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Spring2018 1 PLANNING&LAW
PLANNING & LAW PLANNING & LAW AmericanPlanningAssociation
PlanningandLawDivision
MakingGreatCommunitiesHappen
APublicationofthePlanningandLawDivisionoftheAmericanPlanningAssociationBroughttoyoubytheLandUseLawCenter
atPaceUniversity’sElisabethHaubSchoolofLaw
TheTakingsDenominatorinZoningLotMergerCases:Murrv.WisconsinbyMarkWhite,Esq.
MarkWhiteisapartnerwithWhite&Smith,LLCinKansasCityandCharleston.Hispractice includes drafting zoning and development codes, and assisting localgovernments with comprehensive plan implementation. He is also an adjunctProfessorofPlanningattheUniversityofKansas.
InMurrv.Wisconsin,a5-3decision,theUnitedStatesSupremeCourt rejectedatakingschallengeto azoning“lotmerger”provision–amainstay ofresidential
andenvironmentalzoningregulations.Initsfirstdecisionsince2001totacklean
economic regulatory takings claim resulting from a zoning regulation on its
merits, theCourthandedlocalgovernments an important –but notcomplete–
victory.Thisarticleexplainsthecomplicatedfactpatternleadingtothedecision,
andexplainsitsmeaningandlimitationsforfuturezoningcodedrafters.
TheFactsIn1960, theMurr’s parents bought a long,narrow lotalongtheSt.CroixRiver
(Lot “F”)andbuiltarecreationalcabin.Thenextyear,theytransferredLot“F”to
their familybusiness and, in1963, purchasedanadjacent lot (Lot “E”) in their
ownnames.Thelotssharenotonlyacommonpropertyline,butalsoabluffthat
bisectsthelotsandrenderspartsoftheareaunbuildable.
Intheensuingdecade,theSt. CroixRiverwas designatedforfederalprotection
undertheWildandScenic RiversAct.Wisconsindevelopedamanagementplan
and implemented regulations for development along the river, including a
minimum net lot arearequirement ofat least one (1)acreof buildable land to
eitherbuildonortosellasalot(thedensityorminimumlotarearequirement).
Thestateandcountyregulationsincludedtwo importantandparallelprovisions
to implement the legislation’s environmental objectives and avoidhardship to
property owners. First, a grandfathering provision allows one dwelling on
undersized lots that were createdbefore the legislation becameeffective. The
second provisiondenies the grandfathering protection to adjacent lots under
common ownership. This requires adjoining lots to combine for purposes of
determiningnetacreage.Therefore, insteadof buildingadwelling unitoneach
substandardlot,onlyasingledwellingisallowedonthecombinedlot. Property
ownerscanplacethedwellingoneither lot,or acrossthelot lines.This typeof
provision–incommonuseinlocalzoningregulationsforoveracentury–avoids
the division of lots into substandard lots in order to trigger the grandfather
protectionsandtoavoidtheminimumlotarearegulations.
TheparentssubsequentlytransferredLot“F”totheMurrsin1994,andLot“E”in
1995.Thisbroughtbothlotsundercommonownership.Together,bothlotswere
0.98 acres in net lot area – slightly under the legislation’s minimum lot size
Spring2018TheTakingsDenominatorin
ZoningLotMergerCases:
Murrv.Wisconsin1
TheSlowEvolutionofEnergy
Planning:OneState’sExperience2
FairHousingandDiscrimination
AfterInclusiveHousing 3
CaseLawUpdate:
LawoftheLandCaseDigest4
PLDLegacyMemberSpotlight 5
IReaditintheBlogs 7
APageOutofPlanning&Law
History8
CurtinFellowReport 10
BookExcerpt:
DisasterMitigation11
MovieReview:
CitizenJane:BattlefortheCity 12
RecentMemberPublications 18
AmicusCommitteeUpdate 29
NationalPlanningConference
Guide33
Continuedonpage13
GoingtotheNationalPlanningConference?Checkoutoureventcoveragebeginningonpage33!
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Spring2018 2 PLANNING&LAW
Editor-in-ChiefJennieNolonBlanchard,Esq.,MEM,LEEDAP
SeniorStaffAttorney&UrbanProgramSpecialist,
LandUseLawCenter,PaceLawSchool
StudentEditorialBoardAlixDobles
ManagingEditorStudent,PaceLawSchool
OlliaPappas
AcquisitionsEditorStudent,PaceLawSchool
MichaelCastore
SeniorEditor&StaffWriterStudent,PaceLawSchool
MaximillianMahalek
ResearchEditor&StaffWriterStudent,PaceLawSchool
EmmaLagle
JuniorEditor&StaffWriterStudent,PaceLawSchool
MarkFanelli
JuniorEditor&StaffWriterStudent,PaceLawSchool
ContributorsJohnM.Baker,Esq.
Attorney,GreeneEspelPLLP
DavidL.Callies,Esq.,FAICP
ProfessorofLaw,WilliamS.RichardsonLawSchool
LeonardCohen
Attorney,Snyder&Snyder,LLP
MarcusMello
M.Arch.,MUPCandidate,HarvardUniversity
MatthewNorci
JDStudent,UniversityofNorthCarolinaatChapelHill
DerekB.Simon,Esq.
Attorney,CarlsmithBall,LLP
EdwardJ.Sullivan,Esq.
Attorney
MarkWhite,Esq.
Attorney,White&Smith,LLC
Planning&LawNewsletter
EdSullivanhasretired fromactivelawpractice, but continuesto teach, write,andpresentonplanninglawissues. Heisamemberof theAPAAmicus CuriaeandLegislativeandPolicyCommittees.
WhileOregonisoftenseenas amodel
of active andeffective stateplanning,
its planningpolicies regarding energy
sources and the conservation and
efficient useof energyare diffuseand
incremental, and appear to lack a
consistentandcohesivevision.
Energy spurredtheriseof industry in
the United States, from the use of
waterpower and steam for grinding
wheat and powering machines to
p r o v i d i n g e n e r g y f o r c l o t h
manufacturing. Shortly thereafter, the
use of coal and oil powered the
industrialrevolution.Lateron,natural
gas, hydropower, nuclear power, and
renewable energy added to the array
of energy sources used to meet our
h e a t i n g , t r a n s po r t a t i o n , a nd
manufacturingneeds.
As the result of a lack of energy
planningmindfulness,Oregonhas lost
opportunities for energy efficiency, as
well as for theformulationof amore
coherentapproachtoenergy resource
use and development. This article
suggests remedies for theseproblems
thatmightbeusefulnationally.
Since 1975, Oregon has had a
legislatively-adopted energy policy to
promote energy efficiency and to
developsustainableenergyresources,
encouraging an array of permanently
sustainable energy resources, energy
conservation, elimination of wasteful
energy use, efficient transportation
systems, and the distribution of
energy cost effectiveness information.
The state’s energy policy, however,
has hadlittledirect impactonits land
usepolicy.
SincethepassageofSenateBill100in
1973, Oregon has had a unique,
statewide planning policy structure
i m p l em e n t e d t h r o u g h l o c a l
comprehensive plans that in turn
controlslanduseregulationsandstate
and local government actions. State
landusepolicyissetout inaseries of
19planning goals. The stateplanning
TheSlowEvolutionofEnergyPlanning:
OneState’sExperiencebyEdwardJ.Sullivan,Esq.
Continuedonpage16
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Spring2018 3 PLANNING&LAW
ChairMegByerlyWilliams,Esq.,MEM,MS
Chair-ElectEvanSeeman,Esq.
Secretary/TreasurerBrianConnolly,Esq.
ImmediatePastChairJennieNolonBlanchard,Esq.,MEM,
LEEDAP
CommitteeChairsEducationCommittee
DavidSilverman,Esq.,AICP
Technology&SocialMediaMegByerlyWilliams,Esq.,MEM,MS
EarlyCareerProgramMatthewNorchi
Smith-Babcock-WilliamsStudentWritingCompetition
AlanC.Weinstein,Esq.
APAAmicusCommitteeJohnM.Baker,Esq.
DanielJ.Curtin,Jr.FellowMatthewNorchi
NewsletterEditorJennieNolonBlanchard,Esq.,MEM,
LEEDAP
WebsiteEditorMegByerlyWilliams,Esq.,MEM,MS
CMAdministratorDavidSilverman,Esq.,AICP
PLDLeadership
Continuedonpage21
FairHousingandDiscriminationAfter
InclusiveHousingbyDavidL.Callies,Esq.,FAICPandDerekB.Simon,Esq.,
David L.CalliesistheBenjamin A.KudoProfessor of Law, at the University ofHawai‘i's William S. Richardson LawSchool. This article is abbreviated andmodifiedfromalongerversionpublishedin the JOURNAL OF INTERNATIONAL ANDCOMPARATIVE LAW earlier this year. TheauthorwishestoacknowledgeandthankBrian Connolly, Ed Voss and Don Elliot,co-panelists in several recent nationalprograms on the Fair Housing Act andthe Inclusive Communities Decision,whichhelpedformthebasisofthispaper.
