.S.
1003 (1992)
F: ∏ bought oceanfront
property in SC; regulated
saying that ∏ could not
build any permanent
structures
∏ sued for just
compensation
A: Could use for other
purposes → renting out
beach use, etc.
PER SE TAKINGS
Physical Invasion
Loretto v.
Teleprompter
Manhattan CATV
Corp., 458 U.S. 419
(1982)
F: Previous landowner
allowed ∆ to put crossover
cables over building; ∏
didn’t know about ∆ until
after ∏ purchased building;
∏ sued ∆ for trespass and
14th Am. taking
NYC is also a ∆ b/c they
granted Teleprompter right
to be a cable provider
Land Use All Others
Dolan v. City of Penn Central Transp.
Tigard, 512 U.S. Co v. New York City,
374 (1994) (citing 438 U.S. 104 (1978)
Nollan , 483 U.S.
825 (1987)
F: ∏ wanted to do F: ∏ owned GCS and
some construction on wanted to build 50 stories
their store; city for shopping above GCS,
approved their which is designated as a
expansion plans on the landmark under the
condition that they landmark preservation law.
would dedicate a ∏ applied for a bldg permit.
section of property to ∆ denied b/c it wasn’t
be used for a bike path consistent w/ character of
GCS and ∏ sued as a taking
A: in Dollan the A: They weren’t being
dedication satisfied the restricted from building
essential nexus prong new levels, just not 50;
but wasn’t roughly Income from terminal and
proportional→ they possible sale of
needed a reasonable development rights
relationship /w traffic provided Penn w/

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and lessening traffic reasonable return on their
investment

Rule: in order for just Rule: any 2 prong Test: Multi-Factor

compensation to be governmentally 1) essential Balancing Test:
paid for a regulatory authorized permanent nexus- there must *Character of
taking, there ALL and physical be reasonable government action
economic value must occupation or invasion relationship b/w (reciprocity of
be taken of private property, no what they want to advantage)
matter what the do and the good for
Exception: if CL governmental benefit the community *economic impact of
nuisance then state and no matter how 2) Nollan Rough reg on ∏
doesn’t have to pay minor the invasion Proportionality
requires just test-weigh good of *extent to which reg
compensation, no community vs. interfered w/
matter nominal detriment to investment-back
landowner expectation (IBE)
(i.e., the extent which
**Must be related the regulation
by both the nature frustrates the IBE.
and extent to the Time-bound analysis)
impact of the
proposed
development
H: ≠ taking→ There was H: Should receive just H: ∏ won. It was a H: Wasn’t a taking
economic value left compensation and sent to taking
state court to decide how
much

8. Lingle v. Chevron U.S.A, Inc., (2005)

i. F: regulation putting price (or rent) cap on gas stations in Hawaii
ii. A: this is not an instance where you use the “substantially advances a
state interest; use the analysis in Penn Central and Dolan/Nollan
iii. R: don’t apply substantially advances test to takings

9. Damages
i. Monetary damages may be awarded to property owners who win
regulatory takings suits
ii. Paid for injury done to them from time reg. imposed until invalidated by
court

10. Ways localities can avoid the Regulatory Challenge

i. adopt a comprehensive plan, keep it up to date, back it up by studies.
ii. be sure all similarly situated properties are similarly regulated. “principle
of generality”
iii. where land use regs may prevent all economically beneficial use of land
owned by a particular individual, be sure that there is a readily available
mechanism for owner to prove no reasonable use of land allowed and to
obtain hardship exemption

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iv. when imposing conditions that require owners to allow public access to
their properties, individual studies must be conducted
v. In NY, projects that are likely to have substantial adverse impact—
required to file an EIS. Properly conducted environmental review
studies are likely to meet essential nexus & rough proportionality tests.
vi. Instead of greatly limiting uses, community should explore innovated
tools & techniques to encourage public objectives and minimize burden
on landowners

II. PLANNING LAW

A. Zoning Maps:
1. Constitutes a blueprint for the development of a community overtime

B. Can be amended Comprehensive Plan

1. Def: a written document formally adopted by the local legislature that contains
goals, objectives, and strategies for the future development and conservation of
the community
i. Creates a blueprint of the community
2. GR: statutes require that all land use regulations must be made in “accordance
w/ a comprehensive plan”
i. Courts look at “all relevant evidence” when a zoning reg is challenged
including whether land use regulation conforms to a comprehensive plan
3. Steps to Creating a Comprehensive plan
i. Information gathering
ii. Set forth a statement of objectives
a) Intermediate
b) Long-term
iii. Determine what specific land use techniques can be utilized by the
municipality to achieve each of its objectives
a) Overlay
b) Cluster
c) Incentive
d) Agriculture zoning
e) Designating critical environmental areas
f) Floating zones
g) Transfer of development rights
h) Planned unit developments (PUD)
iv. Local citizens should be included→ allow community opportunity to
create a shared vision for the future and strategy to accomplish that goal
a) Surveys
b) Public hearings
c) Town meetings
v. Planning board can be given an opportunity to review the proposal and
make recommendations prior to action by the local legislature
4. Review:
i. Comprehensive plan should be reviewed every 5 yrs
ii. Update as necessary

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iii. Local legislatures are authorized by statute to prepare or amend the
comprehensive plan
a) Legislature can direct through resolution, the planning board, or a
special board to prepare and amend the plan
iv. When provisions are first adopted, a zoning commission must be
established to recommend zoning district boundaries, use and
dimensional requirements
5. Planning should precede any adoption or amendment of a land use regulation
6. Applying for application for a ∆ in zoning provisions:
i. Discretionary legislative acts
ii. Legislative body may simply refuse to consider it UNLESS the question
is confiscatory
iii. Amendments of use provision of the law that apply to particular parcels
must be attended by amendments of the zoning map
iv. Landowners who wish to develop their parcels in conformance w/
applicable zoning provisions must apply to the local building inspector or
zoning administrator for a building permit
a) Inspector/administrator reviews and then either approves or
denies
1) Whether proposed project and its construction conform w/
the se and dimensional reqs
b) Determinations reviewable by the ZBA
7. Judicial Standard:
i. Demonstrate that regulations fails to “substantially advance a legitimate
public objective”
ii. Zoning amendments are presumed by the courts to be constitutional
valid, but their provisions are restrictively interpreted b/c they are
deemed to be in derogation of the landowner’s CL property rights
iii. An owner is allowed to continue development under a duly issued permit
only where the owner has undertaken substantial construction and made
substantial expenditures prior to the effective date of the amendment

C. Historical Development of Land Use Planning

1. Standard State Zoning Enabling Act
i. Promulgated by the US pt of Commerce in 1992
ii. Gave the power to adopt zoning provisions to the towns, villages, and
cities by this model national act
iii. By giving this power to local governments the authority to enact zoning
regulations, the state legislature is exercising its police power→ the
authority to “promote the public health, safety, morals, and general
welfare

2. Standard City Planning Enabling Act

3. Timeline
i. 1922→SZEA Zoning §261-264
ii. 1928→SPEA Planning §272(a)
iii. 1930’s→Depressions

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iv. 1945→WWII
v. Baby boom→ New Euclidean Zoning

4. Analysis

State constitution Legislative Town’s Wawa

PEOPLE
(police power) village law Code
§261-3;
§272(a)

D. Udell v. Hass, 288 N.Y.S.2d 888 (Ct. App. 1968)

1. F: Village of Lake Success passed an ordinance ∆ing a commercial zone to a
SEMINAL residential zone the vary same day a/f receiving proposal from ∏ to expand
CASE commercial activity (i.e., ∏ wanted to construct a bowling alley and supermarket)
2. GR: zoning ordinances must be in compliance with the comprehensive plan
i. I.e., Zoning ordinances must be accomplished in a proper, careful, and
Ultra vires claim reasonable manner, conform w/ general developmental policy, and be
→beyond scope consistent w zoning law and map
of authority ii. “the comprehensive plan is the essence of zoning. Without it, there can
be no rational allocation of land use.”
3. A: master plan in city was to continue commercial development and ↑ tax base
4. H: discriminatory → Example of spot zoning; ordered a declaratory judgment
5. if the court declares rezoning ultra vires and enjoins from enforcing, the ∏ can
reapply to build a bowling alley and cannot be tuned down based on that law;
or, the town can rezone the conformance

E. Enterprise Partners v. County of Perkins, 619 N.W.2d 464 (2000)

1. F: hog confinement case and there were zoning reg
2. R: reiterates that we must be in compliance w/ the comprehensive plan

F. Town Law
1. § 272(a): Town Comprehensive Plan
i. gives the authority and responsibility to undertake town comprehensive
planning and to regulate land use for the purpose of protecting the public
health, safety and general welfare of its citizens
2. §271: Planning Board:
i. Town board not mandated to create a planning board→ “may”
ii. planning board may recommend to town board regulations; may review
and make recommendations on a proposed town comprehensive plan or
amendment; make investigations, maps, reports, and recs in connection
to planning & dev. of town.

G. Bone v. City of Lewiston, 107 Idaho 844 (1984)

1. F: ∏’s property was zoned low-density residential and the comprehensive plan
had it zoned commercial. ∏ applied for rezoning
2. R: must ∆ zone where it complies w/ the comprehensive management plan

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H. Osieki v. Town of Huntington, 565N.Y.S.2d 564 (1991)

1. F: ∏ had property zoned for low-density residential use
2. R: if a town is going to go against the master plan then it has to have a good
reason
3. H: zoning was arbitrary

III. THE BASICS OF ZONING

A. ZONING PRACTICE
1. Purpose of Zoning:
i. Prevents landowners from using their properties in ways that are
injurious to the community
ii. Appropriate method of creating a balanced and efficient pattern of land
development and avoiding the multiple perils of haphazard growth

2. Generally:
i. As-of-Right and their accessory Use
a) “As of right”→ As-of-Right Uses and Their Accessory Uses
1) Certain land uses are permitted as the principal and primary
uses of the land.
b) “Accessory” → must be customary, subordinate and incidental to
the residential use
1) Accessory uses are also found in association with as-of-right
uses
ii. Nonconforming uses
a) A land use which was in existence when a zoning restriction was
adopted and that is prohibited by that restriction is a non-conforming
use
iii. Variances
a) If the use of the property does not conform to the zoning restrictions, it
can be authorized by a use or area variance
iv. Special Use Permits
a) The zoning law can authorize other uses but only if they receive special
or conditional use permits
1) They must be harmonious with as-of-right uses
b) A.k.a.: special exception use, special permit, conditional use
permits, and special exceptions
c) Def:
1) authorization of a particular land use which is permitted
in a zoning ordinance/local law,
2) subject to requirements imposed by zoning
ordinance/local law,
3) assures that the proposed use is in harmony with such
zoning ordinance/local law & will not adversely affect the
neighborhood if requirements are met.
d) Ex: church or gas station in a residential district
e) Town Law §274(b): Approval of Special Use Permits
1) Special Use Permit:
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i.) an authorization of a particular land use which is
permitted in a zoning ordinance or local law,
subject to requirements imposed by such zoning
ordinance or local law to assure that the proposed
use is in harmony with such zoning use or local
law and will not adversely affect neighborhood.
f) Administrative authority
1) town board “may” authorize planning board or other adm.
body that it shall designate to grant special use permits.
2) If so, then the legislature must adopt standards to guide
the body in reviewing, conditioning, and approving
special uses
i.) Ex: provide adequate safety, parking, landscape
g) authorized board shall have the authority to impose such
reasonable conditions and restrictions as are directly related to
and incidental to the proposed special use permit.
h) Once special permit is issued:
1) It is person to the applicant
2) Affixes to and runs w/ the land
i) Court review: any person aggrieved (someone who has standing;
a unique injury) by a decision of the planning board may apply to
supreme ct. for review by a proceeding under article 78 of the
civil practice law and rules. Ct. may take evidence or appoint a
referee to take such evidence… (not a de novo trial?)
j) Religion:
1) Land uses proposed by religious institutions is subject to
greater constraints than the regulation of secular land uses
2) Religious uses promote public welfare and are inherently
beneficial to public
3) Regulations typically encourage beneficial purposes served by
churches, synagogues, and other houses of worship
4) Religious uses are allowed in residential and other compatible
zoning districts under a special use permit that may be issued
by panning board
v. Rezoning
a) Property owners may request that the local government rezone the
property
b) Can rezone a parcel or area in the public interest

3. Goldman v. Crowther
i. F: ∏ lived in Balitmore city in an area zoned residential and ran a small
clothing repair store
ii. R: any exercise of power which interferes w/ some aspect of the constitution
must bear some substantial relationship w/ the public health and welfare
iii. Policy: this wouldn’t really happen today as most regulations encourage
work/live ordinances encouraging people to run a business out of their home
iv. As the ordinance attempts to regulate and restrict the use of property in
Baltimore is void because it: (1) deprives property owners of rights and
privileges protected by the Const; (2) because such deprivation is not justified
by any consideration for the public welfare, security, health, or morals apparent

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in the ordinance itself; (3) because it does not require that the restrictions shall
in fact be based upon any such consideration.

