Land Use Planning Terms 1) Abstention - Pullman- First doctrine of abstention to be announced, The Federal Courts should not

adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded reasonable opportunity to pass on them. Permits a federal court to stay a plaintiffs claim that state law violates the Constitution until the states judiciary has had an opportunity to apply the law to the plaintiffs particular case 3 conditions required State law issue is potentially dispositive State law must be unclear Disposing of state law will avoid constitutional question Pullman abstention is appropriate where: The complaint touches a sensitive area of social policy upon which the federal courts ought not enter unless no alternative to its adjudication is open Such constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy The possibly determinative issue of state law is doubtful - Burford- Allows a federal court sitting in diversity to abstain where the state courts likely have greater expertise in a particularly complex area of state law (strong presumption that federal courts should not apply Buford abstention) - Younger- bars federal court from hearing civil rights tort claims by persons who are currently being prosecuted for a matter arising from that claim in state court E.g.- person arrested for drug possession sues state for illegal search, federal court will not hear until the person is convicted of drug possession 2) Accessory Use - Generally zoning ordinances state that landowners may use their land for a principal permitted use and for activities that are accessory to that use; accessory uses are uses of land that are found on the same parcel as the principal use, but are subordinate and incidental to the principal use; the term accessory use also applies to accessory structures. E.g.- a detached garage may be accessory to the residential use of a property because it is tied to the principal use (as a place for homeowner to store his automobile) and subordinate to the principal permitted use (the house). - Zoning ordinances ordinarily specific a range of accessory uses that landowners have come to expect as customary when they purchase their property, because they allow for additional beneficial use. Examples for residential properties include garages, storage sheds, and fences, more recently satellite dishes Accessory uses that are not consistent with the expectations of surrounding landowners should be prohibited or limited - One common controversy associated with accessory use is the question of whether such a use can be built on a lot before a principal use is established Can a garage or storage shed be built before the house; can a dog house be built on a vacant residential lot? Without specific language permitting the accessory use to stand alone an accessory use is considered unlawful until the accompanying principal use or structure is established 3) Adequate Public Facilities Schemes (APF)

APF schemes typically specify detailed standards for determining whether facilities are adequate to support a proposed development. To secure approval for a project, the developer must show that the impacts of the proposed project will not violate the Level-of-Service (LOS) standards for each of the facilities covered in the APF. If the project would cause the quantity or quality of service to fall below the standard, the developer must either finance the infrastructure improvements personally or postpone development until government provides additional facilities. APF requirements are increasingly common. - Some states have passed acts that require all local governments to prepare a comprehensive plan that includes a capital improvements element addressing, standards to ensure the availability of public facilities and the adequacy of those facilities including acceptable levels of service. The acts then prohibit a local government from permitting any new development, which results in a reduction in the level of services for the affected public facilities below the level of services provided in the comprehensive plan. - Public facilities include: Roads; sewers; solid waste; drainage; potable water; parks and recreation; and sometimes mass transit - Concurrency Requirements- some services such as sewer, solid waste, drainage, and drinking water must be available at the time the new development would be issued its certificate of occupancy or comparable permit. Sometimes, a developer will be allowed to proceed if they make a binding commitment to pay the developers fair share of the cost of the facility - Public Facility Requirements to Limit Urban Expansion- acts can be implemented to require that public facilities and services for rural areas be provided at levels appropriate for rural use only and not support urban uses. 4) Adjudicative - of or relating to adjudication; having the ability to judge Adjudication- the legal process of resolving a dispute; the process of judicially deciding a case To hear and settle a case by judicial procedure; to study and settle a dispute or conflict - BOZA and DDRC are considered quasi-judicial bodies BOZA decisions are given great deference in Cir. Ct. (unless BOZA is making a finding of law) - Characteristics of an adjudicative decision Smaller scale, smaller numbers of participants Smaller number of relevant variables at issue Impact on person(s) more severe and immediate than on the public at large (e.g. variance, special exception, building permit) More rule based, whereas legislative decisions are more concerned with competing values Not as great a need for non-legal expertise, as in a legislative decision Small need for independent fact gathering - Legislative v. quasi-judicial decisions Numerous issues depend upon whether a governmental decision is characterized as legislative: When the decision is ripe for review Immunity of a local official from 1983 suits Procedures to be followed when the decision is made Procedures litigants must follow to secure judicial review

 Whether the decision may be submitted to popular vote (referendum) Right to cross-examine witnesses Quasi-judicial designation limits the nature of a trial courts review, and the nature of the appellate courts review of the trial courts decision For a court to review an agencys adjudicative decision, it must be able to examine a record to determine whether there is sufficient evidence supporting the local agencys findings - Procedural Due Process Adjudicative decisions are subject to the protections of procedural due process, thus parties are entitled to: A hearing Reasonable notice that the hearing is being held Articulated standards for decision Express findings supported by substantial evidence Snyder v. Board of County Commissioners Issue: whether the decision made by the Commissioners to deny rezoning request was a legislative act Holding: rezoning is not legislative in nature Effective judicial review: constitutional due process and other essential requirements of law, all necessitate that the government agency applying legislated land use restrictions to particular parcels of privately owned lands must state reasons for action that denies the owner the use of land and must make findings of fact and a record of its proceedings sufficient for judicial review Board of County Commissioners v. Snyder This decision quashes Snyder Holding: just because the hearing below was a quasi-judicial proceeding does not mean the decision is subject to a heightened judicial scrutiny; in order to sustain a boards action, upon review by cert in the Cir. Ct., it must be shown that there was competent substantial evidence presented to the board to support its ruling 1000 Friends of Oregon v. Wasco County Court It is a violation of due process in an adjudicative decision if one of the decision makers has a personal interest in the outcome Any tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias. However, the court in this case held that such a proposition does not stretch to a quasijudicial decision - Criticisms of quasi-judicial review Are local bodies equipped to make these switches (between quasi-legislative and quasijudicial) so that when they supposedly act judicially, fairness and due consideration are ensured? While localities have preexisting standards and procedural rules that promote fairness and due consideration, they lack the secure tenure of office that further promotes those standards in the judiciary Can local decision makers really be expected to be impartial in their quasi-judicial capacity when they are not in their other capacities? 5) Amortization

