MINI ATTACK PLAN

Identify whether it is a developer’s or neighbors’ lawsuit.

 If it’s a developer challenging the local government, what is the developer challenging? (1)
comprehensive plan – ex. (a) statement of goals; maps that est. use and density guidelines for various
districts and project future public improvements; (2) zoning ordinances – ex. (a) placement of
buildings on lots; (b) the uses to which the land and buildings may be put; (3) subdivision regulations
– ex. (a) location and design of streets, sewers, and other infrastructure; (4) building and related codes
– ex. (a) aesthetic regulations that control signs, architectural styles, alteration of historic buildings
 Most landowner’s federal constitutional challenges arise under: First Amendment
(“Congress shall make no law respecting an establish of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech…”); Fifth Amendment (“Nor shall private property be
taken for public use, without just compensation…”); Fourteen Amendment (“Nor shall any state
deprive any person of life, liberty, or property, without the process of law, nor deny to any person
within its jurisdiction the equal protection of the laws.)
 14th Amend. DPC requires that each zoning restriction be rationally related to a legitimate
government objective
 14th Amend. DPC and 5th Amend. Takings Clause review a landowner’s claim that a
regulation interferes too dramatically with settled expectations
 14th Amend. EPC and 5th Amend. Takings Clause protect landowners from having to shoulder
unfair burdens
 1st Amend. safeguard civil liberties including free expression, free religious exercise, privacy, etc.

Takings Analysis – City’s refusal to allow landowner/developer to build his proposed development
amounts to a taking of his property under the Fifth Amendment and therefore requires that he be given
just compensation.

(1) Ripeness – Is P’s claim ripe for judicial review?

Because most state takings clauses are interpreted consistently with the federal Takings Clause,
U.S. Supreme Court precedent is likely to apply.
Williamson County – held that in order for a regulatory takings claim to be ripe for review, the
responsible government entity must have reached a final decision. Because a court must ultimately
determine whether a regulation “goes too far,” it must be able to determine exactly how far the
regulation goes. (Also look to see if P exhausted all possible remedies)

(2) Per Se Taking – assuming that the claim is ripe, the next question is whether the government
regulation/action amounts to a per se taking.

Does the government’s regulation/action amount to a physical invasion or occupation of property

under Loretto? Yes, then per se taking.
Did the government’s regulation/action result in a total economic wipeout under Lucas?
o No, then no per se taking because P can still develop the land to some extent. Must now
apply Penn Central’s 3-factor ad hoc balancing test to determine if there’s been a taking.
o Yes, then per se taking. But, ask whether the prohibited use is a common law nuisance (i.e.
noise, noxious fumes) and is therefore consistent with background principles of common
law, as stated in Lucas, giving the government essentially a per se defense against a
takings claim.

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(3) Taking under Penn Central – In applying the Penn Central’s 3-factor ad hoc balancing test, the
court must consider (1) character of the regulation (physical invasion or occupation); (2) diminution in
value of the property (depends on how the court defines the parcel – whole parcel or conceptual
severance—however, courts normally view the parcel as a whole); (3) interference with P’s distinct,
reasonable, investment-backed expectations (how did P reasonably expect to use the land at the time of
purchase? What was the land originally zoned for?).

Exaction Analysis – City’s demand of P in exchange for approval/permit is an impermissible demand for
an exaction that amounted to a regulatory taking of P’s property under the Fifth Amendment of the U.S.
Const.

Underlying rational for exactions: When the government and property owners bargain for
development rights, it is common practice for a permitting authority to grant the development
permit on the condition that the property owner offset the project’s harmful impacts, usually
through dedicating property or paying fees. This is permitted because development often affects
vital natural resources, for example destroying wetlands or decreasing the amount of space. More
often, however, development increases the demand on important public infrastructure, such as
roads, bridges, sewage, and emergency services. But there is a limit to how far a permitting
authority can go in setting permit conditions. The Nollan/Dollan standard embodies the
unconstitutional conditions doctrine in the land-use context.
Nollan – held that under the “unconstitutional conditions” doctrine, the government is prohibited
from conditioning the receipt of a discretionary benefit on the waiver of a constitutionally
protected right. See also Lingle where the Supreme Court declared that the Nollan/Dollan
standard is a “special application” of the unconstitutional conditions doctrine involving land-use
exactions and that a violation will generally result in a taking under the Takings Clause of the
Fifth Amendment because a property owner cannot be coerced into waiving the right to just
compensation.
TEST: In Nollan/Dollan, the Supreme Court announced a two-part test for the evaluation of
exaction conditions. The Court held that a government may not condition the approval of a land
use permit on the surrender of a portion of property unless the government can show there is both
a “nexus” and “rough proportionality” between the governmental exaction and the impact of the
proposed land use. To avoid being a taking, an exaction condition on development permission must
substantially advance a government purpose that would justify denial of the permit and the
burden imposed on the landowner by the exaction condition must be no greater than roughly
proportional to the burden that the landowner’s proposed development would impose on the
community.
o Nollan – To be constitutional there must be an essential nexus between the exaction the
government purpose served by the development restriction in place.
o Dolan – a city must make individualized determination that the exaction is roughly
proportional in both nature and extent to the need created by the development.
 Although the standard of “rough proportionality” is a tad unclear, it has been
theorized that the Court will look for proportionality between the benefits of the
exaction to the city, and the harm imposed by the development, not the cost of the
exaction to the developer.
o Koontz dramatically increased the scope of the Nollan/Dolan standard to include failed
exactions (permit denials) and monetary exactions. The mere demand for exactions, though
not executed, could amount to a taking under Koontz where the Court held that a mere
demand effects a taking, not by actually taking property, but by impermissibly burdening the
right not to have property taken without compensation.
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 o For a demand for an exaction to amount to a taking, the exaction itself would also have to
amount to a taking (either per se under Loretto/Lucas or a taking under Penn Central)
Policy Implications: Collectively, these decisions impact both sides of the development process.
On the one hand, it encourages development as it constrains governmental authorities from
demanding exactions that are not related to or proportionate with a proposed development action.
On the other hand, the decision may have a chilling effect on the development process as it
discourages the government from granting discretionary permits based on specified conditions.
Governmental authorities may find it safer to simply deny discretionary permits rather than to
specify conditions that may not withstand scrutiny under a takings analysis.
Arguments made:
o P argues this is an overreaching exaction (extortion?)
o D argues that (1) exaction meet standards of Nollan/Dolan and/or (2) P already intended to
meet the condition even before D requested it, therefore it’s not an exaction.

Variances & Substantive Due Process – P alleges that the denial of his use variance was arbitrary
and irrational and therefore a violation of substantive due process. State courts generally recognize a
distinction between a use variance and area (nonuse) variance.

A use variance seeks authorization for a use other than those prescribed by the zoning ordinance.
Almost all state courts require that to obtain a use variance, a landowner demonstrate
unnecessary hardship. See Matthew v. Smith (Mo.)
An area variance seeks a deviation from requirements that relate to the uses permitted in a zoning
district. As in Matthew v. Smith (Mo.) many states require that to obtain an area variance, an
application must show something less than unnecessary hardship, typically “practical difficulties.”
That requirement, however, often pertains to the physical characteristics of the property (i.e. oddly
shaped lot)

Development is consistent with the City’s comprehensive plan – P argues that his proposed
development is consistent with the City’s comprehensive plan. (1) many state require that zoning
decisions be consistent with the plan, but some states are willing to infer a plan from the zoning
ordinances themselves. (2) even the states that do require consistency are typically unwilling to use the
comprehensive plan as a floor (see Marracci where a city denied P’s application for a special exception to
construct multifamily housing even though the city’s comprehensive plan designated P’s land for higher-
density residential use.)

Procedural Due Process – P argues that City was required to cross-examine the witnesses but failed to
do so.

Whether cross-examination is required depends on the application of the test set forth in Mathews
v. Elridge which balances the private interest affected, the risk of an erroneous deprivation and
the value of additional procedural protections, and the government interest at stake.
o Even if the court finds that cross-examination was required, the failure to do so likely
resulted in a harmless error.

EPC – P argues that denials of ______ violated EPC by unfairly singling him out as a “class of one” for
unfair treatment.

Olech – a single plaintiff may bring an equal protection claim by showing that they have been
singled out for treatment different from others who are similarly situated.

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 o P could argue that he was singled out personally as a result of illegitimate animus or ill will
by the City. Olech Court did not require such a showing for a “class of one” claim but
dissenters in that case suggested that such an allegation should be required.

Discrimination against affordable housing – P argues that City discriminated against him because
he wanted to build affordable housing.

Mount Laurel – held that under the New Jersey Constitution, the exercising of zoning authority
was an exercise of the state police power. Accordingly, a municipality could not disregard the
impact of its decisions on the welfare of the citizens of the state, outside of its own jurisdiction.
Additionally, the Court held that a municipality has an affirmative obligation to provide its fair
share of the regional need for affordable housing by making the realistic opportunity for an
appropriate variety and choice of all housing for all categories of people who may desire to live
there.

INTRO AND POPULATION TRENDS

I. POPULATION TRENDS
a. Central Cities, Suburbs, Exurbs, and Edge Cities
i. Suburbs 2.0: The Evolving American Suburbs - John McIlwain
 Suburban Growth Rings - traditional way to look at suburbs is to think of
them like the growth rings of a tree
 Central City - dominant city of a given metropolitan area, where the central
business district, or CBD, is located
 Edge Cities - city-like business districts, with significant office, retail, or
entertainment development, that are located outside the formal city center
within otherwise suburban areas
 Inner Suburbs (“first ring outside the central city”)
o Cons: higher housing costs
o Pros: located near existing or planned transit lines - easy access to
transit reduces the amount of driving needed, which, in turn, offsets
higher housing costs in the area
 Suburbs (“second ring”)
o Pros/Cons: ‘mature suburbs’ that are fully built out, slow growth
 Exurbs (“last ring”) - towns that are almost exclusively devoted to
residential use, with residents commuting elsewhere to work
o Pros/Cons: ‘newer, outeredge suburbs’ that are fastest-growing part of
American metropolitan regions during the past decade
ii. Causes of Metropolitan Suburbanization - Peter Mieszkowski & Edwin
Mills
 Natural Evolution Theory
 Overview - Development occurs from the inside out.
o Flight to Homogeneity Theory
 Relationship between land use controls and suburbanization - suburbs are a
product of zoning
 Common symptoms of a shrinking city:
o Mass vacancies
o Increasing crime rates
o Decreasing property values

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 o Inefficient city infrastructure

ZONING AND THE RIGHTS OF LANDOWNERS AND DEVELOPERS

LANDOWNERS/DEVELOPERS’ CONSTITUTIONAL RIGHTS AS CONSTRAINTS ON

INEFFICIENT ZONING MEASURES (i.e., Substantive Due Process) – in these cases, the
landowner/developer is challenging the reasonableness of the zoning restriction

I. EVOLUTION OF ZONING
a. Zoning before Euclid – Nuisance law was used as a land use control mechanism. The
Hoover Administrative promulgated the Standard State Zoning Enabling Act (SSZEA) to
assist states in authorizing their cities to zone. Zoning purports to prevent one landowner
from harming his neighbor by bringing an incompatible land use. Effectively, zoning is
nuisance law made predictable by declaring in advance what uses are harmful and
prohibited in the various zones.
b. Facial Challenges to Zoning
i. Euclid (U.S. 1926) – P owned land in Euclid which enacted a zoning ordinance that
established different districts based on the class of use, including purely residential,
mixed used, commercial, and industrial. P’s property had been zoned for single-
family residential only. P claimed that the property was much more valuable for
industrial purposes and that the zoning effectively deprives P of 75% of the land’s
true value. P asserted a substantive due process claim (“deprivation of property
[value] without due process of law”) to facially challenge the unconstitutionality of
D’s zoning ordinance. Note: P can only facially challenge the zoning ordinance since
it didn’t have plans yet to develop its vacant lots for “industrial” purposes as it
claimed it wanted to do. Also, could not allege a “taking” because P did not have
plans to build yet.
1. Issue: Are zoning ordinances, in general, constitutionally permissible?
2. Holding: On its face, the zoning ordinance is constitutional
3. Reasoning: Zoning should be viewed as protecting rather than restricting
property rights. Here, D legitimately (and not irrationality/arbitrarily)
exercised its police power because zoning is an ex-anti solution that prevents
the need for neighbors to turn to ex-post nuisance litigation which can be
costly and inefficient. Note: inefficient and costly referring to the idea that
even if the neighbor wins the nuisance litigation suit, the incompatible
structure would have to be demolished and rebuilt for a more compatible use.
4. Rule: a zoning ordinance is unconstitutional only if: (1) its provisions are
clearly arbitrary and (2) unreasonable (3) with no substantial relation to the
public health, safety, morals, or general welfare.
c. As-Applied Challenges to Zoning (The Court reviews the “reasonableness” of a specific
zoning provision applied to a particular parcel)
i. Nectow (U.S. 1928) – Zoning ordinance divides the City into 3 districts: residential,
business, and unrestricted. Each of these districts is sub-classified in respect of the
kind of buildings which may be erected. Part of P’s land was placed in a residential
district. Prior to the passing of the zoning ordinance, P entered into a contract to sell
the land to a purchaser who wanted to use the property for commercial purposes.
However, because of the ordinance, the purchaser reneged on the contract. P
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 challenges the ordinance as it is specifically applied to his land, arguing that the
ordinance deprives him of his property without due process of law in violation of the
14th Amend.
1. Rule: a zoning ordinance constitutes an unconstitutional restriction upon
private property rights if the ordinance does not bear a substantial relation to
public health, safety, morals or general welfare. Note: Court applied CBA to
determine whether the zoning ordinance was arbitrary and unreasonable as
applied to P’s property.
a. Inefficient zoning restriction – a zoning restriction is inefficient when
the burdens on the restricted landowner are greater than the benefits
of the restriction to the landowner’s neighbors and other interested
parties
2. Holding: Zoning ordinance is invalid on substantive due process grounds.
3. Reasoning: the health, safety, morals, and general welfare of the inhabitants
of the community will not be promoted by the ordinance as it applies to this
location. Due to its small size and proximity to industrial land uses, the tract
of P’s land falling within the residential zoning district would have little
value for the limited purposes allowed by the ordinance while seriously
injuring P. The lack of a valid basis for applying the ordinance to P’s land
violates the 14th Amend. In short, the regulation is invalidated because
there’s no benefit for the municipality in enforcing this regulation
and the harm to the property owner is substantial.
ii. Post-Lochner (“the switch in time that saved the 9”) – SCOTUS adopted the
rational basis test: if the regulation is rationally related to a legitimate government
purpose, then the regulation will be upheld. Note: the given government purpose
does not have to be the government’s “real” or “true” purpose so long as it is
legitimate. This is the government’s strongest defense to a landowner’s
challenge. The cases following are all examples of modern substantive due process.
1. Substantive Due Process in Federal Courts – Coniston Corp. (7th Cir.
1988) – For the 17-acre parcel at issue in the case, P submitted a plan that
envisaged the construction of a five-single-story commercial buildings. The
Plan Commission recommended approval of the plan finding that it
conformed to the general plan for the development of P’s land and to all
applicable legal regulations. The Board of Trustees, however, disapproved the
plan without giving any reason for its action. Though, one trustee indicated
that the reason was that the village has a lot of vacant office space. P
challenges the Board’s decision, arguing that it violates substantive due
process pursuant to the federal Constitution and state law.
a. Standard of review: rational basis
i. Note: this case characterizes the Board’s decision as
“legislative” instead of “adjudicative,” a distinction that is
crucial in all due process challenges to land use regulations and
that is frequently contested.
1. If the action is considered legislative, the question is
whether a rational relationship exists between the
policy and a conceivable legitimate governmental
objective.

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 2. If the action is considered administrative, the court will
review the evidence before the decisionmaker to
determine whether the decisionmaker has paid
attention to the evidence adduced and acted rationally
upon it. See ADMINISTRATIVE REVIEW OF
QUASI-JUDICIAL ZONING DECISIONS
b. Rule: If a zoning decision is based on considerations that violate
specific constitutional guarantees, it is invalid; but in all other cases
the decision can be said to deny substantive due process only if it is
irrational.
i. Note: a violation of state law is not a denial of due process of
law.
ii. Note: only the most egregious zoning decisions can be said to
be “irrational” or “arbitrary” in the constitutional sense.
c. Holding: Board’s decision upheld. At worst, the Board’s decision was
mistaken and protectionist; it was not irrational, so the claim of a
denial of substantive due process fails.
d. Reasoning: The Board is the Village’s legislature, and it has reserved
to itself the final decision in zoning matters. The check on the Board’s
behavior is purely electoral. Note though, even if the Board’s reason
for rejecting P’s plan amounts to nothing more than a desire to
protecting existing owners of office buildings from new competition,
this is okay because much governmental action is protectionist or
anticompetitive.
2. Substantive Due Process in State Courts
a. Twigg (Ill. App. Ct. 1994) – P purchased 35 acres zoned as A-1 but
was unaware that the ordinance required a min. of 10 acres per
residential unit. P sold 10 acres. He then intended to divide the
remaining 25 acres in the following manner: Two 10-acre lots for one
son and daughter, and two 2 ½ -acre lots for another son and himself.
Because P’s plan for the 5 acres did not conform with the A-1
classification, he petitioned the County Board to rezone the 5 acres
from A-1 to E-2 to permit country residential lots of 2 ½ acres. The
Board denied P’s application. Expert testimony was presented at trial
that switching to E-2 would increase the market value of the
properties and there was no practical application of the current A-1
status.
i. Issue: is the trial court’s decision contrary to the manifest
weight of the evidence?
ii. Standard of Review: more searching review by conducting its
own cost/benefit analyses of challenged land use restrictions
iii. Rule: A party challenging the validity of a zoning ordinance has
the burden of proving by clear and convincing evidence that the
application of the ordinance to the property is unreasonable
and arbitrary and bears no substantial relation to public
health, safety, morals, or welfare. An appellate court may not
reverse the trial court’s findings unless such findings are
against the manifest weight of the evidence. There are 8 factors

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 to consider in determining whether a zoning ordinance is valid:
(1) the existing uses and zoning of nearby property; (2) the
extent to which property values are diminished by the
particular zoning restrictions; (3) the extent to which the
destruction of the property values of P promote the health,
safety, morals or welfare of the public; (4) the relative gain to
the public as compared to the hardship imposed upon the
individual property owner; (5) the suitability of the subject
property for the zoned purposes; (6) the length of time the
property has been vacant as zoned considered in the context of
land development in the area in the vicinity of the subject
property; (7) the care that the community has taken to plan its
land use development; and (8) the community need for the
proposed use. Although no one factor is controlling, the first
factor is of paramount importance.
iv. Holding: P wins, SDP violated – the ordinance is void and
unconstitutional as applied to P’s property. The trial court’s
decision that the enforcement of the zoning ordinance is
arbitrary and bears no substantial or reasonable relation to
public health, safety, morals, comfort, and general welfare, is
not contrary to the manifest weight of the evidence.
v. Reasoning: The Court is primarily concerned with whether the
zoning ordinance targets any specific properties and whether
the benefits to the government outweighs the harms/cost to the
owner
1. Factor 1 – P’s land lies in a quarter section that’s
divided in 9 other ownerships. 3 of these ownerships
contain less than 10 acres and are permitted to do so
because they existed prior to the ordinance. All of these
lands are consistent with an E-2 zone.
2. Factor 2 – Evidence showed that the highest and best
use o the property was E-2 zoning. And there’s no
evidence that the E-2 zoning would diminish the value
of surrounding land.
3. Factors 3 and 4 – A-1 limitation is not substantially
related to public health, safety, general welfare. On the
other hand, E-2 zoning allows P to use all 25-acres to
unite his family and promote animal husbandry,
therefore preserving the agricultural area.
4. Factor 7 – evidence shows that A-1 zoning was assigned
arbitrarily without considering alternative uses when
zoning ordinance was enacted
vi. Note: In general, the Constitution is thought of as providing
negative liberties meaning that it doesn’t compel the
government to do anything but rather it protects people from
government overreach. Here, the ordinance was in place when
P bought the parcel. Therefore, it’s interesting that even
though the ordinance was enacted prior to P’s purchase of the