Derek B. Simon is an associate atCarlsmith Ball, LLP, Honolulu, Hawaii,wherehepracticesland use, realestate,and administrative law, and a 2016magna cume laude graduate of theUniversity of Hawaii's William SRichardson School of Law. The authorwould like to thank his family for theirunwavering support and ProfessorCallies for the opportunity to co-authorthisarticle.
I.IntroductionOne of the most effective means for
combating housing discrimination is
statutory prohibitions for protected
minority classes. The U.S. Federal Fair
HousingAct(“FHA”)representsamodel
for such statutory prohibitions. The
FHA prohibits such discrimination by
e i the r pub l i c ( s t a t e and l o ca l
government agencies) or private
(landlords)actors on thebasis of race,
religion, national origin, sex, family
status, or disability. Following a U.S.
Supreme Court decision in the 1970's,
proof of intent to discriminate became
necessary to bring anactionunder the
U.S. Constitution's 14th Amendment
Due Process and Equal Protection
Clauses.However,nosuchintent needs
bedemonstratedtosueundertheFHA.
Fordecades, the Federal Circuit Courts
of Appeals have sustained dozens of
lawsuits claiming discrimination based
simply on the disparate impact of
governmentorprivateactionsononeof
the aforementioned protected classes.
In 2015, the Supreme Court affirmed
the use of disparate impact claims
undertheFHAinInclusiveCommunitiesProject v. Texas Department of Housingand Community Affairs (“InclusiveCommunities”), notwithstanding thatdisparate impact or effect is not
explicitly mentioned in the FHA.
However, the Court hedgedapplication
ofdisparateimpactclaimswithsomany
caveats and restrictions that many
federal courts have now ruled against
parties bringing these claims, many of
which would have prevailed prior to
Inclusive Communities. This articleaddresses the historical problem of
discriminationinhousingandtheuseof
the FHA as a remedy. There follows a
summary of how federal courts have
addressed disparate impact claims
followingInclusiveCommunities.
II. Fair Housing and DiscriminationinHousing
a.DiscriminatoryIntentIn 1976, the Supreme Court decided
ArlingtonHeightsv.MHDC,andheldthattheU.S.Constitution'sEqualProtection
Clause provided relief in cases that
involvediscriminationinhousingif,but
o n l y i f , t h e p l a i n t i f f a l l e g i n g
discriminationcandemonstratethatthe
defendant local or state government
intends to discriminate against theplaintiff. Relying primarily on its
decisioninWashingtonv.Davis,decidedafter the Seventh Circuit Court of
Appeals decision but before oral
argument in Arlington Heights, theCourt reiterated that official action
would not be held unconstitutional
solely because it resulted in a racially
disproportionate impact. In as plain
wordsascanbeimagined,theArlingtonHeights Court held that “[p]roof ofracially discriminatory intent or
purpose is requiredto showaviolation
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Spring2018 4 PLANNING&LAW
InEpona,LLC v.CountyofVentura, the9thCircuitCourtofAppealsinvalidated
a county's conditionaluse permitting
(CUP) scheme. Michael Fowler, sole
memberof Epona,LLC, rentedouthis
40-acreproperty forweddings.Dueto
modifications to Ventura County’s
zoning regulations, Mr. Fowler was
required to obtain a CUP before
hosting any additional weddings. Mr.
Fowler applied for a CUP, and
reviewing officials found that theuse
would cause no adverse impacts and
recommended granting the permit;
however, after receiving complaints
from neighbors, these same officials
denied his application. The County
Board of Supervisors upheld the
denial.Asaresult ofthisdecision,Mr.
Fowler had to cancel pending
reservations for weddings at his
property, resulting in reputational
harm. Mr. Fowler challenged the
permittingschemeintheUnitedStates
District Court, claiming that it
abridged his customers’ right to free
speech under the First Amendment.
The District Court dismissed his suit
andMr.Fowler appealedto theNinth
Circuit.TheNinthCircuitheldthatMr.
Fowler hadstanding to challenge the
County’s permitting scheme, noting
thatvendorshavethird-partystanding
to advocate for the rights of their
customers and that Mr. Fowler’s
“injury” was redressable through
eliminationoftheCUPscheme.The9th
Circuit then held that the County’s
ordinancewas nota validtime, place,
andmanner restriction onspeech for
two reasons: 1) the CUP scheme
lackedobjective standards and2) the
CUP scheme lacked a specific time
limit in which officials had to reach
theirdecision.Thesedeficienciesgave
permitt ing off ic ials “unbridled
discretion” in violation of the First
Amendment. The 9th Circuit then
found that Mr. Fowler could request
injunctivereliefindistrictcourt.
11th CircuitCourtof Appeals (GA),11th Circuit Court of AppealsRejects First Amendment ClaimsBrought by Adult EntertainmentBusinesses
In Flanigan’s Enterprises, Inc. ofGeorgia v. City of Sandy Springs, the11th Circuit Court of Appeals upheld
the district court’s dismissal of
Plaintiffs’ claims for free-speech
violations.Plaintiffsownedstripclubs
andadult-orientedsexshops inSandy
Springs, Georgia. In their suit against
the City, they claimed that various
provisions of the City’s Alcohol, Adult
Zoning, and Adult Licensing Codes
prohibiting the sale of alcohol also
violatedtheirConstitutionalrights.On
appeal brought by Plaintiffs, the 11th
Circuit Court of Appeals considered
two issues:first, thatthedistrictcourt
usedtheincorrect levelofscrutiny in
grantingamotion infavorof theCity;
and second, that the district court
i n c o r r e c t l y f o u n d t h a t a n y
secondary-effects of adult-oriented
businesses the alcohol ban would
combatproportionallyoutweighedthe
speech silencing caused by the
resultingbusinessclosures.(TheCourt
declinedtohear athirdclaimthat the
districtcourtshouldhaverequiredthe
City to prove its ordinances werethe
least restrictive means of achieving
the city’s goals.) On the first claim, a
c o n t e n t - b a s e d ,
adult-entertainment-related law is
generally subject to a court’s highest
level of scrutiny. However, the 11th
Circuit found that if a legitimate
i n t e r e s t i n c o m b a t i n g
adul t -enter ta inment ’ s harmfu l
secondaryeffectsjustifiedthelaw, the
secondaryeffectsdoctrinepermits the
application of a less strict scrutiny.
Next,theCourtof Appeals declinedto
apply the proportionality test to
Plaintiff’s claim that the effect of the
alcoholbanonPlaintiff’sbusinesses –
the ir resu l t ing c losure – was
disproportionate to the amount of
s e c o n d a r y e f f e c t s o f a d u l t
entertainment that the alcohol ban
wouldcombat.Thisrefusaleffectively
affirmedthelowercourt’sdismissalof
Plaintiff’sclaimsinfavoroftheCity.
United States District Court,Southern District of California,Federal District Court in CaliforniaDismisses Disparate TreatmentEqualProtectionClaimAgainstCity
In June 2010, the City of San Diego’s
Neighborhood Code Compliance
Department (NCCD) issued two Civil
Penalty Notices to the Morrows for
grading violations on their property
observedbyaCityZoningInvestigator
(CZI). InMorrow v. City of San Diego,theMorrows brought suit against theCityandclaimed theywere subject to
disparate treatmentinviolationof the
Continuedonpage25
CaseLawUpdate:
LawoftheLandCaseDigestEditedbyEmmaLagle&MaximillianMahalek
ThefollowingexcerptsarefromPatriciaE.Salkin’sblogLawoftheLand,wheresheandguestauthorshighlightrecentlanduseandzoninglawdecisionsacrosstheUnitedStates.Toviewtheblog,
pleasevisithttps://lawoftheland.wordpress.com/.
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Spring2018 5 PLANNING&LAW
The author, Leonard Cohen, was PLD’s 2015-16 Daniel J.Curtin, Jr.Fellow.Lennyisnowa landuseattorneyatSnyder& Snyder, LLP, in Tarrytown, NY, which focuses ontelecommunications, environmental, and energy-relatedprojects.
ProfessorMandelker, you’ve beenteachinga longtime.Whataresomeofthetrendsyou’veseendevelopinlanduse law over the yearsandwhat have been the mostradicalchanges?
WhenIfirststartedteachingtheproblemwasdefendingthe
system. Can we really do historic preservation? Can we
regulate growth? Today these basic issues are largely
settled, and the issues are fine tuning. Do growth systems
reallywork, for example,andif not,howcanwe fix them?
The most radical changes are the revival of the takings
clauseasalimitationonlanduseregulation,theapplication
of the constitutional Free Speech clause to issues like
signage, andthe expansionof landuse concerns into new
areas,likefairhousingandtelecommunications.
What are some of the key issues you see in land usepractice?Zoningpractice?
ThekeyissuesarehowtotransformwhatDonElliottcallsa
hybridlanduse system,andhowto get goodprocess. The
oldEuclideansystemisfading,replacedbynewformatslike
form-basedcodes.Processisstillnotwhat it shouldbe,and
the Model Land Use Procedures Act adopted by the
AmericanBarAssociationprovidesagoodmodel.Itisbased
on Chapter 10 of APA’s model legislation included in its
GrowingSmartLegislativeGuidebook.
How do you structure your land use law course atWashingtonUniversityLawSchool?Howwouldyouliketo see law schoolsnationwide improve their land uselawcourses?