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; grace period putting owners on fair notice of the law and giving them a fair opportunity to recoup their investments - Validity depends on reasonableness and is presumed valid BOP on owner to overcome presumed validity by demonstrating that the loss suffered is so substantial that it outweighs the public benefit to be gained by the exercise of police power Length does not have to be based on a municipalitys land use objectives, periods are calculated to protect the rights of the individual owner at the temporary expense of public land use objectives - Usually, if a nonconforming use is abandoned, a subsequent use must be in conformance with the zoning regulations; abandonment requires a period of nonuse and the intent to abandon that use 6) As Applied Constitutional Review - To challenge a measure of the government, individuals can bring either a facial challenge or an as-applied challenge; a successful as-applied challenge finds the measure or a part unconstitutional as applied to the individual, leaving it otherwise intact - Courts have shown a preference for as-applied challenges Actions of a political branch and states are accorded a presumption of constitutionality Courts are reluctant to find government measures wholly unconstitutional There is a fairly heavy burden placed on anyone bringing a facial challenge - While a facial challenge may be brought soon after a statutes passage in a legislative body, an as-applied challenge can only be brought once it has been enforced - An as-applied challenge is retrospective because it seeks to redress a constitutional violation that has already occurred - Ripeness An as-applied challenge is not ripe for review until a governmental entity charge with the implementation of the challenged regulation has reached a final decision regarding the application of the regulation to the property at issue An as-applied challenger must exhaust all administrative remedies before their challenge will be ripe for review; if the property owner/ developer were to seek administrative relief and a mutually acceptable solution is reached, there is no need to address the constitutional issue Factors cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations to the land in question Once it has become clear that the agency lacks the discretion to permit a land use of a property or the permissibility of the use is known to a reasonable degree of certainty, claim is more likely to have ripened A plaintiff is not required to purse alternative avenues of relief if the pursuit would be futile 7) Business Improvement District (BID) - A defined area within which businesses pay an additional tax or fee in order to fund improvements within the districts boundaries - Grant funds acquired by the city for special programs and/ or incentives such as tax abatements can be available to assist business or recruit new businesses - BIDs provide services such as, street cleaning, security, capital improvements, construction of pedestrian and streetscape enhancements, and marketing for the area These services are supplemental to those already provided by the municipality

2nd Roc-Jersey Associates v. Town of Morristown Benefits provided to the assessed properties must be substantially greater than those provided to the public in general Benefits must be certain rather than speculative, although it may arise in the future Intended and designed to better commercial properties and promote economic growth in the business community Special assessment will not be deemed taxes and may be limited to commercial properties A valid special assessment must be as nearly in proportion as possible to the benefit received, however, they need not be measured with mathematical precision 8) Civic Republicanism/ Public Interest/ Communitarian Model - Coexistence in the judicial mentality of 2 different and contradictory models of local government legitimacy Economic/ public choice Non-economic public interest/ community self determination Depends at bottom on a belief in the realityor at least the possibilityof public or objective values and ends for human action; in this public interest model, the legislature is regarded as a forum for identifying or defining and acting towards those ends The process is one of mutual search through joint deliberation relying on the use of reason supposed to have persuasive force Majority rule is experienced as the natural way of taking action as and for a groupor as a device for filtering the reasonable from unreasonable, the persuasive from the unpersuasive, right from wrong, good from bad Moral insight, sociological understanding, and goodwill are all legislative virtues; representatives are chosen in part for supposed excellence in such virtues - Civic Republicanism in Zoning- where strong, mature, well organized, and cohesive residential communities are already heavily built up, zoning tends more toward the participatory model and relates to a broader range of interests to be regulated. In such situations, people, residences, businesses, and institutions are in close proximity and are highly interdependent. Such built up, dense urban communities are often also characterized by well-developed and institutionalized sociopolitical organization that is commonly formalized in ongoing community organizations. Such organizations embody and express a claim of rights to represent the collective interests of the community and to negotiate on behalf of shared interests when significant community change is proposed. In such communities zoning serves to institutionalize and embody this collective claim to a voice in decisions on significant community change. Civic republicanism analysis is interested in facilitating the communal definition of shared goals and is hostile to neighborhood voting if the format is one that would tend to make participants act in a self-interested, as opposed to public spirited way 9) Cluster Zoning - A type of zoning in which density is determined for an entire area, rather than on a lot by lot basis. Within the cluster zone, the developer has greater flexibility in designing and placing structures. The overall density requirements should be met by the developer. Developments in cluster zoning often incorporate open, common areas with park-like settings - Cluster zoning specifies housing density for an entire area overall. Hence a developer is free to use some space for high-density housing and other space can be used for low-density lots. Cluster zoning is a type of smart zoning which is in contrast to traditional zoning ordinances that specify the same density for each lot within an area