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 property, P invoked substantive due process (a constitutional
right) to compel the government to change its ordinance)
b. Cormier (Ct. App. 1984) – P purchased 7-acres of land zoned for
“highway commercial,” planning to develop the property with a motel-
restaurant. The County Board then downzones P’s property to “rural-
residential” which limited development to a single house or a
restaurant with restricted use.
i. Standard of Review: Rational basis (like federal courts)
ii. Rule: Denial of rezoning will be held valid unless there is no
reasonable relation to the public welfare; and, before the courts
will interfere with a zoning ordinance, the plan must be
arbitrary
iii. Holding: The Board acted within its authority in adopting the
ordinance and the ordinance is valid and constitutional.
II. CONSTRAINTS ON THE USE OF ZONING TO LIMIT COMPETITION
a. Constitutional Challenges
i. Overview – zoning ordinances reduce competition in the market for consumer goods
and services by limiting the entry of business firms in geographic areas. When a
zoning restriction inhibits competition, a developer challenging it can argue (1) its
own welfare losses from the restriction and (2) losses consumers will suffer if its
entry is barred. In these cases, cost/benefit analyses apply.
ii. Sprenger, Grubb & Assoc. (Idaho 1995) – P wanted to build a mall right outside
the City’s downtown area. Fearing that this mall would detract customers from the
downtown business district, the Mayor wanted to downzone P’s land from
“Business” to “Limited Business.” City Council approve this downzoning which P
challenges.
1. Holding: decision to rezone land owned by Ps as more restrictive on business
uses upheld, thereby preventing Ps from constructing large retail buildings
2. Reasoning: Even if pure protectionism (i.e. desire to prevent competition for
the benefit of other merchants) is not a proper goal pursuable by the local
government’s police power, the City Council noted other “legitimate
purposes” for the ordinance including (1) incompatibility with the plan, (2)
optimization of infrastructure, (3) law enforcement needs; (4) public comment
opposed.
a. Note: economic justification for restricting businesses to a certain
area – conglomerate surplus: packing businesses into a dense area aids
economic stimulation (i.e. diamond district of garment district in NYC)
b. Note: Suppressing competition is not included under one of the four
governmental goals of health, safety, morals, general welfare.
Accordingly, an ordinance whose sole purpose is to suppress
competition should be held to violate DPC.
iii. How should a court consider an alleged protectionist motivation on the part of the
legislature? Two approaches:
1. Count the consumer losses as part of the cost in a comprehensive cost/benefit
analysis to determine if a rational person would perceive the total benefits as
exceeding the total costs. (This is the standard of review courts usually
employ when the reasonableness or efficiency of zoning is challenged)

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 2. Inquire about the extent to which the desire to suppress competition
influences the decision and invalidates the decisions in which the influence of
the anticompetitive motive reached some threshold level.
iv. Islamorada (11th Cir. 2008) – D (City) enacted an ordinance that restricted
“formula retail” establishments to limited street level frontage and total square
footage. Formula retail was defined as an establishment that provided standardized
array of services (i.e. franchise)
1. Rule: The Dormant Commerce Clause prohibits regulatory measures
designed to benefit in-state economic interests by burdening out-of-state
competition
2. Holding: D’s failure to indicate a legitimate local purpose to justify the
ordinance’s discriminatory effects is sufficient to support the district court’s
determination that the formula retail provision is invalid under the Dormant
Commerce Clause.
3. Reasoning: Preservation of unique community characteristics was not a
legitimate local purpose. The City had preexisting formula businesses
established, there was no historic district, and the ordinance was not
necessary to preserve anything. Additionally, the City failed to explain why is
singled out formula retails.

LANDOWNERS/DEVELOPERS’ CONSTITUTIONAL RIGHTS AS CONSTRAINTS ON ZONING

MEASURES THAT IMPOSE UNFAIR BURDENS (i.e., Equal Protection, Takings) – in these cases the
landowner/developer is challenging the fairness of the zoning restriction

I. OVERVIEW – 4 “fairness” arguments that the landowner/developer may raise in a constitutional

challenge: (1) Owner was not treated like similarly situated owners and is thus a victim of an
irrational classification; (2) Restriction was imposed on the owner because of who she is – (a) class
claims: owner is a member of a class of people who are being unfairly burdened because of their
race, national origin, gender, social class, age, marital status, disability(b) class of one claims: local
government is singling out the owner for mistreatment (note: in these claims, the court is required
to consider whether the claimant is actually being treated differently from other similarly situated
owners, and if so, whether the local government has a rational reason for doing so. These claims
may implicate First Amendment protection of speech); (3) Evidence shows that the town couldn’t
justify the restriction by reference to the usual concerns of land use law (i.e. environmental
protection) but rather had designed it solely to capture the value of the owner’s land (Eminent
Domain Claim); (4) owner’s welfare is being unfairly sacrificed for the benefit of the community at
large (Fifth Amend. Takings Claim).
II. EQUAL PROTECTION
a. Discriminatory Line Drawing – Owner argues that she was not treated like similarly
situated owners and is thus a victim of an irrational classification. Local government would
argue that it had a rational basis for drawing its boundary where it did
i. Layne (Pa. 1983) – City classified room and boarding houses as different entities
for zoning purposes. “Boarding house” is where meals and lodging are provided for
persons not residing in the dwelling unit. “Rooming house” is where lodging is
provided without meals for persons not residing in the dwelling unit. The City’s
Zoning Board denied P’s request to use her property as a boarding home since her
property was in a R-4 District where only rooming houses were permitted. City
zoning administrator noted that there was no real difference between room and
boarding houses for the purposes of zoning.
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 1. Rule: Zoning classifications are largely within the judgment of the legislative
body and the exercise of that judgment will not be interfered with by the
courts except where it is obvious that the classification has no substantial
relationship to public health, safety, morals, or general welfare. When the
constitutionality of a zoning ordinance is attacked, the ordinance is presumed
to be valid and that the municipal legislative body acted with he purpose of
serving the public welfare. The burden is on the challenger to rebut this
presumption and prove that the ordinance is clearly unconstitutional.
2. Holding: The testimony is not sufficient to rebut the presumption that the
ordinance is constitutionally valid. Furthermore, the classification distinction
between boarding and rooming houses bears a substantial relationship to the
health, safety, morals or general welfare of the community.
3. Reasoning: (1) legislature’s purpose in making the distinction was to exclude
commercial institutions (i.e. boarding houses) from residential districts like
R-4 where P’s home is located; (2) a distinction based upon the availability of
meal services—a service which necessarily invokes the city’s health code—is
sufficiently related to the health, safety, and general welfare of the
community, so as not to offend EPC.
4. Dissent: see CB pp. 130-131
5. Note: most courts are hesitant to second-guess line-drawing decisions
because somewhere one zone must end and another start. There will always
be peripheral problems. It is not the court’s duty to interfere with legislative
discretion unless there is a clear showing of an abuse of that discretion.
b. Discrimination Against a Particular Landowner – Owner argues that the restriction
was imposed because of who she is, and she was singled out for unfair treatment. Local
government argues that even if the owner was singled out, it had a rational basis for doing
so.
i. Olech (U.S. 2000) – P, a resident of the Village (D), asked D to connect her property
to the municipal water supply. D agreed to do so if P granted it a 33-ft. easement. D
only required a 15-ft. easement from other residents. P sued D claiming a violation
of EPC.
1. Issue: does EPC give rise to a cause of action on behalf of a “class of one”
where P did not allege membership in a class or group?
2. Rule: EPC claims may be brought by a “class of one” where the individual has
been intentionally treated differently from others similarly situated and
there is no rational basis for the difference in treatment.
3. Holding: P’s allegations are sufficient to state a claim for relief under EPC.
4. Reasoning: P’s complaint can be fairly constructed as alleging that D
intentionally demanded a 33-ft. easement as a condition of connecting her
property to the municipal water supply where D required only a 15-ft.
easement from other similarly situated property owners.
5. Note: what seems to have been significant in Olech was the existence of a
clear standard against which departures, even for a single P, could be readily
assessed. This differential treatment raised a concern of arbitrary
classification, and therefore required that the State provide a rational basis
for it.
6. Note: many lower courts require a showing of “ill will” to plead an EPC claim
otherwise too many challenges would be brought– Ex. 7th Circuit. Noted that

11
 “vindictive action” class of equal protection cases requires proof that the
cause of the differential treatment of which P complains was a totally
illegitimate animus toward P by D. If D would have taken the complained-of-
action anyway, even if it didn’t have the animus, the animus would not
condemn the action; a slight trace of ill will does not invalidate governmental
action.
III. TAKINGS CLAUSE – Owner argues that her welfare is being unfairly sacrificed for the benefit of
the community at large. Note: these 5th Amend. Takings claims focus primarily on the owner’s
losses, not the efficiency of the challenged ordinance.
a. Confiscatory Zoning Classifications (The Takings Issue)
i. Mugler (U.S. 1887) – Kansas amended its constitution to prohibit the manufacture
and sale of liquor. One section of the legislation passed declared all places where
liquor was manufactured or sold to be common nuisances and allowed such places to
be closed down upon a judicial finding of nuisance. P (State of Kansas) filed an
action to have D’s brewery declared a nuisance. D argued that its brewery was est.
when it was lawful to engage in the manufacture of beer and that if it can no longer
run as a brewery then its property becomes valueless thus resulting in a “taking of
property for public use without compensation and depriving [him] of his property
without due process of law.”
1. Holding: Under the Harm Prevention Doctrine, a prohibition upon the use
of property for purposes that are declared, by valid legislation, to be injurious
to the health, morals, or safety of the community cannot be deemed a taking
or an appropriation of property for the public benefit.
2. Reasoning: The State should not have to compensate an owner when its
legislation simply restricts the use of a property for a particular reason
related to the health, safety, general welfare of the public rather than
physically taking the property away from the owner.
3. Note: in Penn Central, Justice Rehnquist argued in dissent that Mugler
created a nuisance exception to the taking guarantee that applied only to
“noxious uses.”
4. Note: The harm/benefit distinction – “government need not compensate for
injuries arising from regulations aimed at preventing harms but should
provide compensation if its regulations were designed to extract benefits.”
a. Obvious problem – flip-sides of the same coin. What measure decides
what is a harm and what is a benefit?
ii. Penn Coal (U.S. 1922) – D (Penn Coal) conveyed the surface of a plot of land it
owned to P. In this transfer, D retained the right to mine underneath the property,
and an explicit provision in the deed state that P was taking the land subject to any
risks associated with mining beneath the land. The State then enacted a statute
that prevented coal mining that could possibly affect the integrity of any surface
land. P sued D, arguing that the new state law destroyed previously existing rights
of property and contract; thus, preventing D from mining under P’s property.
1. Holding: The State statute is not a valid exercise of the police power.
2. Rule: While property may be regulated to a certain extent, if regulation goes
too far it will be recognized as a taking.
3. Reasoning: What makes the right to mine coal valuable is that it can be
exercise with profit. To make it commercially impracticable to mine certain
coal has very nearly the same effect for constitutional purposes as

12
 appropriating or destroying it. Furthermore, P took the risk of acquiring only
surface rights from D. The fact that P’s risk has now become a danger cannot
warrant P to be granted greater rights than he bought.
a. Note: Court conceptually severed the sub-surface rights from the
surface rights which allowed it to find a taking of subsurface rights
but not inability to use surface rights
4. Dissent: The right of the owners to use his land is not absolute. He may not
so use it as to create a public nuisance. A restriction imposed to protect the
public health, safety or morals from danger threatened is not a taking. The
sun of the rights in the parts cannot be greater than the rights in the whole.
a. Reasoning: The State’s restriction merely prohibits a noxious use that
interferes with the rights of the public, but the property remains in
the possession of its owner. Furthermore, values are relative. We are
to consider the value not of the coal alone, but with the value of the
whole property because the rights of an owner as against the public
are not increased by dividing the interests in his property into surface
and subsoil.
iii. Penn Central (U.S. 1978) (Ad Hoc Balancing Test)– D (City) enacted the
Landmarks Preservation Law which designated Grand Central Terminal as a
historical landmark. P, owner of Grand Central, wanted to increase its income by
leasing the airspace above the terminal to UGP Properties for 50 years. P submitted
2 proposals for building designs to the City Commission and applied for a permit to
construct an office building above the terminal. D denied the permit. P sued alleging
that the permit denial constituted as a taking of its property without just
compensation as required by the 5th and 14th Amendments.
1. Issue: Does D’s Landmark Preservation law as applied to Penn Central
constitute a taking for public use of the company’s property that requires the
payment of just compensation?
2. Rule: In deciding whether a particular governmental action has effected a
taking, courts should consider, with regard to the parcel as a whole, (1) the
economic impact of the regulation on the owner (Diminution in Value); (2) the
extent to which the regulation interferes with distinct, “reasonable”
investment-backed expectations of the owner (i.e., primary expectation the
owner had for the land when he bought it); (3) the character of the
government regulation (i.e. physical invasion or simply a program adjusting
the benefits and burdens of economic life to promote the common good).
a. Note: physical invasions are considered per se takings – see Loretto
3. Holding: The application of the Landmark Preservation law does not
constitute as a taking of P’s property. The restrictions imposed are
substantially related to the promotion of the general welfare.
4. Reasoning: The Court applied the 3-factor test to the parcel as a whole rather
than looking at just the airspace rights in question. (1) Although the “air
space” above the terminal was completely taken by the regulation, in viewing
the parcel as a whole rather than conceptually severing that piece indicates
that significant value in the use remains (Note: the Court noted that the
diminution in property value alone cannot constitute a taking, citing Euclid
where a zoning ordinance was upheld despite causing a 75% diminution in
value of P’s property). Note: Serkin says that if DMV is greater than 65%,

13
 then it’s a taking. Furthermore, P was granted transferrable development
rights (TDRs) by the City which offset some of the diminution in value caused
by the Law. (2) the regulation did not interfere with Penn Central’s
expectation that Grand Station be used as a train station. (3) D states the
preservation of landmarks benefit all NY citizens and all structures, both
economically and by improving the quality of life in the city as a whole which
leads the Court to conclude that P has also benefitted from the Landmark
Preservation Law. Furthermore, the Law applies to vast numbers of
structures in the city in addition to the one P owns, therefore, P is not solely
burdened by it.
5. Note: TDRs allow square footage that is prohibited from being built due to a
landmarked regulation to be transferred to another building in a Designated
Receiving Zone subject to maximum FAR and Height restrictions.
a. Counterargument to TDRs as mitigating DMV – Local
governments may take private land without paying just compensation
so long as they grant owners TDRs because TDRs serve as a
concession by the city that blunts the economic impact of the
regulation and prevents it from performing a taking. Ex. If a city
takes 75% of the value but returns 20% of that value to the owner via
TDRs, then it is not considered a taking.
b. Per Se or Categorical Takings (exceptions to Penn Central) – “There are two discrete
categories of regulatory action as compensable without case-specific inquiry into the public
interest advanced in support of the restraint: (1) regulations that compel the property
owner to suffer a permanent physical “invasion” of his property and (2) regulations that
deny all economically beneficial or productive use of land.” (Lucas).
i. Loretto (U.S. 1982) (physical invasion authorized by regulation) – P challenged a
NY law that required landlords to permit cable television companies to install cable
equipment on their buildings. The equipment amounted only to approximately 36 ft.
of 1/2 -inch cable on the side of P’s townhouse and two 4x4-inch metal boxes on the
roof.
1. Holding: a permanent physical occupation of property by a third party
authorized by government regulation always is a taking, “without regard to
whether the action achieves an important public benefit or has only minimal
economic impact on the owner.”
2. Reasoning: a permanent physical occupation effectively destroys each of the
rights to possess, use, and dispose of the affected property.
3. Dissent: the cable requirement is indistinguishable form other garden-variety
landlord-tenant legislation such as requirements that landlords install locks
or fire protection systems in their rental property. Therefore, the Majority’s
opinion threatens a vast array of regulations.
4. Note: In Escondido, the Supreme Court clarified that takings via
permanent physical occupations occur only when the government “requires
the landowner to submit to physical occupation of land”
ii. Lucas (U.S. 1992) – P paid $975k for 2 residential lots on which he intended to
build single-family homes. Thereafter, The State legislature enacted the Beachfront
Management Act which had the direct effect of barring P from erecting any
permanent habitable structures on his 2 lots. D’s discouragement of new

14
 construction in close proximity to the beach/dune area was necessary to prevent a
great public harm.
1. Issue: Did the Act’s dramatic effect on the economic value of P’s lots
constitute a taking?
2. Rule: The government must pay compensation when its regulation declares
“off-limits” all economically productive or beneficial uses of land (total
economic deprivation) in the name of the common good.
3. Holding: Yes, taking occurred.
4. Reasoning: Total deprivation of beneficial use is, from the landowner’s point
of view, the equivalent of a physical appropriation. Regulations that leave the
landowner without economically beneficial or productive options for its use
carry with them a heightened risk that private property is being pressed into
some form of public service under the guise of mitigating serious public harm.
The distinction between harm-preventing and benefit-conferring is “often in
the eye of the beholder”. Whether the justification for providing just
compensation for total economic takings is founded on the government’s
desire to provide a benefit or prevent a burden to the public, the detrimental
economic effects on the property owner are enough to warrant providing him
with just compensation. This is true only when (1) the regulatory action has
the effect of eliminating the land’s only lawful, economic use that was
originally contemplated by the owner’s title or property rights when he
acquired the property and (2) nuisance and property law does not prohibit the
uses the owner intends in the circumstance in which the property is presently
found.
i. Note: There is a per se taking when there is a 100% economic
loss to the property owner unless the regulation is consistent
with background principles of nuisance and property common
law. That is, the government has not “taken” the property if the
development of the property was already prohibited by common
law nuisance.
5. Concurrence: The Takings Clause protects private expectations to ensure
private investment. And while nuisance prevention accords with the most
common expectations of property owners who face regulation, it cannot be the
sole source of state authority to impose severe restrictions. Coastal property
may present such unique concerns for a fragile land system that the State
can go further in regulating its development and use than the common law of
nuisance might otherwise permit.
6. Dissent: The Act does not target particular landowners but rather regulates
the use of the coastline
iii. Palazzolo (U.S. 2001) – In 1959, SGI Corp. buys 80 acres of wetland (property in
question). SGI then attempts to develop the land but is unsuccessful. In 1971, the
State adopts new wetland regulations. In 1978, SGI dissolves by operation of law.
The property held by the corporation transferred automatically by operation of law
to the corporate shareholder, P. P attempts to develop the property again and is
denied. P sues.
1. Issue: can a landowner who acquires land after regulations take effect still
raise a regulatory takings claim?
2. Rule:

15
 a. Future generations also have a right to challenge unreasonable
limitations on the use and value of land.
b. Assuming a taking is otherwise established, a State may not evade the
duty to compensate on the premise that the landowner is left with a
token interest.
3. Reasoning: The Takings Clause exists because some exercises of a state’s
regulatory power are so unreasonable and onerous as to compel the payment
of just compensation. Such regulations do not become any less unreasonable
or onerous simply because of the passage of time or title to a new owner. To
hold otherwise would, in effect, allow a state to put an expiration date on the
restrictions of its power in the Takings Clause. A state would only need to
wait until the property was acquired by a new owner to be free of a previous
owner’s possible claim for just compensation. Also, when landowners who
have a takings claim sell their land, they are transferring their full rights to
the new owners, including the right to challenge land-use regulations under
the Takings Clause.
4. Holding: P has the right to challenge the regulation as a taking, but here P is
not entitled to a Lucas per se taking because the property value diminished
from $3.5 million to approximately $200k and is therefore not a total
economic wipeout. Accordingly, the case is remanded for an analysis under
Penn Central
iv. Tahoe-Sierra Preservation Council (U.S. 2002) – City of Tahoe established the
Tahoe Regional Agency (D) to develop a comprehensive land-use plan to regulate the
economic impact of development on the Tahoe environment. While the plan was
being developed, D enacted two moratoria on development so it could study the
impact of this activity on the Tahoe Basin. The combined effect of these two
moratoria was to prohibit all development on sensitive areas of land on the
California side of the Tahoe Basin for 32 months, and to prohibit development for 8
months. P sued on behalf of 2400 landowners in the Tahoe Basin. P brought a facial
challenge to the moratoria.
1. Issue: Does a moratorium on development imposed during the process of
devising a comprehensive land-use plan constitute a per se taking of property
requiring compensation under the Fifth Amendment Takings Clause?
2. Holding: No
3. Reasoning: the mere enactment of a temporary regulation that denies a
property owner all viable economic use gives rise to an unqualified
constitutional obligation to compensate. If the nature of the taking had been
a physical occupation of the landowners’ property by the government, a per se
taking would have occurred despite the temporary nature of the taking.
However, because the nature of the taking is not a physical occupation and is
merely a temporary prohibition on economic development the issue in the
present case is best analyzed under the Penn Central framework. This
analysis is also more appropriate than the “total diminution of value” test
outlined in Lucas because in the present case, the loss of economic value is
not “total” but “temporary”. The properties in question will recover its full
economic value once the temporary moratoria are lifted, so it has not been
rendered “valueless”. The Tahoe Regional Planning Agency is given the
important task of creating a comprehensive land-use plan that will

16
 ultimately benefit the landowners and the environment in the Tahoe Basin.
This is an enormous task and requires the cessation of development so that
the Agency can engage in undisturbed observation and deliberation. There is
no reason to enact any rule that establishes a certain time limit for
deliberations, the extension of which would automatically constitute a taking
of the landowners’ property. It is important to not pressure the Agency to
come to a hasty or ill-advised solution for its regional plan. Given the
importance of the Agency’s task and the fact that the district court found that
32-month period for the Agency to complete its plan is not unreasonable, the
temporary moratoria on development do not constitute takings requiring
payment of just compensation
4. Rule: temporary moratoriums are not per se takings
a. Underlying rationale: where an owner possesses a full bundle of
property rights, the destruction of one strand of the bundle is not a
taking.
5. Dissent: Court refused to follow Lucas, instead altering the categorical rule
to not include “temporary” takings, which merely depend on the initial label
given to the regulation. Additionally, the potential future value of land, once
the moratorium is lifted, plays no part in the taking analysis, but should be
considered in determining how much compensation is due.
IV. NON-CONFORMING USES
a. OVERVIEW – Penn Central Court hinted that it might have reached a different outcome
if the challenged regulation had prevented Grand Central from being used as it always had
been (Second factor of the Penn Central test). State courts have long regarded government
actions that interfere with a longstanding use of property or change the rules once a
development project is underway as posing special threats of unfairness. Accordingly, the
state courts have developed (1) the law of nonconforming use and (2) law of vested rights to
address those threats.
i. Smith (N.Y. 1994) (amortization of nonconforming use) – P (Village) enacted an
ordinance that prohibited the placement of mobile homes outside mobile home
parks. Any existing mobile home located outside a park was “grandfathered in” as a
nonconforming use until either ownership of the land or ownership of the mobile
home changed. D inherited the mobile home from her dad and P instituted an action
to enforce the ordinance and have the unit removed. D challenges the facial validity
of the local ordinance under a due process claim, arguing that a change in ownership
is not reasonably related to D’s interest in terminating nonconforming uses.
1. Issue: Did P act unreasonably by establishing an amortization period that
uses the transfer of ownership as an end point?
2. Holding: D failed to carry the burden of showing that the local ordinance is
facially unreasonable. Ordinance upheld.
3. Rule: the validity of an amortization period depends on its reasonableness.
An amortization period is presumed valid, and the owner must carry the
heavy burden of overcoming that presumption by demonstrating that the loss
suffered is so substantial that it outweighs the public benefit to be gained by
the exercise of the police power. The amortization period allowed is measured
for reasonableness by considering whether the owners had adequate time to
recoup their investment in the use.

17
 4. Reasoning: Ordinance upheld in general because an amortization period
designates a period of time granted to owners of nonconforming uses during
which they may phase out their operations as they see fit and make other
arrangements. It is effectively a grace period, putting owners on fair notice of
the law and giving them a fair opportunity to recoup their investment.
Additionally, it was not irrational for P to consider a nonfinancial interest in
setting the amortization period because unlike the interests of a commercial
property owner, a residential owner’s interests can’t easily be reduced to
financial considerations. Since mobile homes are involved, there’s little to no
financial loss since the own can relocate the home and sell the land. The
enacted law therefore considers the nonfinancial of maintaining the
property’s present use in connection with the amortization schedule
5. Note: Opponents argue that the amortization of nonconforming uses will
deter investment by putting any landowner’s reasonable expectations at risk
and will result in deterioration as owners refuse to maintain their properties.
6. Note: amortization provisions are widely viewed as a tool for local
governments to avoid the Fifth Amendment’s obligation to pay property
owners for takings of their property.
ii. What is the constitutional source of limits on amortization? Courts disagree: (1)
some hold that amortization is nothing but a deferred taking of property and
therefore unconstitutional; (2) others applying the Takings Clause hold that an
amortization period is implicit compensation that can satisfy the compensation
requirement if the period is long enough; (3) other hold that money earned during
the amortization period should be included, almost like TDRs in deciding whether
the regulation has gone too far; (4) many courts apply a Due Process analysis, asking
whether the benefits of the amortization period outweigh its costs.
iii. Note: Some courts allow the natural Expansion Doctrine: property has a
constitutional right to expand a lawful nonconforming use to meet natural business
expansion so long as the healthy, safety, and welfare of the community are not
jeopardized.
iv. Valley View Industrial Park (Wash. 1987) (Vested Rights Doctrine) – P intended
to develop an industrial park on property that was historically agricultural area but
was rezoned to “light industrial.” The farmlands preservation movement became a
force in the county and applied press for agricultural zoning of P’s property.
Meanwhile, P formulated and proceeded with plans to develop its industrial park
that consisted of 12 buildings, developed in phases. D (City) advised P that it would
have to file additional building permit applications in order to vest its rights to
construct the entire project if D downzoned the property. P filed for five permits. D
downzoned P’s property from light industrial to agricultural use. D then refused to
allow P to proceed with the development. P sued under a Due Process claim.
1. Issue: Is the developer entitled to have its development proposal viewed
under the prior ordinance rather than the new ordinance, and if so, to what
extent?
2. Rule: Date certain vesting rights doctrine aims at insuring that new land-use
ordinances do not unduly oppress development rights, thereby denying a
property owner’s right to due process under the law. A developer’s right to
develop in accordance with a particular zoning designation vests only if the
developer files a building permit application that (1) is sufficiently complete;

18
 (2) complies with existing zoning ordinance and building codes; (3) is filed
during the effective period of the zoning ordinances under which the
developer seeks to develop. Due process considerations of fundamental
fairness require this court to look beyond these requirements to the conduct
of the parties only in the rare case where city officials clearly frustrate a
developer’s diligent good faith efforts to complete the permit application
process.
3. Holding: P has a vested right to complete the 5 buildings for which it filed
building permit applications under the light industrial zoning classifications.
Because P has a vested right to building the 5 permit application buildings,
those buildings are considered as having been constructed
4. Reasoning: (1) P diligently and in good faith attempted to obtain building
permits; (2) D explicitly frustrated P’s attempts; and (3) as a result, P’s
building permit applications were incomplete.
5. Note: Washington’s early vesting rule (aka date certain vesting right
doctrine) runs counter to the rule in most states. Most courts recognized
vested rights only if the owner has made substantial expenditures in good
faith reliance on the issuance of a building permit or other approval. The
critical variables in those vested rights cases are (1) how far the developer
had progressed in obtaining necessary government approvals; (2) the amount
of unrecoverable expenses incurred in good faith, and (3) whether the
expenditures were for preliminary activities or for construction.
6. Note: Valley View grounded its “date certain vested right doctrine” in the
Due Process Clause, focusing on the need to protect landowners from
fluctuations in governmental policy. The majority of courts who recognize
vested rights only if the owner has made substantial expenditures derive
these rules by asking when work on a development is sufficiently far along
for the development to qualify as a nonconforming use.

PROCEDURAL AND REMEDIAL ASPECTS OF LANDOWNERS/DEVELOPERS’

CONSTITUTIONAL RIGHTS (i.e., Ripeness, Remedies, Takings Statutes)

I. JUSTICIABILITY
a. Jurisdiction
i. Challenging federal regulations
 Tucker Act – landowners/developers bringing a takings challenge to any
federal regulation limiting the use of land must do so in the U.S. Court of
Fed. Claims
 28 U.S.C. §1331(a) - landowners/developers bringing a challenge to a federal
regulation involving a due process, equal protection, or civil liberties claim
must do so in a federal district court.
 A landowner/developer who seeks both to invalidate a regulation on due
process or other ground AND to claim that the regulation effected a taking
while (improperly) in effect must litigate in two different court rooms (U.S.
Court of Fed. Claims and district court)
ii. Challenging state or local regulations

19
  42 U.S.C. §1983 – landowner/developer who believes that the state or local
land use regulation violates the federal constitution or federal laws may sue
in federal court.
b. Ripeness
i. In Facial Takings Challenges to Zoning Regulations – facial takings
challenges are generally ripe the moment the challenged regulation is passed. Thus,
such claims are neither subject to the finality or exhaustion requirement set forth in
Williamson County.
 Note: facial takings challenge must assert that the “mere enactment” of the
challenged regulation deprives the landowner of all economically viable use of
the property.
ii. In As-Applied Takings Challenges to Zoning Regulation
 Williamson County (U.S. 1985) – P (Bank) acquired property in Tennessee
by foreclosure and hoped to develop that property into a residential
subdivision. P submitted 2 preliminary plats to the County Commission. The
County disapproved of the plat for 8 reasons. P sued the County in district
court under 42 U.S.C. §1983, alleging that the County had taken its property
without just compensation.
o Rule: a claim that the application of government regulations effects a
taking of a property interest is not ripe until (1) the government entity
charged with implementing the regulations has reached a final
decision regarding the application of the regulations to the property at
issue (finality requirement) and (2) P has sought just compensation
through the process established by the State and was denied
(exhaustion requirement). It is important to note
o Holding: P’s claim is not ripe because P has not yet obtained a final
decision regarding the application of the zoning ordinance and
subdivision regulations to its property, nor used the procedures
Tennessee provides for obtaining just compensation.
o Reasoning:
Finality Requirement – the finality requirement is
concerned with whether the initial decisionmaker has arrived
at a definitive position on the issue that inflicts an actual
concrete injury.
1. The Commission’s refusal to approve P’s preliminary
plat prevents respondent from developing its
subdivision without obtaining the necessary variances
but leaves open the possibility that P may develop the
subdivision according to its plat after obtaining the
variance. The Commission’s denial of approval does not
conclusively determine whether P will be denied all
reasonable beneficial use of its property, and therefore
is not a final, reviewable decision. Economic impact of
the challenged action and the extent to which it
interferes with reasonable investment-backed
expectations can’t be evaluated until the administrative
agency has arrived at a final, definitive position

20
 regarding how it will apply the regulations at issue to
the particular land in question.
Exhaustion Requirement – refers to administrative
and judicial procedures by which an injured party may seek
review of an adverse decision and obtain a remedy if the
decision is found to be unlawful or otherwise inappropriate.
1. If a state provides an adequate procedure for seeking
just compensation, the property owner cannot claim a
violation of the Just Compensation Clause until it has
used the procedure and been denied just compensation.
This is true because if the government has provided an
adequate process for obtaining compensation, and if
resort to that process yields just compensation, then the
property owner has no claim against the government for
a taking.
2. Tennessee allows P recovery through inverse
condemnation. P has failed to show that the inverse
condemnation procedure is unavailable or inadequate,
ad until it has used that procedure, its taking claim is
premature.
 Ripeness Test
o Williamson County established that an as-applied takings claim is
ripe only if P has satisfied the finality and exhaustion requirements.
Finality Requirement: the government entity charged
with implementing the regulations has reached a final decision
regarding the application of the regulations to the property at
issue. Once a meaningful application has been filed, adequately
pursued, and rejected, P must seek a variance, special permit,
or other discretionary relief from whatever regulation was
invoked to deny the application. However, P need not to apply
for such discretionary relief if the application would be futile
(futility exception). Note: Once it becomes clear that the
agency lacks the discretion to permit any development, or the
permissible uses of the property are known to a reasonable
degree of certainty, a takings claim is likely to have ripened.
1. MacDonald (U.S. 1986) – P (landowner) has not
satisfied the final determination requirement because
rejection of exceedingly grandiose development plans
does not logically imply that less ambitious plans will
receive similarly unfavorable reviews.
2. Palazzolo (U.S. 2001) – P has satisfied the final
determination requirement because the Council’s
decisions make plain that the agency interpreted its
regulations to bar P from engaging in any filling or
development activity on the wetlands.
3. Note: MacDonald and Williamson County involved
denials of “substantial” projects that left doubt whether
a “more modest submission” might be accepted.

21
 Whereas Palazzolo was prohibited altogether to fill the
wetlands for any “likely or foreseeable” use.
Exhaustion Requirement: P has sought just
compensation through the process established by the State and
was denied or was awarded inadequate compensation
(exhaustion requirement). P bears the burden of proving that
state court remedies are inadequate and evidence that the
remedies are just uncertain is not sufficient.
c. Issue Preclusion
i. San Remo (U.S. 2005) – San Francisco responded to a severe shortage of affordable
housing by enacting a Hotel Conversion Ordinance that required a hotel owner to
obtain a permit to convert residential units into tourist units. An owner could obtain
the permit only by constructing new or rehabilitating old residential units or by
paying a conversion fee into the city’s Residential Hotel Preservation fund. P, who
own and operate a hotel in San Francisco, initiated a lawsuit in response to the
application of a city ordinance that required them to pay a $567,000 “conversion” fee.
 Procedural History: In its state-court action seeking compensation, P sought
to reserve its federal takings claim in order to preserve its ability to file in
federal if it lost in state court. However, P asserted a takings claim under the
California Constitution, and in rejecting its claim the California Supreme
Court found that the state and federal takings clauses are coextensive.
 Rule: Issues decided in valid state-court judgments are precluded from being
relitigated in federal court. This is so even when the P would have preferred
not to litigate in state court but was required to do so by statute or prudential
rules.
 Holding: federal courts are not free to disregard the full faith and credit
statute (28 U.S.C. §1738) simply to guarantee that all takings plaintiffs can
sue in federal court.
 Reasoning: Because California had interpreted the relevant substantive state
taking laws coextensively with federal law, P’s federal claims constituted the
same claims that had already been resolved in state court. State courts are
fully competent to adjudicate constitutional challenges to local land-use
decisions. Indeed, state courts undoubtedly have more experience than
federal courts do in resolving the complex factual, technical, and legal
questions related to zoning and land-use regulations.
 Note: Under Williamson County, federal takings claims are not ripe until a
final state court judgment denying compensation. Therefore, before filing a
takings claim in federal court litigants must seek compensation in state
court. However, under 28 U.S.C. §1738, if a state court judgment resolves the
federal constitutional question, it must be given preclusive effect by the
federal courts. In combination with Williamson County, this decision means
that as a practical matter, a significant number of plaintiffs will necessarily
litigate their federal takings claims in state courts.
 Note: P are entitled to insulate its facial constitutional challenge to an
ordinance from preclusive effect.

II. REMEDIES AND TAKINGS STATUTES

a. Remedies

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 i. First English (U.S. 1987) (compensation)– County of LA (D) passed an ordinance
which prohibited construction or reconstruction on land which had been devastated
by a flood one year earlier. P owned a campground which was affected by this
ordinance and it was not allowed to reconstruct buildings on this land which the
flood had destroyed.
 Holding: D’s ordinance denied P all use of its property for a considerable
period of years. Thus, invalidation of the ordinance without payment of fair
value for the use of the property during this period of time would be a
constitutionally insufficient remedy.
 Rule: The Fifth Amendment requires compensation for a temporary taking.
Thus, when an ordinance is amounted to a taking, the government can either
(1) amend/ invalidate the ordinance and compensate the owner for the value
of the use of the land for the duration of the temporary taking and (2)
exercise eminent domain and compensate the owner for the value of the land.
Note: Normal delays in obtaining building permits, changes in zoning
ordinances, variances, and the like do not constitute as temporary takings.
o Implication: Every state court finding a regulatory taking under the
federal Constitution should require the State to compensate for the
taking.

CONSTRAINTS ON ZONING MEASURES THAT THREATEN CIVIL LIBERTIES (i.e., First

Amendment Issues)

FIRST AMENDMENT

I. Freedom of Religion
a. STATUTORY RESTRICTION (RLUIPA claim) – RLUIPA provides that a government
land-use regulation that imposes a substantial burden on the religious exercise of a
religious assembly or institution is unlawful unless (1) the government demonstrates that
imposition of the burden is in furtherance of a compelling government interest and (2) is
the least restrictive means of furthering that compelling governmental interest.
i. Substantial Burden Requirement. Foursquare Gospel (9th Cir. 2011) – P
(Church) sued D (City) alleging that D had violated RLUIPA and P’s constitutional
rights by not agreeing to rezone certain industrial land as a relocation site for the
Church in a community where it has resided and thrived for several decades.
 Issue: Did the City’s denial of the Church’s rezoning application substantially
burden the Church’s religious exercise within the meaning of RLUIPA?
 When to Apply RLUIPA/ Standard of Review: RLUIPA applies the strict
scrutiny standard to certain laws, including generally applicable, facially
neutral zoning laws, pursuant to which government may make individualized
assessments of the property at issue.
 Rule: Under RLUIPA, P must first demonstrate that a government action has
imposed a substantial burden on P’s religious exercise. A substantial burden
must place more than inconvenience on religious exercise. A substantial
burden exists where the governmental authority puts a substantial pressure
on an adherent to modify his behavior to violate his beliefs (Note: there must
exist a close nexus between the coerced or impeded conduct and the
institution’s religious exercise for such conduct to be a substantial burden on
that religious exercise). Once P has shown a substantial burden, the

23
 government must show that its action was the least restrictive means of
furthering a compelling governmental interest.
 Holding: Yes, P has raised more than a “mere scintilla of evidence” that the
City imposed a substantial burden on its religious exercise. Accordingly, the
City bears the burden of establishing that its action is in furtherance of a
compelling governmental interests and is the least restrictive means of
furthering that compelling governmental interest.
o Note: revenue generation is not a compelling state interest sufficient
to justify denying a religious institution a conditional use permit when
such denial imposes a substantial burden. If revenue generation were
a compelling state interest, municipalities could exclude all religious
institutions from their cities because religious and educational
institutions are tax exempt and the land would always generate more
revenue if put into a commercial or industrial use.
 Reasoning: P offered evidence from its realtor and former City Manager that
no other suitable sites exist in the City to house the Church’s expanded
operations. Each of the 196 parcels rezoned for assembly use were unsuitable
for the needs of a large religious congregation. When the religious institution
has no ready alternatives, or where the alternatives require substantial
delay, uncertainty, and expense, a complete denial of the religious
institution’s application might be indicative of a substantial burden.
o The district court rejected P’s assertion that its “unique core beliefs”
require it to be able to meet in one place to engage in its worship. The
district court’s flat rejection of P’s characterization of its core beliefs
runs counter to the Supreme Court’s admonition that while a court
can arbiter the sincerity of an individual’s religious beliefs,
court should not inquire into the truth or falsity of state
religious beliefs.
 Why would the City in Foursquare object to the Church? (1) effectively
allow a vacancy in a commercial zone; (2) unique traffic problems associated
with churches; (3) may give rise to nuisance liability down the road; (4)
slipper slope concerns about the overall zoning of the City; (5) cultural
concerns; (6) churches are an odd use, often empty, which can expend public
resources to keep watch of them
 Note: Was the Foursquare Gospel court correct that denying a request for
a rezoning involves an individual assessment under RLUIPA?
o Agreeing with Foursquare Gospel court: the process of
administering zoning laws is highly individualized, standards tend to
be vague and manipulable, zoning for a parcel is easily changed if
those in power desire to change it. Specifically, landmarking
designation involves the individualized application of neutral
standards to particular parties.
o Disagreeing with Foursquare Gospel court: denial of rezoning
request was not an individual assessment because rezoning involves
the enactment of a new rule of general applicability, a new rule that
governs all persona and all projects.
ii. Equal Terms Provisions. RLUIPA prohibits any regulation that treats a religious
assembly on less than equal terms with a nonreligious assembly or institution.