4. Carter v. Harper
i. F: milk/pasteurization plant was a non-conforming use; ∏ wanted to
At this time, we build an adjacent building in order to comply w/ state health regulations.
didn’t think we There was an ordinance stating that additions were prohibited w/ non-
could do conforming uses. ∏ argued that it was arbitrary, capricious,
anything but unreasonable and was “spot zoning.”
Euclidian (shift
begins)

5. Review: Village of Euclid v. Amber Realty Co. (see above for brief)
i. Facial challenge→ no comprehensive plan case

6. Nectow v. Cambridge
i. As applied case→ public purpose

7. Bartram v. Zoning Commission

i. F: Rome applied for rezoning approval to construct 5 commercial shops
in an area that was primarily residential and the nearby owners objected.
∆ granted approval finding that decentralization of shopping centers was
a benefit to the entire community as it relieved congestion. ∏ was an
adjacent landowner and brought suit stating that ∆’s action was spot
zoning.
ii. I: in an area of official discretion, is rezoning of a single parcel of land
in order to benefit the entire community deemed spot zoning?
iii. R: When rezoning is based on an exercise of discretion that the
change would benefit the entire community, then it is valid and is not
spot zoning.
iv. A: Spot zoning singles out one party for preferential treatment;
however, here, the benefit is for the community as a whole
v. H: valid. ≠ spot zoning

8. Zoning in More Detail

i. The power to amend the zoning ordinance and change district lines and
designations on the zoning map provides a degree of flexibility

9. Church v. Town of Islip (Contract Zoning case)

i. F: Town ∆ed the zoning of a corner lot (adjacent to another town) from
a residential to a business district. Bldg permit imposed conditions.
neighboring property owners sued b/c they claim that it was not in
conformity w/ comprehensive plan and it was illegal K zoning.
ii. H: this is an example of conditional zoning and not K zoning.

10. Giger v. City of Omaha

i. Conditional Zoning: Imposes a condition on the developer

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a) This is a valuable planning tool for the Leg b/c it permits a
municipality greater flexibility in balancing development
demands against fiscal and env concerns.
ii. F: ∆ bought an 84-acre parcel of property and then applied to City (∆) to
have parcel rezoned to permit the construction of a mixed use
development. Co-∆’s entered into a development agreement and the city
passed 5 ordinances rezoning the parcel. Construction commenced. ∏
was a neighboring property owner who sued and declared the permits
void due to K zoning.
iii. I: Is the agreement invalid per se as K zoning? Was it arbitrary,
capricious and unreasonable?
iv. R: Conditional rezoning is a valid practice if it is reasonably related to
the interest of public health, safety, morals and the general welfare.
v. A: agreement actually enhanced the city’s regulatory control over the
development rather than limiting it. It was reasonably related to the
public interest, health and general welfare and the city’s police powers
were not harmed in any way.
vi. H: valid.

11. Montgomery v. Nat’l Capital

i. The corporation's property was located on the edge of a business district.
Property to the north was zoned one-family, residential. The corporation's
zoning request was contrary to a master plan adopted in 1957 and to a proposed
new plan. The planning board supported the application, based upon a
declaration of covenants prepared by the corporation.
ii. The council denied the application because conditional zoning was not allowed
and there were insufficient changes in the character of the surrounding
neighborhood to justify reclassification.
iii. The court reversed the circuit court's judgment and held that it should have
affirmed the council's action because the covenants would have produced a
form of illegal, conditional zoning if adopted as a basis for the requested
reclassification and the council's decision was supported by substantial
evidence and was not arbitrary and capricious.
iv. Holding – Covenants were unenforceable.

12. Compare and Contrast Conditional Zoning vs. K Zoning vs. Variances
i. Contract Zoning:
a) Illegal
b) “I’ll pay you 500K for some comprehensive plan”
ii. Conditional Zoning:
a) Typically legal in most states
b) “we don’t want to rezone b/c we have no sewer system”
c) Town is putting extra requirements
iii. Variances
a) Rarely given
b) Cannot change the essential nature of the neighborhood
c) You are being exempted from extra requirements in town law
BUT you have to have a hardship

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1) Ex: No body elses property slopes the same way and you
want a deck

13. Process:

QUASI PUBLIC RECORD/

JUDICIAL NOTICE HEARING EVIDENCE
BODY

PUBLISH
RULING

FILED W/
TOWN CLERK
HOME- ZONING ZONING STANDARDS
OWNER ENFORCEMENT BOARD OF LOCAL CODE APPEALS
OFFICER APPEALS & STATE (Must be
(code STANDARDS 30 d from
interpretation) filing)

ZONING CODE OF APPEAL OF DISTRICT

CODE INTERPRETATION INTERPRETED COURT
OF VARIANCE (as of right)

14. New Thought

Post-Euclidian→ PAST THOUGHT NEW THOUGHT

Now, we are mixing
commercial, residential,
recreational all on the same part
of land (i.e., not as structured as
Euclidian zoning)
Dillon’s Rule: any activity that the
municipal government undertakes must be
construed→ look to see if there is any factual
relationship
Cannot be unreasonable,
discriminatory, arbitrary→ must
follow a logical thought process

B. ADMINISTRATIVE TREATMENT: VARIANCES

1. Generally:
i. Applicability: when a proposed use of property does not conform to
applicable zoning restrictions it can be authorized by a use or area
variance awarded by the ZBA

ii. Benefits:
a) Provides flexibility in application of zoning law and
b) afford landowner opportunity to apply for administrative relief
from certain provisions of the law

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iii. 2 Types:
a) Use variance: Use of land in a manner or for purpose which is
otherwise not authorized, or is prohibited by zoning regs
1) Owner must prove to ZBA that property cannot yield a
reasonable return under any use permitted under zoning
statute
2) Ex: single family residential → retail business
3) GR: must have significant economic injury

b) Area Variance: use of land in a manner which is not allowed by

the dimensional or physical requirements of applicable zonng
regulations
1) Ex: setback, height, or area requirements
2) GR: balancing test

iv. Alternative Relief: property owners could also request local legislative
board to rezone the property so that requested use is allowed as-of-right

2. Wawayanda Zoning Code

i. §83: Allows variance which are different than those in the state law.

3. Town Law
i. §267: Zoning Board of Appeals
a) Area Variance: shall mean the authorization of the ZBA for the
use of land in a manner which is not allowed by the dimensional
or physical requirements of the applicable zoning regulations
1) if legislative body adopts ordinances→ it must adopt ZBA
b) Appt. of members: “. . . each town board which adopts a local
law or ordinance or any amendments . . . pursuant to powers
granted by this article shall appoint a board of appeals”

ii. §267(a): Board of Appeals Procedure

a) Give public notice of hearing (at least 5 d prior)

iii. §267(b): Permitted action by Board of Appeals

a) Use variances: no such use variance shall be granted by the
board of appeals without a showing by the applicant that
applicable zoning regulations and restrictions have caused
unnecessary hardship
b) Applicants must demonstrate:
1) that for each and every permitted use under the zoning
regs for the particular district where the property is
located
2) Applicant cannot realize a reasonable return
(demonstrated by competent financial evidence
THE TEST! 3) Alleged hardship relating to property in question unique
and does not apply to a substantial portion of the district
or neighborhood

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4) That the requested use variances, if granted will not alter
the essential character of the neighborhood
5) Alleged hardship has not been self created
c) §267(3)(b):
1) Area variances: in making determination, ZBA shall
consider the benefit to applicant if variance is granted, as
weighed against the detriment to health, safety, welfare of
neighborhood or community.
2) Also consider:
i.) whether an undesirable change will be produced in
character of neighborhood or detriment to nearby
properties will be created
ii.) whether the benefit sought by applicant can be
achieved by some method, feasible for applicant to
pursue, other than an area variance;
iii.)whether the requested variance is substantial
iv.) whether the proposed variance will have an
adverse effect or impact on physical or
environmental conditions in neighborhood/district
v.) whether alleged difficulty was self-created

4. Larsen v. City of Pittsburgh, 543 Pa. 415 (1996)

i. F: ∏ wanted to build a deck off the back of this house which had a
particularly steep hill to provide a play area for their child. Town
granted variance and bitchy neighbor sued
ii. R: Must prove the following four factors
a) An “unnecessary hardship” exists which is not created by the
Burden is on the party seeking the variance and which is created by unique
homeowners to physical circumstances of the property for which the variance is
prove all 4 sought
elements b) Variance is needed to enable the party’s reasonable use of the
property
c) Variance will not alter the essential character of the district or
neighborhood, or substantially or permanently impair the use or
development of the adjacent property such that it is detrimental
Variances are vary
d) Variance will afford the least intrusive solution
extreme; however,
iii. A: the poor backyard is the same for everybody and should be handled
they are granted in
by the legislature; the hardship must an unnecessary one and not just a
real life quite often
mere hardship (Richmond v. Zoning Board of Adjustments). Mere desire
even though the
to have more room fails to meet the “unnecessary hardship.” A
legal world
condition that only a small portion of the residents suffers does not mean
intended them to
that it is unique.
be granted
iv. H: failed to meet the unnecessary hardship test
anomalously

5. Sasso v. Osgood
i. F: ∏ sought variance b/c he wanted to demolish an existing structure to
build a larger boathouse. Town granted variance and neighbors
appealed.
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ii. I: Does the zoning board have to follow the “practicable difficulties”
standard when the phrase was not actually written into the town statute
by the legislature.
iii. R: Balancing Test
a) “Weighing the practicable benefit to the applicant against the
detriment to the safety, health, and general welfare of the
community.”
iv. H: Town law required zoning board to engage in a balancing test
(Weighing the practicable benefit to the applicant against the detriment
to the safety, health, and general welfare of the community) therefore the
applicant need not show “practical difficulties”

6. McMorrow v. City of Town and Country

i. The petitioner’s property was slightly over an acre, but shaped strangely so as
to restrict the area in which structures could be placed.
ii. Residence was built prior to annexation of the property
iii. The resident wished to put in an in-ground pool. Applied for a variance
iv. Board denied the variance requested on the basis that there was no showing of
“practical difficulties or unnecessary hardships” requiring granting of the
variances.
v. Variance are not granted for “mere inconvenience”
vi. The land is usable. They failed to establish that a swimming pool is a necessity.

7. Wawayanda Zoning Code

i. Article V
ii. Article IX

8. Special Use
i. Generally:
a) Special use permit allows for use/uses that are permitted by law
but often require special conditions or standards due to the type
of use
b) E.g., churches, hospitals, etc.