Cluster zoning permits residential properties to be clustered together more closely than is normally allowed, leaving substantial land area to be devoted to open space - Traditional zoning results in a more cookie-cutter development plan (i.e. grid patterns of single family homes), this is most often achieved through Euclidean Zoning - Under cluster zoning, the local government allows deviation from the minimum lot area, setback, and frontage requirements to encourage the developer to cluster houses together and dedicate the saved land for recreational purposes or open space The overall density of the project remains the same, but increases the density of the land actually developed Benefits derived from cluster zoning include reduction in cost of roads and infrastructure; preservation of natural features and environmentally sensitive areas; possibility of open spaces and common recreational areas; greater range of housing choices - Unlike PUDs, cluster zoning does not deviate from the Euclidean principal that different housing types and other uses should remain segregated - See Chrinko v. South Brunswick Township Planning Board (upholds cluster zoning) 10) Coase Theorem - Coase argues that, in a world of costless market transactions, there would be no externalities because any outsiders affected by a land use activity would bring home those effects by, for example, offering to pay the land user to alter the activity. Coases article soon spawned a rich literature, much of it emphasizing the implications of the fact that transaction costs are in fact positive. 11) Comprehensive Plan - Land use document that provides the framework and policy for land use decisions - South Carolina Code Ann. 6-29-510 (pg. 61) South Carolina does not require a county or municipality to create a local planning commission. If a locality does create one, however, the commission must produce a local comprehensive plan, which must include, but not be limited to, the following planning elements: A population element which considers historic trends and projections, household numbers and sizes, educational levels, and income characteristics An economic development element which considers labor force and labor force characteristics, employment by place of work and residence, and analysis of the economic base A natural resources element, which considers coastal resources, slope characteristics, prime agricultural and forest land, plant and animal habitats, parks and recreation areas, scenic views and sites, wetlands, and soil types A cultural resources element, which considers historic buildings and structures, commercial districts, residential districts, unique natural or scenic resources, archaeological, and other cultural facilities A community facilities element, which considers transportation network, water supply, treatment and distribution of sewage and wastewater system, solid waste collection and disposal, fire protection, emergency medical services, education facilities and libraries and other cultural facilities, and general government facilities A housing element, which considers location, types, age and condition of housing, owner and renter occupancy, and affordability of housing; and

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A land use element, which considers existing and future land use by categories, including residential, commercial, industrial, agricultural, forestry, mining, public and quasi-public, recreation, parks, open space, and vacant or undeveloped Conditional Use Zoning - Flexible device designed to meet the problem which arises where certain uses, although generally compatible with the basic use classification of a particular zone, should not be permitted to be located as a matter of right in every area included within the zone because of hazards inherent in the use itself or special problems which its proposed location may present - By this device certain uses (e.g. gas stations, electrical substations, hospitals, schools, churches, country clubs, and the like) which may be considered essentially desirable to the community, but which should not be authorized generally in a particular zone because of considerations such as current and anticipated traffic congestion, population density, noise, effect of adjoining land values, or other considerations involving public health, safety, or general welfare, may be permitted upon a proposed site depending upon the facts and circumstances of the particular case Contingency Contract - Depends on one or more events that may or may not take place. If the occurrence(s) happens, the parties have a binding contract. In the event that the expected activity does not occur as specified in the agreement, the contract becomes invalid. Some of the most common contingency agreements include contingency fees, real estate contingency, and construction contingency Contract Zoning - The process by which the property owner, in consideration of the rezoning of that persons property, agrees to the imposition of certain conditions or restrictions not imposed on other similarly zoned properties Cumulative Zoning - Method of zoning in which any use permitted in a higher-use, less intensive zone is permissible in a lower use, more intensive zone E.g.- under this method, a house could be built in an industrial zone, but a factory could not be built in a residential zone Commercial Speech - Speech where the speaker is more likely to be engaged in commerce, where the intended audience is commercial or actual or potential customers, and where the content of the message is commercial in character - Commercial speech, such as advertisements, has been ruled by SCOTUS to be entitled to less protection under the 1st Amendment than non-commercial speech; under the 1st Amendment, non-commercial speech is entitled to full protection, and any sort of content-based regulation is only valid if it can withstand strict scrutiny, however, commercial speech is not given such deference and content based regulation is only subject to intermediate scrutiny Commercial speech that is false or misleading is not entitled to any protection under the 1st Amendment and therefore can be prohibited entirely Development Agreement - In some states, developers can protect themselves against changes in land use regulations that might interfere with the completion of a project by entering into development agreements with the local government - Typically grants the developer a freeze period during which subsequently enacted laws or regulations will not apply to the project, except in specified (usually emergency) situations