Theemphasisisonthecases,butIusethemtobringinland
usepractice issues andusemywebsiteto explainstatutes
andregulationsthatareimportanttothecourse,suchasthe
modelplanningandzoningacts.Togivestudents asenseof
therealworld,Ihavethemdoreportsonlanduseissuesfor
a city or county they adopt on the internet, and they can
earn bonus grade points with projects such as a field
project, in which they find a vacant tract of land and
proposeanddefendazoningupgrade.
PLDLegacyMemberSpotlight:
AnInterviewwithDanielR.Mandelker,Esq.
byLeonardCohen
Eachissue,ourLegacyMemberSpotlightcolumnhighlightsacurrentPLDmember’scareerpathwithintheinterconnectedfieldsofplanningandlaw.
Daniel R. Mandelker is theStamper Professor of Law atWashingtonUniversityLawSchoolin St. Louis, Missouri, where heteaches coursesin TheFourteenthAmendment. Environmental andLand Use Litigation, Land UseLaw, and S tate and Loca lGovernment.
One of the nation's leadingscholarsand teachers in land use
law,ProfessorMandelkeristheco-authorofa widely-usedcasebook on land use law, now in its ninth edition, andcoauthor of a comprehensive treatise on land use law,currently in its sixth edition. He also focuses onenvironmental law and state and local government law,co-authoring a casebook on state and local governmentlaw, in its eighth edition, and co-authoring a populartreatise on theNational Environmental Policy Act, NEPALawandLitigation,
AformermemberoftheCollegeofFellowsoftheAmericanInstitute of Certified Planners, Professor Mandelker haslecturedat nationalandinternationalconferencesand hasserved on editorial boards. He is a recipient of the ABASection on State and Local Government's Daniel J. CurtinDistinguished Lifetime Achievement Award. ProfessorMandelkerhasconsultedwith localandstate,governmentsin his areas of expertise. Hewas theprincipal consultantand contributor to the American Planning Association'smodelzoningandplanninglegislationproject,theprincipalconsultanttoajoint ABAcommitteethatpreparedamodellaw on land use procedures adopted by the House ofDelegates, and the principal author of comprehensiveplanningamendmentstotheNewOrleanscitycharter.
Recentlyhewasamember ofa task forceof theNationalAssociationofEnvironmentalProfessionalsthatpreparedareportonBestPracticesforEnvironmentalAssessmentsforthe U.S. Council on Environmental Quality. ProfessorMandelkerreceivedhisB.A.andLL.BfromtheUniversityofWisconsin,andhisJ.S.D.fromYaleLawSchool.
The Planning and Law Division is proud to featureProfessor Mandelker in its “Member Spotlight” initiative,andcongratulates himon a lifetimeofexemplaryworkinthefieldsofplanningandlaw. Continuedonnextpage
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Spring2018 6 PLANNING&LAW
Can you talk about some of the key issues facing thecourtstoday?
Newareasof interestneedattention, likereligiouslanduse
and environmental land use regulation. Federal statutory
interventions, like the FairHousing Act, have unanswered
questions, and we still don’t have a sound basis for
strategieslikeinclusionaryzoning.Exactionshaveunsettled
issues. Oldconcepts needrevising. I recently published an
articleonspotzoning,forexample,thatsuggestsreformsin
thatdoctrine. Wecanimproveonbest practices inalmost
everyarea.
Iknowyou see the takingclause asanimportant landuse and Constitutional issue. Can you explain to ourreaderswhy it’ssuch an importantissue?Whatrecentdevelopments have you seen that you believe to beimportant?
The takings clause is bedrock. Planning and land use
regulationaffect propertyrights, andthe takingclausesets
limits to what can be done ever since Justice Holmes’
decisioninPennsylvaniaCoal.Mysenseis thattheSupremeCourthasprettymuchclosedthedoorontakingscases.The
LakeTahoecaseputanendtopersetakings,andtherecentMunn case showed the Court is not interested in changingthe rules. A major change in the Court’s makeup couldchangethisconclusion,butithasn’thappenedyet.
Whatareyourthoughtsonaffordablehousing?
Thereisnosilverbullethere.Avarietyofstrategiescanadd
upto progress, though it’s not easy. Inclusionary zoningis
complex,isnotyet fullyacceptedlegally,andworksonlyin
agrowthenvironment.There is hope forhousingelements
in comprehensive plan, which half the states require, and
which can set housing needs and guide site selection.
Housing appeals laws, that allowdevelopers of affordable
housingtoappealadversedecisions,havebeenadoptedina
fewstatesandhavehadgoodresults.
You’vedoneamassiveamountofconsultingprojectsfordifferent entities. Can you share a project or two thathadsignificantlanduseandzoningimplications?
I was principal consultant to Growing Smart, the APA
projectthatproducedmodellanduseplanningandlanduse
legislationwithextensivecommentaryandadvice.This isa
major revision that provides a sound basis for statutory
change. In New Orleans, I helped write a city charter
amendment that made planning mandatory, and requires
that zoning must be consistent with the comprehensive
plan. It was a big step in recognizing the importance of
comprehensiveplanning.
That’sfascinating!Canyouthinkofanyotherconsultingwork you’ve done that our readers would findinteresting?
Well, some time ago I spent severalyears consultingwith
the Hawaii state planning department on legislation to
strengthen their state land use system. We wrote and
consultedonlegislationonavarietyoftopics thatprovided
new land use initiatives and helped protect their
environment. Working on major land use problems in a
fragilestate,wherelanduseisamajorpoliticalissue,wasa
lifetimeexperience.
You’ve had a lot of publications and articles. Can yourecommendsomeofyourworkthatyoung lawyersandplanningprofessionalsshouldread?
I’ve written several articles recently they might find
interesting on spacing requirements for group homes,
zoning barriers to manufactured homes and spot zoning.
YoucanfindthemintheUrbanLawyer,apublicationofthe
American Bar Association’s State and Local Government
Law section. They might also look at the latest edition of
Street GraphicsandtheLaw,whichproposesanimaginativesignage systemandincludes amodelsigncode.As anAPA
member,theycandownloaditfreefromtheAPAwebsite.
Whatadvicedoyouhaveforyoung lawyersorplanningprofessionals?
Keepinmind,whenyou’restartingout,thatexperienceand
knowledgetaketime.Frustrationcancomeeasily,butdon’t
let it get in the way. Pay attention to detail. Projects and
decisionsrequirecarefuldetailing,andtoooftenthisdoesn’t
happen.Getyourlawyersinvolvedandworkwiththem.I’ve
seen too many cases where ordinances and decisions did
notgettherightlegalattention.
Anyfinalthoughts?
Planningandlanduseare demandingand important areas
ofpublicconcern.Itisanhonortoworkontheseissues,and
what youdoaffectshowweliveandhowour environment
ismanaged.Ajobwelldoneisitsownreward.♦
LegacySpotlightcontinuedfrompreviouspage
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Spring2018 7 PLANNING&LAW
Although the term greyfield was
coined over 15 years ago by the
CongressforNewUrbanism(CNU)and
PricewaterhouseCoopers (PwC), the
concept anddefinitionofwhat exactly
constitutes a greyfield continues to
evolve. Connect Our Future (COF)
definesagreyfieldasapropertythatis
“underutilizedas aresult ofeconomic
obsolescence,”suchasaflounderingor
failedretailmallwith“thepotentialfor
prof i table redevelopment as a
mixed-use neighborhood, sometimes
pairedwithadaptivereusestrategies.”
The term greyfield is related to the
broader concept of infill development
and the terms are often used in
conjunction yet are not exactly
synonymous. Landuse legislationthat
addresses the growing number of
greyfields and the concomitant
concernover that amount has lagged
behind these market trends and are,
thus, not addressing the needs of
communitiesaswellastheycouldbe.
Although the term greyfield has
existed since 2001, it has yet to
become as pervasive as the term
brownfield, forexample, andrelatedly
has yet to be high enough on the
agenda to be sufficiently addressed.
Theamountof greyfields,especiallyin
sprawlingsuburbancommunities,will
onlycontinuetoincreaseaslongasthe
demand for residential housing also
continues to shift back toward more
urbanwalkablecommunities-inother
words, if the real estate cycle
continues toshift inthedirectionofits
current trajectory. Themost common
retail example of greyfields, as they
have beensome of themost severely
affected, are suburban shopping and
stripmalls. The waning popularity of
strip malls and stand-alone big box
stores, or what havebeenreferred to
as dead malls, have been publicized
sincetheearly2000s,yetareonlynow
beginningtobeaddressed.
The recent downward spiral of the
on c e g o l i a t h r e t a i l s h opp i n g
conglomerate, Sears, a company
knownfor innovatingandepitomizing
the American shopping experience,
s hou l d s i g n a l t h e i n c r e a s i n g
importance of developing land use
tools,andlegislationauthorizingthose
tools, that specifically focus on the
redevelopmentofgreyfields.
In2016,NewYork adoptedlegislation
that attemptedto address theissueof
vacant and abandoned foreclosures.