24
  There are 4 different tests for identifying relevant comparators: (1) the ‘less
than equal terms’ must be measured by the ordinance itself and the criteria
by which its treats institutions differently; (2) comparator should be secular
use with similar impact considering zoning law’s state regulatory criteria; (3)
impact of the allowed and forbidden uses must be examined in light of the
purpose of the regulation as determined by the court; (4) court should identify
a secular use with a comparable community impact.
b. CONSTITUTIONAL RESTRICTION (EPC claim) – intentional discrimination against
religion is subject to strict constitutional scrutiny, regardless of RLUIPA and state RFRAs.
Accordingly, a zoning ordinance that targets a particular religious for exclusion from the
community will not withstand scrutiny.
II. Freedom of Speech – Note: all of the cases below involve a facial challenge to an ordinance that
applies only prospectively to new businesses
a. Playtime Theatres (U.S. 1986) – P brought a First Amendment challenge to a zoning
ordinance enacted by D (City) that prohibited adult motion picture theaters from locating
within 1000 ft. of any residential zone, single- or multiple-family dwelling, church, park, or
school. In 1981, D enacted the ordinance. In 1982, P acquired two existing theaters within
the area proscribed by the ordinance with the intention of using them to exhibit adult films.
i. Rule: Content-neutral time, place, and manner regulations are acceptable if they are
designed to serve a substantial governmental interest and do not unreasonably limit
alternative avenues of communication. Accordingly, a zoning restriction that is
designed to decrease secondary effects, and not prohibit speech, is a content-neutral
regulation that is subject to intermediate rather than strict scrutiny.
ii. Holdings/ Reasonings: Court plurality held that D’s ordinance represent a valid
governmental response to the “admittedly serious problems” created by adult
theaters.
 The ordinance is a “content-neutral” time, place, and manner regulation
because it does not ban adult theaters altogether, but merely provides that
such theaters may not be located within 1000 ft. of certain areas.
 D’s pursuit of its zoning interests was unrelated to the suppression of free
expression. D’s ordinance is not aimed at the content of the films shown at
“adult motion picture theatres,” but rather at the secondary effects of such
theatres on the surrounding community. A city’s interest in attempting to
preserve the quality of urban life is one that must be accorded high respect.
Here, the ordinance by its terms if designed to prevent crime, protect the
city’s retail trade, maintain property values, and generally protect and
preserve the quality of the city’s neighborhoods, commercial districts, and the
quality of urban life.
o Note: The Court looked to the “predominate intent” of the ordinance.
If the intent is to regulate the secondary effects of adult entertainment
businesses, then the ordinance will be reviewed under intermediate
scrutiny.
 D relied heavily on the experience of, and studies produced by, another city in
enacting its adult theater zoning ordinance, which it was entitled to do. A
municipality may rely on any evidence that is reasonably believed to be
relevant for demonstrating a connection between speech and a substantial,
independent government interest (i.e. problem the city is attempting to
remedy)

25
  The ordinance allows for reasonable alterative avenues of communication
because it leaves more than 5% of the entire land area of the City open to use
as adult theater sites. Even if, as P argues, there is no commercially viable
sites to open an adult theater within that 5% of permissible land, the fact
that P must fend for itself in the real estate market, on an equal footing with
other prospective purchasers and lessees, does not give rise to a First
Amendment violation. The First Amendment does not compel that the
government ensure that adult theaters, or any other kinds of speech-related
businesses for that matter, will be able to obtain site at bargain prices.
iii. Dissent: The ordinance is not a content-neutral time, place, and manner restriction
because it selectively imposes limitations on the location of a movie theater based
exclusively on the content of the films shown there.
b. Alameda Books (U.S. 2002) – After studying adult entertainment businesses and
concluding their negative effects on surrounding neighborhoods, D passed an ordinance
that prohibited (1) adult entertainment businesses from locating with 1000 ft. of another
such business and (2) more than one adult entertainment business in the same building. P
rented sexually oriented tapes and provided booths where customers could watch them. Its
operations therefore counted as both an adult bookstore and a cabaret, and accordingly
violated the ordinance. P challenged the ordinance.
i. Issue: Did D (City) sufficiently prove that the ordinance would have the crime-
prevention effect that was offered as its justification?
ii. Holding: Yes.
iii. Rule: The City may rely on any evidence that is reasonably believed to be relevant in
order to fairly support its rationale for the ordinance. Plaintiff bears the burden of
either (1) demonstrating that the City’s evidence does not support its rationale or (2)
furnishing evidence that disputes the City’s factual findings. If Plaintiff fails to do
this, then the City meets the standards set forth in Renton. If Plaintiff succeeds in
casting doubt on a City’s rationale in either of the above manners, then the burden
shifts back to the City to supplement the record with evidence renewing support for
a theory that justifies its ordinance.
 The City does not have to provide empirical data that the ordinance will
successfully decrease the secondary effects as it set out to do. Such a
requirement would prevent cities from a “reasonable opportunity to
experiment with solutions” to address secondary effects of protected speech.
Furthermore, cities are in a better position than the judiciary to gather and
evaluate data on local ordinances.
iv. Dissent: verifying that the ordinance actually reduces the secondary effects asserted
would ensure that zoning regulations are not merely content-based regulations in
disguise.
v. Concurrence: a zoning measure can be consistent with the First Amendment if it is
likely to cause a significant decrease in secondary effects and a trivial decrease in
the quantity of speech. Such a zoning measure should be subject to intermediate
scrutiny.
c. Note: where a city tries to regulate sexually oriented businesses through licensing or
discretionary permitting schemes (i.e. special exceptions), the rules regarding prior
restraints on speech apply.

ZONING CHANGES AND THE RIGHTS OF NEIGHBORS

26
 There is inherent tension between local officials quest for flexibility and judicial concern about discretionary decision-making

VARIANCES AND SPECIAL EXCEPTIONS – Standard State Zoning Enabling Act (SZEA) provides
for 3 traditional means of securing zoning changes: (1) variances; (2) special exceptions (aka special use
permits or conditional uses); (3) rezonings or map amendments. Note: modern zoning practices use “wait
and see” zoning in which undeveloped land is placed in a holding category, such as agricultural use, until
someone expresses an interest in developing the land for a more intense use.

I. OVERVIEW – There are 4 techniques the courts and state legislatures use to control local
governments’ use of zoning changes: (1) enforcing substantive criteria for the grant of zoning
changes by administrative agencies; (2) more searching cost/benefit review of zoning changes
granted by legislative bodies; (3) reducing the deference given to certain kinds of legislative
decisions; and (4) imposing procedural, ethical, and informational limits on zoning change
II. CONSTRAINTS ON ZONING CHANGES BY ADMINISTRATIVE BODIES – Courts prohibit
agencies from making their own policy and instead force agencies to implement policies
established by the legislature as embodied in the local zoning law.
a. Variances (these are exceptions to the ordinance) – Two types: (1) use variance: permits a
use which the ordinance prohibits; (2) area variance: permits use of a land in a manner
which is prohibited by the dimensional or physical requirements of the applicable zoning
regulations. Note: variances run with the land.
i. Courts generally adopt a presumption against granting a variance, holding that
unless a property owner is deprived of any reasonable return, the variance must be
denied.
1. Matthew (Mo. 1986) – The Brandts own 1 ½ plotted lots that have 2 homes
on them. Each of the homes is occupied by one residential family as tenants
of the Brandts. The 2 houses have been used as separate residences for the
past 30 yrs. The property is zoned for a single-family residence. At the
suggestion of a city official, the Brandts applied for a use variance which
would allow them to rent both houses with a single family in each house. The
Board of Zoning Adjustments grants the application. P, a neighboring
landowner, challenges the use variance.
 Holding: Neighbor wins. The Board was without authority to grant a
use variance upon the given record.
 Rule: To obtain a use variance, an applicant must demonstrate
unnecessary hardship; and, to obtain an area variance, an applicant
must establish the existence of conditions slightly less rigorous than
unnecessary hardship. To show unnecessary hardship, the record
must show that (1) the land in question can’t yield a reasonable return
if used only for a purpose allowed in that zone (Reasonable return is
not maximum return. Rather, the landowner must demonstrate that
he will be deprived of all beneficial use of the property under any of
the permitted uses); (2) that the plight of the owner is due to unique
circumstances and not to the general conditions in the neighborhood
which may reflect the unreasonableness of the zoning ordinance itself;
and (3) that the use to be authorized by the variance will not alter the
essential character of the locality.
o Note: Many courts view “unnecessary hardship” and “practical
difficulties” as interchangeable terms. A number of
jurisdictions like MO and NY hold that “practical difficulties” is
27
 a slightly lesser standard than “unnecessary hardship” and
only applies to the granting of an area variance.
o Note: the hardship must be associated with the land, not the
owner.
 Reasoning: The only evidence in the record is the conclusory opinion of
Brandt that they would be deprived of a reasonable return if not
allowed to rent both houses. The Board, therefore, was without
authority to grant a use variance upon this record.
 Concurrence: The variance requested by the Brandts was not a use
variance because the use of the land was single-family residential, as
the zoning mandated. Rather, the Brandts needed an area variance
because the two single-family homes were located on a lot too small to
accommodate both houses under the applicable zoning.
o Note: not always easy to differentiate between use and area
variances, especially when the variance sought involves a
density increase.
 Note: a landowner wants to claim that the denial of his variance was
arbitrary and irrational and therefore a violation of substantive due
process.
2. Reasons for presuming against granting variances
 Variances create an opportunity for favoritism toward well-connected
landowners because “general rules are suspended for the benefit of
individual owners and special privileges established.”
 Administrative agencies should not have the power to effectively
repeal the zoning rules piecemeal without strict limits on their
discretion.
 Self-created hardships – In a number of states, a variance is not
available if the hardship is self-created; in other states, the self-
created nature of the claimed hardship weighs against, but does not
necessarily foreclose, the grant of a variance.
o Self-created hardship can arise in 3 ways: (1) the applicant
subdivides a tract to create a lot that will be difficult or
impossible to develop in conformity with the applicable zoning
restrictions; (2) the applicant develops the property in violation
of applicable zoning restrictions; or (3) the applicant purchases
the property knowing that it isn’t economically feasible to
develop it unless a variance is obtained.
ii. HYPO – Music Festival wants to build cottages but it’s against zoning ordinance.
First, Music Festival should seek an area variance (alteration to number of
structures on the property) since it’s easier to obtain and then in the alternative,
argue for a use variance (altering use of the property). If a request for a variance
fails, ask for a rezoning.
iii. HYPO – Property owners should use variances when their lots are oddly shaped
such that it imposes heavy burdens on them.

Use Variance Area Variance

Standard Unnecessary hardship Practical difficulties
 No reasonable return
 Unique circumstances
28
  Doesn’t alter essential character
b. Conditional Uses (use permitted under the regulation not as a right but if required
conditions are met) – The zoning ordinance will list special uses that are permitted on the
condition that some local entity (i.e. board of zoning or planning commission) determines
that certain criteria listed in the zoning law are met.
i. Because the zoning ordinance specifies particular land uses as conditionally
approved, courts frequently specify that such uses are presumptively allowed
1. Gladden (D.C. 1995) – Property owner submitted an application to the
Board of Zoning Adjustment for a special exception from the zoning law in
order to establish a youth rehabilitation center in his house. Ps, who live in
close proximity to the proposed center, opposed the application on the
grounds that the home would have an adverse effect on the neighborhood.
The Board approved the exception with a couple conditions: (1) no other
community-based residential facilities were within a 500-ft. radius of the
center and (2) the center would not adversely effect the community and would
have no significant impact in terms of traffic and noise.
 Rule: special exceptions, unlike variances, are expressly provided for
in the zoning regulations. The Board’s discretion to grant special
exceptions is limited to a determination whether the exception sought
meets the requirements of the regulation. Accordingly, the Board’s
decision will be upheld if there is a rational basis for it and if the facts
found by the Board have substantial support in the evidence.
 Holding: If the proposed center did not have another center within 500
ft. and there was no adverse impact on the neighborhood, then the
Board was bound to approve the exception requested by the applicant.
Record shows that these requirements were met. The Board’s approval
is affirmed.
 Reasoning: There is no evidence in the record that this particular
center would have an actual adverse impact on the community. Also,
the center is not within 500 ft. of another center. The conditional
requirements have been met.
o Note: Generic harms that are associated with this kind of use
are not sufficient as a basis for an objection to these claims
because the use was already permissible though subject to
conditions – the harm must be particular to this youth
rehabilitation center that makes it inappropriate in this
particular location. Ex. accumulation of harms – one more
youth rehabilitation center was too many and the saturation
point has been met (not sufficient reason in Gladden).
However, the reality is that if it harder to stop additional uses
after the first one is permitted, then neighbors will fight even
harder to keep the first permitted use out.
ii. The conditional requirements set forth in the zoning law can be relatively vague,
thus providing the Board with little guidance when to grant conditional use.
iii. Note: Courts deference of review for
1. Variances – if Board grants variance, then searching review (variances are
supposed to be used sparingly); if Board denies variance, then courts are
deferential

29
 2. Conditional Uses – Irrespective of if Board grants or denies conditional use,
the courts are deferential
III. CONSTRAINTS ON ZONING CHANGES BY LEGISLATIVE BODIES – To constrain
legislative bargaining, neighbors will have to make use of some law higher than the local zoning
ordinance like the zoning enabling act, state statutory or constitutional limits on municipal home-
rule authority, or the state constitution’s DPC and EPC. Note: When restrictive land use
regulations are challenged under DPC, courts review the reasonableness of such regulations
through a deferential cost/benefit analysis.
a. OVERVIEW – local governments and landowners/developers engage in deal making where
the following occurs: most undeveloped lands are placed in holding zones that prohibit
those lands from being developed into their most profitable uses. When any such parcel of
undeveloped land becomes ripe for development, its owner can be expected to come to city
hall to try to strike a deal. To obtain a rezoning, the owner will agree to comply with
conditions that will transfer some of the owner’s financial gain from the rezoning to
whomever local officials select to receive a share of those benefits.
i. Note: Four natural objects of a local government’s affections: (1) community
at large (current residents of the municipality) gains when local officials compel a
would-be developer to pay cash or in-kind exactions to the general treasury or to
install an improvement of communitywide benefit; (2) Neighbors’ interests are
served when the deal struck between the local government and developer provides
localized external benefits; (3) local officials use their leverage to enrich themselves
by granting a rezoning in exchange for the developer’s partial contribution of the
anticipated gain from a rezoning as an overt campaign contribution; (4) landowners
and developers who succeed in obtaining rezonings and their agents and employees
who help them along the way.
ii. Cons of zoning used as negotiation mechanism: (1) local government may
extort property owners with regard to the value of the land; (2) local government
favor certain property owners when permitting upzonings
b. Spot Zoning – The anti-spot-zoning doctrine is used by neighbors who want to challenge
the deregulation of a nearby parcels by alleging that the rezoning singles out particular
landowners for purely private benefits to the detriment of other owners.
i. Note: If a deregulation singles out a parcel for no purpose beyond benefitting the
parcel’s owner at the neighbors’ expense, then such a zoning classification also
violates substantive due process.
1. Courts look first at whether the size of the parcel, number of benefitted
owners, or the rezoning’s inconsistency with the surrounding neighborhood
signal that spot zoning has occurred. If it has, the courts then engage in a
cost/benefit analysis to determine whether the spot zoning is justified.
2. Other considerations:
 Spots v. Slops – Courts often find spot zoning in situations where the
newly implanted zone is entirely surrounded by other zones but are
less likely to find spot zoning when the rezoning has “slopped over” by
extending the perimeter of an existing zone to include the rezoned
area.
 Neighborhood character – consideration of whether the lands
surrounding the rezoned area are devoted to uses compatible with the
new uses the rezoning would permit. Courts are more likely to invoke

30
 spot-zoning doctrines to protect stable residential areas than to
protect areas characterized by mixed uses or areas in transition.
 Motive – courts look hard at whether the rezoning was solely, or even
primarily, motivated by a desire to benefit a particular individual
rather than the public at large.
 Procedural irregularities – Courts are suspicious of rezonings that
result from expedited or other wise irregular procedures. Ex. rezoning
goes against the advice of the commission staff and the city attorney
ii. Griswold (Alaska 1996) – Ordinance amended City’s zoning and planning code to
allow motor vehicle sales and services on 13 lots in the Central Business District. P
claims that the ordinance is invalid because it constitutes spot zoning and thus
violates substantive due process of law.
1. Holding: The ordinance doesn’t constitute spot zoning
2. Rule: A zoning decision violates substantive due process if it has no
reasonable relationship to a legitimate government purpose. When faced with
an allegation of spot zoning, courts determine (1) whether the rezoning is
compatible with the comprehensive plan, or where no plan exists, with
surrounding uses; (2) effect of small-parcel zoning on owner and community
(benefits and detriments to the community compared to the benefit of the
landowner); (3) size of the “rezoned” area (though, a parcel can’t be too large
per se to preclude a finding of spot zoning, nor can it be so small that it
mandates a finding of spot zoning occurred – the reclassification of more than
one parcel does not negate the possibility of finding spot zoning)
 Note: no one particular characteristic associated with spot zoning,
except a failure to comply with at least the spirit of a comprehensive
plan, is necessary fatal to the amendment.
3. Reasoning:
 (1) Consistent with the plan. Though the ordinance does not
further all the goals of the comprehensive plan, it is consistent with
the plan.
 (2) Comparing costs and benefits. Benefits of ordinance: (1)
encourages filling in vacant places in the CBD; (2) increases the tax
base and employment in the CBD; (3) increases convenience and
accessibility for local and regional customers for vehicle repairs or
purchasers; (4) guides growth and development to a centrally located
area, while restricting such uses to area away from tourists or to areas
for visitors and pedestrians.
 (3) Size of rezoned area. A comparison of the size of the area
rezoned and the size of the entire CBD is not in itself sufficient to
persuade the court that the City’s decision was the produce of
prejudice, arbitrary decision-making or improper motives.
iii. Reverse spot zoning – property surrounding a tract is rezoned for more intense
use, but the local government refuses to extend that rezoning to the tract in
controversy.
c. JUDICIAL RESPONSE – Doctrinal categories intended to strengthen judicial
review of rezonings: (1) doctrines limiting contract or conditional zoning (courts limit
local governments’ power to commit themselves to future zoning changes benefitting
specific landowners unless those commitments are authorized by a state statutory