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The developer obtains greater certainty, which is especially important when a project has multiple phases and requires large early investments, in return the local government may be able secure the developers agreement to provide more public facilities and mitigation measures Denominator Problem in Takings Law - in Penn Central, SCOTUS ruled out of the blue that takings law does not divide property into discrete segments and therefore a taking occurs only when an owners entire ownership is excessively regulated, therefore the owners are not entitled to compensation where a part of their land remains economically viable - This gave rise to the question of what is the denominator of ownership fraction (i.e.- what is the larger ownership whose part is being subjected to confiscatory regulation) since the regulatory taking of a part of it (the numerator) is not compensable Dillons Rule - Traditional rule that courts narrowly construe any local powers that state has conferred through enabling legislation; along with the Standard Zoning Enabling Acts detailed structuring for the zoning process, this rule made municipal zoning systems fairly uniform throughout the US Distributive Preference - The effects of government land use regulations are inevitably uneven, some people come out ahead and others suffer losses; some land use decisions depend on how it is decided that these costs should be borne Downzone - Growth control in which a municipality will restrictively zone areas where they want to limit growth; this land is usually zoned as restrictively as possible, allowing the municipality to place conditions on rezoning the property Economic Analysis - A theory of land use regulation that assumes that the market will provide the most efficient results, as property owners act in their own self interests Economic/ Public Choice Model - All substantive values are regarded as strictly private and subjective, the legislature is a market like arena which votes instead of money are the medium of exchange Equal Dignity Rule - A municipality cannot supplant or replace an ordinance without another ordinance that is equal in dignity Estoppel of Government - Closely related to the vested rights doctrine - Bars a local government from enforcing zoning rules when a property owner: Relies in good faith Upon some act or omission of the government Has made substantial change in their position or incurred such extensive obligations and expenses that it would by highly inequitable and unjust to destroy the right he has acquired Euclidean Zoning - A zoning regime that segregates land uses to minimize conflicts, zones are defined by the types of uses allowable in the area Exactment/ Extraction - Requirement that a developer provide, or pay for, some public facility or other amenity as a condition for receiving permission for a land use that the local government could otherwise prohibit

28) Exclusionary Zoning - The general concept is that local government institutes a zoning regime for the purpose of keeping out minorities, poor people, or large extended families, ect. - See pg. 698-730; 760-768; Village of Belle Terre, pg. 710 29) Executive Session - When a local governmental body discusses executive or business matters in a session that is closed to the public 30) Exhaustion of Administrative Remedies - A ripeness consideration, requires a plaintiff to seek relief through all avenues of administrative adjudication before he is permitted to have his case considered by a judicial body - Williamson- challenge to zoning law is not ripe until a final determination has been made by the highest administrative agency - See pg. 85-6; 234-51; 715 31) Externality/ Externalize - Harmful effects of lack of planningpoor infrastructure, bad traffic, ect.that are generally absorbed by the public when the effects creates public nuisances and other inconveniences - Justification for zoning, moves nuisance law from courts to regulation to avoid the large transactional costs and uncertainties inherent in the judicial system 32) Facial Constitutional Review - Plaintiff challenges the constitutionality of the entire law or regulation on its face - Challenge will be defeated if any instances exist where the law would be constitutional - Plaintiff does not have to wait for the enforcement of the law or regulation to have a valid challenge, as distinguished from an as applied challenge which requires the actual application of the regulation or law by the agency charged with its enforcement and exhaustion of all administrative remedies before the challenge is valid - A successful facial challenge results in the striking down of the entire statute or regulation 33) Fair Housing Act (FHA) - Federal statute making it unlawful to discriminate in the selling or renting of a property to anyone based on color, race, religion, national origin, sex, familial status, or other protected characteristic - See pg. 776-82 34) Fair Housing Amendment Act (FHAA) - Federal statute amending the content of the Fair Housing Act, uses exact same language but extends the protected characteristic provisions to include the disabled - See pg. 723 35) Federal Highway Beautification Act of 1965 - A Federal statute which requires that landowners be compensated for the mandatory removal of billboards from their lands along Federal interstate highways - See pg. 475 36) Free Rider - The concept that in the absence of zoning regulations, one landowner would have to compensate another landowner for not creating a public nuisance, and the other neighbors would reap the benefits for free, making them free riders 37) General Purpose Local Government

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Basic local government entitiescounties, towns, municipalities, ect, as distinguished from special purpose local government entities which are tasked with the management of specific services, such as school districts, transportation districts, water resource management, ect Gentrification - Concept that initially inner cities suffer economic decline and after property values have become sufficiently depressed, higher income individuals will return and consequently force up property values, rent levels, and taxes, forcing current lower income residents to have to leave - See pg. 9-10; 505 Grandfather - Relates to non-conforming uses; occurs when a property has been rezoned and is not in compliance with the requirements of the new zoning, however, it has been grandfathered into the new regulations and is permitted to continue to exist; grandfather status usually ends if the noncompliant use is abandoned - See pg. 197-202; 230-31 Homevoter Hypothesis - The concept that local politicians only pay attention to the desires of local voters, regardless of merit or the larger effects of these preferences; creates a presumption that higher levels of government will consider issues with less bias and more concern for the larger effects of the policies being decided - See pg. 46-47 Incentive Zoning - A zoning scheme that allows landowners to exceed some of the restrictions normally applying in the relevant zoning classification in exchange for substantial contributions to the benefit of the community as a whole Initiative - A drive to force the consideration of an issue or passing or repeal of a law, accomplished by collecting a certain, specified number of signature on a petition - Ion v. Mount Pleasant- South Carolina Supreme Court said that zoning ordinance and related legislation is too complex to be allowed to be accomplished through the initiative and referendum method Intermediary Scrutiny Standard of Constitutional Review - Medium level of constitutional scrutiny, requires that a law or policy further an important (rather than legitimate) governmental interest in a way that is substantially related to the important government interest Internalize - Concept that occurs when the property owner covers his own costs, solves his own problems, and keeps the effects of his activities confined to this own property - Land use regulation seeks to impose the internalization of many of the problems arising from various land uses Legislative - Relating to a body of elected officials who represent constituent voters; as applied to a decision, ruling, or process, it is one which considers an issue generally and applies generally to all people in the area represented by the legislative body - Usually characterized by the weighing of competing interests, rather than by adherence to and the application of a set code of rules Legislative Bypass