“Abandoned homes are not only
eyesores for citizens, but pose safety
hazards and drag down values of
nearby homes.” This legislation
alleviates the burden that falls on
taxpayers and citizens in those
communities, in addition to causing
environmental impacts, by “requiring
lenderstoinspect andmaintainvacant
property prior to completion of
foreclosure, the implementation of a
statewide abandoned property
registry and reporting system to
monitor vacant properties, and
providing an expedited foreclosure
process for vacant properties.” Read
theBlogHere…
Munic ipal i t ies in Long Is land ,
specifically theTowns ofBabylonand
Hempstead, have recently enacted
legislated addressing vacant and
abandoned properties in thewake of
Cuomo passing the, above referenced
Abandoned Property Neighborhood
Relief Act of 2016. Interestingly, the
twotownshavetakenslightlydifferent
approaches to regulat ing such
properties;one addresses commercial
properties,whiletheotherlimitsitself
toresidential.ReadtheBlogHere…
In 2011, the State of New York
authorizedthecreationof landbanks.
Over the past five years, these
non-for-profit landbankshavebecome
experts on rehabilitating blighted
properties in their localities and
returningthembacktoproductiveuse.
The benefits are two-fold as the
municipality where these blighted
properties are located often spend a
significant amount of capitol dealing
withsuchproperties that areoftenno
longer paying taxes. This benefit,
among many others, has galvanized
theStateofNewYork’scommitmentto
continue funding its land banking
system.ReadtheBlogHere…
Anexampleofoneof themanyissues
that could arise when attempting to
adaptively reuse a greyfield is the
former use of the property which, in
this case, implicates the public trust
doctrine.Theseissuesarediscussedin
thecontextoflitigationoverwhethera
formerportionofSheaStadiumcanbe
redeveloped for retail, rather than its
current use as a park. Read the Blog
Here…
On the west coast, communities in
SouthernCaliforniaare experimenting
w i th a d i f f e ren t approach to
redeveloping dead malls. With the
overwhelming demand for housing
andarelativelylowstockinrelationto
tha t demand , par t i cu lar ly for
low-income andmulti-family housing,
apublicneedexists forpropertiesthat
have outlived their useful lives and
current uses to be transformed into
placestolive.ReadtheBlogHere…♦
IReaditintheBlogsbyMichaelCastore
Thiscolumnfeaturesaroundupoflanduseissuesasreportedinblogs.Weprovideabriefsummaryoftheposts,withlinkstotheoriginalpostings.Inthisedition,wefocusonthetermgreyfield,inthecontextoflanduseandplanning.
ConnectwithPLDonTwitter&Facebook!
twitter.com/APAPlanningLaw
facebook.com/PlanningLaw
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Spring2018 8 PLANNING&LAW
MarcusMellowas PLD’s 2016-2017 Daniel J. Curtin Fellow,during which time he was also a student at HarvardUniversity’s Graduate School of Design, pursuing dualmaster’sdegreesinarchitectureandurbanplanning.
I.AlfredBettman
AlfredBettmanwas borninCincinnatiin1873to German
immigrants and served as the first president of the
American Society of Planning Officials (ASPO) from 1934
through1938.(ASPOwouldconsolidatewiththeAmerican
Institute of Planners some forty years later to create the
American Planning Association). After
earninganundergraduate and lawdegree
from Harvard University, he returned to
his hometown, where he was eventually
appointed as Cincinnati City Solicitor in
1912.Two yearslater,hehelpedestablish
the United City Planning Committee of
Cincinnati and later drafted legislation
allowingforcities inOhio toform city and
regional planning boards. (Gerkens, L.C. (1983).Bettman of Cincinnati. The American Planner: Biographies and
Recollections.)
JohnLordO’Brian, inthe first sentenceof
hisforwardforBettman’sCityandRegionalPlanningPapers,describesBettmanasmanwho “led a many-sided life filled with
responsibilities.” O’Briandrives home the
fact that what Bettman caredmost about
government was how it impacted human
lives.Whileotherlawyersofhistimewere
more preoccupied with academic theory,
Bettman sought to legislate systems that had positive
outcomes on individual citizens and preserved and
strengthened democracy for their sake. While his work
helpedinstitute urban planning as a professional practice
and form of government, the collective body of his
scholarshipandlegislationcan be seenas a field of social
improvement. In this light, some consider him a
humanitarian. Bettman also acknowledged that while
legislation was necessary to put procedural methods in
place, the power of public opinion was ultimately most
crucial in bringing about a better world. His devotion to
morality for the public good comes across inhis CityandRegional Planning Papers. Bettman was also known as apersonable man. In commenting on Bettman’s character,
O’Brianstates that “his senseof devotion,his modesty,his
self-deprecatory humor, his patience, were quite as
distinctive as was his courage in facing disagreeable facts
without attemptingtominimize theireffect.”(O’Brian, J.L. (1946).
Foreward.CityandRegionalPlanningPapers.)
Bettman’s legacy can be found largely in the words of A
StandardCity PlanningEnablingAct (SCPEA),amodel law
thatwaspublishedby theU.S.Department
of Commercein1928.As amemberof the
Advisory Committee on City Planning and
Zoning (ACCPZ) that drafted the law,
Bettman- along withnineother members
(including Frederick Law Olmsted) - was
instrumental in establishing land use
planning as a tool through which local
governments could regulate their urban
form.(Knack,R.,Meck,S.,&Stollman,I.(1996). TheReal StoryBehind theStandard Planning and ZoningActs of the1920s. Land
UseLaw&ZoningDigest.)WhiletheACCPZwasalso
responsible for drafting A Standard State
Zoning Enabling Act (SZEA), which was
printedin1924,BettmanjoinedtheACCPZ
to work specifically on SCPEA given his
experience with draft ing planning
legislation in his home state of Ohio.
Bettmanwas appointed to the committee
by former U.S. President Herbert Hoover,
who was Secretary of Commerce at the
time. During a time when American cities
saw mass influxes of people, Hoover actively worked to
improve social conditions and the quality of American life
throughbuilt space,writing inhis administrationthat “our
citiesdonotproducetheirfullcontributiontothesinewsof
Americanlife andnational character. Themoralandsocial
issues can only be solved by a new conception of city
building.” (Wilbur, R. and Hyde, A. (1937). The Hoover Policies.) Bettman, in
working to actualize Hoover’s vision,was an instrumental
partofsettingframeworksforstatesandlocalgovernments
Continuedonnextpage
Wearepleasedtobringyouthefirsteditionof“APageOutofPlanning&LawHistory”—ournewseriesonthehistoricalintersectionofplanningandlawinwhichwehighlightthepeople,events,andmovementsthat
contributedtothegrowthofthesefields.
APageOutofPlanning&LawHistory
AlfredBettman&theBettmanLawSymposiumUnderstandingtheKeynotePlanning&LawSessionThroughtheLegacyofItsNamesake
byMarcusMello
Photo credit: Cincinnati Planning Department. (1995). Retrieved from http://plannersweb.com/1995/04/community-leadership-the-cincinnati-planning-commission/
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Spring2018 9 PLANNING&LAW
toadoptplanningguidelinestobenefitthequalityoflifefor
their citizens. SCPEA covered six subjects: “(1) the
organizationandpoweroftheplanningcommission,which
wasdirected to prepareand adopt a‘master plan;’ (2) the
content of themaster plan fo thephysicaldevelopment of
the territory; (3)provision for adoptionofamaster street
planbythegoverningbody;(4)provisionforapprovalofall
public improvements by the planning commission; (5)
controlofprivatesubdivisionof land;and(6)provisionfor
theestablishment ofaregionalplanningcommissionanda
regionalplan.” (American PlanningAssociation. (2017,December). Standard State
ZoningEnablingActandStandardCityPlanningEnablingAct.)
Arguably Bettman’s most significant contributionto urban
planning,however,cametwoyearsbeforethepublicationof
SCPEA. The case of Village of Euclid v. Ambler Realty Co.likely held a special importance to Bettman as Euclid is
locatedjustoutsideClevelandinhis homestateofOhio. In
theEuclidcase,Bettmanfiledapersuasive137-pageamicuscuriaebrief to the SupremeCourt reframingtheargument
usedby theVillage of Euclidinlower courts, anddrawing
keyconnectionsbetweenzoning,nuisancelaw.LoraLucero
detailsthetimeframeofBettman’samicusbriefinPatriciaE.
Salkin’s 2005 compilation publication Current Trends andPracticalStrategiesinLandUseLawandZoning,statingthat,initially, Bettmanmissedthe deadline to filehis brief and
reachedouttohis fellowCincinnatianWilliamHowardTaft,
thenChief Justice of the Supreme Court at the time, who
allowed him to file it belatedly. Eventually, the case was
reargued.Inhisbrief,Bettmanarguedthat single-usezones
werenecessarytoavoidclashes inlandusesandthatpolice
power should be allowed to prevent developments that
negativelyaffectthesafety,welfare,andhealthofthepublic.
In theEuclid case, theCourt foundthat AmblerRealty didnot provide evidence that the Village of Euclid’s zoning
ordinance reduced the value of its property in question;
rather, the ordinance had a rational basis and was not
subject toaclaimoftakings.(Bettman,A.(1946).CityandRegional Planning
Papers.) The case paved the way for local governments to
adopt zoningordinancesacross theUnitedStates duringa
timewhenzoningwasstillanewconcept.
