Cutting Edge Planning Issues

Transcription

1 Cutting Edge Planning Issues South Dakota Planning Association October 23, 2013 Mark White 529 SE 2 nd Street, Suite B Lee s Summit, MO (phone) mwhite@planningandlaw.com

2 Introduction Hot topics Agenda 21 activism Koontz

3 CURRENT TRENDS AND HOT TOPICS

4 Trends and Hot Topics Emphasis on physical design Disaster recovery and community resilience

5 Trends and Hot Topics Medical marijuana, legal marijuana Fracking

6 Trends and Hot Topics Alternative energy Digital Billboards

7 Trends and Hot Topics Food trucks Repurposing of public space / tactical urbanism

8 Global peace or world conspiracy? AGENDA 21

9 What in the *$%! Is Agenda 21 Action plan 4 sections, 40 chapters, 351 pages UN Conference on Environment and Development (UNCED) ( Earth Summit ) in Rio de Janeiro (1992) 170 nation signatories

10 1,000 cities and local governments 84 countries 450 in US 3 in SD, 1 in ND

11 Why would want this? What they propose Economic cooperation Environmental protection Equity Resilience Proponents UN International Council for Local Environmental Initiatives (ICLEI)

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13 Why would someone oppose this? What they oppose Redistribution National Sovereignty Social engineering Property rights Relocation to cities Skepticism Opposition Tea Party Fox News Republican National Committee

14 What about the rest of us? 15% of Americans Chambers of Commerce Businesses

15 Support Agenda 21 9% Oppose Agenda 21 6% Huh? 85% APA Planning in America: Perceptions and Priorities (2012)

16 Legislative / Planning Targets Concepts Sustainability Smart Growth Resilience Green Development Specifics Regional land use planning MF zoning Riparian corridors Cluster / conservation subdivisions Bike lanes

17 "I wish I'd focused on why the plan was bad," he said, "instead of talking about Agenda 21 and looking like a wacko nut job." Tea Party activist quoted in Tea Party Activists Fight Agenda 21, Seeing Threatening U.N. Plot, Huffington Post (October 15, 2012), at

18 Myths Population reduction Seizure of private property One-world government Forced redistribution

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20 10.5. The broad objective is to facilitate allocation of land to the uses that provide the greatest sustainable benefits and to promote the transition to a sustainable and integrated management of land resources. In doing so, environmental, social and economic issues should be taken into consideration. Protected areas, private property rights, the rights of indigenous people and their communities and other local communities and the economic role of women in agriculture and rural development, among other issues, should be taken into account. - Agenda 21, Section II (Conservation And Management Of Resources For Development), Chapter 10 (integrated approach to the planning and management of land resources)

21 State Legislation / Resolutions Alabama Kansas South Dakota Others?

22 Mandatory Applies to - state and political subdivisions Non/intergovernmental organizations Agreements Spend or receive $ Financial aid Prohibits - Adopt or implement deliberately or inadvertently infringe or restrict private property rights without due process originating in, or traceable to Alabama SD, MO (failed)

23 Resolution (SD HCR 1008) General findings Extreme environmentalism, social engineering, & global political control covertly pushed via ICLEA Socialistic redistribution of wealth national sovereignty is deemed a social injustice Specific targets "sustainable development" policies Smart Growth Wildlands Project Resilient Cities Regional Visioning other "Green" or "Alternative"

24 Resolution (SD HCR 1008) What it says it does - Exposes.dangerous intent Treaty is not binding Reject policies and money What it does - Intent statement Does not Ban local action Prohibit local expenditures

25 What do we agree on? Compatibility Economic growth Clean water Clean air Public safety Better design

26 Minicozzi, The Smart Math of Mixed-Use Development, Planetizen, at

27 Takings, Exactions, & the Permitting Process KOONTZ V. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT

28 The ad hoc Scenario does the code require dedications? Staff Discussions s? Application Submitted what s the role of who proffers do Nollan codified the first draft and impact fees of Dolan or APFO? Agreement? apply? what s difference between a demand & an offer? does it matter? Advisory Board Recommendation Final Board Decision when what is a contract constitutes formed? an objection? does it matter?

29 The ad hoc Scenario Ad hoc conditions at the discretion of the government typically: planning advisory final decision-maker risk of strong-arming Ministerial lacks government discretion at implementation typically: Impact fees utility connection fees low risk of strongarming

30 The ad hoc Scenario dedications or payments are agreed to thru negotiations? what if exaction costs money to satisfy? what if the permit is denied?

31 If an excessive demand is made Approval Something taken taking claim arises Damages: condition removed, or reduced, or repaid (just compensation) Denial Nothing taken No taking? Claims Substantive Due Process, Penn Central, Nollan/Dolan Damages: condition removed or reduced, state remedies

32 Fifth Amendment Nor shall private property be taken for public use, without just compensation.

33 Dual Exactions Tests Nollan v. CCC (1987) essential nexus Dolan v. Tigard (1994) rough proportionality (... an out and out plan of extortion. ) (sharpen your pencils)

34 Koontz v. SJR WMD (2013)

35 Florida Supreme Court Nollan/Dolan applies only to exactions involving: interest in real property (not payment of money) in exchange for permit approval; where approval is given

36 U.S. Supreme Court Nollan/Dolan applies to Denials What is a denial? Nollan/Dolan applies to money exactions (not just land) What is an exaction? Remedy/Damages

37 What is a Denial? Koontz proposes a Mitigation Scenario WMD proposes two alternatives, and invites additional Koontz stopped negotiating Submits application without sufficient mitigation

38 What is an Exaction? Anything involving money? Money with a direct link to the land? Majority: The states will figure it out; existing law is clear Dissent: Majority opinion encompasses everything but taxes

39 What is an Exaction? Taxes Impact Fees Connection Fees User Fees Building or Zoning Permit Fees in-lieu fees Land and Improvement Dedications as approval condition

40 The ad hoc Scenario Ad hoc conditions at the discretion of the government typically: planning advisory final decision-maker risk of strong-arming Ministerial lacks government discretion at implementation typically: Does this Distinction Matter Impact fees Anymore? Did it ever? utility connection fees low risk of strongarming

41 What are appropriate damages? Majority not just compensation state remedies Dissent: Remove, reduce condition not just compensation not money, other than just compensation (in this case)

42 Practice Points - For Developers - register your objection don t include requested exaction in application watch for implied contract Ensure Denial occurred by one with authority to deny document excessiveness For Local Government - (Continue to) Apply Nollan/Dolan Establish protocol Consider legislativelyadopted, ministerial approaches Designated a single negotiator and Decision-maker

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44 What Koontz v. St. Johns River WMD Means for Planners for Now

45 White & Smith, LLC 529 SE 2 nd Street, Suite B Lee s Summit, MO (phone) mwhite@planningandlaw.com