9. City of Chicago Heights v. Living Word

i. F: Living Word applied for a special use permit and zoning board
denied it b/c it was contrary to the comprehensive plan.
ii. R: you cannot allow a special permit if it goes against the
comprehensive plan!
iii. A: council is bound to the zoning code as established from the
legislative body

10. Special Uses v. Variances

i. Variances:
a) Prohibited by the legislature and rarely given if it is unique to the
property
ii. Special Uses
a) Things that are permitted by law but we need to condition it

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b) E.g., allowance for churches but we have concern about all the
traffic that comes on Sundays

C. NONCONFORMING USES
1. Generally:
i. Def: a use of land that was in existence when a zoning restriction was
adopted and that is prohibited by that restriction
Analysis a) Ex: when district zoned residential, all easing nonresidential uses
in that area are rendered non-conforming
Was there an ii. GR: they can continue but can not be expanded or enlarged; they may
established use at the not be reestablished after they have been abandoned or reconstructed a/f
time of the zoning? serious damage
↓
What is the extent of
a) Zoning law can require nonconforming uses to be terminated or
the nonconforming amortized a/f a specified number of years; or
use, and will the terms b) may have to cease immediately if threat to public health or safety
of the ordinance iii. Delegation of power:
permit expansion or a a) State statutes delegate to local gov’ts authority to adopt zoning &
change of some sort
to adopt measures to protect legitimate public investment
w/ respect to such
use? expectations of owners of developed land
↓ b) Provisions can be added to discourage continuation of
Has there been a nonconforming uses over time
termination of the 1) Ex: limit owner’s right to expand or enlarge
nonconforming use
nonconforming use;
due to substantial
destruction of the 2) to reconstruct use a/f substantial damage
building in which it is 3) ∆ property use to a different nonconforming use, or
housed, or 4) require termination of use after specified period
abandonment of the iv. Illustrations:
use, or legislative a) Reconstruction and restoration
action of one type or
another? b) Enlargement, alteration, or extension
↓ c) Changing to another nonconforming use
Is the nonconforming d) Abandonment
use subject to e) Amortization:
termination as a 1) Allow owner some time during which to recoup his
nuisance through the
granting of injunctive investment in the nonconforming use
2) “where the benefit to public has been deemed of greater
moment than the detriment to property owner.”
3) Test when amortization period is reasonable
i.) depends on facts of each case.
ii.) Whether public gain outweighs private loss.
4) “amortization” label INAPPROPRIATE when dealing
with common law of nuisance.
i.) Grace period allowed to terminate nuisance is
GRATUITOUS in nuisance cases.
5) when nonconforming use is noxious and owner has little
investment in it.
i.) Ex. cease raising pigeons on roof
v. Limitations & Concerns: Separation of incompatible land uses

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a) when variances are issued—effect is to declassify use as
nonconforming
b) continuation of nonconforming uses also influenced by building
inspectors interpretation as to what types of building
improvements are prohibited.

2. Wawayanda Zoning Code

i. §68 & §69 & §70 & §71

3. Expansion or Extension
i. Generally:
a) Local laws prohibit the enlargement, alteration, or extension of a
nonconforming use
b) Laws allow for normal maintenance, repairs, etc. as long as there
isn’t an increase or creation
c) Vary from one municipality to another
1) E.g., some may prohibit the physical expansion of a
building
ii. State v. Perry
a) F: ∏ owned an ice cream company and the area was re-zoned to
a commercial from industrial zone, where such business was
prohibited. Bought a large trailer w/ a blower unit to help w/
freezing temperatures. Zoning Board told ∆ to discontinue use of
the trailer.
b) R: An addition of a facility constitutes an expansion which is a
nonconforming use.
c) A: court found that ∆ attempted to provide additional closed
space for freezing operations; trailer was used to expand and
extend non-conforming use of the building on premises (which
was a violation under the zoning regulations)
d) H: ∆’s use of the trailer which added facilities were non-
conforming had previously existed and was a violation of the
zoning regulations

4. Discontinuance
i. Generally:
a) A property owner’s right to continue a nonconforming use may
be lost abandonment

ii. State Ex Rel. Morehouse v. Hunt

a) F: an ex-frat house was rezoned to a single family residence; the
dean used it for him and his family and later sought a permit
under non-conforming use (planned to just be temporary). Here,
the statutory language said “non-conforming use may not be
discontinued.”
b) R: the mere cessation of a nonconforming use does NOT
destroy the right to continue it; it must involve the
abandonment of such use

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c) A: court determined that the owner didn’t intend to abandon the
right to use the building as a fraternity house (b/c the use was
supposed to be temporary)
d) H: valid

iii. Toys “R” Us v. Silva

a) F: warehouse was sold to Toys R Us a/f the area was changed
from a commercial to a residential area. Bank acquired
possession. Neighbors R Us objected to Toys R Us to coming
back in and using it later.
b) R: A substantial, rather than a complete discontinuance of the
active non-conforming use forfeits the non-conforming use.
1) Intent is insignificant.
c) A: Court held that the resolution was consistent w/ terms and
policies
d) H: Court gave deference to the Boards decision and
interpretation. Reversed →Toys “R” Us cannot continue
nonconforming use of the property as a warehouse.

5. Destruction
i. Examples:
a) Acts of God

ii. Moffatt v. Forrest City

a) F: ∏ owned a home and added an addition and operated a meat
market on the premises. A fire destroyed the market. Zoning
ordinance stated that if an area is damaged 60% or more so that it
cannot be restored for any non-conforming use.” Moffatts began
to rebuild and municipality filed suit that it was restricted
b) A: Only 40% of the premises of the premises can the
nonconforming premises can be rebuilt

6. Amortization: Uses and Limitations

i. Generally:
a) Occurs when they allow the owner some time during which to
recoup his/her investment in the nonconforming use

ii. AVR, Inc. v. City of St. Louis Park

a) F: concrete plant issued a special use permit. City wanted to
phase out to use zone as a residential area. Zoning Regs gave
them 2 years to cease operation
b) R: Must give a reasonable amortization period and consider
the following factors:
1) Information relating got the structure located on the
property
2) Nature of the use
3) Location of the property in relations to surrounding uses

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4) Description of the character of and uses in the
surrounding neighborhood
5) Cost of the property and improvements to the property
6) Benefit to the public by requiring the termination of the
non-conforming use
7) Burden on the property owner by requiring the
termination of the non-conforming use
8) Burden on the property owner by requiring the
termination of the non-conforming use
9) Length of time the use has been in existence and the
length of time the use has been non-conforming
c) H: amortization period was reasonable

D. ACCESSORY USES
1. Def: certain land uses are customary found in association with the permited,
principal, primary uses of the land
i. Ex: principle use→ single family home; permitted accessory
use→garage

2. GR: in order for an accessory use to be permitted “as of right,” must be

incidental, subordinate, and customary w/o being a nuisance
i. Incidental: must be reasonably related to the principal use
a) Ex: garage or recreational use
ii. Secondary/subordinate: less of a use than primary use
(numerator/denominator)
a) Ex: garage generally smaller than the house
iii. Customary: if it commonly, habitually, and by long practice has been
reasonably associated w/ a principal use
a) Ex: vehicle parking

3. Accessory Uses vs. Home Occupations

Accessory Uses As of Right Incidental

Subordinate
Home Occupations Special Permit Customary

4. Delegation of Power:
i. ≠ specific power to municipalities to provide for accessory uses, local
governments have authority, under state enabling statutes, to regulate
land under the police power

5. Variety of Ways to Implement:

i. municipality may simply permit accessory uses by accepting those uses
that meet the qualifications of what is customary & incidental.
(ordinance does not provide guidelines or expressly state accessory uses)

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ii. zoning law may permit certain accessory uses and prohibit all others.
(those not expressly permitted in the list are prohibited unless clearly
stated otherwise)
iii. List and prohibit only problematic accessory uses.
iv. provide guidelines that can assist the zoning enforcement officer and
ZBA in interpreting what is an accessory use and by adopting a
nonexclusive, illustrative list.
v. list some accessory uses that are allowed by special use permit and
subject them to certain requirements.

6. Enforcement:
i. A municipality should be careful when enforcing accessory use
regulations against educational institutions and religious organizations

7. Wawayanda Zoning Code

i. Article III – Establishment of Districts and Zoning Map
a) § 195-7 Prohibited Uses
ii. Article IV – District Use, Lot and Bulk Regulations
a) Under each District
1) Purpose
2) Permitted use
3) Special use permit
4) Accessory use

8. Collins v. Lonergan
i. F: city granted permit for a skateboard ramp on somebody’s property
ii. R: the determination will be upheld if there is a rational basis and it
is supported by substantial evidence
a) Agency just cannot act arbitrarily or capriciously
iii. A: skateboard ramp was intended as a residential use; intensity of the
use can be an underlying factor
iv. H: valid

9. Greentree v. Good Shepherd Episcopal Church (1989)

i. F: ∏→ condos; alleged 5 causes of action against church w/ their
It’s hard to temporary homeless shelter sanctuary program
discriminate ii. R: If an accessory use is incidental, subordinate, and customary
against the without being a nuisance per se or being injurious to public health,
church safety, and general welfare, then it is valid.
iii. A: actions constitute a temporary emergency activity involving the
It has well homeless crisis; it was incidental to the activities of a church; it was
been held that subordinate b/c it wasn’t their main activity; and it was customary for a
churches do church to help the homeless. It was not a nuisance per se b/c the
activities well homeless were restricted from being there after people got off of work so
beyond prayer there did not interefere.
& worship iv. H: homeless shelter was a permissible “accessory use” of the church,
which was protected as an activity under NYC Zoning and under ∆’s
current certificate of occupancy

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10. Dobo v. City of Wilmington
i. F: ∏ operated a non-commercail sawmill on his property as aprt of a
permitted woodworking shop which was operated as a personal hobby.
ZB ruled that the sawmill was not a permitted accessory use.
ii. R: a zoning ordinance being in derogation of CL property right should
be construed in favor of the free use of property
iii. A: the sawmill was not found to be incidental, subordinate, and
customary. It did allow for a hobby woodworking shop
iv. H: agreed w/ ZB
v. D: ≠ supported by substantial and competent evidence

11. Wawaynda Code

i. Zoning Code §195-22:

12. Hypos→ by house

i. Skateboard Rink
a) ≠ a permitted use → can’t get an “as of right”
b) can’t get a variance
c) could possibly apply for an accessory use
ii. Ball field
a) ≠ customary
b) could argue that it was subordinate
iii. Helicopter pad
a) The “as of right” uses in this district include agriculture and
single family houses
b) Helicopter is not included in the permitted use
c) Accessory use? Must be subordinate, customary, and incidental
1) Subordinate→helicopter may ≠ be smaller
2) Customary→ most likely not

13. Review on appeals

i. First, look at the plain-language of the statute
ii. If not clear, look at the LH

Z.E.O. determination Z Board Court

E. HOME OCCUPATIONS
1. Historically:
i. Single family homes have been used for occupational uses such as
beauty parlors, dressmaking, laudries
2. Def:
i. zoning limits single-family homes to residential uses and to those uses
that are customarily associated with residential use and incidental and
subordinate to that residential use

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3. GR: must be customary, incidental and subordinate to the residential use

i. See above analysis→ similar to accessory use

4. Local Authority:
i. some communities address on case basis;
ii. others examine proposed occupational use & determine whether it is
customary, incidental, and subordinate to the residential use.
iii. authority of local govts: To balance right of homeowners with
expectations of neighbors

5. Implementation:
i. may let definition of accessory uses govern matter
ii. may adopt a general definition of a home occupation
iii. may supplement a general definition with a list of permitted, prohibited
occupations.
iv. may permit home occupation as-of-right or only upon issuance of special
use permit
v. may include specific standards that certain occupational uses must meet.

