land use planning terms (complete list)

8/2/2019 Land Use Planning Terms (Complete List)

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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 untilthe 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 stateissue 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 havegreater expertise in a particularly complex area of state law (strong presumption that federal

courts should not apply Bufordabstention)

- Younger- bars federal court from hearing civil rights tort claims by persons who are currentlybeing 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 nothear 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 theprincipal 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 istied 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 toexpect as customary when they purchase their property, because they allow for additional

beneficial use.

Examples for residential properties include garages, storage sheds, and fences, morerecently satellite dishes

Accessory uses that are not consistent with the expectations of surrounding landownersshould be prohibited or limited

- One common controversy associated with accessory use is the question of whether such a usecan 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 vacantresidential lot?

Without specific language permitting the accessory use to stand alone an accessory use isconsidered unlawful until the accompanying principal use or structure is established

3) Adequate Public Facilities Schemes (APF)


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- APF schemes typically specify detailed standards for determining whether facilities are adequateto 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 comprehensiveplan 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 drinkingwater 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 topay the developers fair share of the cost of the facility

- Public Facility Requirements to Limit Urban Expansion- acts can be implemented to require thatpublic 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 acase

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 aslegislative:

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


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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 theappellate courts review of the trial courts decision

For a court to review an agencys adjudicative decision, it must be able to examine arecord to determine whether there is sufficient evidence supporting the local agencysfindings

- 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 unbiasedbut also must avoid even the appearance of bias.

However, the court in this case held that such a proposition does not stretch to a quasi-judicial decision

- Criticisms of quasi-judicial review Are local bodies equipped to make these switches (between quasi-legislative and quasi-

judicial) so that when they supposedly act judicially, fairness and due consideration are

ensured?

While localities have preexisting standards and procedural rules that promote fairness anddue 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 capacitywhen they are not in their other capacities?

5) Amortization


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- A period of time granted to owners of nonconforming uses during which they may phase outtheir 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 withthe 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, anas-applied challenge can only be brought once it has been enforced

- An as-applied challenge is retrospective because it seeks to redress a constitutional violationthat 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, definitiveposition 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 aproperty 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 futile7)

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 abatementscan be available to assist business or recruit new businesses

- BIDs provide services such as, street cleaning, security, capital improvements, construction ofpedestrian and streetscape enhancements, and marketing for the area

These services are supplemental to those already provided by the municipality


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- 2ndRoc-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 orobjective 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 grouporas 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 residentialcommunities 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 placingstructures. 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 touse 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


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- Cluster zoning permits residential properties to be clustered together more closely than isnormally 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 singlefamily 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 anddedicate the saved land for recreational purposes or open space

The overall density of the project remains the same, but increases the density of the landactually 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 housingtypes 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 externalitiesbecause any outsiders affected by a land use activity would bring home those effects by, forexample, 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 planningcommission. 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 forcecharacteristics, 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

12)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 bepermitted 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

13)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 estatecontingency, and construction contingency

14)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

15)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 notbe built in a residential zone

16)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 lessprotection under the 1

stAmendment than non-commercial speech; under the 1

stAmendment,

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 1stAmendment and therefore can be prohibited entirely

17)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 orregulations 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 hasmultiple 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

18)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 isexcessively 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 isthe larger ownership whose part is being subjected to confiscatory regulation) since the

regulatory taking of a part of it (the numerator) is not compensable

19)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

20)Distributive Preference-

The effects of government land use regulations are inevitably uneven, some people come outahead and others suffer losses; some land use decisions depend on how it is decided that these

costs should be borne

21)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

22)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

23)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

24)Equal Dignity Rule- A municipality cannot supplant or replace an ordinance without another ordinance that is equal

in dignity

25)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 acquired26)Euclidean Zoning- A zoning regime that segregates land uses to minimize conflicts, zones are defined by the types

of uses allowable in the area

27)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


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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. 71029)Executive Session

- When a local governmental body discusses executive or business matters in a session that isclosed to the public30)Exhaustion of Administrative Remedies

- A ripeness consideration, requires a plaintiff to seek relief through all avenues of administrativeadjudication 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 bythe highest administrative agency

- See pg. 85-6; 234-51; 71531)Externality/ Externalize

- Harmful effects of lack of planningpoor infrastructure, bad traffic, ect.that are generallyabsorbed 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 largetransactional costs and uncertainties inherent in the judicial system32)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 regulation33)Fair Housing Act (FHA)

- Federal statute making it unlawful to discriminate in the selling or renting of a property toanyone based on color, race, religion, national origin, sex, familial status, or other protected

characteristic

- See pg. 776-8234)Fair Housing Amendment Act (FHAA)

- Federal statute amending the content of the Fair Housing Act, uses exact same language butextends the protected characteristic provisions to include the disabled

- See pg. 72335)Federal Highway Beautification Act of 1965

- A Federal statute which requires that landowners be compensated for the mandatory removalof billboards from their lands along Federal interstate highways

- See pg. 47536)Free Rider

- The concept that in the absence of zoning regulations, one landowner would have tocompensate 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 fromspecial purpose local government entities which are tasked with the management of specific

services, such as school districts, transportation districts, water resource management, ect

38)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 propertyvalues, rent levels, and taxes, forcing current lower income residents to have to leave

- See pg. 9-10; 50539)Grandfather

- Relates to non-conforming uses; occurs when a property has been rezoned and is not incompliance 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; 230-3140)Homevoter Hypothesis

