Environmental Set-Asides and the Whole Parcel Rule

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1 Environmental Set-Asides and the Whole Parcel Rule S415 Deborah M. Rosenthal, AICP S. Keith Garner, AICP APA s 2012 National Planning Conference Sheppard Mullin Richter & Hampton LLP 2011

2 Key Learning Objectives Understand whole parcel analysis as articulated by Supreme Court and why it is important to environmental set-asides Examine set-aside requirements that have and have not survived takings challenges

3 Legal Framework For the Whole Parcel Rule

4 The takings clause nor shall private property be taken for public use, without just compensation.

5 Takings Issues 1. What is a takings (Lucas v. South Carolina Coastal Council, 505 U.S (1992)/Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978)) 2. What is public use? (Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984)/Kelo v. City of New London, 545 U.S. 469 (2005)) 3. What is just compensation? (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002)) 4. What is private property? (Keystone Bituminous Coal Assoc. v. DeBenedictis, 480 U.S. 470 (1987)/Palazzolo v. Rhode Island, 533 U.S. 606 (2001))

6 Types of Regulatory Takings Total (Lucas) Permanent (Nollan v. California Coastal Commission, 483 U.S. 825 (1987)/Dolan v. City of Tigard, 512 U.S. 374 (1994)) Temporary (First English Evangelical Lutheran Church v. City of Los Angeles, 482 U.S. 304 (1987)/ Tahoe-Sierra) Partial (Penn Central; Keystone Bituminous) Unconstitutional Conditions (Nollan/Dolan)

7 Penn Central factors (Partial Taking) Economic impact of regulation on claimant; Extent to which regulation interfered with distinct investment-backed expectations; and Character of governmental action.

8 The Denominator Problem in Regulatory Takings

9 Types of Partial Takings Horizontal Severance setbacks (Nollan) Vertical Severance height limits (Penn Central) Conceptual Severance (Palazzolo/Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir. 2009) / Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997))

10 Parcel as a whole "'Takings' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular government action has effected a taking, this Court focuses on both the character of the action and on the nature and extent of interference with rights in the parcel as a whole...." Penn Central Transp. v. City of New York, 438 U.S. 104, (1978)

11 a.k.a. the denominator problem Regrettably, the rhetorical force of our deprivation of all economically feasible use rule is greater than its precision, since the rule does not make clear the property interest against which the loss of value is to be measured.... Unsurprisingly, this uncertainty regarding the composition of the denominator in our deprivation fraction has produced inconsistent pronouncements." Lucas v. South Carolina Coastal Council, 505 U.S. 1003, n.7 (1992)

12 What is the relevant parcel?

13 What is the relevant parcel?

14 What is the relevant parcel?

15 What is the relevant parcel?

16 What is the relevant parcel?

17 Criteria for analysis Degree of contiguity; Dates of purchase/acquisition; Extent parcels treated as single unit, by owner and government; Extent to which lands set aside enhance value of remainder; Reasonable expectations of owner at time of purchase/acquisition; Economic efficiency; and Whether owner combined otherwise unrelated parcels into single unit for related purposes.

18 Special Situations Surface v. Subsurface Rights - Keystone Bituminous Coal Assoc. v. DeBenedictis, 480 U.S. 470 (1987) - Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)

19 Special Situations Easements or Fee Dedications Nollan v. California Coastal Commission, 483 U.S. 825 (1987) Dolan v. City of Tigard, 512 U.S. 374 (1994)

20 Special Situations Wetlands Lots of cases early ones (1960s-70s) tended to favor landowners; middle period (late 1970s-1980) favored government; later period government wins, if careful. Florida Rock Industries v. United States, 791 F2d 893 (Fed. Cir. 1986) cert. denied, 479 U.S (1987) Loveladies Harbor, Inc. v. United States, 15 Cl. Ct. 381 (1988) Walcek v. United States, 303 F. 3d 1349 (Fed. Cir. 2002)

21 Special Situations Norman v. United States, 429 F.3d 1081 (Fed Cir. 2005) Ciampitti v. United States, 22 Cl. Ct. 310 (1991) Forest Properties, Inc. v. United States and Big Bear Municipal Water District, 177 F.3d 1360 (1999) Palazzolo v. Rhode Island, 533 U.S. 606 (2001)

22 Special Situations Endangered Species Surprisingly few cases and largely favorable to government Andrus v. Allard, 444 U.S. 51 (1979)

23 Special Situations Separate Legal Lots City of Coeur D Alene v. Simpson, 136 P.3d 310 (2006) District Intown Properties Limited Partnership v. District of Columbia, 1999 U.S. App. LEXIS (D.C. Cir. 1999) Sweetwater Mesa California Coastal Commission (2012)

24 Special Situations Development Rights Severance Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997)

25 The Nexus Requirement vs. Loss of All Beneficial Use

26 CEQA/NEPA 1. Avoid 2. Minimize 3. Mitigate

27 Dedication Requirements

28 Use Restrictions

29 Fairness

30 Conclusion

Property Taking, Types and Analysis

Michigan State University Extension Land Use Series Property Taking, Types and Analysis Original version: January 6, 2014 Last revised: January 6, 2014 If you do not give me the zoning permit, I'll sue