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LULU - Locally Undesirable Land Use - A specific land use that is beneficial to the community as a whole, but form the view of nearby residents has drawbacks that outweigh the benefits provided - Examples include: landfills, prisons, schools, poultry farms, nuclear power plants, low income housing, livery stable, ect. Mandamus - An order to a ministerial official by a judiciary entity to fulfill a duty or other action required by the ministerial officials governmental capacity Market Failure - Unsupervised supply and demand resulting in the inefficient use of properties, due to financial concerns being given higher priority than the overall good of the community and the individual participants lack of planning for the good of the community - Characterized by vacant buildings, partially occupied shopping malls, scattered business districts, inefficient infrastructure, and sprawl Ministerial - A governmental office or function which posses no discretion in the performance of its assigned task or duty Moratorium - A stoppage by law of a certain practice, usually temporary, usually necessitated by poor planning to allow a period of adjustment before allowing development to proceed as normal National Register of Historic Sites - An official list created by the Federal government which is composed of districts, sites, buildings, structures, and objects deemed worthy of preservation - A property listed in the National Register may qualify for tax incentives derived from the total value of expenses incurred preserving the property New Urbanism - A new term for traditional planning of cities, based on the way that cities naturally grew before the prevalence of cars - Characterized by multiple uses, residential and commercial, being concentrated within a small area, allowing residents quick access on foot to most establishments they would normally visit in ordinary daily life NIMBY - Not In My Back Yard - The term is typically used to describe opposing arguments for local residents who want convenient access to a development project, but who want to avoid having the project be located too close to their own property - Hubbard mentioned in class that being close to a school is desirable, but being the neighboring property is undesirable - Another example would be an airport, which would benefit local residents by boosting the economy, adding jobs, and making transportation more readily available and convenient but that no one would want the airport adjacent to their property due to noise, pollution, and the traffic the airport would generate Noerr- Pennington Doctrine

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Under this doctrine, private entities are immune from liability under the antitrust laws for attempts to influence the passage or enforcement of laws, even if the laws they advocate for would have an anticompetitive effect - The doctrine is grounded in the 1st Amendment protection of political speech, and upon a recognition that the antitrust laws, tailored as they are for the business world, are not at all appropriate for the application in the political arena - For application to land use in SC see City of Columbia v. Omni Outdoor Advertising Inc. - See Eastern Railroad Presidents Conference v. Noerr Motor Freight Inc. and United Mine Workers v. Pennington Nollan- Dolan Rule - A rule developed by SCOTUS in regards to regulatory exactions which requires that the state have an essential nexus between the exaction being imposed and the state interest being advanced, also requires in the analysis of the exactions that there be a rough proportionality between the exactions and the impacts of the project. Nonconforming Use - A type of zoning variance where a parcel of land may be given an exception from current zoning ordinances due to improvements made by a prior owner or before the current zoning ordinances made the desired use non-conforming under local law; nonconforming use status can be lost through abandonment, the expiration a specific time period the nonconforming use is allowed for, or through destruction beyond a certain specified percentage (usually 50%) after which the landowner will not be allowed to rebuild or repair - Nonconforming uses must be approved and granted by BOZA Overlay District - An overlay district is an additional zoning requirement that is placed on a specified geographic area but does not change the underlying zoning - Subjects the property to restrictions under both schemes - Common type of overlay district is a historic overlay district This is a layer of local planning regulation which incorporates the restrictions of the underlying zoning for a given geographic area and imposes additional ones aimed at preserving the historic character of the neighborhood Overlay districts are typically created by a municipal zoning commission are subject to the public hearing process with input from local historic preservation committees and legislative approval They are most frequently challenged individual landowners seeking variances or permission to engage in new construction, due to high level of deference typically afforded local municipal governing bodies challenges are not often successful Landowners stand a better chance of success in seeking variances or permission to engage in new construction by demonstrating either that a municipal body erred in its application of the zoning ordinance or that the building at issue actually meshes well with the overall historic character of the district These types of overlay districts are typically subject to the authority of DDRC Pending Ordinance Doctrine - Pending ordinance doctrine is a judicially created principal that allows a municipality to deny an application for a property use which, although currently in accordance with existing law, violates a law that is pending when the use application is made