- The concept that local politicians only pay attention to the desires of local voters, regardless ofmerit or the larger effects of these preferences; creates a presumption that higher levels ofgovernment will consider issues with less bias and more concern for the larger effects of the

policies being decided

- See pg. 46-4741)Incentive Zoning

- A zoning scheme that allows landowners to exceed some of the restrictions normally applying inthe relevant zoning classification in exchange for substantial contributions to the benefit of the

community as a whole

42)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 relatedlegislation is too complex to be allowed to be accomplished through the initiative andreferendum method

43)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

44)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 fromvarious land uses

45)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 andthe application of a set code of rules

46)Legislative Bypass


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-47)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 incomehousing, livery stable, ect.48)Mandamus

- An order to a ministerial official by a judiciary entity to fulfill a duty or other action required bythe ministerial officials governmental capacity

49)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 businessdistricts, inefficient infrastructure, and sprawl

50)Ministerial- A governmental office or function which posses no discretion in the performance of its assigned

task or duty

51)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

52)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 totalvalue of expenses incurred preserving the property

53)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 smallarea, allowing residents quick access on foot to most establishments they would normally visit in

ordinary daily life

54)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 neighboringproperty is undesirable

- Another example would be an airport, which would benefit local residents by boosting theeconomy, 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

55)Noerr- Pennington Doctrine


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- Under this doctrine, private entities are immune from liability under the antitrust laws forattempts 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 arecognition 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

56)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.

57)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 zoningordinances 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 BOZA58)Overlay District

- An overlay district is an additional zoning requirement that is placed on a specified geographicarea 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 theunderlying zoning for a given geographic area and imposes additional ones aimed atpreserving the historic character of the neighborhood

Overlay districts are typically created by a municipal zoning commission are subject to thepublic hearing process with input from local historic preservation committees and legislative

approval

They are most frequently challenged individual landowners seeking variances or permissionto 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 engagein 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 DDRC59)Pending Ordinance Doctrine

- Pending ordinance doctrine is a judicially created principal that allows a municipality to deny anapplication 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 byapplying for a nonconforming use on the eve of its approval

60)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

61)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 fromthe 10

thAmendment, 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 muchof 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 aszoning, land use, fire and building codes, parking, nuisances, schools, and sanitation

62)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 decisionprecludes 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

63)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

64)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 neithercooperates 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

65)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

66)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 samemethods are used, but instead of money the public elected officials strives for votes

67)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 Petaluma68)Rational Basis Standard of Constitutional Review

- Default level of constitutional review; applied for due process or equal protection challengesrelated to the 5th or 14th Amendments

- Lowest level of judicial review, requires that a government action be rationally related to alegitimate government interest

69)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 anyordinance, 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 referendumwhen it fails to pass the ordinance or passes it in a form substantially different from that setforth in the petition.

SC Local Government Comprehensive Planning and Enabling Act of 1994 repealed theexisting 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 toencompass 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.

70)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

71)Ripeness


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- 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 theburden results from a rule of general applicability; or

The substantial burden is imposed in the implementation of a land use regulation or systemof 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 orrestricts a claimants use or development of land

- The statute has been interpreted to expand religious accommodations to a point where itrestricts 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 remediesbefore litigating in Federal court

- In takings cases it operates as a type of abstention doctrine, says that when a state court rejectsa 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. 25574)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 havebeen 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. 37375)Slop Zoning

- Where one classification of zoning spills into an area with another classification; distinct fromspot zoning, where the zoning difference will be confined to a specific lot, slop zoning seeks toencompass a specific lot by extending existing zoning into a district with a different

classification.

76)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 themunicipality 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

77)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

78)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 theservices that are needed- Funded through assessment of taxes which factor in calculations based on property valuation,

square footage, or street frontage

- See Business Improvement District79)Special Purpose Governmental Entity

- An independent governmental unit that exists separately from, and with substantialadministrative and fiscal independence from, general purpose local governments


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- Used to govern specific functions that transcend traditional government boundaries such asairports, 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 alarger 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 ofland 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 theurban center and prevents development from converting undeveloped land, can help save

millions of acres and helps mitigate costs incurred when expanding local road, water, andsewage 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 lessservices 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; providesalmost 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 narrowlytailored to achieve that goal or interest; if thegovernment 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 meansfor 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

83)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 involved84)State Zoning Enabling Act (SZEA)

- Standard zoning enabling act was written in the 1920s and adopted by many states throughoutthe 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

85)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 propertytaxes from the redevelopment project

- SC allows for this in Art. 10 14 of the state constitution and legislated 31-6-10, the TaxIncrement Financing Law, they are used to enable cities to redevelop blighted areas

- Wolper v. City of Charlestonchallenged Charlestons plan by arguing that there is aconstitutional 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 usedby at least 47 states

-See pg. 84486)Tragedy of the Commons

- A dilemma arising from the situation in which multiple individuals, acting independently andrationally 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

87)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 developmentagreement, 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 andinvestments lost because of a stall in securing zoning

- Also may include costs from unlawful or semi legal activities such as kickbacks88)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 theneighbors (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 canchange 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 theother property ownersWillis v. Town of Woodruff89)Upzone

- When the zoning classification of a parcel is changed to the least restrictive land use, usually onepermitting 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 area90)Urban Expansion Limits

- These are boundaries a municipality sets for any urban growth as a means of controlling sprawland conserving agricultural and forest land

- It was the plan utilized by Oregon, under which each city had to set boundaries which wererequired 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. 813-1891)Variance

- Municipalities give variances to deal with non-conforming uses or a proposed land use that doesnot 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 theordinance and literal enforcement of the zoning regulation will, in an individual case, result inunnecessary 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


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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 earlyvesting state

- Late Vesting- version adhered to by most states; courts will recognize vested rights only if theowner 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 vestedrights, 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 anotherordinance 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 proposedordinance 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 ofmandamus; 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. Snyderwhere this practice was allowed

land use planning terms (complete list)

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