6. Wawayanda Code
i. §195-22: Home Occupation

7. Baker v. Posinelli
i. F: ∏ was holding dance classes w/ about 160 students per wk. Town
Home Occupations: Board ruled that it wasn’t a home occupation.
could be regulated by
ii. R: Elements:
either a special use
permit or home a) Customary
occupation regulations b) Incidental; and
c) Accessory or secondary to the use of the dwelling unit or
residential purposes
iii. A: Must be upheld if neither irrational or unreasonable!
iv. H: dance studio ≠ customary b/ too big/too much activity

8. Town of Sullivans Island v. Byrum

i. F: town brought action seeking to enjoin homeowners from using part
of their residence as a bed and breakfast boarding house
ii. A: court looked at square footage (over 25%) – law said secondary must
be less than 25%
iii. H: bed and brkft was not clearly incidental and secondary

IV. COMMUNITY BUILDING: SUBDIVISION CONTROL AND INFRASCRUCTURE

A. REGULATIONS OF THE SUBDIVISION OF LAND

1. Generally:
i. Involves the legal division of a parcel into a number of lots for the
purpose of development and sale

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ii. The authority to review and approve subdivisions may be granted to
planning board by local legislature
iii. Where a subdivision application meets standards contained in
regulations, it must be approved.
iv. Where is does NOT meet the standards, planning boards may impose
conditions on the standards to insure that it meets the specifications or it
can be rejected.
v. In communities that have not developed a zoning provision, subdivision
control is the primary method by which the locality ensure land is
developed in a beneficial way
a) However, when used in conjunction w/ zoning →goes further to
facilitate the proper layout, design and development of
community
vi. Adoption of subdivision regulations is permitted, not required by state
law!

2. Governmental Power to Regulate Subdivisions

i. Subdivision and site plan regulations typically supplement the
prescriptions of the zoning law by allowing administrative agencies to
review and approve specific site design and features for their impact on
the neighborhood and community
ii. Landowner must submit a plat of proposed subdivision that shows layout
and dimensions, topography, drainage, proposed facilities at appropriate
scale
iii. Plat: a map, drawing, or rendering of subdivision which can contain
narrative elements
iv. Legislative Role:
a) Authority to adopt subdivision regulations, to decide what
standards to include, to determine what types of private land
subdivisions are subjects to approval and to appoint planning
board as local reviewing body
v. Filing Certificate:
a) once planning board authorized to approve SDs, municipal clerk
shall file a certificate of that fact with the county clerk or register
of deeds
vi. Reviewing Body:
a) local legislation or delegated to local planning board.
b) May draft & recommend subdivision control regulations to
legislature for adoption.
c) Subdivision statutes require planning board to hold hearings
(unless under SEQRA review→ SEQRA hearings are optional
and not mandatory)

vii. Approval Process:

Remember→ a) Developer may be required to submit both a preliminary plat and
the a final plat of proposed SD which is subject to review and
PLANNING approval
BOARD is an b) Decisions of approval must be filed w/ planning board and
AGENCY! municipal clerk→ any grounds for modification must be stated
Any action that
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they take is from
the State Agency
Review Act
Land Use - Nolon
c) Failure of planning board for modification must be stated
d) Failure of planning board to take action w/in the established time
periods is deemed an approval by default
e) Public hearing subject to notice must be held regarding
submission of final plat
f) Under power to supersede state law, local legislature may vary
process to achieve objectives
viii. 2 levels:
In NY, a) Micro level→you cannot take legal title to something that has
municipalities been subdivided
are given the b) Macro level→what you are dong to the whole region is
authority to dependant on the property
subdivide the
land 3. Town Law
i. §276: Subdivision Review; approval of plats; development of filed
plats
a) Required steps
1) Application
2) Public hearing w/i 62 days
3) Public notice (5 or 14 days → depending)
4) Closed w/i 120 days
5) Decision of planning board 62 days after closing
i.) Resolution can be approved, denied, or
conditionally approved
ii.) Met w/in 180 days (90 days period + another 90
days period)
6) Default approval
ii. § 277: Subdivision Review; approval of plats; additional requisites
iii. § 278: Subdivision Review; approval of cluster development

4. Ridgefield Land Co. v. Detroit

i. F: proposed plat was contrary to the general plan of Detroit. City
Another example commission made certain concessions w/ building line and wanted them
of an to dedicate 17’ to the city for an avenue
exaction→city ii. I: did the city have the authority to make concessions to the general plan
says they’ll pass if when there is a reciprocal benefit?
they donate land iii. R: When one applies for an application to subdivide the land and an
for XYZ exaction is asked for that would be a reciprocal benefit, it is not an
unconstitutional taking.
iv. A: this wasn’t a taking b/c the city isn’t trying to compel the dedication;
instead, they are saying that it would be a requirement in order to be
recorded as it is contrary to the master plan. It would have been a taking
if it didn’t come w/ the application to subdivide their land.
v. H: the council does have the authority to do so

5. Dawe v. City of Scottsdale

i. F: plat was recorded as a subdivision but there has been no attempt to
improve the property and it remained vacant
VESTED
RIGHTS case
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ii. R: In NY, vested rights require substantial construction or substantial
improvements
iii. H: filing it not sufficient as you have to build something in order for it
to be a vested right

6. City of Corpus Christi v. Unitarian Church

i. F: Church was asking for a bldg permit; city wanted 15% of property
for a street. ∏ asked for a declaratory judgment.
ii. R: Township must have the authority to approve the site plans
iii. Church claims ultra vires – Court agrees

B. CLUSTER ZONING
1. CLUSTER ZONING  DENSITY ZONING
2. Def:
i. “a subdivision… in which applicable zoning ordinance or local law is
modified to provide an alternative permitted method for:
a) layout,
b) configuration and design of lots,
c) buildings and structures,
d) roads,
e) utility lines and other infrastructure,
f) parks, and
g) landscaping
ii. in order to preserve the natural and scenic qualities of open lands.”

3. Generally:
i. Ex: brownstones in Brooklyn, or sometimes to protect agricultural land
ii. Here, we are moving from suburbs that are spread out to higher density
iii. Q: How much area must it be to qualify as a cluster?
a) Could simply be an apt building
iv. A locality permits a land developer to vary dimensional requirements
v. Local law exercising a community’s cluster development authority can
delegate broad or narrow authority to the planning board to cluster
permitted developments
vi. Courts have ruled that a developer a may not be forced t convey title to
the preserved open and to the locality
vii. Advanages:
a) Drainage
b) Low income housing
1) Blue collar workers
2) Diversity
c) Open space requirements

4. Steps:
i. local legislature enacts law/ordinance authorizing PB to adjust
dimensional reqs. of zoning in particular circumstances.
a) must specify zoning districts permitted.
b) Provisions will define how board authority & discretion of PB is.

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ii. Developer must submit subdivision plat, so PB can determine max
density allowed w/o clustering.
a) Density shall not “exceed the number which could be permitted,
in the PB’s judgment, if land were subdivided into lots
conforming to ordinance.”
iii. Meet all requirements of subdivision approval throughout review &
approval process.
iv. Copy of approved plat filed with municipal clerk. →Clerk puts
appropriate notations & references on zoning map.

5. Town Law:
i. §278: Cluster Development
a) gives planning boards the express authority to accept this type of
development
b) planning boards can’t establish what uses b/c it is legislative
c) Can developers be required to cluster?
d) cluster zoning allows the board to make the decision to adjust this
to allow for a multi-family building
e) building unit ≠ building

6. Chrinko v. South Brunswick Twp.

i. F: City reduced the size of the lots→ reduced by 20% to leave room for
open space. ∏ contested the validity of cluster and open space zoning.
ii. A: In this case there was no master plan; however, there was a
legitimate need to preserve the woods and open space. Therefore, cluster
zoning was a legitimate way to accomplish this.
iii. H: Although the state zoning law does not in so many words empower
municipalities to provide an option to developers for cluster or density
zoning, such an ordinance reasonably advances the legislative purpose of
securing open spaces preventing overcrowding and undue concentration
of population.

7. Orinda Homeowners Committee v. Board of Supervisors

i. F: ∏ were homeowners; ∆ rezoned parcel of land from single family
residential to a planned unit development (PUD) & called for “residential
clusters.” ∆ set maximum density and # of dwelling units. ∏ sued
stating that it conflicted w/ governmental code which requires that a
regulation shall be uniform for each class or kind of building or use of
the land
ii. H: just b/c it is not uniform doesn’t mean that it is invalid. The code
requires that the regulations be uniform.

8. Wawayanda Zoning Code

i. §195-57

C. SUBDIVISION EXACTIONS AND OTHER REGULATION ISSUES

1. Exactions, Generally:

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i. Similar to use conditions→ requires land, expenditure or money from the
developer
ii. Statutory law can require subdividers to require the developers to
designate land for recreation and provide facilities for people in the
development
iii. Provides infrastructure on or off site
iv. If land approved is ≠ sufficient for being uses as a park and/or recreation,
developers can be required to dedicate/designate $$$ to the town to
provide parkes/recreation
v. GR:
a) Dolan/Nollan→”essential nexus”/rough proportionality and
individualize determination test

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2. Development Approval Process w/ Exactions

COMPREHENSIVE ZONING SUBDIVISION SEQRA

PLAN SITE PLAN REGULATIONS

APPLICATION 3 CHOICES
(exactions, land PLANNING Approval
dedication, DEVELOPER Approve Conditions
BOARD
provide (or $ in lieu of)
infrastructure on Deny
site or off site)

3. Town Law
i. §277: This is the state enabling act

4. Petterson v. City of Naperville

i. F: County approved exaction for wider streets and storm gutters
ii. R: Must be held to be unreasonable in order to be an ultra vires
case.
iii. A: it was w/in the legislative intent and had reasonable inference

5. 181 Inc. v. Salem County

i. F: ∏, a homeowner, challenges the action of the planning board who
compelled ∏ to dedicate to the county a portion of the land upon a
county road. Statute said that the planning board shall require the
dedication of an additional right of way
ii. A: the planning board couldn’t prove that there was a essential nexus

6. Divan Builders, Inc. v. Twp. Of Wayne

i. F: ∏, constructed a 31 unit residential comm.. the plan called for the
drainage of a pond through a pipe which would drain into a downstream
source. The twp of wayne developed a plan for maintenance of the
entire drainage basin which required the developer to put 20K towards
the project.
ii. H: held that while the plan was prop the city did not apportion the costs
to developer’s properly

7. Jordan v. Village of Menomonee Falls

i. F: ∏’S purchased a 785 acre lot which they subdivided. Town law
required subdividers to dedicate a portion of the land for open
space/schools or pay a fee where dedication is not feasible. ∏’s paid a
5K fee in which they now challenge
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ii. I: Does the village have the authorization from the legislature to require
the dedication/feed? Is it an unconstitutional taking of property w/o just
compensation?
iii. H: the legislature has provided the authorization. A liberal reading of
the legislation must be used in order that the goals of the legislature be
obtained. The fee is uniquely attributable to the community & its and
therefore constitutional.

D. DENIAL OF SUBDIVION APPROVAL

1. Generally:

2. Coffey v. Maryland-Nat’l Capital Park

i. F: ∏ sought to subdivide ~16 acres into 117 townhouses w/in a density
of 7.38 units per acre the land was zoned R-T (townhouse) for a density
of 80 to 119 units per acre; the county code requires subdivision plats to
conform to the master plan; the planning comm.. rejected the plan. ∏
challenged.
ii. A: subdivision controls are imposed for the purpose of implementing a
comprehensive plan for a community development
iii. H: the rejection was proper

3. Maryland-Nat’l Capital Park v. Rosenberg

i. ∏ wanted to subdivide a 31 acre property. Denied subdivision.
ii. Court rejected denial.
a) Availability of schools in area
b) Board denied approval b/c checklist
c) Board did not consider land around – other schools could have taken
some kids
iii. The checklist was arbitrary and capricious.