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The doctrine was created to curb landowners attempts to circumvent a new ordinance by applying for a nonconforming use on the eve of its approval Planned Unit Development (PUD) - A planned unit development, is both a type of building development and regulatory process, a PUD is a designed grouping of varied and compatible land uses, such as housing, recreation, commercial center, and industrial parks all within one contained development or subdivision - It is in the ability to design each of these components simultaneously that makes PUDs effective; each of the elements work together to enhance the whole, this is a major advantage over traditional zoning practices that force lots to be planned in accordance with broad rules, resulting in incompatibility Police Power - Police power describes the basic right of governments to make laws and regulations for the benefit of their communities; under the system of government in the US, only states have the right to make laws based on their police power, the lawmaking power of the Federal government is limited to the specific grants of power found in the Constitution - The rights of states to make laws governing safety, health, welfare, and morals is derived from the 10th Amendment, which states, The powers not delegated to the US by the Constitution, nor prohibited to the states, are reserved to the states respectively, or to the people. - State legislatures exercise their police power by enacting statutes, and they also delegate much of their police power to counties, cities, towns, villages, and large boroughs within the state - Police power is used as the basis for enacting a variety of substantive laws in areas such as zoning, land use, fire and building codes, parking, nuisances, schools, and sanitation Preclusion - Claim Preclusion- also known as res judicata, refers to when a case in which there has been a final judgment and is no longer subject to appeal; the doctrine is meant to bar or preclude continued litigation of the claim by the same parties - Issue Preclusion- also known as collateral estoppel, prevents a person from re-litigating an issue; once a court has decided an issue of fact or law necessary to its judgment, that decision precludes re-litigation of the issue in a suit on a different cause of action involving a party to the first case; the rationale behind collateral estoppel is the prevention of legal harassment and the abuse of judicial resources Principal Use - Principal uses relate to the main purpose of the district, exist independently of any other uses of the property, and are allowed by right; dwellings in a residential district or stores in a business district are examples of principal uses Prisoners Dilemma - A description of market behavior essentially competitive or cooperative in combination with the free rider problem Illustrated by the example involving two criminals: when two criminals get caught, if neither cooperates they both get 2 years in prison, if they both talk both will get 7 years, if one talks the other will get 20 years; the dilemma is that neither should talk but if since you have no way assuring that the other criminal will behave in the most rational way, you have no option but talk in order to avoid a scenario in which you keep quiet and the other criminal speaks up Private Good - An item that yields positive benefits to people that you can exclude other from and the consumption by one prevents consumption by others (rivalrous)

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A private good is scarce, which can cause competition for it This is distinguished from a public good, which there can be no exclusion, leading to the free rider problem Public/ Social Good - our resources, shared or protected rhetoric; public goods include police, fire, roads, schools, ect.; Hubbard mentioned that the argument for more private enterprise is that the same methods are used, but instead of money the public elected officials strives for votes Rate of Growth/ Quota Programs - Regulation that imposes a maximum overall growth rate on a municipality as opposed to a moratorium; allows only growth that municipal services can cope with See Construction Industry Association v. City of Petaluma Rational Basis Standard of Constitutional Review - Default level of constitutional review; applied for due process or equal protection challenges related to the 5th or 14th Amendments - Lowest level of judicial review, requires that a government action be rationally related to a legitimate government interest Referendum - A direct vote in which the entire electorate is asked to either accept or reject a particular proposal - See problem 5 - Ion v. Mount Pleasant S.C. Code Ann. 15-17-10 provides that electors of a municipality may propose any ordinance, except an ordinance appropriating money or authorizing the levy of taxes. The petition containing the proposed ordinance must be signed by qualified electors of the municipality equal in number to at least 15% of the registered voters in the last regular municipal elections. 15-17-30 requires council to submit the proposed ordinance to voters in a referendum when it fails to pass the ordinance or passes it in a form substantially different from that set forth in the petition. SC Local Government Comprehensive Planning and Enabling Act of 1994 repealed the existing zoning and planning provisions in Title 5 and 6; combined the provisions into a single, comprehensive set of provisions available to local government; the detailed nature of zoning acts indicates a legislative intent that zoning matters must be decided only in a manner specified in those acts SC Supreme Court- We decline to interpret the any ordinance language in 15-17-10 to encompass zoning by initiative and referendum process and the comprehensive Title 6 provisions indicates the Legislature did not intend to allow voters to enact more complex zoning measures by initiative and referendum. Furthermore, the Title 6 provisions enacted in 1994 address the matter of zoning in detail. We conclude the Legislature intended for this more specific and more recent enactment to take precedence over the general initiative and referendum process enacted 37 years ago. Right-of-Way - Term used to describe the right to travel unhindered on a route regardless of land ownership or any other legality, public right of way is not restricted by land ownership in any way and grants travel access to all Ripeness

The readiness of a case for litigation SCOTUS has a 2 part test for assessing ripeness of a takings claim: There must be a case or controversy (constitutional ripeness); and The taking must have actually occurred (provincial ripeness) - State and Federal courts apply the same standard for determining ripeness See Williamson County Regional Planning Commission v. Hamilton Bank; Palazzolo; and San Remo Hotel v. City and County of San Francisco 72) Religious Land Use and Institutionalized Persons Act (RLUIPA) - Federal law which prohibits governments from imposing or implementing a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, assembly, or institution unless the government can demonstrate that the imposition of the burden: Is in furtherance of a compelling governmental interest; and Is the least restrictive means of furthering that interest - Applies in any case in which: The substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a general rule of applicability; The substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several states, or with Indian tribes, even if the burden results from a rule of general applicability; or The substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved - The statute has been interpreted to apply to all zoning or land marking laws that limits or restricts a claimants use or development of land - The statute has been interpreted to expand religious accommodations to a point where it restricts municipalities zoning power and gives religious landowners a special right to challenge land use regulations which their secular neighbors do not have - See Congregation of Kol Ami v. Abington Township 73) Rooker- Feldman Doctrine - A rule of civil procedure created by SCOTUS which holds that Federal courts, other than SCOTUS, should not sit in direct review of state court decisions unless Congress has specifically authorized such relief - Unless otherwise authorized, a state court plaintiff has to exhaust all state court remedies before litigating in Federal court - In takings cases it operates as a type of abstention doctrine, says that when a state court rejects a state takings claim the adverse state court ruling cannot be appealed in federal district court, instead the plaintiff must petition for a writ of certiorari from SCOTUS - See note 5, pg. 255 74) 42 U.S.C. 1893 - Civil Action for Deprivation of Rights, Every person who under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the US or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress

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Authorizes relief in the form of monetary damages to anyone whose constitutional rights have been violated by an actor acting under State authority, rather than just the basic remedy for constitutional violations, which is specific performance or an injunction - See sup. pg. 373 Slop Zoning - Where one classification of zoning spills into an area with another classification; distinct from spot zoning, where the zoning difference will be confined to a specific lot, slop zoning seeks to encompass a specific lot by extending existing zoning into a district with a different classification. Sexually Oriented Business (SOB) - A Sexually Oriented Business, these commercial operations are generally subject to greater levels of land use regulations, particularly in where they can operate in relation to specified other land uses, the types of signage and advertisement they can display, and need additional permits to operate - Ordinances limiting SOB locations and other rights regarding land use often times require the municipality to justify the limitations by providing studies showing the extent of the secondary effects produced by these businesses and confirming their factual existence - See problem 2 and pg. 227 Special Exception - A flexible zoning device that deals with certain uses which, although generally compatible with the basic classification of a particular zone, should not be permitted as a matter of right in every area of a particular zone because of hazards inherent in the use itself or special problems which its proposed location may present - Must be granted by BOZA under city code 17-112, in addition to standard zoning conditions, BOZA must also consider the proposed uses impact on: Traffic Vehicle and pedestrian safety Potential impact of noise, light, fumes, or obstructions of air flow on adjoining properties The adverse impact of the proposed use on the aesthetic character of the environs, to include the possible need for screening from view; and Orientation and spacing of improvements or buildings - Essentially the flip side of variances - Also known as conditional uses - See pg. 299 Special Improvement District (SID) - An organization, management, and financing tool used by local businesses to provide specialized services that complement rather than replacing existing municipal government services as part of a revitalization plan - Permits property owners and business to organize and asses themselves in order to pay for the services that are needed - Funded through assessment of taxes which factor in calculations based on property valuation, square footage, or street frontage - See Business Improvement District Special Purpose Governmental Entity - An independent governmental unit that exists separately from, and with substantial administrative and fiscal independence from, general purpose local governments

Used to govern specific functions that transcend traditional government boundaries such as airports, water ports, highways, mass transit, parking facilities, fire protection, libraries, parks, cemeteries, hospitals, irrigation, conservation, sewage, solid waste, stadiums, water supply, electric power, and gas utilities; generally an entity will be tasked with administering one of these services 80) Spot Zoning - Courts define spot zoning as singling out a small parcel for a use totally different from the surrounding area for the benefit of the owner of the parcel and to the detriment of neighboring properties - Challenges to spot zoning will consider 2 factors Consistency with the comprehensive plan and effect of small parcel zoning on the owner and the community Whether or not the benefits gained through the spot zoning should have been extended to a larger area Will also consider the size of spot zoning, but this consideration is not dispositive - Cities should put flexibility and vagueness in their comprehensive plans to avoid spot zoning arguments; courts typically defer to city council on the supposed benefits created by spot zoning - See Griswold v. City of Homer 81) Sprawl - Sprawl is usually characterized by low density development that spreads outside of a city, it usually involves issues of collector street get the majority of traffic due to the fact the residents of these outlying areas must drive everywhere, resulting in the collector streets being highly congested - Among the most serious issues caused by sprawl is land conversion; essentially, large portions of land will be converted to residential and commercial space at a low density - Smart growth, which will adopt an urban-style growth plan that keeps the growth near the urban center and prevents development from converting undeveloped land, can help save millions of acres and helps mitigate costs incurred when expanding local road, water, and sewage infrastructure to accommodate low density development on previously undeveloped land - Sprawl does confer some benefits such as larger average lot sizes, access to better schools, lower crime neighborhoods, more homogeneous neighborhoods, and can be desirable due to consumer preference for suburban lifestyles Often results in a services/ tax trade-off where residents of suburbia do not mind less services if they are subject to a lower tax rate 82) Strict Scrutiny Standard of Constitutional Review - Most stringent standard of constitutional review and most difficult to overcome - Used to adjudicate the constitutionality of regulations and laws affecting fundamental rights (speech, religion, ect) or those discriminating on the basis of a suspect characteristic; provides almost not deference to the legislative body - To survive a strict scrutiny review, the law or policy must satisfy 3 tests: It must be justified by a compelling (as opposed to important or legitimate) governmental interest; while courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred; examples include national security, preservation of large segments of the population, and not violating explicit constitutional protections;