Bettman’s death came in 1945, nineteen years after the
Euclid ruling while traveling aboard a train fromWashington, D.C. to Cincinnati. He had just attended the
American Institute of Planners Meeting inNew York. The
BettmanLawSymposiumisatestamenttoAlfredBettman’s
accomplishments and achievements throughout his
prominentcareer.
II. The Bettman Law Symposium & The NationalPlanningConference
TheBettmanLawSymposium,whichtakes placeeachyear
at the American Planning Association’s National Planning
Conference - hasconvenedtheprofessionalurbanplanning
communityintacklingcomplexlegalquestionsaffectingthe
built environment since its founding. Two things that are
clear about “the Bettman” - as it is affectionately known
amongst its organizers - are theinfluence it has hadonits
attendees andthe profoundimportanceof its namesake to
thefieldsofurbanplanningandlaw.
The Bettman Symposium is included in the prefaces,
footnotes, and references of various books on land use
planning and law for its significant contributions to
scholarshipacross bothfields. JeromeG.Rose,who served
as a professor or urban planning and business law at
Rutgers University during his career before his death in
2013, cites the Bettman inhis work Legal Foundations ofLandUsePlanning. Hestates: “InMay 1974, at its FortiethAnnual National Planning Conference in Chicago, the
AmericanSocietyofPlanningOfficials selectedthetransfer
of development rights (TDR) as the featured subject of
discussionforitsprestigiousAlfredBettmanSymposia.The
discussion served the twofold purpose of exposing the
enthusiastic response of practicing planners to this new
techniques of land-use regulation and also providing an
opportunityforthosewhohadbeenexperimentingwiththe
concept to share their findings andto reaffirm their initial
observation that … “Transferable development rights is an
ideawhosetimehascome!”(Gerome, J.G. (1979).Legal Foundations of Land
Use Planning.) Rose’smentioning of the Bettman Symposium -
whichat thetimeexistedasacollectivesymposia-notonly
confirms its forty-plus year existence, but regards it as a
criticalconnectionpointbetweenplanningandlaw.
Indeed,of themost powerfulcharacteristics of the coveted
event is that it provides an opportunity for scholars and
practitioners to deeply investigate the intersectionof two
fields that oftenaren’t indialogueenough. It alsoprovides
student conference attendees with an insight into career
pathways by highlighting current topics through which
planningandlawoverlapin intriguingways. LoraLucero,
who served as an editor andstaff liaison to theAPA from
2001to 2010,helping to organizemanyBettmansessions,
saidinaninterviewforthisarticle thatpart ofthevalueof
Continuedonnextpage
PageOutofHistorycontinuedfrompreviouspage
If you are attending the 2018 NationalPlanning Conference in New Orleans, pleasejoin us for this year’s Bettman Lawsessions:• Law & Planning for Climate Change
(Sunday,8:30-10am,RoomR05)• Housing, Health, Equity & Local Control
(Sunday,10:45am-12:15pm,RoomR05)• After Inclusive Communities: Disparate
Impact Revisited (Monday, 8:30-10 am,GreatHallB)
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Spring2018 10 PLANNING&LAW
the Bettman at an event like the National Planning
Conference is in that urban planning does not work in a
vacuum; it works in anenvironment that requires a clear
understandingof the law.It also serves as a sortofbridge
between the APA and the American Bar Association,
especially its Section on State and Local Government.
Lucero’s aforementionedCurrent Trendschapter highlightsthat theevent “features speakers, recognizedas leaders in
their field, sharing important topics in land-use and
planninglaw.”
In addition to providing a platform for leading voices in
planningandlaw, thesymposium preserves thehonorable
career of Alfred Bettman, whose career was devoted to
making the case that the practice of city planning, when
appliedeffectively, couldwork to improvethepublic good.
Manystudents of law andurbanplanningmaynever have
come across his name, even when familiar with the
landmarkEucliddecision.TheBettmanSymposium, inthissense, is symbolic - it preserves the namesake of an
admirab le groundbreak ing f i gure whose work
fundamentally improved conditions in cities and towns
across the nation, and does so at the country’s most
importantgatheringofurbanplanningprofessionals.♦
I am extremelyexcitedandhonoredtobeservingasthePlanningandLawDivision’s 2017-2018CurtinFellow.I’ma
thirdyeardualdegreestudentinlawandurbanplanningattheUniversityofNorthCarolina.Mymajorinterestsinthe
planningandlegalfieldsareaffordablehousing,inclusiveeconomicdevelopment,andlanduselaw.
NewsletterArticlesWithregardtomy fellowshipduties,Ihavecompletedanewsletterarticle examining theefficacyof tiny homesas an
affordablehousingsolution.Thearticledelvesintotheriseinprominenceoftinyhomesasatrendylivingspaceandasa
profferedtoolforcommunities to addressaffordablehousing.Additionally,thearticleprobes theprofferedbenefits of
tinyhomesandexploresthelegalandinstitutionalhurdlesthattinyhomesface.LaterthisspringIwillworkonanother
newsletterarticleforPLDonanasyetundecidedtopic.
NPC18PreparationInadditionto thenewsletterarticle,I amalsoprovidingassistanceto thePLDLeadershipteamtoprepareforthe2018
APAConference.IhaveupdatedthePLDEventsflyertoreflectthecurrenteventsfortheyearandamhelpingtocompile
recentpublicationsfromPLDmemberstobeincludedinaseparateflyerforthe2018conference.
UpdatedOnlineResource:FoundationalLandUseLawCasesFurther,I am helpingPLDChair-Elect EvanSeemancompileanupdate toPLD’sonlineresource,entitledFoundational
LandUseLawCases,originallycreatedinspring of2007bypast CurtinFellowDavidGest.TheAICPCommissionhas
requested permission from PLD tomake this resource available as study guide reference for AICPexam takers. The
compilationwillhighlightandprovidebackgroundtomajorlegalcasesthathaveimpactedtheplanningfield.
CurtinFellowReportbyMatthewNorci
PLDDanielJ.CurtinFellow
PageOutofHistorycontinuedfrompreviouspage
The PlanningandLawDivisionwelcomesMatthewNorchi as this year's recipient of the DanielJ.Curtin Fellowship. Matthew Norchi is a third year graduate student at the University of North
Carolina at Chapel Hill where he is pursuing a dual degree in law andurbanplanning. Prior to
attendingUNC,hereceivedaB.A.inHistoryfromtheUniversityofSouthCarolina.Mattisinterested
inhelpingtoaddresseconomicandsocietalinequality,withparticularfocusesonequitablelanduse
planningandaffordablehousingdevelopment. Thispastsummer,Mattworkedas a summerintern
attheCityAttorney'sOfficeinCharlotte,NorthCarolina.AsaCurtinFellow,Matthopestolearnfrom
experts intheplanning andlegal fields anddevelopadeeperunderstandingof howplanningandlegalmethodscan
helpfurtheraffordablehousingandcommunitydevelopment.
ThepurposeofthePLDDanielJ.Curtin,Jr.Fellowshipistofosterincreased interestinthestudyoflanduseplanninganditsinterrelationshipwiththelawatthegraduate,andlawschoollevels; increasedparticipationintheplanningprofession;andultimately,greaterservicetocommunitiesacrossthenation.
MeetOurNewCurtinFellow
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Spring2018 11 PLANNING&LAW
John R. Nolon is a Distinguished Professor of Law at theElisabeth Haub School of Law at Pace University where heteaches property, land use, and sustainabledevelopment lawcourses and is also the Founder and FacultyLiaison of theLaw School’sLandUseLawCenter.In2009 hewasawardedthe American Planning Association’s National LeadershipAwardforaPlanningAdvocate.
PatriciaE.Salkin isProvostof theGraduateandProfessionalDivisions ofTouroCollege. Shemost recentlyservedasDeanandProfessorofLawattheTouroCollegeJacobD.FuchsbergLawCenter.ProvostSalkinservedasanappointedmemberofthe U.S. Environmental Protection Agency’s NationalEnvironmentalJusticeAdvisoryCouncilandalsoontheBoardofDirectorsoftheNewYorkPlanningFederation.
The APA’s 2002 Growing Smart Legislative Guidebook
explains that “states and communities across the country
are slowly, but increasingly, realizing that simply
respondingtonaturaldisasters,withoutaddressingways to
minimizetheirpotentialeffect,isnolongeranadequaterole
for government.” It further states that “strivingto prevent
unnecessary damage from natural disasters through
proactiveplanningthatcharacterizes...[hazards],assesses
a community’s vulnerability, anddesigns appropriate land
use policies and building code requirements is a more
effective and fiscally sound approach to achieving public
safetygoalsrelatedtonaturalhazards.”Visionplans,aswell
asdevelopmentandconstructionregulations,canbeusedto
helpmitigatetheimpactsofnaturalhazards.Suchtoolsmay
includebuilding codes, zoningandsubdivisionregulations,
buffer requirements, steep slope ordinances, site plan
requirements,conservationandnaturalresourceprotection
policies, comprehensive plans, floodplain management
plans, open space plans, stormwater management plans,
andtransportationplans.