V. SMART GROWTH AND GROWTH MANAGEMENT

A. INTRODUCTION
1. Generally:
i. Def. of Smart Growth:
Non-Euclidian a) No clear definition
approach→ b) Intermunicipal planning that establishes discrete compact growth
designed to areas and significant conservation corridors and landscapes
breathe flexibility
into the rigid ii. Sprawl: “low density development beyond the edge of service and e/mt,
uniformity of the which separates where people live from where they shop, work, recreate,
district-bound and educate; thus, requiring cares to move between zones”
zoning a) Defined by the Sierra Club

2. Local Land Use Controls that Achieve Smart Growth

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i. Goal: to create a sense of community, promote economically viable
development, ensure the ease of movement and safety of residents, and
preserve open space natural resources, and sustainable habitats

ii. Related Actions:

a) Designation of discrete geographical areas not which private
growth pressures are directed
b) Designation of other areas for recreation, conservation, and
environmental protection

3. Golden v. Town of Ramapo

i. F: ∏ sought an order reviewing an annulling a decision and
Seminal Growth determination of the Planning Board of the Town of Ramapo which
Management Case denied their application for preliminary approval of a residential
subdivision plat because of an admitted failure to secure a special permit
ii. R: Ordinance must promote the general welfare of the town. There
must be a rational basis for phased growth in order to be
constitutional.
iii. A: here, it was not exclusionary → there was a rational basis
iv. H: the ordinance involved proper zoning techniques exercised for
legitimate zoning purposes by assuring that each new home built in the
town would have at least a minimum of public services in the categories
regulated by the ordinance

B. STATE AND REGIONAL PLANNING

1. Federal Land Use Legislation
i. Federal land use legislation would spur level planning
ii. Removal of some planning decision from local to regional or state
political jurisdiction
iii. Wide spread intervention
a) Clean air act
b) Clean water act
c) Interstate compacts
2. State Planning
i. Some states don’t’ make

3. Regional Planning
i. There was a movement from state to regional planning
ii. Typically rejected

C. MORATORIA
1. Generally:
i. Def: where there is a suspend of a right of property owners to obtain
EXTREME development approvals while the community take time to consider, draft,
and RARE! and adopt land use plans or rules to respond to new or changing
circumstances not adequately dealt w/ by its current laws
ii. Q:
a) How long is reasonable?

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1) I THINK that one year is considered reasonable and more
than 1 yr is unreasonable
b) Are there any other options available?

2. Maryland-Nat’l Capital Park v. Chadwick

i. F: ∏ restricted ∆’s property for 3 yrs and forced the property to be
As applied (vs. virtually unusable due to a moratorium Required the preservation of
Tahoe→per se) land (like a conservation easement) and kept it from being developed.
ii. I: whether the ∆ by placing the ∏’s land in a public reservation w/in
their consent for a max of 3 yrs unconstitutionally deprived ∏ of just
compensation?
Essentially, there iii. R: If the moratorium deprives the land of all use for an unreasonable
are lots of good long time then it is a per se regulatory taking.
examples of when iv. A: all economic able use was stripped
a moratorium can a) Relied upon Tahoe→ a moratorium is not a per se taking
be applied, but this b) Maryland was a complete halt and the owners couldn’t even sell
wasn’t one of property
them. v. H: regulatory per se taking → unreasonable and ∆ owed just
compensation.

3. New Jersey Shore Builders Association v. Township of Middletown

i. F: state prohibited moratoriums
ii. I: What is the proper statutory req demonstration that a municipality
must show in order to have a moratorium.
iii. R: Must have clear and specific evidence.
a) the legislation requires that there must be “clear and imminent
danger” to the health of the inhabitant in order have a moratorium
be invalid

D. GROWTH MANAGEMENT
1. Generally:

2. Local regulation of Urban Growth

i. Construction Industry Ass’n v. City of Petaluma

Getting into federal
court→ remember
this is a Fed Ques
Exclusion Zoning:
Suburban zoning
regulation which have
the effect and purpose of
preventing the migration
of law and middle-
income persons from
living there
a) F: ∆ developed a 5 yr development plan which restricted growth
to 1000 new dev per year had requirements for affordable
housing.
b) I: is a zoning policy to restrict population growth in order to
preserve the attractive nature of the town rationally related to a
public purpose so that it is not unconstitutional under the
fourteenth amendment (due to being exclusionary)?
c) R: Must have a rational relationship to a legitimate state
interest /public purpose and be reasonable.
1) ∏ has the BOP that it is unreasonable
d) A: preservation of the rural community is the LSI which
supersedes the fact that they are excluding poor family from

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living there. Restricting growth can be a valid public purpose but
it depend on what you are trying to preserve
e) H: constitutional. Here, the local regulation is rationally related
to the social and environmental welfare of the community and
does not discriminate against interstate commerce.

ii. Associated Home Builders v. City of Livermore

a) F: ∏, an association of contractors and subdividers, put a
restriction on growth until certain educational, sewage, disposal
Look at the and water supply facilities complied w/ specific standards
External needs b) R: Must have a real and substantial relationship to the
and balance welfare of the region.
against the c) A: 2 steps
internal needs! 1) Forecast the probable effect and duration of the restriction
2) Identify the competing interests affected by the restriction
d) H: ≠ unconstitutional

3. Steel Hill Development v. Town of Sanbornton

i. F: city wanted to preserve the rural character of the community by
cluster zoning and agricultural zones. ∏ opposed development.
ii. R: In order for provisions to be unconstitutional, they must be
unreasonable by having no substantial relationship to the public
health, safety, or general welfare.
iii.

4. Denial of Access to Infrastructure

i. Dateline Builders, Inc. v. City of Santa Rosa

a) F: suburb wanted the city to hook up the sewer system by the
LEAP FROG house; would be “leap frogging” their way out of the city. City
DEVELOPMENT refused to connect them to city. ∏ sued b/c they felt that it was
Leaving city reasonable related to public interest & didn’t think they can’t
boundaries to help deny unless they can’t handle volume.
someone w/ city b) H: the municipality reasonably exercised their authority b/c the
utilities new housing development was not consistent
c)

ii. Charles v. Diamond

a) F: told the apt building that the municipality couldn’t connect to
them until their sewer problems were fixed. ∏ felt they were
acting arbitrarily and capriciously. Villiage, County Sewer Dept.
and state environmental agency were all the ∆’s.
b) R: A police power regulation must be reasonable w/in the
limits of necessity
c) A: Court determined that if the village was acting unreasonably
then they would be free of the reasonable requirement and the
developer would have to make their own septic system.
d) H: There was not enough evidence on the record on whether or
not the agency acted reasonably.
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E. STATE GROWTH MANAGEMENT LEGISLATION

1. Generally:
i. There must be communication b/w the regional and municipality

2. Haviland v. Land Conservation and Development Commission

i. F: ∆ made urban growth boundaries in order to provide an orderly and
efficient transition from rural to urban land use. Boundaries were to be
based upon :
a) Goal 14 which had 7 factors→ long range urban population
requirements, need for housing and employment opportunities,
economic provisions, maximum efficiency of land uses,
environmental energy and social opportunity, economic
provisions, retention of ag land and compatibility with the nearby
ag activities in Oregon
b) ∏ arg that there were inadequate facts to support the findings of
the growth boundaries
ii. R: Court requires that you supply substantial evidence to support
ruling.
iii. H: there was sufficient evidence on the record that they didn’t act
arbitrary and capriciously.

3. Residents of Rosemont v. Metro

i. F: ∆ amended their Urban Growth Boundary to add 830 more acres
ii. Because the decision was a subregional need – it was not valid. Urban growth
boundary was set aside. Boundary was set in an erroneous fashion
iii. H: city erred→ no logic in their decision

F. CENTERS OF GROWTH AND DEVELOPMENT

1. Generally: Footprint by living on the land.

2. Housing Codes
i. First Nat’l Realty Corp. v. Javins
a) F: ∆ rented an apt and defaulted on their payment; they didn’t
Policy: if a LL cannot obtain rent for think they had to pay due to housing violations.
a default w/o correcting the facility
then the implication is that the LL
b) R: The modern urban tenant seeks more from a lease than the
must increase rent in order to meet outdated common-law conveyance of an interest in land, rather,
obligation. Ex: Slum lords. Having a he seeks a well-known package of goods and services; and,
warranty of habitability isn’t going to modern housing regulations imply into every lease a warranty of
↑ jobs of ↑ living standards habitability, the breach of which by the landlord will justify a
suspension of the tenant’s covenant to pay rent.
c) H: Every lease contains an implied warranty of habitability to the
extent of relevant housing regulations.

G. URBAN REDEVEOPMENT TECHNIQUES

1. Generally:

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i. Ex: urban sprawl areas

2. Kelo v. New London

Public Use is broad
→doesn’t necessarily
mean that the public will
use it but that it is for
the general public
purpose
i. PULIC USE = PUBLIC PURPOSE = PUBLIC WELFARE
ii. Public Use is broad →doesn’t necessarily mean that the public will use
it but that it is for the general public purpose
iii. F: city development board heard that Pfizer was interested in starting a
convention center. New London was a depressed city and was blighted.
Wanted to take Kelo et al.’s land to lease out to a private developer in
accordance of the redevelopment plan and pay Kelo just compensation.
∏ made several improvements on her property and there was a
significant amount of emotion involved in this case.
a) Q: What exactly is “blighted” or “economically depressed?”
We don’t really know…
iv. I: Is it a public use when a city wants to take private property and give
to another private property for purposes of economic development?
v. R: Rational basis test.
a) Look to see if the general public will benefit or not vs. just one
party
vi. A: court used a rational basis analysis to see if it’s reasonably related to
a public purpose. It’s irrelevant whether or not the area is blighted or not
(Berman v. Parker) b/c the concept of public welfare (see also Monsanto
where the court felt that it was a public use b/ the use of their data
increased speed where pesticides could be put into marketplace).
vii. H: this did justify a public purpose
viii. D: economic development per se is ≠ a public use; in Berman
the ∏ was harming the public. Here, ∏ wasn’t harming anything.

3. Minneapolis Community Development Agency v. Opus

i. F: City wanted to exercise eminent domain over an area to build a
mall/office building area for large scale economic development. This is
not a blighted area.
ii. R: Absolute necessity is ≠ req. for a finding of public purpose but
simply that the taking was reasonably necessary or convenient for the
furtherance of the proper purpose.
iii. A: Here, there is undoubtedly would be benefit to the public.

4. Protecting Growth Districts from Competition

i. Generally:
a) Market pressures sometimes operate as a centrifugal force
1) the conditions at the urban core repel capital investment
outward
2) this causes underlying tension w/ land use

ii. Forte v. Borough of Tenefly

a) F: the city is trying to keep the central business district from
deteriorating (i.e., to keep people coming downtown to use the
busses and library). As a preventative measure, they were
rezoning.
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b) R: Simply preventing economic competition is not a public
purpose, it is a private interest.
c) H: ≠ public purpose.

iii. Swain v. County of Winnebago

What if the city of Rockford
was a ∏?
Euclid was a suburb and the
court stated that even though
they were a suburb they had
powers of their own given to
them from the state
a) F: ag land is rezoned for dept land. ∏’s were a bunch of private
competitors that own business in the center city. ∏’s sued stating
that the rezoning was arbitrary and capricious.
b) R:
c) A: The ∏’s didn’t have standing b/c re: traffic, they were
harmed just as much as the general public. Re: competition→
can’t delegate a private vs. another private.
d) H:

H. PROMOTING BROWNFIELD REDEVELOPMENT

1. Generally:
i. This is another method to keep density in the proper place and prevent
urban sprawl
ii. b/c former industries plight neighborhoods
a) contaminated→pose env challenges
b) if redeveloped then the city could generate tax revenue
iii. Brownfields are idle, underused industrial and commercial facilities
where expansion or redevelopment is complicated by environmental
contamination
iv. Cities can designate these contaminated properties

2. Smart-Growth Techniques

I. POST-EUCLIDIAN ZONING
1. Generally:

2. Examples:
i. Floating zones
ii. Overlay district
iii. Clustering subdivisions
iv. Bonus or incentive zoning
v. Transfer of development rights

3. Rodgers v. Village of Tarrytown

i. F: Ordinance created a new district or class of zone which only applied
FLOATING to a few people. Rodgers→6 acres; rubin→10acres. If you had 10 acres
ZONE CASE you can apply to the board for rezoning.
ii. R: you can reasonably rely on the zoning classification when you
purchase your property unless the rezone isn’t a valid public purpose
a) Uniformity requirement?