31
procedure that insures a minimum level of participation and uniformity across land use
bargains); (2) doctrines requiring that rezoning be consistent with a written comprehensive
plan (thereby recruiting planning expertise to limit political bargaining); (3) substantive
and procedural norms of administrative law (to police land use deals by classifying small-
scale rezonings as quasi-judicial decisions subject to the same sort of administrative review
as decisions by local administrative agencies).
i. DOCTRINE OF CONDITIONAL ZONING
1. Chrismon (N.C. 1988) – D operated a business of selling/distributing
agricultural chemicals on property adjacent to his home. Thereafter, the
County adopted an ordinance that prohibited the sale/distribution of
agricultural chemicals under the new rezoning, but because D did this prior
to the ordinance he was allowed to continue with his business. P bought a
tract of land from D and built a home there. D then moved some of his
business operation to the land adjacent to P’s home. P, concerned by the
increased noise, dust, and traffic caused by D’s expansion, filed a complaint
with the County. The County advised D to apply for a conditional use permit
which D did so that he could permissibly continue with his business
operation. The Board of Commission approved the conditional use permit.
 Issues: (1) Does the rezoning constitute illegal spot zoning? (2) Does
the rezoning constitute illegal contract zoning?
 Holding: The rezoning is neither spot zoning or contract zoning.
 Rule: conditional use zoning occurs when a governmental body
without committing its own authority, secures a given property
owner’s agreement to limit the use of his property to a particular use
or to subject his tract to certain restrictions as a precondition to any
rezoning. Conditional use zoning occurs when (1) a unilateral promise
from the landowner to the local zoning authority as to the landowner’s
intended use of the land in question and (2) the local zoning authority
maintains its independent decision-making authority.
o Note: conditional use zoning differs from illegal contract
zoning which is a transaction wherein both the landowner who
is seeking a certain zoning action and the zoning authority
itself undertake reciprocal obligations in the context of a
bilateral contract.
 Reasoning: There’s no evidence that the local zoning authority entered
in a bilateral contract with the landowner since the letter sent by the
County told D that he “may request rezoning of [his] land involved in
the violations” though this was not a “guaranteed option.” The Board
did not, by virtue of its actions, abandon its position as an
independent decision-maker.
 Takeaway: Dynamic identified is that the government might not want
to grant rezoning for a more intensive use where there are a lot of uses
that would be allowed that the government would not approve of. That
is, in Chrismon if the government had granted a conditional rezoning
for light industrial use, the farmer-developer would technically be
allowed to build a factory. This case shows that perhaps both parties
would be better off negotiating a pre-commitment for granting a
rezoning to use the land in a particular way (i.e. limiting rezoning to

32
 fertilizer) because then an application for upzoning won’t be denied
per se (since government may deny application on the whole to avoid
allowing upzoning that would allow all types of use including the
particular use wanted by applicant)
o Counterargument: The worry centers around the government
making pre-commitments to property owners for future land
use
2. Justifications Against Contract Zoning
 Entrenchment – government is pre-committing itself, but it cannot
contract away police power and thus cannot promise future zoning.
 Graft (corruption) – want to deter the government from extracting
some of the value from the upzoning through negotiations.
 Favoritism
ii. CONSISTENCY WITH THE PLAN
1. 3/4s of states adopted similar language to Section 3 of the SZEA: “Zoning
regulations shall be made in accordance with a comprehensive plan”
2. FOR STRICT CONSISTENCY WITH THE PLAN
 Baker (Or. 1975) – upheld a challenge to the grant of a building
permit in an area zoned for more intensive use than the city’s
comprehensive plan envisioned.
o Reasoning: The comprehensive plan controls and directs the
use and development of property in a municipality. Zoning on
the other hand, is the means by which the comprehensive plan
is effectuated.
 Justifications: adhering to formal plans helps to ensure that zoning
decisions are not arbitrary
3. AGAINST STRICT CONSISTENCY WITH THE PLAN
 Haines (Ariz. Ct. App. 1986) – City approved an office building that
was 500-ft.-high after it adopted a general plan that limited the height
of buildings in that area to no more than 250 ft. P challenges the
zoning change by invoking the State consistency statute (statutory
claim) which requires that all zoning ordinances or regulations to be
consistent with the adopted general or specific plans of the
municipality.
o Standard of Review: Rational basis with bite – Court of review
will restrict itself to the record. Note: Still a highly deferential
standard of but slightly restricted to evidence from the record.
o Holding: Based upon the evidence, the City Council was correct
to find the rezoning in basic harmony with the general plan.
o Rule: Court’s review will consist of viewing the record that was
before the City Council and determining if, from that evidence,
the Council could have decided that despite the deviation from
the letter of the plan there was consistency. The burden of
proof will be on the plaintiff to show inconsistency.
1. Consistency has been defined as “basic harmony”.
Therefore, if from the evidence before it the City Council
could have determined that the rezoning was in basic
harmony with the general plan, the rezoning is valid.

33
 Where the rezoning doesn’t deviate from the general
plan, rational basis will apply.
o Reasoning: The rezoning is permissible because although it
exceeded the building height limit, it conformed with other
goals set forth in the comprehensive plan. Must look to the
general goals of the plan, not just the specific
restrictions. Here, the height restriction was stated in
precatory language (language expressing a “desire,” “wish,” or
“hope). The general plan allows for commercial development of
the area in question, and the prospective building design
provides many benefits (i.e. large open space and recreational
area) that the alternative building design would not.
o Note: in many jurisdictions, the criteria for granting a
variance or special exception under local or state law include
consistency with the comprehensive plan, so application of the
consistency statute itself may not be necessary.
 Justifications: allows more for local autonomy; likely to encourage
increasing numbers of ad hoc amendments to comprehensive plans.
4. Note: spot-zoning and consistency with the plan are not coterminous –
rezoning a particular property could be held as illegal spot zoning even if it is
consistent with the City’s comprehensive plan.
5. ADMINISTRATIVE REVIEW OF QUASI-JUDICIAL ZONING
DECISIONS
 Synder I (Fla. Dist. Ct. App. 1991) – P, owners of land zoned for
General Use under the Comprehensive Zoning Plan ordinance,
petitioned to the County Board to rezone their land to a medium
density multiple-family dwelling zoning classification. Planning and
Zoning Department recommended approval of the zoning change. The
County Board overruled the recommendation and denied the rezoning
request without giving any reason.
o Rule: Local government actions are “quasi-judicial” where the
decision is one that: (1) has an identifiable impact on a limited
number of person or property interests; (2) is contingent on
facts arrived at from distinct alternatives presented at the local
government hearing; and (3) can be viewed as policy
application (retrospective), rather than policy setting
(prospective).
1. Ex. of quasi-judicial action - site-specific rezonings
o Standard of Review: Rational basis with bite
o Holding/ Reasoning:
1. The landowners’ petition to the zoning authority for a
rezoning for their land demonstrated conclusively that
such use was consistent with the county comprehensive
plan of the county general zoning ordinance
2. There was no assertion or evidence that a more
restrictive zoning classification was necessary to protect
the health, safety, morals or welfare of the general
public; and

34
 3. The petitioning landowners were entitled to the zoning
classification sought and its denial without given
reasons supported by facts was, as a matter of law,
arbitrary and unreasonable and judicially reviewable
and reversible.
 Synder II (Fla. 1993) – a landowner seeking to rezone property has
the burden of proving that the proposal is consistent with the
comprehensive plan and complies with all procedural requirements of
the zoning ordinance. At this point, the burden shifts to the
governmental board to demonstrate that maintain the existing zoning
classification with respect to the property accomplishes a legitimate
public purpose. Note: this holding differs from Synder I in that there
is a burden shifting scheme and that the standard of review applied is
more deferential to the governmental board.
 Note: General rezoning is seen as legislative and thus receives
rational basis review (“rationally related” to a “legitimate” government
interest) whereas specific rezoning is quasi-adjudicative and thus
receives a more searching review under rational basis with bite.
iii. PROCEDURAL DUE PROCESS
1. FAIR PROCEEDINGS
 Developments in the Law – Zoning – 3 interests are served by
extending process rights
o Efficiency interest – assures that governmental decisions
affecting individuals are made correctly and efficiently
1. These interests are implicated in the specific
requirements (1) that zoning boards consistently and
accurately implement the statutory grant of zoning
authority; (2) that decisions be supported by substantial
evidence; (3) that a record be made to facilitate review of
whether decision-making criteria have been correctly
applied; (4) bringing all relevant information to the
decision-maker’s attention during the hearing
o Representational interest – permits the person affected by a
decision to argue before the relevant body about the
substantive rules that are to be applied and how they should be
interpreted in the particular instance
1. Relates to the substantive rules of decision by
promoting debate over the merits and correct
interpretation of the rules themselves. Hearings allow
interested parties to argue how, for example, “undue
hardship” should be characterized and how such a
characterization should be applied to the specific facts.
o Dignity interest – protects individual dignity by requiring
that the government explain its action to those directly affected
1. Participation is the surest means of fostering the belief
that government may not act against the governed in a
clandestine or arbitrary manner

35
 Korean Buddhist Temple analyzes the sufficiency of the procedures
used to deny a variance as a question of constitutional due process
o Korean Buddhist Temple (Haw. 1998) – Honolulu Building
Dept. issued a building permit to the Temple that authorized it
to construct a hall with a height of 66 ft. above grade. After the
hall was built, an inspector from the Dept. of Land Utilization
(DLU) determined that the structure’s height was 9 ft. higher
than authorized by the permit and 6 ft. higher than the max.
height allowed by the ordinance. The Temple filed for a
variance for a height overage. The Temple insisted it was
entitled to a trial-like “contested case” hearing but the hearing
officers held a public hearing on the variance application. At
the hearing, witnesses could testify briefly but the hearing
officers denied the Temple’s requests to cross-examine them.
The Temple could proffer rebuttal witnesses and arguments.
1. Rule: Determination of the specific procedures required
to satisfy due process requires a balancing of several
factors: (1) the private interest which will be affected;
(2) the risk of an erroneous deprivation of such interest
through the procedures actually used, and the probable
value, if any, of additional or alternative procedural
safeguards; and (3) the governmental interest, including
the burden that additional procedural safeguards would
entail.
2. Holding: P is entitled to cross-examine, however, its
inability to cross-examine in this case was an error that
is harmless beyond a reasonable doubt and thus its
procedural due process was not violated.
3. Reasoning: Jurisdictions are split as to whether zoning
variance hearings may validly be conducted without
according the parties the right to cross-examine all
adverse witnesses. Here, the Temple was able to cross-
examine the one expert witness who testified. The
remaining witnesses were neighbors and community
leaders who gave their subjective feelings on the height
issue. Furthermore, there was substantial support in
the record for the decision. It is virtually inconceivable
that cross-examination of the witnesses in question
would have altered the decisions in any way.
4. Note: insofar as the state or the federal constitutions
are concerned, neither the neighbors nor the landowner,
has any entitle to procedural protections unless the
proposed change would deprive them of life, liberty, or
property.
 Notes: Many courts have held that in administrative decisions the
parties to the decision are entitled to some sort of procedural fairness
whenever the decisionmaker is applying preexisting rules to a
particular person rather than making legislative policy.

36
  Statutory Due Process – state zoning enabling acts and the local
zoning ordinance often require certain min. procedures. Additionally,
state enabling acts often specify to whom notice must be given and the
min. form of the notice.
o Technical mistakes in the notice of insufficiently specific
notices may violate due process guarantees.
2. INFORMED DECISIONMAKERS
 Environmental Impact Statements – NY and CA share most of the
litigation over the Environmental Impact Statement Requirement
New York California
Case Chinese Staff & Workers Assoc. (N.Y. Laurel Heights Improvement
1986) – Developer proposed construction of (Cal. 1988) – University
high-rise luxury condos on a vacant lot in proposed to move its biomedical
Chinatown. Depts. of City Planning and facilities to a 10-acre site
Environmental Protection issued a containing a 354,000 sq. ft.
conditional neg. dec. asserting that the project building in a mixed residential
wouldn’t have any significant effect on the and commercial neighborhood in
environment if certain modifications were San Fran.
adopted by the developer. Developer’s special
permit was approved after it accepted the
Depts.’ modifications. P alleged violations of
State Environmental Quality Review Act
arguing that the EIS was arbitrary and
capricious because it did not consider whether
the Developer’s new housing plan would
accelerate displace of low-income
residents/businesses or alter the character of
the community. P sought a dec. that the
special permit was null and void.
When is an Rule: An EIS is needed if the action can be California excludes evidence of
EIS required? shown to possibly have a significant effect on social or economic impacts that
the environment. Environment is defined as don’t contribute to, or are not
“the physical conditions which will be affected caused by, physical impacts on
by a proposed action, existing patterns of the environment.
population concentration, distribution, or
growth, and existing community of
neighborhood character.”
Holding: Potential displacement of residents
and businesses is a significant environmental
effect requiring discussion in an EIS. The
impact that a project may have on population
patterns or existing community character,
with or without a separate impact on the
physical environment, is a relevant concern in
an environmental analysis. Since D did not
consider these potential effects on the
environment in its environmental analysis, its
determination doesn’t comply with the
statutory mandate and there is arbitrary and
capricious.

37
 Reasoning: The fact that the actual
construction on the proposed site will not
cause the displacement of any residents or
businesses is not dispositive for displacement
can occur in the community surrounding a
project as well as on the site of a project.
Exceptions to Rule: There’s categorical
exclusion where agency has no discretion
(ministerial acts). Ex. building permits where
if the statutory requirements are met, the
permit is granted.
Note: an agency attempts to avoid the
statutory EIS by producing just enough
information to justify a finding that the
proposed action will have “no significant
impact” on the environment (FONSI)
When is an Rule: Under substantial evidence
EIS adequate? review, an agency must include
an analysis of the environmental
effects of future expansion or
other action if: (1) it is a
reasonably foreseeable
consequence of the initial project;
and (2) the future expansion or
action will be significant in that it
will likely change the scope of
nature of the initial project or its
environmental effects
Holding: even under the
deferential standard of
“substantial evidence” (where the
court must resolve reasonable
doubts in favor of the
administrative finding and
decision), the University’s EIR
was inadequate because (a) the
EIR addressed only how 100,000
sq. ft. of the building’s space
would be used, ignoring the
future use of 254,000 sq. ft.
occupied by another lessee; and
(b) the EIR didn’t discuss
alternative sites to which the
biomedical facility could be
relocated.
What
consequences,
if any, follow
if an EIS
contains
information
that a
38
 proposed
project will
have adverse
environmental
effects?

SUBDIVISIONS REGULATIONS, BUILDING CODES, RESIDENTIAL COMMUNITY

ASSOCIATIONS

I. SUBDIVISION REGULATIONS
a. Coordination of Street Layouts by Means of Official Maps
i. Problem: Small-scale developers pursuing their self-interests are unlikely to
produce an efficient circulation system for a city.
1. Solution: in some contexts, Coasean bargaining among landowners might
overcome this risk, but not when potentially affected landowners are
numerous
ii. Types of City Layouts
1. No centralized control - Cities that have ‘chaotic’ patterns of downtown
because the streets were created piecemeal. Ex. Boston
2. Grid - Cities that have straight streets meeting at right angles. Ex.
Philadelphia
a. Pro: facilitates the creation of rectangular lots, which are ideal for
siting structures and minimizing disputes between abutting
landowners
3. Grid oriented to true north-south - Cities with streets that follow a
system of land descriptions which use the four cardinal points of the compass.
Ex. Chicago
4. Promulgation of Official Map Influences Street Patterns. Ex.
Manhattan - The oldest and southern part of Manhattan remains a “crazy
quilt” whereas the northern part of the City is laid out in a grid of
rectangular blocks of equal width due to the Commissioners’ Plan of 1811 -
See In re Furman Street (N.Y. Sup. Ct. 1836) in which a similar official
street map was established and used in developing Brooklyn.
a. Note: Courts have generally held that mapping in itself is NOT a
taking.
5. Compensation
a. For a structure built on a site after it had been mapped for
public use
i. Furman Street holds that a landowner who erects a building
within the path of a previously mapped street may have no
constitutional right to receive compensation for the structure
once the street is opened.
ii. Rationalization - if compensation were to be routinely paid in
these situations, a landowner who have no incentive to
mitigate damages and would tend to overinvest capital on sites
designated for future public acquisition
1. Counterargument - if a municipality could freely
prevent improvements in a proposed public space, a

39
 budget-conscious agency might map far more land than
it would if it had to consider landowners’ costs.
b. For loss of land in a mapped right-of-way
i. Issue: when does officially mapping a site for public use
constitute as an unconstitutional taking of the land itself?
ii. When a government insists that a developer dedicate mapped
lands as a condition of receiving a permit, it must prove a
“rough proportionality” between the amount of land it’s
demanding and the burdens on the public that development of
the land would create. See Dolan v. City of Tigard (SCOTUS
1994)
6. Ripeness
a. Not Ripe - Courts regard an official map, like a comprehensive plan,
to be tentative and subject to amendment prior to actual
development. They therefore may hold that a developer’s challenge
to a map is premature.
b. Ripe - A developer who has been aggrieved by a local decision based
on an official map.
7. Rationales and Standards
a. General concept - Developers must first comply with city zoning
ordinances, and then with subdivision regulations. Accordingly,
granting subdivision permits is a critical negotiation moment between
a developer and municipality during the development process.
b. Purpose of Requiring Developers to Provide Subdivision
Layouts - The review of a proposed subdivision map helps enable the
municipality:
i. To enforce lot-dimension requirements appearing in its zoning
ordinance
ii. To obtain lands its official map or comprehensive plan
designates for public uses
iii. To apply standards for subdivision improvements
iv. To exact contributions and design modifications from the
subdivider
c. Rationales for Subdivision Regulations
i. Benefits members from a number of different groups
1. Prospective lot owners –
a. Benefit from the recording of a final subdivision
map that accurately describes each lot within it
because it helps to forestall subsequent boundary
disputes
b. Can be assured that roads will be wide enough to
accommodate firefighting equipment, that sewer
capacities will be adequate, and that
improvements will actually be installed as
planned.
2. Lot owners - Can describe their land in a legal
document simply by referring to a lot number on a
recorded subdivision map

40
 3. Benefits immediate neighbors of a new
subdivision – Local officials can help ensure that local
streets connect together at subdivision boundaries, that
street names are not confusing, and that surface water
escaping from a new development will be properly
channeled.
4. Benefits the community-at-large by coordinating
major transportation arteries and other public
infrastructure
a. Municipal taxpayers –
i. Have an interest in minimizing the costs
of servicing new subdivisions. Ex. A police
car can patrol a loop street more
efficiently than it can a cul-de-sac because
less doubling back is required. Ex. If
streets are well paved at the outset,
subsequent repair costs are lower.
ii. Benefit when their municipality
conditions approval of a subdivision on
the subdivider’s either making cash
contributions to the municipal treasury or
paying to install improvements that, in
existing neighborhoods, are financed out
of general municipal revenues
b. Benefits the subdividers themselves – Since
excessive subdivision and the platting of areas
which are too far from community services or are
not good for development result in financial ruin
for the subdivider.
5. Other rationales discussed in class
a. Lack of salience to consumers - consumers
assume, for example, that firetrucks can without
issue enter the subdivision roads
b. Lack of incentives for developers to create
regulations benefits to others outside the
subdivision - Ex. consumers pay a premium for
homes on cul-de-sacs, so if it was up to developer,
subdivisions would consist of only cul-de-sacs
and no drive-through roads.
ii. Subdivision Standards
1. Municipality’s conditioned approval of
developer’s subdivision plan – See Miles v.
Planning Board of Millbury (Mass. 1989) which
stands for the proposition that courts will not allow local
governments to impose higher regulatory burdens than
is necessary. Nonetheless, courts will be highly
deferential to these local governments because it is like