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The law or policy must be narrowly tailored to achieve that goal or interest; if the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored; and The law or policy must be the least restrictive means for achieving that interest; that is, there cannot be a less restrictive way to effectively achieve the compelling government interest; the test will be met even if there is another method that is equally as restrictive; some scholars consider this requirement to be part of the narrowly tailored considerations, though the Court generally evaluates it separately Subdivision - The process of taking undeveloped land and breaking it into smaller parcels, usually for single family homes - Involves buildings roads and extending services out to the newly developed areas - Approving subdivision maps is among the most important functions of a municipality when dealing with zoning; the relevant regulations often include building codes, aesthetic regulations, ect; see pg. 411-41 - Many times these are done with PUDs, which allow the developer to set up most of the zoning, though the municipality will remain heavily involved State Zoning Enabling Act (SZEA) - Standard zoning enabling act was written in the 1920s and adopted by many states throughout the country, this, along with Dillons Rule lead to highly uniform zoning throughout the country - The law had a highly detailed structure - The uniformity promoted by SZEA and Dillons Rule has eroded due to states enacting more tailor made zoning laws and courts rejection of Dillons Rule along with construing power more liberally and a general trend toward greater preference for home rule Tax Increment Financing (TIF) - TIFs are used by municipalities in the same manner as issuing general municipal bonds; the bonds are used for redevelopment with the debt serviced the increased increments in property taxes from the redevelopment project - SC allows for this in Art. 10 14 of the state constitution and legislated 31-6-10, the Tax Increment Financing Law, they are used to enable cities to redevelop blighted areas - Wolper v. City of Charleston challenged Charlestons plan by arguing that there is a constitutional cap on general obligation debt of municipalities; SC Supreme Court said that these bonds were not the same as general obligation debt because municipalities can use bonds secured by a particular revenue producing project and because the TIF served a valid public purpose - TIFs have proven to be an extremely popular means for raising development funds, and are used by at least 47 states - See pg. 844 Tragedy of the Commons - A dilemma arising from the situation in which multiple individuals, acting independently and rationally in their own self-interest, will ultimately deplete a shared limited resource, even when it is clear that it is not in anyones best long-term interest for this to happen Transaction Cost - Basically the costs of doing business for the developer, including costs associated with securing permits and legal/ court costs

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Generally the most extensive costs involve the creation of a detailed plan or development agreement, including maps and designs; often times, due to the zoning process, this may need to be done numerous times - There are often other intangible costs such as the time needed to go to the meetings and investments lost because of a stall in securing zoning - Also may include costs from unlawful or semi legal activities such as kickbacks Unlawful Delegation/ Legislative Bypass - In some cases, municipalities have allowed neighborhood organizations to grant permits for certain proposed land uses, this can be tricky because the mechanics of neighborhood voting are difficult to set - Generally, a municipality is prohibited from delegating legislative power to a decision by the neighbors (Chicago v. Stratton); people can waive restrictions but cannot establish them on their own (Cary v. City of Rapid City) - The safest way is with a legislative bypass, but the entire population of a municipality can change things by referendum; a bypass is permissible when the neighbors views are subject to an independent exercise of power by the proper entity - According to SCOTUS it is unlawful to make a proposed use contingent on the consent of the other property ownersWillis v. Town of Woodruff Upzone - When the zoning classification of a parcel is changed to the least restrictive land use, usually one permitting higher density Upzoning can also entail lowering lot sizes and raising density allowances - An example of upzoning would be taking a single family residential parcel and changing it to a multi-family classification - Developer always prefer upzoning because they are permitted to build more units in less area Urban Expansion Limits - These are boundaries a municipality sets for any urban growth as a means of controlling sprawl and conserving agricultural and forest land - It was the plan utilized by Oregon, under which each city had to set boundaries which were required to conform with statewide land use goals (predictably these goals dealt with conservation and limiting sprawl); rural land could be used for non-agricultural or forestry uses only through a special exception from the municipality - See pg. 813-18 Variance - Municipalities give variances to deal with non-conforming uses or a proposed land use that does not fit with the applicable zoning ordinance; variances are granted by BOZA when a landowner appeals a decision of City Council - BOZA is permitted to grant a variance if it will not be contrary to the public purpose of the ordinance and literal enforcement of the zoning regulation will, in an individual case, result in unnecessary hardship for the landowner; BOZA should not consider other non-conforming uses in the area when evaluating a new request - City Code 17-112 provides certain conditions that must be submitted in writing Extraordinary conditions pertaining to the property The conditions do not apply to other properties in the area Because of the conditions, application of the zoning regulations would effectively prohibit or unreasonably restrict the utilization of the property; and

The variance will not be a substantial detriment to adjacent properties or the public good, and the general character of the district will not be harmed 92) Vested Rights - A vested right attaches when an ordinance changes the use permitted for a parcel but the owner or developer has already started the development process but has not yet completed the project - Vested rights are another way of looking at the problem of non-conformity; it has an element of estoppel to it, usually requires an owner to have reasonably relied on some act or omission by the government to his detriment - Early Vesting- owner does not have to do much to entitle themselves to the rights in an early vesting state - Late Vesting- version adhered to by most states; courts will recognize vested rights only if the owner has made substantial expenditures in good faith reliance on the issuance of a permit or other form of approval by the government - Combines elements of common and statutory law; with the common law element of vested rights, there is always a question of what exactly good faith reliance is beyond the issuance of a building permit SC Supreme Court has said that you cannot use negligent misrepresentation when you rely on what government employees at the city office tell you, thus you really should not rely on what the clerk at the zoning office tells you - The Equal Dignity rule says that you cannot supplant or repeal an ordinance without another ordinance that is equal in dignity; for example, if zoning was enacted by an ordinance - Sherman v. Reavis provides the standard for the Proposed Ordinance Rule, a proposed ordinance can be binding on a landowner if certain factors, such as a public hearing and readings are properly performed In Sherman v. Reavis and Pressley v. Lancaster County, the owners are asking for a writ of mandamus; in order to have the writ granted, they are required to show A duty of the opposing party to perform the act; The ministerial nature of the act; The applicants specific legal right for which the discharge of the duty is necessary; and A lack of any other legal remedy 93) Wait and See Holding Zone - Arises when a municipalitys comprehensive plan sets out their long-term plans but the zoning ordinance is more restrictive than the plan outlined; the municipality will use this restrictive zoning and then change the classification in small areas as it sees fit - See Board of County Commissioners v. Snyder where this practice was allowed