Examplesofregulationsthathavebeenusedtomitigatethe
impacts of natural hazards include: limitations on how
property may be used in floodzones; setbacks from fault
lines (and shorelines and other areas prone to natural
disasters), steep slopes, and coastal erosion areas; and
overlay zones that introduce additional requirements to
help prevent f looding and to protect sensitive
environmental areas suchaswetlands, tidalbasins, dunes,
and hillsides. Such regulations were upheld as valid
restrictions that were not
unjust takings in 2014 by
theAlaskaSupremeCourt in
Tweedy v. Matanuska-SusitnaBoroughBoardofAdjustmentandAppeals,andin2013bythe SouthDakotaSupremeCourt inParris v. City of RapidCity. TheAPA’s Guidebook recommends theuseof overlaydistricts as a natural hazard mitigation technique, and
encourageslocalgovernments todevelopalistoflanduses,
building designs, and construction techniques that should
be prohibited in each overlay zone. Restrictions in each
overlaydistrictshouldbedesignedtorespondtotheunique
naturalhazardsthatposethebiggestthreats.
Additionaldevelopmentandlanduseregulations that have
not beenstruck downby the courts andthat helpmitigate
naturalhazardsincludethefollowing:
• Subdivision regulations to limit the intensity of
development in areas located within mapped
floodplains.
• Subdivision regulations for developments in
fire-prone areas to include facilities to suppress
wildfires.
• Requirements for applicants to avoidconstruction
that results in encroachments upon watercourses
andwaterbodies, including avoiding the filling or
excavationof,orencroachmentupon,wetlandsand
floodplains.
Throughoutthesiteplanreviewprocess,conditionsfor
approvalcanbeaddedtomitigatetheimpactsofnatural
hazards.Performancezoningcanalsobeemployedaspart
ofasubdivisionorsiteplanreviewprocesstoaidindisaster
mitigation.Forexample,vegetationrequirementssuchas
treeordinancescanhelptominimizefloodingbypreventing
theremovaloftreesorbyrequiringtheirreplacement.In
areasthatarepronetowildfires,localgovernmentscan
mitigatetheimpactoffiresonhomesbyrequiringbuffer
areasthateliminatenaturalfuelsaroundresidences,
includingsmalltrees,fallenleaves,branches,pineneedles,
andthelike.♦
BookExcerpt:
DisasterMitigation~AnExcerptfromLandUseinaNutshell,2ndEd.~
ThiscolumnfeaturesmodifiedexcerptsfrompublicationswrittenbyPLDmembers.ThemodifiedexcerptpresentedhereistakenfromthesecondeditionofProfessorJohnR.Nolon’sandProvost
PatriciaE.Salkin’sbook“LandUseLawinaNutshell,”publishedin2017.
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Spring2018 12 PLANNING&LAW
“Citieshavethecapabilityofproviding
something for everybody, only
because, and only when, they are
createdfor everybody.”– Jane Jacobs,
The Death and Life of the GreatAmericanCities.
Citizen Jane: Battle for the City(“Citizen Jane”), a project sponsored
by many donors including The
Rockefeller Foundation and the Ford
FoundationJust Films,begins its story
with this quote against a deep black
background,withJane Jacobs’s words
written in a contrasting stark white
color.Thishighlightswhat is to come
throughout the rest of the movie: a
brilliant activist bringing light to the
dark and homogenizing world of
planning at that particular point in
time. Citizen Jane, released in the
spring of this year, furthergoes on to
depict Jane Jacobs’s life story andthe
implications and effects her great
words have had on the planning
communitythroughouthistory.
The movie begins by explaining the
d e t r imen t a l e f f e c t t h e G r e a t
Depression had on the world of
planning. Cities, especially New York
City, over the next years became
overcrowded, infested with disease,
dirty,andgreatlypolluted.Slumswere
also popping up throughout the city
and directly opposed the effect the
newlybuiltmodernskyscraperswere
supposedtohaveonthecity’soverall
image. The solution? Clean it up. By
pushing forward this solution, Robert
Moses, an emerging figure from the
Progressive Movement, gained his
great power over the path planning
would take during those next few
decades. In essence it was a war on
slums, with the battle formation
wiping theslate cleanandre-creating
theseneighborhoodfromscratch.
Most members of the planning
communitysupportedMoses’sidealist
“Clean it Up” theory until, as CitizenJane depicts, Jane Jacobs beganremindingpeoplewhattheyarelosing
asaresultofthiswar.Theywouldlose
thepulse of theseneighborhoods, the
creativity, the communal atmosphere,
and essentially the entire city. She
reminded planners as well as others
that thecity has a life of its ownand
thatwemust learnfrom it andadapt,
notstart fromscratch.As aresult, she
became Moses’s direct opponent; a
fearsome one at that, due to her
firsthand experience with one of the
greatest cities of all time. Jacobs lived
inNewYork City’sGreenwichVillage.
She experienced its culture and the
creative possibilities that emerged
from it. As an experienced freelance
writer and then a staff editor at
Architectural Forum, Jacobs was ableto beautifully and affectingly write
about herexperiences andthechange
planning needed to make inorder to
haveourcitiesstayvibrant andfullof
culture.
Not only was shea giftedwriter, but
Jacobs was also a steadfast activist,
unbeknownst to her at the time.
Before Moses’s departure from New
York City’s planning efforts, Jacobs’s
ownneighborhood,GreenwichVillage,
wasdesignatedforurbanrenewaland
WashingtonSquareParkwasplanned
tohaveamajorhighwaybuiltthrough
it to better connect the city. CitizenJanetakes theviewerthroughJacobs’sefforts to halt any wiping out of her
neighborhood for purposes of urban
renewal. Throughher diligent efforts,
strongopposition,andevenarrest for
starting a riot, Jacobs was able to
removeGreenwichVillagefromurban
renewaldesignationandbringtheend
oftheMoseserainNewYorkCity.
The movie ends with another quote
from Jacobs’sTheDeathandLifeoftheGreatAmericanCities:Under the seeming disorder of the
old city, wherever the old city is
workingsuccessfullyisamarvelous
order formaintaining the safety of
the street and the freedom of the
city. It is a complex order. This
orderisallcomposedofmovement
and change.Andalthough it is life,
notart,wemayfancifullycallit the
art form of thecity and liken it to
the dance. Not to a simpleminded
precision dance with everyone
kicking up at the same time,
twirling in unison, and bowing off
enmasse, but to an intricateballet
in which the individual dancers a
and ensembles all have distinctive
parts,whichmiraculouslyreinforce
eachotherandcomposeanorderly
whole.
What the planning as well as legal
communitycanlearnfromCitizenJaneis that we cannot shape our future
cities without the help of the people
actuallylivingintheseneighborhoods– the people experiencing its culture,
i t s s h o r t c o m i n g s , a n d i t s
achievements . Ci t izen Jane sopoignantly reminds the planning andlegal communities that one of the
greatest future challenges we all face
in this rapidly urbanizing world is to
applythisthemetofutureprojectsand
MovieReview:
CitizenJane:BattlefortheCitybyOlliaPappas
Continuedonpage15
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Spring2018 13 PLANNING&LAW
requirement. The Murrs planned to
relocateandrebuildthe cabin and to
sell Lot “E” to finance this effort, but
werepreventedfrom doing so bythe
density and lot merger restrictions.
The Murrs unsuccessfully sought a
variance and sued the state and
county, claiming that thedensity and
lot merger restrictions resulted in a
takingofLot “E.” Figure1illustrates
the sequenceof events leading to the
lots falling into common ownership
andtriggeringtheseprovisions.
AnalysisIn the context of economic takings
claims (as opposed to exactions or
physical possession cases), there are
several types of cases. The first is a
ca tegor ica l tak ing , where the
regulationeffectively denies alluse of
property. An example is the situation
in Lucas v. South Carolina Coastal
Council, where a coastal setback
encompassed the plaintiff’s entire
property anddenied all development
potential. This is the situation
WisconsinandSt. Croix County were
a t tempt ing to avo id wi th the
grandfatheringrule.Withoutthatrule,
substandard lots would lose all
development potential – exposingthe
state and local governments to
massiveliability.
The second type of economic takings
claim is a regulation that affects or
reduces development potential, but
does not deny all use. Since Penn
Central Transp. Co. v. New York City,
theCourt has applieda 3-part ad-hoc
analysistothesecases,consideringthe
followingquestions:
1.What istheregulation’seconomic
impact?
2.Howdoestheregulationaffect the
proper ty owner ’ s reasonab le ,
investment-backedexpectations?
3. What is the character of the
regulation – for example, does it
prevent a serious public harm, or
simplyregulateaesthetics?
Inthecontextofalotmerger,doesthe
denial of development on one of the
lotsconstituteacategoricaltaking?Or,
does the court consider both lots
together todeterminethe regulation’s
overalleconomic impact? InMurr, theSupreme Court held that – at least
underthe facts of that case – the lots
are aggregatedto determine whether
there is a taking under the Penn
Cent ra l ana lys i s . The Cour t ’ s
assessment was that no taking
occurredunderthisanalysis.
EconomicImpactIn assessing the economic harm,
courtsdividethevaluereducedbythe
regulation into the value of the
p r o p e r t y a s a w h o l e ( t h e
denominator). With respect to a lot
merger provision, which property
furnishes the denominator – a single
parcelaffectedby themerger,orboth
parcels considered together? The
Court highlighted several tests in
dec id ing whether parce l s are
aggrega ted when a s sess ing a
regulation’seconomicimpact.