41
 that they are prospectively planning and as such may
require more from developers as time goes on.
a. Ex. Burying utility lines underground after
development is difficult.
2. Street widths (for more information see CB pp. 443) –
The width of a street right-of-way includes the street
pavement, sidewalks, and parkways.
iii. Criticisms - Subdivision design standards tend to be unduly
costly
1. Ex. During the 1930s, storm drains were designed only
to handle the most severe storm expected to occur in 2-5
year period, but by the 1960s the standard was raised to
a 10 year period.
iv. Critics’ Arguments - relaxation of conventional subdivision
standards would:
1. Reduce development and maintenance costs
2. Cause new subdivisions to do less violence to the
natural environment
II. BUILDING CODES
a. Housing Costs and Government Regulations - Stephen Seidel
i. Issue: would the private market be capable of achieving the same objectives as those
attained through building codes?
ii. Argument: Some form of government intervention in building construction may be
necessary because
1. Building codes serve as a substitute for complete knowledge on the
part of the consumer by ensuring that at least a minimum level of
quality is built into the unit. Without codes there would be little incentive
for builders to incorporate more than a minimal degree of structural integrity
in their product because most consumers are not capable of distinguishing
between varying degrees of structural soundness
2. Externalities – Ex. homebuyers would tend to underinvest in safety
features, thinking only of the potential damage to their own properties,
without considering the effect of fire or a collapsing building on surrounding
properties. Building codes have the effect of re-adjusting this narrow-
minded investment decision by requiring that the potential external
costs be considered in deciding how much safety will be built into
the unit
3. Private-law Alternatives to Government Intervention:
a. Building codes could be written by liability insurance companies
rather than the government
i. Ex. to protect themselves against possible liability, those in the
construction field could obtain insurance which is made
contingent on their compliance with minimum construction
standards as established by the insurance companies
b. Builder Liability
i. To homeowners
1. Limitations - all states other than N.Y. and Vermont
have enacted statutes of repose which limit the time a

42
 plaintiff can sue homebuilders and designers for
construction-defects once the project is completed
regardless of when the defect is discovered or causes
injury. Time limits range from 4 to 20 years
ii. To subsequent purchasers - Privity limitations do not apply in
product-defect cases
1. Limitations - Statutes of repose
iii. For damages to neighbors - under the tort doctrine of
negligence, neighbors would be considered “foreseeable
bystanders” and as such would be able to recover damages from
the builder or possibly against the owner of the building whose
defects led to the damage
4. Basics of Building Codes
a. Definitions
i. Building codes are prospective regulations that identify the
types, sizes, and costs of structures for which a permit is
required and govern the design, materials, and construction
techniques used to erect a new structure of alter an existing
structure. Note: farm construction is commonly exempt from
building codes
ii. House codes are ordinances that apply retrospectively – Ex.
requirement that barriers be installed around existing
residential swimming pools; requirement that certain existing
commercial buildings be retrofitted with a heat-triggered
sprinkler system; requirement that existing houses be served
by both cold and hot water.
b. Statutory Innovations in Building Regulations
i. Model Codes – Internal Code Council (ICC) released the first
editions of the International Building Code, the International
Residential Code (which applies to one- and two-family
dwellings), and a number of specialty codes, i.e. International
Plumbing Code, in 2000. Every state has adopted at least one
International Code at the state level
ii. State Building Codes
1. Adoption - 46 states have statewide building codes,
many of which are variations of the ICC codes
2. Context of Application –
a. Some state codes apply only to select types of
construction, i.e. public buildings
b. 2 states exempt big cities from the state codes -
Ex. N.Y.C. and Chicago
c. Few states prevent localties from stiffening state
code standards - Ex. Minn., N.J., Oregon
d. Majority of states authority the adoption of local
ordinances that make standards more stringent
e. Some states require that a state agency approve
an local variation

43
 5. Rehabilitation Codes –what code should apply to an existing building
about to undergo significant rehab?
a. Traditional Method - 25/50 Rule which states that if renovations
exceeded 50% of the building’s total value, the building code would be
enforced against the entire building. However, if the total were between
25-50%, then the building code would be applied to the renovated
portions
i. Cons: discourages rehabilitation because
1. Local inspectors’ discretion over smaller projects made
it difficult for contractors to make accurate estimates of
rehabilitation costs; and
2. Selective demolition and rehabilitation is costly such
that a project that exceeded the 50% threshold
commonly ended up being far more expensive than
constructing a new building from scratch
b. New Method - Smart Code which immunizes existing buildings
from the requirements applicable to new construction and established
separate requirements for 5 different levels of rehabilitation. Followed
by N.J.
i. Pros: A year after implementing the Smart Code, N.J. found a
60% increase in rehabilitation-related construction in the
state’s five largest cities.
6. Federal Code for Manufactured Housing – National Manufactured
Housing Construction and Safety Act (1974) preempts state and local
standards applicable to the construction of mobile homes
7. Codes Regarding Access for the Disabled
a. Federal Fair Housing Amendments Act (1988) requires providers
of new multifamily dwellings to include some units with doors,
hallways, kitchens, and bathrooms that accommodate wheelchair
users
b. Federal Americans with Disabilities Act (1990) governs the
design of new and altered public accommodations
i. Authorizes private actions against owners, lessees, lessors, and
operators of noncompliant public accommodations
1. Remedy - injunctive relief and attorney fees, but not an
award of damages
8. Green Building Codes
a. History - Growing concern about global warming subsequently
heightened interest in “green building,” that is, designs that reduce,
for example, buildings’ carbon emissions and energy demands.
b. Compatibility with Affordable Development - Complying with
green building standards usually adds to development costs, an effect
perhaps in tension with affordable housing goals
c. Legal Limits - A state or municipal green building code conceivably
might violate higher law.
i. Air Conditioning, Heating and Refrigeration Institute v.
City of Albuquerque (D. N.M. 2008)
III. RESIDENTIAL COMMUNITY ASSOCIATIONS

44
a. Definition -Residential community association is a private government that a developer
may choose to create for home purchasers
b. History
i. Before homeowners’ associations, reciprocal-equitable servitudes (i.e., “restrictive
covenants”) were imposed such that each property owner was burdened by a set of
restrictions for the benefit of every property in the subdivision. Unanimity was
required to amend these restrictive covenants.
1. Reciprocal-equitable servitudes are a product of common law.
2. Homeowners’ Associations are a recent invention in residential development,
and are governed by state legislation.
c. Legal Structure
i. Relevant law - most states have enacted detailed statutes that govern the
formation and structure of residential community associations. Many of these are
patterned after the Uniform Common Interest Ownership Act (UCIOA)
ii. The Homes Association Handbook (1966) recommends that an association:
1. Be incorporated;
2. Be nonprofit in character; and
3. Issue memberships as opposed to stock
iii. General Form (according to Serkin):
1. The Association is a separate legal entity that holds title to common
areas--i.e. sidewalks, golf courses, recreational facilities--in a subdivision
2. The Master Deed governs all units in the subdivision. The Master Deed
also provides for a local governing body and as such unanimity is no longer
required to amend substantive rules
3. Homeowners automatically become members of the association,
however, only one vote is given per lot. Note: in a 3-1 voting scheme one
vote is given to each sold lot while 3 votes are given to each unsold lot. Under
this scheme, the Developer retains control over the content of the
development and terms of the HOA until about 75% of the subdivision lots
are sold.
iv. Functions Performed - An association performs 3 major functions:
1. Its elected board of directors manages and maintains the common
areas the developer has deeded to it. In carrying out this function, the
board may delegate authority to officers elected by the board, to various
appointed committees, and to a property management firm hired to relieve
association members from day-to-day supervision. Ex. of Common areas -
streets, sidewalks, parking areas, recreational facilities, open space
2. An association promulgates and enforces regulations on member
behavior. Ex. pet policies, policies on altering the exterior appear of a unit
3. Its board of directors is empowered to levy assessments enforceable
by lien on a member’s individual unit. Ex. liens may be placed if a unit
member fails to pay user fees (for recreational facilities) or fines imposed
v. Types
1. Cooperative Apartments (“Co-ops”) – Early form of communal ownership
for a building where all units are owned by the co-op. In this context, the co-

45
 op is like a corporation and each unit owner is a “tenant” of the corporation
with an extended lease, usually for 99+ years.
2. Condo Associations
vi. Why do developers create associations?
1. Developer’s POV - There’s evidence that the presence of an association
raises the value of housing units.
2. Municipality’s POV - A municipality, as a condition for land use approvals,
may require a developer to set up an association to provide and pay for
services, i.e., trash removal and street maintenance. If the municipality were
to use local tax revenues to finance these same services in existing
neighborhoods, this policy of fiscal discrimination would lower the relative
value of the dwellings under the care of an association.
vii. Land Use Disputes
1. Between Developer and Homebuyer
a. Tobin v. Paprone Construction Co. (N.J. Super. Ct. Law Div.
1975)
b. Protecting Purchasers’ Expectations About Community
Quality
i. No protection given - Cogburn v. Holness (N.C. Ct. App.
1977): holding that lot purchasers’ rights are determined by
recorded deeds and plats, not developer’s advertising
ii. Protection given -
1. Ute Park Summer Homes Ass’n v. Maxwell land
Grant Co. (N.M. 1972): holding that lot purchasers’
rights are determined by the developer’s advertising
2. White Cypress Lakes Development Corp. v. Hertz
(Miss. 1989) protected the settled expectations of early
buyers from developers who wanted to ease restrictions
on unsold, neighboring subdivision lots that had yet to
be developed.
a. Early homebuyers want to maintain high
restrictions within the subdivision in order to
preserve the value of their land. This necessarily
creates tension between early homebuyers and
the developer.
iii. Transfer of Control of a Residential Community
Association from Developer to Unit Owners
1. Townhouses with Homes Associations: A New
Perspective - Jan Krasnowiecki
a. General concept - the developer retains a 3 to 1
voting superiority over the residents until the
total outstanding votes of the residents equal the
total outstanding votes of the developer, which
occurs when approximately 75% of the lots have
been sold.

46
 b. Problem - developer may use his voting control
to make changes adverse to the interests of the
residents
c. Solution - developer votes should be placed in a
separate class so that the draftsman could
specify in the covenants which issues would
require the asset of the majority of both classes
and which could be determined by a simple
majority of the entire voting membership
2. 3-1 Voting
a. The Homes Association Handbook and the
UCIOA §3-103(d) endorses transfer of control to
purchasers after 3/4s of the units have been sold,
and in any event 2 years after the developer has
stopped offering units for sale in the ordinary
course of business.
b. Issue: why allow a developer to retain 3 votes for
every unit not yet sold, when unit purchasers
receive only one vote per unit?
i. Argument - Potential risk that
purchasers will employ an association’s
rulemaking powers to unduly strengthen
their bargaining position against the
developer.
ii. Ex. Some purchasers are disgruntled
about the quality of the developer’s post-
closing fix-up work on their houses. If
purchasers could gain control of the
association before the developer had
completed all units in the development,
they could threaten to regulate the
permitted hours of construction activity.
iii. Counterargument - in the neighborhood
association, the developer may have less
at stake and an earlier relinquishment of
control would make sense
iv. Developer’s Retention of Discretionary Powers
1. Reasons for continuing developer involvement –
Spare expense of legal fees to establish an
association and safeguard neighboring lands that
the developer retains by having the developer draft
covenants that vest powers of architectural review and
covenant amendment in the developer entity itself
(rather than the association)

47
 2. Architectural review by a developer – Some courts
will uphold the enforceability of architectural review by
a developer entity, however, the developer must
exercise its power reasonably and in good faith.
3. Developer’s power to amend
a. Some courts have held that if a developer retains
the power to modify a restriction, there is no
general scheme with regard to that restriction,
and therefore the lot owners cannot enforce it
among themselves, even if the developer has not
exercised its power to modify
b. More recently, some courts have held that a
developer may exercise any retained right to
amend only to advance the general purposes of
the covenant scheme
4. Developer’s power to veto amendments – Ex.
Disney created a residential community association, but
reserved to itself special powers to control the physical
character of Celebration and to veto amendments
members otherwise might make to the declaration and
rules
2. Association and Homeowner
a. Judicial Review of Residential Community Associations
i. 3 basic legal sources of members’ protections
1. Basic covenant doctrines - member may be entitled
to compel an association to adhere to a valid rule set out
in the declaration or other original governing document
2. State statute - member can invoke the terms of one or
more detailed statutes that govern the structure and
operations of residential community associations. This
applies in many states
3. Federal or state constitutional provision - member
may be able to apply a constitutional constraint if the
association’s activity is adjudged to constitute as “state
action”. This is unlikely to apply
a. SCOTUS developed 2 basic tests for the
finding of state action under the 14th
Amend. State action is present when:
i. There is a symbiotic relationship
between a nominally private entity
and a government - Ex. covenant
restricting age of occupants constituted
state action because city had conditioned
development approval on developer’s
imposition of this covenant

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 ii. An association is serving a public
function - Ex. corporation owning
common areas of walled and gated
retirement community with population of
20,000 was a state actor for state
constitutional purposes when it prohibited
circulation of giveaway newspaper.
ii. Legal constraints on an Association’s Structure and
Procedures
1. Allocation of voting rights –
a. In general, associations give votes exclusively to
the owners of units, but not to non-owning unit
tenants
b. A state statute may compel an association to
follow a specific ownership-based voting scheme
such as: one vote per unit; one vote per square
foot of floor area; or one vote per dollar of
assessed valuation
i. Under all these formulas, an owner of
multiple association units is entitled to
cast multiple votes. Association voting
rules thus resemble those of shareholders
of a corporation, not residents of a city.
2. Meetings - UCIOA §3-108 (1994) requires a governing
board to call a general meeting of the membership at
least once a year and to publicize in advance the
meeting time, place, and agenda
AESTHETIC REGULATIONS CB 497 – 532

I. SIGN CONTROLS – BILLBOARDS

a. AGAINST REGULATION
i. Aesthetic considerations alone do not justify government regulations to take private
property without compensation
1. Paterson Bill Posting, Advertising & Sign Painting Co. (NJ 1905) – D
was convicted of violating an ordinance that said that no sign or billboard
shall be higher than 8 ft. off the ground and not less than 10 ft. from the
street line. Billboard was constructed before the ordinance and no evidence
that it was dangerous to life or limb.
 Holding: The ordinance is invalid since the effect of the ordinance is to
take private property without compensation and cannot be justified as
an exercise of the municipality’s police power.
 Reasoning: Aesthetic considerations are a matter of luxury and
indulgence rather than necessity, and it is necessity alone which
justifies the exercise of the police power to take private property
without compensation.
ii. Aesthetics are too subjective to warrant legal protection.

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 1. Subjectivity, Expression, and Privacy: Problems of Aesthetic
Regulation – Stephen Williams – Accordingly, permitting regulation for
purely aesthetic purposes results in “the dangers of vagueness and of
governmental suppression of aesthetic expression solely on the basis of
majoritarian tastes.”
iii. Aesthetic regulations can violate the First Amendment (Freedom of Speech)
1. Metromedia II (U.S. 1981) – Municipality’s ordinance only prohibits all off-
site “outdoor advertising display” which are signs, including billboards, that
are not located on the premises where the advertised business itself is
located.
 Holding: Overrules Metromedia I, in part, by holding that the
ordinance restricting offsite billboards violates the First Amendment
(Freedom of Speech) and Fourteenth Amendment insofar as it
regulates noncommercial speech.
 Reasoning: The ordinance is underinclusive because its exception of
allowing “onsite” advertising billboards discriminate specifically
against noncommercial speech (and not commercial speech). It allows
businesses in commercial properties to interrupt city motorists so long
as it was with their messages on a billboard located on their property
yet barred noncommercial advertisers from causing the same level of
interruption. Affording a greater degree of protection to commercial
than to noncommercial speech reversed the long-standing Court
precedent to show greater deference to noncommercial speech.
 Test: There is a 4-part test for determining the validity of government
restrictions on commercial speech under the First Amendment: (1) the
commercial speech must concern lawful activity and cannot be
misleading. A restriction on otherwise protected commercial speech is
valid only if it (2) seeks to implement a substantial governmental
interest, (3) directly advances that interests (Note: this was issue
in this case), and (4) reaches no further than necessary to accomplish
the given objective.
2. Gilleo (U.S. 1994) – A city ordinance prohibited homeowners from
displaying any signs on their property except “residence identification” signs,
“for sale” signs, and signs warning of safety hazards. The ordinance permits
commercial establishments, churches, and nonprofit organizations to erect
certain signs that are not allowed at residences. P posted signs in her yard
advocating political causes which D’s ordinance prohibited.
 Holding: The ordinance violates P’s First Amendment right (Freedom
of Speech)
 Rule: even regulations that do not foreclose an entire medium of
expression, but merely shift the time, place or manner of its uses,
must leave open amply alternative channels for communication.
 Reasoning:
i. Overinclusive – The ordinance has almost completely
foreclosed on a distinct medium of expression (here, posting
signs on one’s own yard) for political, religious and personal
messages. Displaying a sign from one’s own residence often
carries a message quite distinct from placing the same sign

50
 someplace else or conveying the same text or picture by other
means. Precisely because of their location, such signs provide
information about the identity of the “speaker” which is an
important component of persuasion.
ii. Underinclusive – The ordinance restricts too little speech
because it prohibits, for example, political signs but allows for,
“residence identification,” “for sale,” and “safety hazard” signs.
 Note: First Amendment forbids stringent local restrictions on the
posting of political campaign signs at the poster’s home or place of
business.
3. Reid (U.S. 2015) – City ordinance prohibited all signs with 23 exceptions
including: (1) ideological signs (communicating a message or idea) up to 20
sq. ft.; (2) political signs up to 32 sq. ft.; (3) temporary directional signs up to
6 sq. ft. only 12 hours in advance of an event and limited to 4 signs. P, a
church whose services are held at various temporary locations, posted signs
that exceeded the time limits for displaying temporary directional signs and
for failing to include an event date on the signs. D cited P for failing to follow
the ordinance, which P then challenged for violating its right to free speech.
 Holding: The ordinance is a content-based regulation that does not
survive strict scrutiny.
 Reasoning: The ordinance is facially content based. It defines the
categories of temporary, political, and ideological signs on the basis of
their messages and the subjects each category to different restrictions.
The restrictions applied thus depend entirely on the sign’s
communicative content. Because the ordinance, on its face, is a
content-based regulation of speech, there is no need to consider the
government’s justifications or purposes for enacting the ordinance to
determine whether it is subject to strict scrutiny.
b. FOR REGULATION
i. A Critique and a Reformulation of the Dilemmas – John Costonis – Aesthetic
regulations promote
1. Visual beauty – Individuals respond affirmatively to particular visual
configurations in the environment
2. Cultural stability – Aesthetic regulations signify values that stabilize
cultural, group, or individual identity.
ii. Toward a Practical Standard for Aesthetic Regulation – Frank Michelman
1. Impacts that various land uses have on neighboring property values – If a
land use causes the value of nearby land to decline, this is objective evidence
that the use is “by a social consensus deemed intrinsically ugly, negatively
suggestive, or destructive of prior existing beauty.”
iii. Metromedia I (Cal. 1980) – Municipality’s ordinance only prohibits all off-site
“outdoor advertising display” which are signs, including billboards, that are not
located on the premises where the advertised business itself is located. Note:
ordinance aimed to eliminate highway billboards
1. Holding/ Reasoning:
 The broad and inclusive concept of public welfare includes aesthetic
values therefore the municipality may exercise its police power to
maintain such values within the community. Here, the purpose of

51
 improving the appearance of the community falls within the city’s
authority under the police power because this state relies on its
scenery to attract tourists and commerce, aesthetic considerations
assume economic value.
 The ordinance is not a content-based restriction therefore it does not
violate Plaintiff’s First Amendment right. Rather, the ordinance is a
“time, manner, place” restriction that restrict the time, manner, and
place of billboards like Plaintiff’s and as such is subject to a
significantly lower constitutional scrutiny standard.
2. Test: a landowner’s constitutional right to maintain an existing billboard
turns on the balance between public gains and private losses that would
result were the billboard to be razed.
 Alternative Test: if a billboard is properly characterized as harmful,
then it may be phased out immediately without compensation. See
Adco Advertisers (Ct. App. 1973) holding that a billboard that is a
public nuisance can be banned without an amortization period.
iv. Metromedia II (U.S. 1981) – the government may regulate the form of billboards
(i.e., movement, size, height, color, and materials)
1. Note: The federal Lanham Act prohibits a state or local government from
requiring alteration of a federally registered trademark.
II. ARCHITECTURAL REVIEW
a. AGAINST REGULATION
i. Architectural review board enforces a regulation containing requirements that are
unconstitutionally vague on its face such that it violates due process of law.
1. Anderson (Wash. Ct. App. 1993) – A “Development Commission”
administered and enforced the City’s land use regulations by approving or
denying applications for land use certifications. P, a developer, submitted
design plans to the Commission to build a commercial building. The
Commission denied such plans on multiple occasions, advising each time that
P submit design plans that followed the building design requirements
contained in the City’s municipal code. The Code required that the building’s
colors be “harmonious” and not “bright” or “brilliant,” that the landscaping
provide an “attractive transition” to adjoining properties, that the project be
“interesting,” and other vague standards. P attempted to follow the Code’s
requirements, but the Commission denied P’s design plans each time.
 Rule: Vagueness Doctrine: a statute which either forbids or requires
the doing of an act in terms so vague that men and women of common
intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law.
 Holding: The Code is unconstitutionally vague on its face and does not
give effective or meaningful guidance to applicants, to design
professionals, or to the City’s public officials who are responsible for
enforcing it.
 Reasoning: The Code used vague terms such as “harmonious,”
“attractive transition,” and “interesting” to define its requirements
which effectively left the commissioners to use their own individual,
subjective feelings to interpret and apply the Code. Accordingly, the
commissioners enforced not a building design code but their own