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iii. H: that it is not spot zoning b/c not specifically changing for the benefit
of one individual owner
iv. Compare to Golden v. Ramapo: Rogers is neo-Euclidean zoning (i.e.,
floating zone) as it is flexible and allows the Z to respond to problems;
dissent argued that it was too flexible

VI. LOCAL ENVIRONMENTAL LAW

A. HISTORICAL OVERVIEW
1. What is Local Environmental Law?
i. the role of the local government is discussed typically in the context of
their devolved authority under federal statutes. THOUGH local
governments are given a key, if not primary role in land use regulation
ii. local governments adopt zoning ordinances and maps
iii. comprehensive zoning began as a civil engineering and fire prevention
concept –
iv. subdivision and site plan regulations emerged to complement these
aspects of local land use law
v. E.g., in New York you can find laws on:
a) Cluster subdivision, environmentally sensitive Area Protection,
Erosion and sedimentation Control, Filling and Grading,
Floodplains Control, Ground Water/Aquifer Resource
Protection, Landscaping, Mining and Excavation, Ridgeline
Protection, Scenic Resource Protection, Soil Removal, Solid
Waste Disposal, Steam and Watercourse Protection, Steep
Slopes, Stormwater Management, Timber Harvesting, Tree
Protection, Vegetation Removal, and Wetlands.

2. Examples of Local Environmental Law

i. Comprehensive Plan
a) defining the environment – between what should be preserved
and what should be used
ii. Zoning
a) Zoning law or ordinance is the principal tool used by
municipalities to regulate land use.
b) The zoning ordinance divides the community into zoning
districts.
1) A zoning district is a portion of the community designated
for certain kinds of land use.
c) All zoning must be in accordance with the municipality’s
comprehensive plan
d) Zoning districts used for enviro purposes:
1) can prohibit uses harmful to resources within a zone, can
deduct constrained areas such as steep slopes, can control
stormwater runoff, minimize erosion and sedimentation,
and restrict tree harvesting.

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2) Use as zoning boundaries the drainage basins of
watersheds rather than major roads or other artificial
mechanisms as dividing lines between districts.
iii. Overlay Zoning
a) Preservation overlay
1) imposed over existing zoning districts that will apply in
addition
2) none of the as-of-right development destroyed.
b) To protect vegetation, habitat, prevent flooding.
iv. Incentive Zoning
a) NY State laws allow local governments to provide zoning
incentives to developers on the condition that specific physical,
social, or cultural benefits are provided to the community in
return.
b) Allows developers to build at greater densities than allowed
under zoning in exchange for public benefits such as open space
or affordable housing.
c) The authorizing statutes allow communities to receive cash
payments in exchange for the zoning incentives awarded a
developer
v. Open Space subdivisions
a) may included incentive zoning
vi. Subdivision
a) Regulations can prevent menace to public and adjacent lands,
including the environment
b) In NY you cannot pass a habitat protection law but you can
include amendments to subdivision plan –
vii. Clustering
a) NY Statutes define cluster development as:
1) A subdivision…in which the applicable zoning ordinance
or local law is modified to provide an alternative
permitted method for the layout, configuration and design
of lots, buildings, and structures, roads, utility lines, and
other infrastructure, parks, and landscaping in order to
preserve the natural and scenic qualities of open lands.
viii. Site Plan
a) Is the arrangement, layout, and design of the proposed use of a
single parcel of land consisting of a map and all necessary
supporting material.
b) Site plan regulations can be structured to preserve natural
resources that are located on the site under review and adjacent to
it –
1) Can take into consideration factors such as adequate water
supply, control of stormwater, erosion and sedimentation,
and protection of wildlife.
2) Can include site contours, lighting, sidewalks, and
parking designed to conform to the natural environment
and character of the community
ix. Non Traditional Protections
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a) Aquifer Protection, Erosion and Sediment Control, Fish and
Wildlife Habitat, Floodplains, Ridgeline Protection Overlay
District, Steep Slopes, Stormwater Management, Timber
Harvesting, Transfer of Development Rights, Tree Preservation,
Wetlands and Watercourses

3. The Law of Nuisance

i. Some Basic Considerations
a) Historical Aspects
b) Public vs. Private Nuisances
1) Public→endanger health, safety, property, morals, or
comfort to a considerable number of people
i.) E.g., storing explosives in a populous place,
prostitution, gambling house, odors, dust, smoke,
sound, obstruct a highway or navigable stream, or
nuisance per se (violate a nuisance statute)
2) Private→ affects only a limited number of people
i.) Interference w/ the use and enjoyment of land
(does ≠ include direct physical invasion or
trespass)

c) The Duty Note to Interfere Substantially w/ Your Neighbor

1) Neighbor has the right to quiet enjoyment
d) The Restatement’s Guide to What is Substantial Harm
1) §827 Gravity of the Harm: Factors Involved
i.) Extent of harm involved
Coming to ii.) Character of the harm
the iii.)Social value of use
Nuisance→ iv.) Suitability of the particular use or enjoyment
you can’t invaded to the character of the locality
complain if v.) Burden on the person harmed
the nuisance 2) §828. Utility of Conduct: Factors Involved
was already i.) Social value that the law attaches to the primary
there purpose of the conduct
ii.) Suitability of the conduce to the character of the
locality
iii.)Impracticability of preventing or avoiding the
invasion
e) Nuisance Per Se and Nuisance Per Accidens
1) Nuisance Per Se:
i.) E.g., immoral activities, extrahazardous materials,
statute declared nuisances
2) Nuisance Per Accidens:
i.) Nuisance in fact, case-by-case basis based on the
circumstances of each situation
f) Motive and Nuisance
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1) “Spite fence”→trend going this direction to overcome
the effects of absolute property rights
g) Doctrinal vs Functional Approach to Nuisance Cases
1) There are problems in areas that aren’t zoned

4. Hulbert v. California Portland Cement Co.

i. F: ∏ owned fruit trees and sued ∆ b/c their cement plant were causing
damage to the fruit trees. ∏ wanted injunctive relief and ∆ felt that
money damages were sufficient.
ii. R:
a) the right to use and enjoy property is supreme and no use can
be permitted to destroy that of another.

b) A nuisance that interferes w/ the comfortable enjoyment of

the premises is a private nuisance which may be abated.
Therefore, the injured can recover pecuniary damages.

Nuisance c) The test: BALANCE THE EQUITITES OF THE TWO

Claims: $$ PARTIES
$$ vs. iii. A: the courts here balanced the equities
injunction iv. H: injunction was denied and ∆ had to pay monetary damages

5. Boomer v. Atlantic Cement

i. F: ∏ (the neighbor) sued the cement co. (∆) and sought an injunction
and $$ alleging the property damage was being caused by dirt, smoke,
and vibration emanating from the plant.
ii. I: Despite the fact that the ∆’s creating of a nuisance may have impaired
substantial property rights, may the court impose damages in lieu of an
injunction when the ∏’s property damage is relatively small in
comparison w/ the value of the ∆’s operation?
iii. R: Balance the equities
iv. A: B/c of ∆’s large investment an inj. would cause the plant to close
down and it would be a private taking
v. H: permanent damages may be given vs. an injunction
vi. D: if you don’t grant an injunction then you’re allowing the polluting
company to pollute more

6. DeMars v. Town of Bolton

i. F: the town increased lot sizes for environmental concerns
ii. R:
iii. A:
iv. H:

7. Morris County v Parsippany-Troy Hills

i. F: ∏ is a private landowner in a swampland. Had a environmental law
ii. R:
iii. A: Using a takings analysis, you can’t say that all economic has been
taken (thus, ∏ can’t sue under Lucas). Could sue under the Penn

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Central analysis looking at the character of the regulation, the economic
impact of the regulation, and investment expectation of the owner.
iv. H:

B. ADVENT OF LOCAL ENVIRONMENTAL LAW

1. Generally:

2. Just v. Marinette County

i. Public trust doctrine case
ii. Local partnership to protect property
iii. A: Similarly, apply a Penn Central takings analysis

3. In Re Spring Valley Development

i. F: State law required licensure of not adversely affecting the environment;
developer applies for subdivision approval; Alleges violation of EP.
ii. Court has to read the statute
a) Determine if the statute applies to the developer
b) Statute applies for commercial purposes and to protect the environment
iii. State taking back some of the authority
a) Requiring environmental impact be submitted to state
b) Have to prove they will not impact the env and then they get a permit
to complete project
iv.

4. Moviematic Industries Corp. v. Board of County Com’rs

i. F: env regulations; Development within wetlands area is barred by zoning.
ii. Rule: Env regulations is in the public interest and is a valid exercise
of police power
a) To be a taking, must prove that the land is no longer
economically viable
iii. Claim – violation of substantive due process
a) Somehow this did not comply with health safety welfare
iv. Substantial evidence rule (the board made a decision based on substantial
evidence)
a) Planning board denies and then the court looks to substantial evidence
b) Challenger still has the burden of proof
v. Absence of credible evidence  allows challenger to prove arbitrary decision

5. Wawayanda Zoning Code

i. §195-52

C. LOCAL ENVIRONMENTAL IMPACT REVIEW

1. Generally:
i. SEQRA: Extensive provisions setting forth the procedures and
requirements for the environmental review of local land use actins are
NY is one of fond in NY’s Environmental Conservation Law, Art. 8
the few states a) Local agency must determine whether an action it is considering
w/ this step may have significant adverse environmental impact

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b) If action has such potential, the agency must first prepare an
Environmental Impact Statement (EIS) which forces it to
consider alternatives and to avoid/mitigate adverse environmental
impacts of a proposed project.
c) Failure to follow procedures required by SEQRA will render an
action invalid
ii. Type 1:
a) Adoption may have to be accompanied by the preparation of a
full environmental impact statement
b) Amendments adopted a/f public notice and hearing
iii. Subdivision approval under SEQRA: discretionary action affecting
environmental that is subject to environmental review
a) Typically, subdivision statutes require planning board, as lead
agency for SEQRA purposes, to hold hearings
b) However, SEQRA hearings are optional and not mandatory!