•HowPropertyLinesareTreatedunderStateLaw.Whileastatecannotpredefinepropertyrightsinawaythat
precludes a takings claim (for
example, by defining scattered,
non-adjacent properties as a single
parcel), state laws (such as the lot
mergerregulation)shapethecontours
of those rights. State law is not a
determinative factor that ends the
inquiry into parcel aggregation. Here,
it was important that the regulations
were established long before the
parcelsmerged–givingtheMurrs fair
warning about how that wouldaffect
their plans. The Court noted a
“widespread understanding that lot
lines are not dominant or controlling
ineverycase.”
• The Proper ty ’ s Phys i ca lCharacteristics. The tracts’ irregulartopography, physical connectivity
(includingthecommonbluff andlong,
narrow shape), and environmental
setting favored treating them as a
single parcel. The Court noted that
property in environmentally sensitive
locations is expected to carry a high
regulatoryburden.
• Of f se t t i ng Bene f i t s . Theregulation’seconomicbenefitsarealso
relevant. Whilethe regulation limited
development, it also preservedviews,
expanded recreational opportunities,
andprotectedprivacy.
q St. Croix River federally designated
State / County regulations adopted (including grandfathering / lot merger provision)
Figure 1: Murr v. Wisconsin Sequence of Event
TakingsDenominatorcontinuedfrompage1
Continuedonnextpage
STATELAWISNOTA
DETERMINATIVEFACTOR
THATENDSTHEINQUIRYINTO
PARCELAGGREGATION.
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Spring2018 14 PLANNING&LAW
In applying these factors, the Court
rejected an analytical sleight of hand
known as conceptual severance. The
theoryofconceptualseverancedivides
the portions of a property subject to
regu la t ion and assesses the ir
economicimpactseparately,awarding
compensation for the burdened
portion. For example, consider a
conventional zoning setback, with no
buildingspermittedforwardofafront,
side, or rear setback. Conceptual
severance would consider the
unbuildable areas within the setback
asseparatelyburdened,andtherefore
subjecttocompensation.
Notingthatcourtsoftenreject takings
claims involving value reductions of
upto95%, thiscasedidnot supporta
viable economic impact c laim.
Appraisals indicated that, given the
flexibility of siting a dwelling under
the merger provision, only a 10%
value reduction resulted from
combining the lots (see Table 1
below). In fact, the Court noted,
development of the merged lots
produced a much higher value
($698,300) than the separately
regulatedandimprovedLot “F”anda
sellable (although not developable)
Lot “E” ($413,000). Therefore, under
thespecificfactspresentedinthecase,
proof of the severe economic harm
neededto sustaina takings claimwas
thin.
CharacterofRegulationThe Court notedthe longstandinguse
of lot merger provisions throughout
the nation, along with their benefits.
These provis ions enable local
governments to protect the rights
a s s o c i a t e d w i t h p r e e x i s t i n g
substandard lots, while avoiding a
proliferation of lots in a way that
would defeat the government’s
environmental objectives. Lot merger
a v o i d s g amesmansh i p b y l o t
aggregations that could occur in
advance of the legislation, noting,
sma l l l o t sp l i t s a re o f t en an
administrative procedure that occurs
without muchregulatory oversight. A
variance process is also available
under Wisconsin and County law to
identifyuniquesituationsthatwarrant
regulatory relief to avoid economic
hardships.
The dissenting opinion would have
given the definition of parcel lines
under state law conclusive effect as
t h e t a k i n g s d e n o m i n a t o r .
Interestingly, they would have also
considered the impact of common
ownershiponthePennCentralfactors.
The dissent would have applied a
separate Penn Central analysis toParcel “E”, rather than to the
combined parce l s . I n a more
interesting development, Justice
Thomas’ concurrence questions the
legitimacyoftheCourt’sentiretakings
jurisprudence under the doctrine of
originalism, limiting takings claims to
more traditional eminent domain
cases and evaluating regulatory
takings claims as due process
violations.
5 Things to Know About the MurrDecision1. There is no bright line rule that
adjacent, commonly owned lots are
combined for regulatory takings
purposes. In deciding whether to
applyPenn Central’s adhocanalysis–and in assessing the regulations’
economicimpact–theCourtlookedto
backgroundprinciples ofstatelaw.Its
analysis on whether to apply an
ad-hoc or categorical takings analysis
is a bit murky. However, it is likely
conventional lot merger regulations,
Party Scenario Value
State Separate + each buildable $771,000
State Merged lots as regulated $698,300 (10% less)
State Lot F improved $373,000
Murr Lot E undevelopable, saleable $40,000
TakingsDenominatorcontinuedfrompreviouspage
The part of St. Croix Lake—a portion of the St. Croix River—on which the Murrs’ property adjoins. Photo by Mark White, August 20th, 2017
Continuedonnextpage
Table 1: Appraisals in Murr Decision
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Spring2018 15 PLANNING&LAW
that apply only to adjacent lotsunder
common ownership, will always
trigger the ad-hoc analysis. The first
case to apply Murr to a landdevelopmentregulationtodate,Quinnv.BoardOf CountyCommissioners ForQueen Anne's County, applied the adhoc test with little analysis as to
whether that test – or thecategorical
rule – was the appropriate one. InQueenAnne’sCounty,theCourtapplieda lot merger requirement to a sewer
extensionplanandsepticsystemlimit
that captured multiple lots that had
been acquired by a land speculator.
Applying the Murr/Penn CentralAnalysis,theFourthCircuitfoundthat
it was the unavailability of sewer
service – and not the lot merger
requirement – that
imposed economic
hardship. The Court
ultimately found that
there was no taking,
as the plaintiff lacked
any entitlement to
sewerservice.
2 . C o mm u n i t i e s
should ensure that
their zoning allows
development across
common lot lines. If
setbacks apply to the
lot l ine dividing common lots,
developmentispossibleononlyoneof
the lots. This minimizes flexibility for
the property owner, enhances the
possibility of a successful takings
claim, and is probably not needed to
accomplish their environmental
objectives or sustainthecommunity’s
character.
3. Consider moratoria or interim
regulations before increasing lot size
regulations.InMurr,iftheparentshadretainedownershipofoneofthe lots,
they would have been considered
separately owned and independently
buildable. Themore likely scenario is
separatelyownedlotsthat are soldin
advance of lot size regulations to
evade lot merger requirements. If
permittedbystate law, amoratorium
on lot salesanddevelopment prior to
implementing new regulations can
avoidthistypeofgamesmanship.
4.Makesureyourvarianceprovisions
are up to date, or consider special
rules for administrativeappeals of lot
mergerrequirements.
5.Whilethe government prevailed in
both Murr and Queen Anne’s County,thecase-by-case analysis is not asafe
harbor for lot merger requirements.
Howwould the economic impact and
investment-backed expectations
analysis apply to adjacent lots that
lackcommontopography?What if the
requirement d isrupts ex is t ing
development plans that were largely
completebefore the requirement was
adopted? In addition to appeals,
communi t i e s shou ld cons ider
alternatives to minimum lot area and
l o t m e r g e r
requirements either
as a backstop to
applicants who are
captured by those
requirements, or as
more flexible tools
for environmental
protection.Examples
include aggregate
density rules (such
as a maximum unit
per gross site area)
o r i m p e r v i o u s
surface allocations.
While it is likely most communities
cannowsuccessfullydefendminimum
lot area and lotmerger requirements
undertheMurrdecision,thisdoesnotn e c e s s a r i l y mean t h a t t h o s e
requirements are always the best or
mosteffectivepolicy.
ConclusionMurr is an important victory for localgovernments, and for planning in
particular. The Supreme Court
recognized the important public
policies underlying environmental
regulations, and accorded substantial
deference to zoningtools that protect
sensitivepublicresources.Inaddition,
with regard to takings inquiries, it
preservedthePennCentralad-hoctest
thatisdifficult for propertyowners to
overcome. Concerns about the
economic impact of regulations need
not thwart local efforts to protect
resources, but also call for both
administrative and substantive
flexibility. This was a somewhat
narrow majority (5-3), and Judge
Gorsuch’sopinionsonthesemattersis
yetto berevealed.However, it isgood
news for local regulations affecting
e n v i r o nmen t a l a n d r e s o u r c e
protection, and confirms the legal
viability of an important regulatory
tool.♦
TakingsDenominatorcontinuedfrompreviouspage
THEREISNOBRIGHT
LINERULETHAT
ADJACENT,COMMONLY
OWNEDLOTSARE
COMBINEDFOR
REGULATORYTAKINGS
PURPOSES.
policyplanning.Not onlymust wedo
this for our own Americancities, but
remindourglobalsistercities,likethe
Chinese cites replicating Moses’s
homogenous buildings for public
housing, that the just “Clean it Up”
theorywillnotandhasnotworkedfor
citycommunities;thatit isaniterative
process between multiple working
groups, including, and especially, the
people actually living in these
neighborhoods.♦
CitizenJanecontinuedfrompage12
HelpleadPLD!