52
 arbitrary concepts of the City’s preferred “look”. This is the very
epitome of discretionary, arbitrary enforcement of the law which the
vagueness doctrine attempts to limit.
b. FOR REGULATION
i. Architectural review board enforces a regulation containing extensive written
criteria illustrated by schematic drawings and photographs. The illustrations clarify
a number of concepts which otherwise might be difficult to describe with the
requisite degree of clarity to overcome the vagueness doctrine. Cf. Anderson
III. HISTORIC PRESERVATION
a. AGAINST REGULATION
i. A statute or ordinance based purely on aesthetic considerations, without any real or
substantial relation to the public health, safety or morals, or the general welfare,
deprives individuals of due process of law.
ii. Historic preservation is a tradeoff – As a result of historical preservation, property
values in residential neighborhoods may increase, thus benefitting current
homeowners. However, future homeowners may suffer from the decreased supply of
housing.
iii. Value of a property singled out for historic preservation tends to decrease because
the cost of managing that property is high. See Rector of St. Bartholomew’s
Church. When landmarking is burdensome, an owner may respond in a socially
destructive manner
1. Ex. owners let their building deteriorate to avoid the costs of obtaining
approvals for façade improvements or developers are discouraged from hiring
a standout architect because they want their property to be historically
preserved as a landmark.
b. FOR REGULATION
i. Certain buildings are protected under state or federal historical preservation
statutes (Note: the underlying rationale of historic preservation is strengthening of
the community ties)
1. Erickson (Minn. 1979) – P owned a small shopping center that fronted on a
state highway. Wanting to expand, P purchased an adjoining set of code-
violating row houses. Shortly after P had obtained a permit to demolish the
houses, the area was placed in the Preservation District. 3 citizens invoked
the state’s environmental rights statute in an effort to enjoin the proposed
demolition.
 Holding: There is sufficient evidence to find that the row houses are
historical resources within the meaning of the state’s statute
 Rule: There are 9 factors to consider when determining whether a
building is historically significant: (1) age; (2) who built it; (3) who
lived in it; (4) its location; (5) its architecture; (6) unique materials; (7)
quality of workmanship; (8) the building’s association with builders or
important people or events in the area; and (9) its interaction with
other buildings.
2. A structure may be historically significant because of (1) the events that
occurred there; (2) architectural excellence; (3) the construction practices
during a prior era that may be worth preserving to memorialize customary
living patterns (i.e. log cabin)

53
 ii. Rector of St. Bartholomew’s Church (2d Cir. 1990) – NYC designated St. Bart’s
Church and its community house as a historic landmark. The Church wanted to
demolish its community house and replace it with a 47-story office tower to fund its
mission. The City’s Landmarks Preservation Commission denied the demolition and
the Church alleged that an unconstitutional taking occurred.
1. Issue: Does the land-use regulation impair the continued operation of the
property in its originally expected use?
1. Rule: Applied the Penn Central standard to property used for charitable
purposes
2. Holding: The City’s landmark law does not effect an unconstitutional taking
because the Church can continue its existing charitable and religious
activities in its current facilities.
3. Reasoning: Although the regulation may “freeze” the Church’s property in its
existing use and prevent the Church from expanding or altering its activities,
Penn Central explicitly permits this.
4. Note: Today, this case would be brought under RLUIPA and may have come
out differently.
5. Note: historic preservation puts a huge cost on the property owner. Because
landmarking singles out a landowner for special burdens, a local government
commonly confers a palliative such as a property tax reduction or
transferable development rights.
iii. Value of property located in overlay historic districts tend to increase because there
are reciprocal benefits received by the entire neighborhood (everyone in the
neighborhood is subject to the same historical preservation restrictions)
1. ASP Associates (N.C. 1979) – P owned a vacant lot within the local
Oakwood Historic District in Raleigh, and attacked the validity of the local
historic district ordinance on several grounds, among them: (1) Fourteenth
Amendment and state constitutional deprivation of due process on the
grounds of an invalid exercise of the police power and (2) EPC
 Holding: the ordinance is valid.
 Reasoning:
i. Police power. The ordinance did not violate due process
because the regulation of the exterior appearance of historic
structures is a legitimate exercise of the police power when the
object of such control is the State’s legacy of historically
significant structures. Use of the police power to such ends
promotes the general welfare through the educational value of
such preserved building, the revitalization stimulus sparked,
and the architectural creativity fostered.
1. Tout ensemble doctrine. The ‘tout ensemble’ doctrine
is an integral and reasonable part of effective historic
district preservation. Under this doctrine, the
preservation of historic buildings is not a per building
proposition, but rather just as important is the
preservation and protection of the character of the
entire neighborhood in which structures of architectural
and historical significance are situated.

54
 ii. Equal protection. P alleged that the City engaged in spot
zoning by including P’s property but not an adjacent lot with
modern structure within the historic district. The Court found
that there was a reasonable basis for the City to draw the
district boundaries as it did, and as such there was no violation
of EPC.
1. Note: Generally, a landowner’s takings argument is
weaker when a city is trying to preserve not just an
isolated landmark, but all older structures in a larger
historic district. Because a larger number of landowners
are subjected to district-wide controls, an individual
owner has a weaker claim of having been singled out
and forced to confer a benefit.
2. Note: similarly located ≠ similarly situated

PRIVATE COMMUNITIES

FINANCING THE URBAN INFRASTRUCTURE

I. SPECIAL ASSESSMENTS – levies imposed by local governments onto property owners to

finance public improvements (i.e., construction of streets, sewers, and other infrastructure) that
confer special benefits to the property assessed. Note: Business improvement districts (BIDs),
which enable neighborhood property owners to arrange for the supply of supplementary urban
services, are a variant of special assessments.
a. Underlying Rationale: only specially benefitted properties should be required to pay the
cost of an improvement or service that benefits them; it would be inequitable for the general
public to bear these costs.
b. Requirements for Levying Assessments
i. Special benefits to property affected (spatial limitation) – a local government
can impose a special assessment only for a local improvement, as opposed to a
general improvement. Accordingly, special assessments may be levied when a
property assessed receives a special benefit that goes above and beyond any benefits
that accrue to the general population. While there are no definitive standards for
determining what constitutes a special benefit, a special benefit is inferred when
there’s an enhancement of a property’s market value in relation to its potential use.
ii. Levy imposed for a public purpose – assessments must be levied for a public
purpose in addition to providing special benefits to the particular lot owners
(meaning that a landowner may be assessed only for special benefits, not for general
benefits that also accrue to others in the community).
iii. Proceedings to establish special assessments – Before an agency may levy
special assessments on property, it must follow specific procedures including (1)
provision of notice to owners of a property proposed to be assessed, (2) a hearing on
the issue of the assessment, and (3) an opportunity to protest the proposed
assessment.
c. Baker (U.S. 1898)
i. Rule: the principle underlying special assessments to meet the cost of public
improvements is that the property upon which they are imposed is peculiarly
55
 benefited, and therefore, the owner do not, in fact, pay anything in excess of what
they receive by reason of such improvements.
ii. Holding/Reasoning: The exaction from the owner of private property of the cost of a
public improvement in substantial excess of the special benefits accruing to him is,
to the extent of such excess, a taking, under the guise of taxation, or private
property for public use without compensation.
d. Hubbard (S.D. 2010) – D (City) began a street improvement project on Ps’ street. D
determined that Ps’ street, curb, and gutter required complete reconstruction. D levied
individual special assessments at a set rate per linear foot of reconstructed curb and gutter
and a set rate of per square foot of reconstructed driveway approaches. Ps were notified and
appeared at the City Commission meeting to object to the proposed resolution of needing
special assessments. D adopted the resolution without amendments and notified all affected
property owners of the amount specially assessed against each lot. Ps challenged the special
assessments as violations of the 5th Amendment (takings) and the State’s Due Process
provision, arguing that (1) replacing curb, gutter, and driveways gave no benefit to their
lots and (2) in the alternative, D would have to assess each lot based on the benefits
received rather than on the per linear foot cost of the construction. Overall challenge:
benefits charged via special assessments was greater than benefits to property
i. Rules:
 If a local public improvement confers a special benefit on private property, a
special assessment can be constitutionally imposed if the assessment does not
exceed the benefit received. Determining whether a project confers special
benefits requires a finding that the assessed property receives a benefit above
and beyond or differing from the benefit enjoyed by the general public.
Special benefits must be actual, physical, and material and not merely
speculative or conjectural. One obvious indicator that property receives a
special benefit is if the public project enhances its market value.
 Special assessment is presumptively valid. Ps have the burden of proving by
clear and convincing evidence that the property did not receive a benefit over
and above or differing from the benefit received by the general public.
ii. Reasoning: Ps, who were certified planners, testified that the replacement curb and
gutter did not enhance the value or aesthetics of their property and may, in times of
heavy rain, provides less protection to their lot than the older, higher curb. The
county assessor and real estate broker testified that replacing existing curb/gutter
(1) did not increase the assessed value of the property for tax purposes and (2) does
not increase the market value of the property, respectively. The real estate appraiser
testified that it was almost impossible to determine an amount that a property
might benefit in value by replacing gutter/curb. The trial court found that Ps
presented sufficient evidence that the property was not specially benefitted by clear
and convincing evidence which shifted the burden to D. The trial court found that
the special assessments were levied using speculative and conjectural methods,
creating an alleged benefit in excess of the increase in specific monetary or extrinsic
value conferred, for projects that provided significant benefits to the City and the
community as a whole.
iii. Holding: P wins. Because the trial court’s findings of fact are based on the evidence
and not clearly erroneous, this Court declined to substitute its judgment as to the
weight and credibility of the evidence.

56
 e. 2nd Roc-Jersey Assoc. (N.J. 1999) – D (City) enacted an ordinance which uses real
property values in the Special Improvement District as the basis for determining special
assessments. Residential properties are exempt from such special assessments. P, a
business owner, received a special assessment for $64,000. P challenged the ordinance,
arguing that (1) SID is a tax meant to be paid by everyone not a special assessment and (2)
special assessment is an unconstitutional taking of property without just compensation
(unduly coercive to make a business pay to simply stay somewhere).
i. Issue: Are the assessments imposed on commercial property in a Special
Improvement District unconstitutional because residential properties are excluded
from the assessments?
ii. Reasoning: Urban sprawl, that is, a landscape dotted by planned office developments
and malls connected by highways and thoroughfares, has resulted in the
diminishing vitality of traditional city centers. SIDs provide a quasi-public solution
to this problem. SIDs provide for services that are specifically intended and designed
to better commercial properties and promote economic growth in the business
community. Any spillover of benefits to the general public that might accrue from
SID-paid services were insufficient to alter the calculus, nor did such spillover alter
the essential purpose and effect of the SID to benefit primarily the commercial
properties. None of the benefits provided by the SID are aimed directly at residences
and none of its budget is spent directly on residential properties. Although a portion
of the SID budget is spent on beautification and street cleaning, services from which
residents also benefit, a larger portion is spent on hospitality guards, business and
retail recruitment, advertising campaigns and façade loans and grants to
commercial and retail properties. The SID is responsible for aesthetic or cosmetic
physical improvements that serve as a part of a larger effort aimed exclusively at
benefiting commercial properties.
iii. Rule: Special assessments are valid when they provide a combination of services and
improvements that are intended and designed to benefit particular properties and
demonstrably enhance the value and/or the use or function of the properties that are
subject to the special assessment.
iv. Holding: P loses. SID provides sufficiently identifiable benefits to the subject
properties and that the special assessments are measured reasonably and fairly in
proportion to the benefits conferred. Further, because the benefits are substantial
and the cost proportional to those benefits, the SID is not an unconstitutional taking
of property without just compensation.
II. EXACTIONS – the local government raises revenue from developers by either exacting
physical improvements or imposing fees in exchange for permission to develop
a. Legal concerns about exactions include: (1) extortionate demands; pretextual
exactions (profit-seeking); (3) inconsistent development; (4) distributional concerns (only
imposed on new development); (5) development deterrence
b. Heightened Scrutiny Standard – a more exacting (or “heightened”) scrutiny occurs when
a public agency creates ad hoc exactions.
i. Nollan (U.S. 1987) – Ps originally leased a beachfront property with an option to
buy. Ps’ option to purchase was conditioned on their promise to demolish the small
bungalow on the property and replace it. In order to do so, Ps needed to acquire a
construction permit from the California Coastal Commission (D). D determined that
the Ps’ house would block views from the highway to the ocean. D required that in
exchange for the construction permit, Ps would grant a public access easement

57
 across the beach at the front of Ps’ lot to mitigate this impact. Ps claimed the
condition as a taking under the Fifth Amendment.
 Issue: Did requiring an uncompensated conveyance of a public easement as a
condition for receiving a permit constitute a taking?
 Holding:
a. A permanent physical occupation has occurred where individuals are
given a permanent and continuous right to pass to and fro, so that the
real property may continuously be traversed, even though no
particular individual is permitted to station himself permanently upon
the premises.
b. Ps’ rights are not altered simply because they bought the land after
the Commission implemented its policy. If the prior owners couldn’t be
deprived by the easement without compensation, then neither can Ps
since all property rights transfer at sale.
i. Dissent: Ps received notice of the easement prior to buying the
land.
 Reasoning: There is not connection between the impact of the house (block
views from the highway) and the required dedication of public access on the
back side of the property along the beach. D could have attached conditions to
preserve the views from the highway, such as reducing the height of the
house or even providing a viewing area for the public. But the requirement
for beachfront access had nothing to do with the blockage of views. Without
an “essential nexus” between the condition and the impact, the condition is
considered unconstitutional.
 Rule: An essential nexus must exist between the “legitimate state interests”
and the permit condition exacted by the city. Unless the permit condition
serves the same governmental purpose as the development ban, the building
restriction is not a valid regulation of land use but an out-and-out plan of
extortion.
 Note: if D had denied Ps’ permit outright without imposing any condition,
then a taking under Penn Central would not have occurred.
ii. Dolan (U.S. 1994) – P applied to the city for a permit to expand her hardware store
by doubling its size and paving a huge parking lot. The City approved the permit on
the condition that she dedicate land to the city for a floodplain easement and for a
bicycle and pedestrian paths. The purpose was to mitigate the effect of the
additional runoff and traffic created by the project.
 Issue: what is the required degree of connection between the exactions
imposed by the city and the projected impacts of the proposed development?
 Rule: City must make some sort of individualized determination that the
required dedication is roughly proportional to the impact of the proposed
development
a. Burden of Proof: when a developer challenges an exaction that a local
government has imposed as a condition for permission to develop, the
local government bears the burden of proving that it has made “some
sort of individualized determination that the required dedication is
related both in nature and extent to the impact of the proposed
development.” The local government is also required to bear the
burden of justifying the required dedication.

58
  Holding: the findings upon which the city relies doesn’t show the required
reasonable relationship between the floodplain easement and P’s proposed
new building.
 Reasoning: An essential nexus exists between the dedications and the
project’s impact; the floodplain easement would mitigate the effects of
additional runoff and the bicycle path could reduce automobile traffic.
However, the dedications are not proportional to the actual impact of
expanding P’s hardware store. In terms of the public greenway, D did not
show that a public greenway, as opposed to a private one, was necessary to
control flooding. A public greenway would completely eradicate P’s right to
exclude others from her property, a significant burden not justified by D.
Although the city found that the pathway could offset some of the traffic,
such speculation was not sufficient to warrant a requirement that P dedicate
a portion of her land for that purpose.
 Note: a municipality prohibited from imposing exactions might turn to
techniques such as exclusionary zoning and growth controls, measures that,
when legal, may have even worse consequences for landowners and housing
consumers.
c. Note: Environmental Impact Analysis and Fiscal-Impact Analysis are used to determine
the impact of a proposed development on neighbors, the local government, and the
environment.
i. Fiscal-impact analysis attempts to calculate both the new revenue the project would
generate to various local governments within whose boundaries it falls, and the
incremental costs those governments would have to bear to provide services to the
development.
d. Failed Exactions
i. Koontz – P bought a 15-acre tract of undeveloped land. P decided to develop 3.7-acre
of that land and applied to the District (D) for permits. To mitigate the
environmental effects of his proposal, P offered to foreclose any possible future
development of 11-acres of his land by providing D with a conversation easement. D
considered the 11-acre conservation easement inadequate, and informed P that it
would approve construction only if he agreed to either: (1) reduce the size of his
development to 1 acre and deed D a conversation easement on the remaining 13.9
acres or (2) proceed with the development as proposed (develop 3.7-acres and grant a
11-acre easement) and agree to hire contractors to make improvements to a district-
owned land several miles away that would have enhanced approximately 50-acres of
district-owned wetlands. P rejects D’s proposition and sues. Note: this case
constitutes a “failed exaction” because the deal between the developer and
municipality fell through. Accordingly, the municipality denied the permit, and
nothing was actually “taken” from P.
 Holding: The government’s demand for property from a land-use permit
application must satisfy the Nollan/Dolan requirements even when it denies
the permit.
 Rule: the unconstitutional conditions doctrine forbids burdening the
Constitution’s enumerated rights by coercively withholding benefits from
those who exercise them.
 Reasoning: Extortionate demands for property in the land-use permitting
context run afoul of the Takings Clause because they impermissibly burden

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 the right not to have property taken without just compensation. As in other
unconstitutional conditions cases in which someone refuses to cede a
constitutional right in the face of coercive pressure, the impermissible denial
of a governmental benefit is a constitutionally cognizable injury.
 Note: Exactions cannot be extortion – it doesn’t matter is the costs to the
developer are more than the costs of the problem. What matters is whether
the benefits of the exaction are roughly proportional to the condition imposed.
That is, the exaction must be roughly proportional to the harm created by the
development.
e. NOLLAN/DOLAN/KOONTZ TEST to determine whether an exaction constitutes as a
taking (Note: Nollan/Dollan/Koontz involve a special application of the unconstitutional
conditions doctrine that protects the Fifth Amendment right to just compensation for
property the government takes when owners apply for land-use permits).
i. Is there an essential nexus that exists between the “legitimate state interest” and
the permit condition exacted by the city? (Nollan).
 No – Taking (Nollan)
 Yes – Did the City make some sort of individualized determination that the
required dedication was roughly proportional to the impact of the proposed
development? (Dolan)
a. No – Taking
b. Yes – No Taking
ii. Koontz stands for the proposition that Nollan/Dollan test applies to failed
exactions and monetary exactions (money demands as opposed to just land)
III. TAXES – governmental levies imposed on the general population to finance generally provided
services that provide benefits for the entire population. Ex. property taxes are used mostly to fund
public schools.