2. Sun Beach Real Estate v. Anderson

i. F: subdivision approval action of a preliminary subdivision plat; city
Case of first advised developer it would process application when it received a draft
impression environmental impact statement (DEIS) or determined there was no
environmental significance. Town law required that action be done in 45
d but SEQRA requires that a DEIS be submitted at the time??? ∏
brought action to direct city’s town clerk to issue a certificate of
preliminary plat approval
ii. I: Does SEQRA or Town Law apply?
iii. R: the legislative declaration of purpose in that statute makes it obvious
that protection of the environment far overshadows the rights of
developers to obtain prompt action on their proposals
iv. A:
v. H: SEQRA should apply 45 d time imposed by NY Town Law §276 did
not commence to run until city planning board accepted a DEIS b/c
DEIS had to be available when it was still practical to modify project

3. What is Subject to SEQRA?

i. Capital projects
ii. Comprehensive plan
iii. Zoning amendment
iv. Site Plan or Subdivision Regulations
v. Project Approvals
vi. Subdivisions
vii. Site Plans
viii. Special Permits
ix. Variances

4. SEQRA Regulations
i.

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5. SEQRA Chart
SUBDIVISION APPLICATION
(EAF short form or long form)

EAF is then circulated to the other agencies

COMMENT

Determination of Significance
(“Possible Impacts”)

POSITIVE DECLARATION NEGATIVE DECLARATION

(i.e., BAD for the environment) (i.e., GOOD for the environment)

DEIS (draft environmental

impact statement)
SEQRA is over

Public Hearings (SEQRA)

Findings (SEQRA)

Mitigation of impact on the

environment
(broad→includes al different
kinds of environmental
protection)

Conditions

Same subdivision application

(include the conditions)

DECISION

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6. Environmental Review Techniques

i. Generally:
a) Requires local agencies when reviewing development projects
b) Adopting plans and establishing programs to prepare an
environmental impact statement for actions that may have a
significant adverse impact on environment
c) Requires agencies use all practicable means to minimize or avoid
adverse effects
ii. Approval
a) Lead agency: local land use review and approval agency
b) Actions: a development approval, the adoption of a plan or
enactment of land use regulations
c) SEQRA imposes “action forcing” and “substantive” requirements
on local land use decision-makers
d) Local agencies required to “use all practicable means to realize”
SEQRA’s policies/goals
1) “to act and choose alternatives, which, consistent with
social economic and other essential considerations, to the
maximum extent practicable, minimize or avoid adverse
environmental effects.”
e) SEQRA applies to local land use actions such as approving
applications for rezoning, subdivision and site plan review, the
issuance of special permits and variances and the adoption of
comprehensive plans and capital projects.
iii. Type I vs. Type II:
a) Type I actions:
1) “deemed more likely to require an EIS” than Unlisted
Actions, which are simply not listed in the regs as Type 1
or II.
2) ex. adoption of a comprehensive plan or zoning law,
changes in allowable uses in any zoning district affecting
25 acres or more; construction of 50 or more homes not to
be connected to public water and sewerage systems.
b) Type II actions:
1) where no environmental review is required.
2) ex. area variances for 1, 2, or 3 family houses;
construction of noncommercial structures of less than
4,000 sq ft; and construction or expansion of 1,2,3 family
homes on improved lots.
3) ministerial actions, such as issuance of building permits
where no discretion is exercised, are not subject to
SEQRA.
iv. EIS:
a) Local lead agency must prepare an EIS before granting
conditioning, or denying a proposal or project where there may
be a significant adverse impact on environment

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7. Checklist for local lead agency:
i. Is the land use project or proposal an “action” as defined by the law
and the regs?
ii. Which agency is principally responsible for approving the action?
a) that agency is the lead and has the responsibilities listed here
iii. What type of an action is it? The choices are →Type I, Type II or
Unlisted.
a) If the action is a Type II action, no further environmental review
is required.
b) If action is a Type I or Unlisted Action, an assessment of the
environmental impact of the action must be conducted.
c) Applicants for Type I and Unlisted Actions must submit an
Environmental Assessment Form listing the potential
environmental impacts of their projects or proposals.
1) EAF: “[form is] intended to provide a method whereby
applicants and agencies can be assured that determination
process is orderly, comprehensive, yet flexible enough to
allow introduction of information to fit a project or
action” (6 NYCRR 617.20)
iv. Will it have a significant adverse effect?
a) If the project or proposal will not have a significant adverse env.
Impact, then a negative declaration is issued and no further env.
review need be conducted.
1) lead agency must take a “hard look” at possible env.
impacts
2) must set forth in writing a “reasoned elaboration” for its
negative declaration
b) If the project/proposal may have a significant adverse env.
impact, then a positive declaration must be issued and a Draft
Environmental Impact Statement prepared.
v. Lead agency may require the preparation of a scope of the contents of
the EIS and may provide for public participation in its preparation.
a) scoping-
1) process by which lead agency identifies potentially
significant adverse impacts related to proposed action that
are to be addressed in draft EIS including content and
level of detail of the analysis, range of alternatives,
mitigation measures needed and identification of
nonrelevant issues.
2) provides a project sponsor with guidance on matters
which must be considered and provides an opportunity for
early participation by involved lead agencies and public in
review of proposal.
vi. EIS must consider & examine all relevant env. impacts, identify
possible conditions that can be imposed on action to mitigate any
adverse env. impacts found and discuss any alternatives proposed action
that would mitigate or avoid those impacts.
vii. Applicant must submit a DEIS

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a) when deemed complete, it is filed, along with a Notice of
Completion that the lead agency issues.
b) If a public hearing on the DEIS is to be held, a Notice of Hearing
must be filed and published 14 days prior to hearing which must
be held within 60 days from the filing of the Notice of
Completion. Regs. give public a right to comment on Draft and
lead agency to respond.
viii. Lead agency must complete a FEIS
a) within 45 days of the close of the public hearing, if one is held, or
b) within 60 days of filing of the DEIS, whichever occurs last.
ix. Lead agency’s finding statement, based on FEIS, is adopted.
a) considers impacts contained in the EIS and balances them w/
social, economic, and other essential considerations, selects
mitigation conditions or alternatives
x. Findings statement
a) Positive findings statement demonstrates that project should be
approved and that action will avoid or minimize environmental
impacts to maximum extent possible.
b) A negative findings statement documents reasons why action
cannot be approved.

8. The Appearance of Structures and Other Aesthetic Regulations

i. Local Aesthetic Regulations:
a) Continuity and maintain integrity of design
b) Prevent existing visual assets
c) Method of protecting the public welfare
ii. Home Rule Authority:
a) In NY, local governments have a “home rule” authority to adopt
local laws for a variety of purposes relating to land use control
b) “protection and enhancement of its physical & visual
environment. Authority to preserve trees, landmarks, and
historic districts.”
c) visual blight can occur in a community in a variety of ways;
protect from potential negative effects.
iii. Architectural review board:
a) can have advisory authority only or the authority to review,
approve, disapprove, or conditionally approve proposed new
construction and building improvements before the building
inspector is authorized to issue a building permit.
b) Whether exterior design and treatment of proposed construction
conforms with design review standards contained in the
regulation.
c) 2 standards of review:
1) Whether proposed construction is “excessively
dissimilar” to established pattern of design
2) Whether proposed project is “excessively similar” to
existing buildings where objective is to prevent
monotonous visual impact of new development in area.
iv. Implementation:
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a)comprehensive planning
b)zoning
c)identification and study of unique aesthetic resources
d)overlay zones- do not disturb underlying zoning requirements;
add add’tl considerations and requirements to protect and
enhance.
e) sign control ordinances.
f) design review laws
g) Tree preservation laws
h) Local development approvals
v. Limitations: May allege
a) arbitrary and capricious; unconstitutional
1) justify regs through advance planning
b) “clear and convincing evidence” that proposal fails to meet
established guidelines

vi. People v. Stover

a) F: close-line case to protest taxes. Town subsequently passed
ordinance prohibiting this unless you get a special permit. ∏
Aesthetics Case sued arguing Free Speech and that it wasn’t reasonably related to
the public purpose.
b) I: is solely aesthetics enough?
c) R: Aesthetics alone is reasonably related to public purpose.
d) A:
e) H: yes, aethetics by itself is public purpose.
f) D: slippery slope→what’s next? Regulation architecture?

D. HISTORICAL LANDMARK AND CULTURAL PRESERVATION

1. Generally:
i. Think of historic districts as being overlays
ii. Question of sensitivity→ developer’s economics
iii. Difference b/w landmark protection and historic district preservation
a) Landmark→ just one
b) Historic district →whole area
iv. Examples in NYC
a) SoHo
b) Rockefeller
c) GCS
v. You can designate something just b/c something happened there vs.
architecture

2. Historical Preservation at the Local Government Level

3. Opinion of the Justices to the Senate

i.
ii.
iii.
iv. H:

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4. Penn Central Transp. Co. v. City of New York

When compensation is
reciprocal then typically not
challenged (c.f. luthern
church case→ they didn’t
benefit from the historical
district
i. F: ∏ wanted to build 50 more levels for commercial development on
GCS→ denied b/c it was a landmark and the addition would be ugly.
ii. R: Law doesn’t say that you can’t build, but just that it must be
appropriate.
iii.
iv. .

5. Fgl & L Property Corp v. City of Rye

i. F: ∏ wanted a conservation easement to preserve the shed
ii. City decided that 22 acres would be regulated from developer
iii. City required owner to restore 2 buildings
a) Imposes cost upon condo owners to restore buildings
iv. Court looked to regulation and could not see the permission
v. Law focused on single property to require owner to restore and maintain
property
a) Beyond power of local gov to protect historic properties
vi. R: Conservation easements are deemed to be in perpetuity unless
otherwise identified.

E. CONSERVATION EASEMENTS AND LAND TRUSTS

1. Conservation Easements:
i. Def: a voluntary agreement between a private landowner and a
municipal agency or qualified not-for-profit corporation to restrict the
development, management, or use of the land.
a) Owner of real property deeds an interest in land, (conservation
easement) to a qualified public or private agency.
b) Agency holds interest and enforces its restrictions against the
transferring owner and all subsequent owners.
c) created in perpetuity or for X number of years
d) conservation easements do not grant public the right to cross or
use restricted land.

ii. GR: locality must show that there is a close nexus between a legitimate
public objective and the end achieved by imposing the easement on the
applicant’s property; & burden roughly proportionate to impact

iii. Generally:
a) natural or manmade features are not altered or developed in a
manner inconsistent w/ conservation or preservation.
b) may be donated or sold at below-market value (get income tax
deduction)
c) Writing/Recording:
1) must be embodied in a written instrument, recorded on
county land records, and filed with DEC. By statute,
holder of easement may enter & inspect burdened

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property in a reasonable manner & at reasonable times to
assure compliance.
d) Enforcement:
1) can be enforced by original grantor of easement, land trust
or public agency to whom easement is granted, or 3rd
party specifically named in agreement.
2) judge may issue injunction or $ damages to be paid
3) statutes are unclear whether affirmative obligations would
be enforceable
e) affirmative obligation- one that requires the landowner to
maintain the property in a specific manner, such as maintaining
the condition or color of exterior surfaces
f) Termination:
1) conservation easements may be extinguished by
foreclosure of liens on property that preexisted the
easement.

iv. Smith v. Mendon

Excellent a) F: ∏ wanted to build a house on a property where there was a
analysis in EPOD (environmental protection overlay district). ∏ applied for
opinion a permit to construct a house on a section that was non-EPOD.
Town board approved it on the condition that they place a
conservation restriction on any development on the EPOD’s.
b) I: can the planning board subject approval on an environmental
restriction? If so, does such a condition constitute a taking?
c) R: must be reasonably related to a LSI
d) A: This isn’t a Lucas taking b/c there is still economic value left.
This isn’t an exaction b/c they aren’t requiring public access
(however, had it been they probably would have passed the
essential nexus/rough proportionality test so had it been an
exaction the court probably would have said that it was a taking)
e) H: the action was reasonably related to a legitimate state
interest→ env preservation. Conservation restriction
substantially advances a legitimate public purpose. Regulatory
action may only be reasonably related to a legitimate interest to
satisfy the standard.

2. Land Trust
i. Def: a local or regional not-for-profit organization, private in nature,
organized to preserve and protect natural and man-made environment by
holding conservation easements that restrict use of real property.

ii. Applicability: Usually pursue own organizational agendas.

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VII. STATUTORY CONTROL and Other Limits on Local Land Uses

A. FEDERAL PREEMPTION
B. STATE PREEMPTION
C. DISCRIMINATION AND HOUSING
1. Non-Traditional Families
i. How restrictive can a local ordinance be in restricting family?

2. Village of Belle Terre v. Boraas

i. F: The word family was used in the ordinance. Dickmans leased Truman house
for 18 months. Total of 6 people not related moved into the house.
ii. Valid to restrict number of related people – within the police power
iii. Preserving family values is rationally related to legitimate public purpose
iv. Police power can be used to lay out zones where family values, youth
values and quiet and clean air make a sanctuary.

