AICP EXAM PREPARATION Planning Law Concepts Review
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1 AICP EXAM PREPARATION Planning Law Concepts Review Prepared By: Christopher J. Smith, Esq. Shipman & Goodwin LLP One Constitution Plaza Hartford, CT (860) Christopher J. Smith, Esq. 1
2 Overview Legal Concepts: A. Defined terms B. Sources of Law Constitutional provisions Federal or state statutes Local regulations Court decisions 2
3 Essential Theme Police power: Regulate private conduct Public welfare 3
4 Police Power and Local Land Use Regulation Requirements Must be within authority delegated by applicable enabling legislation (Dillon s Rule) Regulation will be afforded a presumption of validity Must be reasonably related to legitimate government purpose 4
5 Federal Constitutional Provisions First Amendment: Speech and religion Fifth Amendment: Takings Fourteenth Amendment: Due process and equal protection 5
6 Caselaw Court Applies: Legal concepts Constitutional provisions Federal and State statutes Local Regulation To: A case s specific fact pattern Result: Caselaw 6
7 First Amendment Speech: Signs and billboards Adult entertainment Religion: RFRA City of Boerne v. Flores (1997) RLUIPA (2000) 7
8 First Amendment Speech Signs and Billboards Metromedia v. City of San Diego (1981) Commercial speech Noncommercial speech City Council of Los Angeles v. Taxpayers for Vincent (1984) Gilbert v. Reed (2015) 8
9 First Amendment Speech Adult Entertainment Young v. American Mini-Theaters, Inc. (1976) Can regulate and distinguish Can t totally ban Buzzetti v. The City of New York (1998) (2 nd Circuit) Schad v. Borough of Mt. Ephraim (1981) 9
10 First Amendment - Religion City of Boerne v. Flores (1997) Invalidated Religious Freedom Restoration Act ( RFRA ) RFRA replaced with Religious Land Use and Institutionalized Persons Act of 2000 ( RLUIPA ) 10
11 First Amendment - Religion Religious Land Use and Institutionalized Persons Act ( RLUIPA ) test: Action is in furtherance of a compelling government interest; and Action is least restrictive means of furthering that compelling interest 11
12 Fifth Amendment - Takings Eminent Domain Taking private property for public use Inverse Condemnation Physical invasion Regulatory taking Exactions Moratoria 12
13 Fifth Amendment - Takings Eminent Domain Take private property for public good permissible; but must compensate Berman v. Parker (1954) Public good is broad and inclusive Aesthetics can be valid reason (blight) Kelo v. City of New London (2005) Reaffirmed Berman Economic development can be a valid reason Horne v. Department of Agriculture (2015) Taking can apply to personal property as well as real property as occurred in Berman and Kelo 13
14 Fifth Amendment - Takings Inverse Condemnation Physical invasion of private property: Loretto v. Teleprompter Manhattan CATV Corp. (1982) 14
15 Fifth Amendment - Takings Inverse Condemnation Regulatory takings: Pennsylvania Coal Co. v. Mahon (1922) Introduced regulatory taking concept Agins v. City of Tiburon (1980) Introduced two-part test for taking: Property must be deprived of all economic viable use Regulation must advance a legitimate government interest Lingle v. Chevron USA (2005) Eliminates second prong of Agins test Just compensation equal to fair market value 15
16 Fifth Amendment - Takings Inverse Condemnation Regulatory takings (continued): First English (1987) Temporary takings can occur Lucas (1992) Exception to taking prohibit nuisance Del Monte Dunes (1999) Multiple delays can result in taking Jury San Ramos Hotel (2005) Can go to state court for takings 16
17 Fifth Amendment - Takings Inverse Condemnation Exactions: Nollan (1987) Exaction must have a rational nexus to the permit Dolan (1994) Magnitude of exaction must bear a rough proportionality to the impact of the development 17
18 Fifth Amendment - Takings Inverse Condemnation Exactions (continued): Nollan/Dolan test (in addition to the rational nexus and rough proportionality requirements) must: Make precise findings Quantify actual impacts associated with proposal on public use Generally should avoid dedication (open space), and concentrate on restrictions of use (easement) 18
19 Fifth Amendment - Takings Inverse Condemnation Exactions (continued): Koontz v. St. Johns River Water Management District (2013) Reaffirmed Nollan/Dolan test Held can raise improper coercion with an application denial as well as with an improper approval Off-site wetlands mitigation 19
20 Fifth Amendment - Takings Inverse Condemnation Moratoria is a permissible planning tool Tahoe Sierra Preservation Council v. Tahoe Planning Agency (2002) Regional 20
21 Fifth Amendment - Takings Ripeness must have finality to enable one to litigate a taking claim. Williamson County (1985) Palazzolo v. Rhode Island (2001) 21
22 Fourteenth Amendment Due Process Procedural: Herrington (1987) (9 th Circuit) Failure to provide notice of hearings and denial of right to be heard 22
23 Fourteenth Amendment Equal Protection Substantive: Failure of regulation to advance legitimate government purpose (e.g., public health and safety) Village of Arlington (1977) Village of Willowbrook v. Olich (2000) 23
24 Federal Statutes I. Fair Housing Act (reasonable accommodation): Group Homes: City of Edwards v. Oxford House (1995) II. American With Disabilities Act (reasonable accommodation): Innovative Health Systems, Inc. v. City of White Plains (2 nd Circuit) 24
25 Federal Statutes (continued) III. Telecommunications Act of 1976 ( TCA ) City of Ranchos Palos Verdes v. Abrams (2005) IV. Religious Land Use and Institutionalized Persons Act of 2000 ( RLUIPA ) 25
26 Must Know Cases I. Village of Euclid (1926) grand daddy II. Village of Belle Terre (1974) Definition of family unrelated persons (federal constitution) III. Moore v. East Cleveland (1976) Definition of family - grandparent IV. Penn Central (1978) Historic preservation for aesthetic purposes is valid 26
27 Growth Control Cases I. Construction Industry of Sonoma v. Petaluma (9 th Circuit) Cap on number of annual residential dwellings is valid II. Golden v. Ramapo (Ct. of App. N. Y. 1972); and Associated Homebuilders v. Livermore (CA Supreme Court) Concurrency requirement is valid III. Mount Laurel (#s 1 and 2 N.J. Supreme Court) Fair share of affordable housing can be required 27
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