DISCRIMINATION
Because city officials can predict that certain types of households are likely to choose to live in certain types
of housing units, absent legal constraints, they could use land use regulations as an effective, if indirect,
mechanism for excluding certain groups from the city’s resident population

I. RACIAL
a. OVERVIEW
i. Rather than organically occurring, patterns of racial segregation in housing are the
product of specific efforts and policy choices
 In Euclid, for example, Justice Sutherland referred to apartments as being
“parasitic” to single-home residential areas. The racial overtones this opinion
harbored was evident since the decision was made at a time when apartment-
living was a proxy for race.
ii. After Buchanan v. Warley (SCOTUS), cities developed more indirect land use
controls to confine African Americans and other racial and ethnic minorities to
certain areas of town.
iii. [Professor Serkin thinks]: Even today, racial segregation in housing is a common
and persistent phenomenon in this country despite efforts to change this.

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  Reports of the End of Segregation Greatly Exaggerated - Jonathan
Rothwell
o Segregation is still high throughout America
Using a dissimilarity index, the data shows that 51% of
U.S. metropolitan black population still lives in 50
metropolitan areas where segregation is high. A score above 60
is considered high - and means that 60% of blacks would have
to switch neighborhoods with whites to achieve balance
Hispanics and whites are growing more isolated, in part
as a result of exclusionary zoning practices, such that Hispanic
levels of neighborhood isolation now approach black levels.
 Compare The End of the Segregated Century: Racial Separation in
America’s Neighborhoods, 1890-2010 - Edward Glaeser & Jacob
Vigdor
o The study measured racial segregation in residential areas using both
a dissimilarity index and isolation index. Data from both showed that
segregation is at its lowest level since 1910 and all-white neighbors
are “virtually extinct”
Definitions
1. Dissimilarity index: measures the extent to which two
groups are found in equal proportion in all
neighborhoods. It can be interpreted as the proportion of
individuals of either group that would have to change
neighborhoods in order to achieve perfect integration.
2. Isolation index: measures the tendency for members of
one group to live in neighborhoods where their share of
the population is above the citywide average
b. Levels of Segregation – Are existing levels of residential segregation therefore
explainable as a function of wealth or income, rather than race?
i. Separate When Equal? Racial Inequality and Residential Segregation -
Patrick Bayer
 There is evidence that education, income, and wealth gap reductions between
blacks and whites do not lead to decreases in residential segregation
 As the proportion of highly educated blacks in a metropolitan area increases,
the segregation of both highly educated blacks, and all blacks, goes up. That
increase in segregation stems in large part from the emergence of middle-
class black suburbs.
o Income and other socioeconomic characteristics, however, play a much
more significant role in Hispanic/Latino-white and Asian-white
segregation.
 Discrimination in home sales and rental markets
o In 2010, the Urban Institute found that overt discrimination against
Hispanics and Latinos, African Americans, and Asian Americans
continued to decrease from 2000, but that “minority homeseekers are
told about and shown fewer homes and apartments than whites

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 o To establish discriminatory practices in the sale or rental of a unit,
fair housing organizations sometimes send testers - two applicants
who are essentially identical, except for their races or ethnicities - to a
seller. Both individuals try to purchase or rent the home; if the white
individual is accepted but the other person is denied, that denial is
used as evidence of discrimination.
 Discrimination in the mortgage market
o Minority communities received a disproportionate number of
subprime loans issued in the early and mid-2000s
Prevalence of subprime lending in minority
neighborhoods left those neighborhoods particularly affected by
the foreclosure crisis
o Residential Segregation and the Transformation of Home
Mortgage Lending - Carolyn Bond & Richard Williams
While the expansion of traditional lending is associated
with decreasing levels of segregation, expansion of subprime
lending is not, and may lead to increasing levels of segregation
ii. Exclusionary Zoning Ordinances - today, racial segregation is created or maintained
in part through facially neutral ordinances that have a racially disparate effect
 Legal Challenges
o Standing
Warth v. Seldin (SCOTUS 1975) (CB pp. 746)
1. Facts: broad constitutional and statutory attack on the
zoning practices of the town of Penfield, an elite suburb
of Rochester, NY. Plaintiffs included (1) not-for-profit
organizations interested in alleviating housing problems
of low-income families; (2) Rochester taxpayers; (3) low-
income minority residents living in the Rochester area;
(4) Rochester Home Builders Association
2. Holding: none of these 4 parties had standing to bring
the action
3. Compare Arlington Heights I - SCOTUS held:
a. MHDC had standing because the village’s denial
of the requested rezoning was “an absolute
barrier to constructing the housing MHDC had
contracted to place on the Viatorian site.”
b. Individual African-American Plaintiff also had
standing because he had testified that he would
qualify for the housing MHDC sought to build
and would probably move there if it were built.
Accordingly, this Plaintiff had presented more
than a “generalized grievance” and shown a
“substantial probability” that if the relief sought
were awarded, the housing opportunity he
desired would materialize

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 Lujan v. Defenders of Wildlife (SCOTUS 1992)
1. Holding: Plaintiffs must allege a “concrete and
particularized” injury and show that it is “likely as
opposed to merely speculative that the injury will be
redressed by a favorable decision” in order to meet the
constitutional requirements for standing
The impact of Warth and Lujan on exclusionary zoning
litigation has been softened by the SCOTUS’ prudential (as
opposed to constitutional) standing limitations, such as the rule
against assertion of third parties’ rights, do not apply where
plaintiffs sue under the Fair Housing Act. That is, third
parties have the right to sue (or have standing) under
the Fair Housing Act
o Constitutional - 14th Amendment’s EPC
2 ways to challenge a local zoning ordinance under EPC:
1. Facial challenge - The local zoning ordinance explicitly
uses race classifications
2. As-applied challenge - To successfully challenge a local
government’s zoning ordinance under the EPC of the
14th Amendment, Plaintiff must show that the local
government intended for the zoning ordinance to have
a racially discriminatory effect.
a. See Village of Arlington Heights v.
Metropolitan Housing Development Corp.
(“Arlington Heights 1”)(holding that in order
to bring a successful EPC claim in the context of
zoning, P must show discriminatory intent and
not merely discriminatory effects)
b. After Arlington Heights 1, only a few litigants
have been able to prove discriminatory intent. It
is all but impossible for a plaintiff to successfully
bring an EPC claim against the local government
for a discriminatory zoning ordinance.
c. Challenges to municipal service disparities do
occasionally survive Arlington Heights I
o Statutory - The Fair Housing Act (FHA)
See Metropolitan Housing Development Corp. v.
Village of Arlington Heights (“Arlington Heights II”)
(holding that FHA prohibits both de facto and de jure racial
discrimination by government actors)
U.S. Dept. of Housing and Urban Development issued
regulations implementing a discriminatory effect standard
under the FHA
1. Liability - Under the regulations, “liability may be
established under the Fair Housing Act based on a

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 practice’s discriminatory effect even if the
practice was not motivated by a discriminatory
intent. A practice has a discriminatory effect where it
actually or predictably results in a disparate impact on
a group of persons or creates, increases, reinforces, or
perpetuates segregated housing patterns because of
race, color, religion, sex, handicap, familial status, or
national origin.”
2. Burden of Proof - The charging party or the plaintiff
has the burden of proving that a challenged practice
caused or predictably will cause a discriminatory effect.
The respondent or defendant then has the burden of
proving that the challenged practice is necessary to
achieve one or more substantial, legitimate,
nondiscriminatory interests of the respondent or
defendant. If the respondent or defendant satisfies that
burden of proof the charging party or plaintiff may still
prevail upon providing that the substantial, legitimate,
nondiscriminatory interests supporting the challenged
practice could be served by another practice that has a
less discriminatory effect.
See Texas Department of Housing and Community
Affairs v. Inclusive Communities Project, Inc. (SCOTUS)
1. In 2015, SCOTUS held that the FHA prohibits both
government and private actors from making housing
decisions that have a discriminatory effect on a
protected class, even if this effect was not necessarily
intended at the time of such decisions.
a. Note: FHA prohibits racially restrictive
covenants in property deeds (this prohibition
pertains more to private actors)
Searching for Fair Housing - Lee Fennell
1. The FHA prohibits “discrimination based upon sale or
rental of dwelling.” Lee argues that under this
language, buyers can also violate the FHA if they look
for housing in communities only with a particular
demographic.
2. Segregation and patterns of segregation are created and
reinforced as much by the individual choices of
consumers.
o Affirmatively Furthering Fair Housing (AAFH) - legal requirement
that federal agencies and federal grantees further the purposes of the
FHA
See United States ex rel. Antidiscrimination Center
of Metro New York, Inc. v. Westchester County

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 1. Aftermath: as part of the settlement, Westchester
agreed to acknowledge that the terms “affordable
housing” and “fair housing” had different meanings.
a. Fair Housing: affordable housing in “high
opportunity” neighborhoods in which there were
the fewest black and Hispanic/Latino residents
The Dept. of Housing and Urban Development issued a
proposed regulation elaborating on local governments’ AFFH
obligations
1. The proposed rule replaces the required AI with a
standardized “Assessment of Fair Housing” through
which local governments would evaluate their fair
housing challenges and goals using regional and
national benchmarks and data that HUD would provide
iii. “Expulsive” Zoning Claims - some jurisdictions have tried to drive on any minorities
already living in the municipality
 Apart from land use controls that placed blacks in residentially inferior
environments, governments have also engaged in practices that diminish the
quality of life for the residents within African-American communities
o Provision of inferior environments
Locating waste treatment facilities in minority
neighborhoods
Establishing multifamily units far from public
transportation and city centers
o Selective use of annexation and boundary line changes to
disenfranchise and deny services to black residents
Redistricting school boundaries such that only children
from wealthy neighborhoods with higher property values
attend quality public schools. (Note: public schools are proxies
for racial segregation)
o Inequitable relocation or non-location of important public institutions
o Regressive and disparate property tax assessments
o Encouragement of mortgage and insurance redlining
Redlining: refers to the policy practiced by financial
institutions, i.e. banks, in which redlines were drawn around
certain areas (generally areas with a high minority population)
considered “too risky” for mortgage approval.
1. Effects - Although the equitable development of these
homes halted, they became more expensive and more
difficult to buy than homes outside the redlined area.
Note: The Community Reinvestment Act (CRA),
designed to end the practice of “redlining”, required banks to
lend money in the communities where they were chartered to
do business or receive deposits.

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 o Disproportionate displacement of African-American families through
urban renewal, highway, and local redevelopment projects
Ban on multifamily units
iv. General policies v. individual decisions
 Issue: Can plaintiffs establish a prima facie case of discriminatory effect
when challenging a local government’s refusal to grant a request for a
rezoning, special use permit, or variance?
o Several courts have suggested that disparate impact analysis applies
only to challenges to facially neutral policies, not to individual
permitting decisions, because no comparison of the permitting
decision’s impact on groups other than the applicant is possible.
II. LOW-AND MODERATE-INCOME HOUSING
a. Background Information
i. The Supreme Court has held
 Lindsey v. Normet (SCOTUS) - housing is not a fundamental right
 San Antonio Independent School District v. Rodriguez (SCOTUS) -
wealth is not necessarily a suspect classification
ii. Some states, however, read their constitutions to prohibit discrimination against
low- and moderate-income housing
 See Southern Burlington County NAACP v. Township of Mount Laurel
(“Mount Laurel I”)(holding that every municipality must bear its fair share
of the regional burden)
o Underlying issue in Mount Laurel I - inter-local externalities
o Doctrinal footing considerations after Mount Laurel I - should the case
have been brought under a ‘federal’ legal claim?
Yes. Expand EPC to include ‘economic discrimination’
as an inherently suspect basis of classification
No. Expanding EPC to include ‘economic discrimination’
as an inherently suspect basis of classification would dilute the
protections currently afforded by EPC.
1. Ex. If EPC protected from ‘economic discrimination,’ the
plaintiff pool expand significantly, including:
a. Individuals of low- and moderate-incomes who
are excluded from a community by virtue of local
zoning regulations
b. Any individuals who were poor in the sense that
they paid too large a proportion of their incomes
for shelter
 See also Southern Burlington County NAACP v. Township of Mount
Laurel (“Mount Laurel II”)
o Repercussions of Mount Laurel II - a builder’s remedy is better for
developers of high-end housing rather than affordable housing
because ‘high-end’ housing developers may use a builder’s
remedy as a means of extortion.

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 Ex. Developer wants to build a high-end apartment
complex, but the Municipality says no. The Developer
threatens the Municipality with the development of a low-end
affordable housing complex in which the Municipality can’t
stop from being built because of the builder’s remedy afforded
under Mount Laurel II
o Reactions - legislatures from both political sides criticized Mount
Laurel II
[Rick Hill thinks] that the real objection to the Mount
Laurel cases derives from the skepticism on how the fair share
is calculated and applied.
b. Motivations for Exclusionary Zoning
i. Fiscal Zoning - exclude low- and moderate-income housing in order to keep taxes low
 Pros: Excluding low- and moderate-income housing
o Enhances efficiency.
Tiebout Hypothesis - specialization among
suburbs is efficiency enhancing.
1. Counterargument - one of Tiebout’s key assumptions
was that there are no cost or benefit spillover between
communities
o Keeps taxes low.
The Judicial Pursuit of Local Fiscal Equity -
Robert Inman & Daniel Rubinfeld
1. Residents of high income suburbs have an incentive to
protect their favorable tax base, since a large tax base
per family means low tax rates for any chosen spending
level. Admitting families into the community who
purchase homes with a value below the community
average will lower the tax base per family. Thus, if the
community wishes to maintain current spending levels,
it will be forced to raise tax rates. This increase in tax
rates will make the suburb less attractive to future
residents and hence lower the resale value of the
remaining residents’ properties.
2. While existing residents wish to exclude, private
developers have a strong incentive to build high density
housing for lower income families in these communities.
They can offer an attractive price for a residential site
within a rich community and then earn sizeable profits
by subdividing the lot into many smaller plots and
selling them to lower income families. Thus, working
through a developer, a “coalition” of low income families
can, in effect, pool their resources and outbid one high
income family for a residential plot in the high tax base
suburb.

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 o Permissible under classism.
Diversity in America - Peter Schuck
1. Almost all Americans endorse classism which is the
notion that one may properly choose to live with others of
one’s wealth or income level but has no moral claim to
live in a community one cannot afford.
 Cons: Excluding low- and moderate-income housing
o Inefficient.
Reversing Judicial Deference Toward
Exclusionary Zoning: A Suggested Approach - Jeffrey
Lehmann
1. Fiscal zoning (1) imposes costs on developers,
landowners, and the potential consumers of housing; (2)
leads to a spatial mismatch between the demand for and
supply of labor; and (3) increases the consumption of
land and its attendant environmental harms
o Unfair.
Localism and Regionalism - Richard Briffault
1. With property wealth and service needs unevenly
distributed throughout the region and greater property
wealth per household generally concentrated in areas of
lower need, there are profound interlocal taxing and
spending inequalities.
2. More affluent localities do very well under this system,
but poorer localities do not. The localities whose people
are in greater need are simply unable to meet the needs
of their residents or to compete for the tax base that
would enhance their fiscal capacity.
a. See Growing Cities, Shrinking Cities - Kyle
Fee & Daniel Hartley (CB pp. 6-7) - cities with
low household incomes in 2000 had population
losses, even controlling for job growth in the
MSA. This may be due to a deterioration in
public good such as safety and high-quality
schools stemming from a diminished tax-base.
The designation of an area as an historic district tends
to attract higher-income households and displace lower-income
households.
o Prevents great diversity within neighborhoods.
Waring Blender model - all land uses and all types
of households should be represented in each
neighborhood in proportion to their representation in
the entire metropolitan area because this produces
greater diversity within neighborhoods.

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 1. Counterargument - Waring Blender model produces
great diversity within neighborhoods, but no diversity
between neighborhoods, and thus may limit the variety
of residential choices available to households.
I. GOVERNMENT AS FINANCIER
a. OVERVIEW – the government can seek to influence urban patterns by providing financial
support to selected beneficiaries via grants, direct loans, insurance of others’ mortgage
loans, tax breaks, operating subsidies, and seed capital. 3 governmental objectives: (1)
assisting housing consumers (especially poor ones); (2) promoting economic and community
development; (3) nurturing innovations in the design of urban spaces and institutions
b. AIDING HOUSING CONSUMERS – Note: affordable housing is provided through
exclusionary zoning or federal low=income housing tax credits (LIHTC)
i. Federal Aid to Homebuyers
1. Tax benefits. IRC makes homeownership highly advantageous, particularly
for high-income households that face the highest marginal income tax rates.
These income tax preferences have caused too much of the nations capital to
be invested in housing, thereby exacerbating sprawl.
2. Insurance. FHA insures certain loans to protect private lenders from the
losses they would suffer if borrowers were to default on their obligations. By
providing this insurance, FHA has induced many lenders to raise loan-to-
value rations (thereby reducing down payments) and to extend mortgage
lives (thereby lowering monthly payments).
3. Aid to secondary mortgage markets. Mortgage money is more cheaply
available when a lender who originates a mortgage loan can sell it readily in
a secondary market to other investors.
ii. Federal Aid to Tenants
1. The False Promise of the Mixed-Income Housing Project – Robert
Ellickson
a. Project-based Assistance: involves government financial aid to a public
(or limited-profit) landlord to enable that landlord to lease dwelling
units in specific building at below-market rents to eligible households.
The benefit or subsidy is anchored to the unit, not the recipient tenant
meaning that a tenant who moves out of the public housing usually
forfeits the subsidy benefits previously conferred.
i. Pros: provides guaranteed housing for eligible recipients
ii. Cons: (1) ratio of tenant benefits to subsidy costs has tended to
be 50 cents per subsidy dollar. (2) creates a housing project
concentrated with low-income people. (3) concentrated poverty
in specific buildings can result in increased crime and the
dilapidation of the building. (4) constrains tenant mobility. (5)
creates distortions in the labor market since tenants have an
incentive to stay where the subsidy is located.
b. Tenant-based Assistance: takes the form of Section 8 housing vouchers
to eligible householders. If and when a voucher recipient finds a
private landlord willing to participate in the program, the tenant pays
a set percentage of the household’s monthly cash income toward the
monthly rent, and the government pays the remaining balance

69
 directly to the landlord. Housing vouchers are portable meaning that
the benefit ravels with the recipient.
i. Pros: (1) allows tenants greater mobility since Section 8
vouchers are not restricted to a certain unit. (2) Because
Section 8 housing vouchers are portable, even across state
lines, they tend to be better at promoting racial and class
integration.
ii. Cons: (1) often, it is difficult for tenants who are granted a
Section 8 voucher to find a qualifying unit and a landlord
willing to participate – a tenant frustrated in this question
eventually loses the voucher. (2) Section 8 vouchers are often
used in poor areas, so doesn’t necessarily resolve the
concentrated poverty issue seen with project-based assistance.
iii. Federal Low-Income Housing Tax Credits – LIHTC program provides tax
credits that can be sold to investors who need tax relief. Many developers sell their
tax credits to banks because banks can use these tax credits to satisfy their
obligation under the Community Reinvestment Act (which conditions bank mergers
on banks demonstrating that they’re serving their communities). To be eligible for
LIHTC, a project must involve either new construction or substantial rehabilitation,
and, for at least 15 years, offer at least 20% of units at reduced rents to households
whose incomes are significantly below the median for the relevant geographic area.
1. Cons: LIHTC program involves project-based subsidies, a form inherently
less efficient than tenant-based subsidies.
2. Pros: significant number of affordable housing units have been built with
LIHTC support
iv. Exclusionary Zoning – use of zoning ordinances to exclude certain types of people
from a given community
1. Exclusionary zoning operates at the regional, local, and sub-local level.
Generally, the value of local services are capitalized into property values.
a. Regional level – ex. people move from the South to NE because the
wages are higher, thus allowing them to move up the class ladder. In
response, NE engaged in more restrictive zoning to increase property
values such that the higher wages doesn’t afford people a better
lifestyle.
b. Local level – younger people move to cities to gain access to mass
transit. But the cost of mass transit is capitalized into city housing
prices.
c. Sub-local level – school value is fully capitalized into home prices
because homes within better school districts are more expensive.

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