3. McMinn v. Town of Oyster Bay

i. F: There was a young unmarried couple who rented the house to 4 unrelated
youths
ii. Because the ordinance challenged in this case contain age limitations making it
more restrictive than the Belle Terre ordinance
iii. Court had not stated what definition of family is minimally necessary to survive
Federal due process scrutiny.
iv. The ordinance is facially unconstitutional under the due process clause of the
NY State Const
a) Due Process – Has to be done for the health, safety and welfare
v. Public purpose is not accomplished by the age restriction
vi. The law is aimed at the type of household – not a legitimated public purpose

4. City of Ladue v. Horn

i. F: Residing in ∆ s home were Horn’s 2 children (aged 16 and 19) and Jones’
one child (age 18); City made demands upon ∆ s to vacate their home because
their household did not comprise a family.
ii. Even they were living together as a family, they were not a family as defined by
the code.
iii. The essence of zoning is selection; and, if it is not invidious or discriminatory
against those not selected, it is proper.
iv. ∆ s were not related by blood, marriage or adoption, as required by City’s
ordinance
v. Ladue’s zoning ordinance is rationally related to its expressed purposes
and violates no provisions of the Const of the US

5. City of White Plains v. Ferraioli

i. F: City of White Plains to enforce its zoning ordinance and enjoin use of a
single-family house as a “group home” for 10 foster children.
ii.
iii.
iv. .

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D. EXCLUSIONARY ZONING:
1. South Burlington NAACP v. Mount Laurel
i. F: A trial court found that defendant township had unlawfully excluded low
and moderate income families from the municipality by means of its zoning
ordinance, and ordered affirmative relief, which did not include provision for
persons who were not residents
ii. The trial court found that defendant township had unlawfully excluded low and
moderate income families from the municipality by means of its zoning
ordinance, and declared the zoning ordinance void.
iii. Holding: Zoning regulations – there have to be a variety of housing
options in a fair share
iv. The court affirmed the judgment of the trial court, insofar as it found that
defendant township had unlawfully excluded low and moderate income
families through its zoning ordinance, and ordered the zoning ordinance
modified by defendant

2. Berenson v. Town of New Castle

i. Defendant town appealed from a judgment of the Supreme Court at Special
Term in Westchester County (New York), which declared the town's zoning
ordinance unconstitutional and directed the town to amend its zoning ordinance
and change its planning and land use policies and regulations within six months
so as to permit the construction of at least 3,500 units of multifamily housing in
the town by a certain date. Plaintiff landowners filed the suit.
ii. The judgment was modified to delete the 3,500 unit requirement. The matter
was remanded to the town board to remedy its zoning deficiency within six
months.
iii. The town board was directed to rezone the landowners' property for
multifamily use, and the trial court was directed to retain jurisdiction for the
purpose of allowing the landowners to challenge the validity of any amended
ordinance.
iv. As so modified, the judgment was affirmed.

3. Home Builders v. City of Napa

i. Defendant city enacted an inclusionary zoning ordinance, requiring that 10
percent of all newly constructed units must be affordable as that term was
defined.
ii. Plaintiffs, a non-profit corporation and an association of professionals involved
in residential construction, sought to have the inclusionary zoning ordinance
declared facially invalid
iii. The court of appeal affirmed, holding that because defendant had the ability to
waive the requirements imposed by the ordinance, the ordinance did not, on its
face, result in a taking.
iv. The application of a general zoning law to particular property effected a taking
if the ordinance did not substantially advance legitimate state interests or deny
an owner economically viable use of his land.
v. Creating affordable housing for low and moderate income families was a
legitimate state interest and the inclusionary zoning ordinance substantially
advanced the important governmental interest of providing affordable housing
for low and moderate income families.

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vi. Challenger wants the court to not find a nexus between high cost housing and
affordable housing
a) If no nexus - Wants a regulatory taking - under Nolon (has to be a
nexus)
b) If nexus – the amount of low cost is not proportional to amount of
building – Dolan (rough proportionality between condition and impact)
vii. Standards don’t apply

VIII. REVIEW OF LAND USE DECISIONS Alternative

Dispute
A. REVIEW BY THE PARTIES: MEDIATION Resolution

1. Mediation Generally:
i. Through mediation, one can recommend actions, supported by relevant
and convincing facts, to the administrative body for its consideration
ii. Counseling to prevent disputes and orchestrating their settlement area
BATNA: Best among the most valuable tools lawyers provide their clients
Alternative to iii. Mediation is a way for corporations to achieve settlements based on
Negotiate an sound business practices vs. legal standards
Agreement iv. Facilitators
a) Neutral 3rd party
b) Experts
c) Bring involved parties together, build trust, clearly establish
interests, serve as intermediaries, see options to resolution
generated, work toward mutually acceptable settlement
v. Limitations
a) Parties may not identify themselves until later in the process a/f
board meetings
b) Parties may not believe there is a sufficient dispute to justify
time, expense, and risk of subjecting matter to mediation

2. Mediation Statutes
i. State and local statutes prescribe standards and procedures that must be
followed
ii. Kucera v. Lizza
a)
iii. Municipal Home Rule Law § 10 (1)(ii)(a)(14)
a) Authorizes a city, town or village to adopt and amend local laws
relating to “the powers granted to it in the statute of local
government.”
b) To exercise its supersession authority, a town or village must
follow the procedures outlined in the Municipal Home Rule Law.
§22 requires that a local law that supersedes a state law “shall
specify the chapter…number and year of enactment, section,
subsection, or subdivision, which it is intended to change or
supersede.”
iv. Section 10(6) of the Statute of local governments

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a) Empowers municipalities to “adopt, amend, and repeal zoning
regulations.”
v. Municipal Home Rule Law §10(1)(ii)(a)(11)
a) gives cities, towns, and villages authority to adopt local laws for
the “protection and enhancement of [their] physical and visual
environment
vi. §10(1)(i)
a) gives cities, towns, and villages authority to adopt local laws, no
inconsistent with provisions of the constitution relating to their
local property, affairs, or government.

3. Model Land Use Mediation Law

i. Section 1: Short Title and Applicability
ii. Section 2: Declaration of Policy
a) to provide an alternative to litigation for resolving such disputes.
Shall be liberally construed so as to effectuate the purposes
described.
iii. Section 3: Fiscal Implications
a) costs allocated to among the parties.
iv. Section 4: Definitions
a) Local Board: the local legislature, zoning board of appeals,
planning board or other local board or agency charged with
reviewing and approving proposals that affect the development or
conservation of land within the jurisdiction of…
b) Mediator: an individual who has been certified as a mediator
under the guidelines of the unified court system community
dispute center program or a person who, prior to 1/1/97, has
served as a mediator in 2 or more separate disputes involving
municipal planning and zoning.
c) Party in interest: individuals or agents identified by the
mediator as having a substantive concern or role in the outcome f
a given planning or zoning proceeding conducted by the
….provided however that the…shall not be deemed a party of
interest for the purposes of this article.
v. Section 5: Procedures
a) mediation shall supplement, not replace planning and zoning
practices. Any interested party may request. Any consent shall
be conditioned on public notice, suspension of time limits shall
not exceed 60 days. Nothing in this section shall be construed to
limit the authority of the legislature or body to impose additional
or more restrictive conditions.
vi. Section 6: Confidentiality
a) parties in interest may agree that the proceedings of the mediation
shall remain confidential.
vii. Section 7: Accepted Practices
a) shall be conducted in accordance with accepted mediation
practices
viii. Section 8: Effect of Agreement

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a) shall not be bound by the terms or conditions of any agreement
resulting from voluntary mediation conducted pursuant to this
local law.
ix. Section 9: Legislative Intent→ Supersession of the Town Law authority
a) gives authority from municipal home rule law and statute of local
governments of NY state.
x. Section 10: Severability
a) if any provision is held to be unconstitutional or otherwise invalid
by any court of competent jurisdiction, the remaining provisions
of the Local Law shall remain in effect.
xi. Section 11: Effective Date
a) shall become effective upon filing with the Secretary of the State

4. Mediation Before a Land Use Application Is Made

i. Santa Margarita Residents v. San Luis Obispo County

a) F: county wanted to put a freeze on development for 5 years and
∏’s argued that it was arbitrary and capricious
b) H: the project had been developed under a comprehensive plan
and this was w/in the agency’s discretionary authority
c) ∏s (residents) were not involved in mediation

5. Mediation During the Development Approval Process

i. Landowner submits an application for development permit→ local land
use agency (negotiation process initiated)
ii. Parties:
a) Owner
b) Members of local administrative agency w/ approval authority
c) Members of other public agencies
d) Those affected by project→ neighbors, taxpayers, and citizens
1) They receive notice of their right to speak at public
hearings
iii. Not as structured as a typical negotiation
iv. Local dev. approval process:
a) Costs applicant lots of $
b) Involves only indirect contacts
c) Provides little opportunity to creative/ win-win solutions
d) Lengthy, inflexible, and frustrating
e) Unpredictable outcomes, relationships among involved b/c
damaged
f) During process, however, critical interests of stakeholders are
expressed

v. Merson v. McNally (1997)

a) F: Mining operations case; the project was originally proposed
to involve several potentially large environmental impacts and
they could have been redesigned in early SEQRA process to
avoid having such negative impacts. The Planning Board was
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the agency involved, who conducted series of open meetings w/
sponsor, other agencies, and public. As a result of the meetings,
revised project avoided significant adverse impact. ∏’s claimed
that it constituted a malicional negative declaration which under
SEQRA cannot be issued for type of action involved here to
avoid preparing EIS
b) A: Planning Board had conducted an “open and deliberative
process” characterized by significant “give and take.” The
changes made in the proposal here were ≠ the result of conditions
imposed by Planning Board, but “adjustments incorporated by
project sponsor to mitigate concerns identified by public and
reviewing agencies
c) H: negative declaration upheld
d) ∏ went so far in the litigation b/c they were not invited to
mediation

DEC (Mined land rec. permit)

Classified(Type 1) Def of Sign

Application Planning Board (“lead NEGATIVE
agency”) Special Use Meetings
(EAF) DECLARATION
Mining Permit
Suggestions→
change of application

B. REVIEW BY COURTS
1. Generally:
i. property owners cannot challenge a land use action solely because they
will suffer economic competition from a newly permitted development
or business. Limiting economic competition has been held by the courts
as not within the “zone of interest” of zoning and land use regulation.
a) APPLICATION to a BOARD and then ACTIONS are TAKEN:
approval, denial (appeal)
b) Article 78 civil practice law and rules – all 50 states have allowed
citizens to sue local governments.
1) Land use suits fall under this provision
c) Statute of Limitations – 30 days after action aggrieved party must
file citizen suit.

2. Fritts v. City of Ashland

i. BoC of the City of Ashland rezoned from R-2 to I-1 a tract of 4 acres which
was in single ownership. The Circuit court entered judgment upholding the
ordinance and ∏s have appealed. In the city, the area along the river is zoned
industrial and the property is in the middle of city. This was a case of spot
zoning. The zoning change on its face was arbitrary, capricious and

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unreasonable and the burden was on the city to justify the change. The city
could not justify the change – done to get the industry to stay
ii. Ultra vires claim – outside the scope of their authority
a) They did not have the authority to spot zone (not in accordance with
comp plan)
iii.

3. Neuzil v. City of Iowa City

i. Majority view of 50 states
ii. NY, NJ, CT operate this way
iii. Judiciary reviewing legislative act
a) Presumes validity
b) Defers to leg intent
c) Rational basis test -
d) Burden of proof on challenger
iv. Due Process case
a) Pg 1325
b) Wanted down-zoning declared void as unreasonable
v. Maryland Rule
a) Minority rule
b) Only allows change if there was an error
c) Puts judge in position in second guessing leg
d) What kind of argument – Due process
1) Have the power to change the zone
vi.

4. Fasano v. Washington County

i. Floating zone (Rogers v. Tarrytown)
ii. Oregon – still pertains
iii. When leg body rezones it is adjudicating as specific level the rights and
burdens at that level
a) No longer making legis policy
iv. Planning board – adjudication – application for variance or site plan approval
a) By nonleg body
v. Leg policy
a) Created when policy put into effect
b) Leg declaration
1) Not as deferential
2) Burden of proof on applicant to leg body - Prove that the
change is rational
3) Showing that this is rational
vi.

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