PLDwillelectnewleadersthisyear
a n d i s i n v i t i n g c a n d i d a t e
nominations. If youare interested
i n r u n n i n g f o r e i t h e r t h e
Secretary/Treasurer or the
Chair-Elect position, youmay sign
upattheAPAnominationswebsite
by May 15. Terms for both
positions will begin January 1,
2019 and will run for two years.
Candidates must be current APA
and PLD members. Online voting
willbegininAugust.
Serving in a PLD leadership
po s i t i on i s r eward ing and
e n g a g i n g ! P l e a s e c on s i d e r
submittingyour onlinenomination
today.
ELECTIONS
ANNOUNCEMENT
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Spring2018 16 PLANNING&LAW
agency, the Land Conservation and
Development Commission (LCDC)
must certify (or acknowledge) these
plans and regulations to be in
compliance with the state’s planning
goals.
Energy and the Statewide PlanningGoalsTwo statewide planning goals are
relevant to the State’s energy policy.
Goal 13 (adopted inDecember 1974)
provides a policy to conserve energy.
Butunlikemostothergoals, thereare
no rules adopted by the LCDC to
implement this goal or to detail the
obligationsitrequires.Indeed,Goal13
wasa product of theshort-livedArab
Oil Embargo, andwas adoptedbefore
a statewide energy policy was
formulated in1975.When the energy
crisis waned,so didthe impetus fora
planning response. In the LCDC’s
review of the land use plans and
regulationsofapproximately300local
governments to determine whether
they should be acknowledged, there
was not a single significant contest
overGoal13.Theotherapplicablegoal
focuses on specific energy sources
(such as geothermal energy, which is
part of Goal 5, Natural Resources),
rather than on choices among energy
alternatives and is therefore not
significant.
Regulat ion o f Major EnergyFacilitiesIn 1971, the state legislature created
an agency, now called the Energy
Facilities Siting Council (EFSC),
chargedwithgrantingor denying site
certificatestonuclearinstallationsand
thermal power plants, and adopting
andenforcingadministrativerules for
site certificates and operational
requirements for thesefacilities.Until
1993, EFSC preemptionwas the rule,
and land use impacts were a mere
consideration for major energy
facilities. State legislation from 1993
providedthat applicantsmightchoose
alternativemeans of compliancewith
the state’s planning criteria. An
applicant might choose localapproval
under an acknowledged plan, EFSC
approvalunderthestatewideplanning
goals by interpreting the local plan,
EFSCapprovalsolelyunderthestate’s
goals,or EFSCapprovalunderitsown
criteria (which could exclude the
state’sgoals).
Other state agencies, such as the
Public Utility Commission and the
DepartmentsofEnvironmentalQuality
and Water Resources, may also have
rules that can impact major energy
facilities. However, the site certificate
process binds state agencies to issue
permits and licenses when a site
certificateisissued.
The net result under current Oregon
law is a muddled approach at the
intersection of land use and energy
policy, especially with regard to
energyfacilitysitingdecisionsthatare
based on local and state directions
thatdonotalwaysrequirecompliance
with the statewide planning goals
(which are designed to set our state
land use policy) or with local plans
andlanduseregulations.
IndirectlyDerivedEnergyPolicyThere are also a number of indirect
formulations and applications of
energy policy, such as the following,
found in other statutes, rules, and
practicesofpublicagenciesinOregon.
1. Transportation and Urbanization
– O r e g o n r e c o g n i z e s t h a t
transportation contributes greatly to
energy consumption and attempts to
reduce that consumption through its
landuseplanningsystem,inparticular
through its Transportation Planning
Rule (TPR) that reduces vehicle-miles
traveled, supports mass transit,
promotes connectivity, and assures a
morecompacturbanform.
2. TaxPolicy–Taxlegislationisalso
influential. For example, the Oregon
Department of Energy administers
residential and business energy tax
credit programs that allow taxpayers
to install improvements to reduce
energy consumption and a business
energy tax credit program focusedon
new energy facilities. Similarly, the
Department grants incentives related
to reductions in energy use by
businesses.Thestatealsoprovidesfor
certain exemptions of land and
fixtures from property taxes in
relation to the establishment of
alternativeenergysystems.
3. Particular Energy-Related Land
Use Controls – Since 2007, the state
has required electric utilities to
comply with renewable energy
portfolio standards including wind,
solar,wave (includingtidalandocean
thermal), geothermal, biomass,
municipalsolidwastecombustion,and
hydrogen gas sources (all preferred
over fossil fuels and hydropower
sources) . Legis lat ive land use
directionshavealso impactedpolicies
regardingsomeofthesesources.
a. Wind Energy - Oregon protects
wind energy resources and has
p rov ided fo r w ind energy
easements as part of its property
lawregime.
b. Solar Energy - Similarly, Oregon
allows for the protection of its
solar energy resources and has
also provided for solar energy
EnergyPlanningcontinuedfrompage2
Continuedonnextpage
ASTHERESULTOFALACKOFENERGYPLANNINGMINDFULNESS,OREGONHASLOST
OPPORTUNITIESFORENERGYEFFICIENCY,ASWELLASFORTHEFORMULATIONOFAMORE
COHERENTAPPROACHTOENERGYRESOURCEUSEANDDEVELOPMENT.
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Spring2018 17 PLANNING&LAW
easements as part of its property
lawregime.
c. Wave Energy - Oregon regulates
wave energy within the limits of
its territorial sea through its
regulations for sitingwhat it calls
oceanrenewableenergyfacilities.
d. Geothermal Energy - Oregon
regulates geothermal exploration
and development, including its
spatial characterist ics , and
encouragesuseofthis alternative
energyresource.
e. Biomass Energy- The state
legislature has allowed the
administrators of state-managed
forests to develop projects
focused on biomass energy in
order to convert forest waste to
energy and encourages
private landowners to
dothesame.
f. Municipal Solid Waste
Combustion-Facilitiesin
a metropolitan area
accommodating this
energy source may be a useful
part of asegment ofa renewable
energyportfolio.
g. Hydrogen Gas Genera t ion -
Hydrogen gas is a potentially
cheap and useful future fuel
source.
4. Regulatory Efforts at Energy
C o n s e r v a t i o n – T h e O r e g o n
Depar tment o f Consumer and
Business Services administers a
statewidebuildingcodeandischarged
with assuring energy efficiency and
conservation in its administration of
the code, which includes standards
relating to energy use and efficiency
(through application of certain
specialty codes). The Department
Director may adopt and amend
economically and technically feasible
code standards (called the Reach
Code), uniform energy conservation
standards, and amendments to the
statewide building code to increase
e n e r g y e f f i c i e n c y i n n e w l y
constructed,reconstructed,altered, or
repaired structures. Public buildings
are also subject to specific energy
conservationstandards.
Oregon requires its public utilities
providingnaturalgas or electricity to
make available energy audit and
remediationprograms forcommercial
bu i l d i ng s t o p romote ene rgy
conservation.Thestatealsomandates
energy audit and remediat ion
programs of investor-owned and
publicutilities,aswellasofoildealers.
ConclusionEnergy po l i cy i n Oregon has
significant impacts on land use
planningandregulation, buthasbeen
incremental, uneven, and oriented
towards individual projects or tax
benefits. While Oregon’s statewide
planning goals have otherwise been
highly influential in shaping landuse
decisions, dealing with rural affairs
(retainingagriculturalandforestlands
for resource use, for example), and
urbanconcerns (transportationneeds
a n d i s s u e s r e l a t e d t o r a p i d
urbanization, for example), the goals
have been notably ineffective in
dealing with the intersection of land
useandenergy.This outcomemay be
attributedto thereductionintheneed
for energy conservation producedby
thewaningofoil shortagesandsharp
oil price increases, as well as the
continued less-than-enthusiastic
public responsetoclimatechangeand
environmental issues (due in part to
theperceivedlargeamount ofmoney
thatisneededtoresolvetheseissues).
Just as likely, however, is the fact
Oregon has never gotten around to
creatinga cohesive,integratedenergy
policy. Here are some ways that
Oregoncouldachievethatobjective:
1. Revise the state’s energy goal
(Goal13) to includestateandfederal
energy policies, and reference the
need to meet c l imate change
challenges.Adopt administrativerules
to provide a single policy addressing
land use decisions, tax law, and the
sitingofmajorenergyfacilities.
2. Integrate tax and utility rate
policy as part of the state’s energy
planningpolicy. Just asOregon favors
farm and forest uses on resource
lands, and encourages efficient
alternative energy use in its tax
policies, those objectives should
reinforceoneother.
3. Develop and implement new
planning, energy efficiency and
conservation, and tax policies while
realizing their interdependency.
Moreover, land use planning must
integrate both climate change and
energypolicyconsiderationsintotheir
everydayadministration.
While most states do not
have a statewide planning
program,theyprobablyhave
an incremental approach to
energy policy, adding the
latestgoodideaonenergyto
existing explicit or implicit
energy policies. Unconscious and
diffuse incrementalismisanenemyof
good planning and policy. If these
suggested reforms are undertaken
thoughtfully, thenthevarious strands
of energy policy and regulation may
yet bemelded into auseful, coherent
whole.♦
EnergyPlanningcontinuedfrompreviouspage
UNCONSCIOUSANDDIFFUSEINCREMENTALISMIS
ANENEMYOFGOODPLANNINGANDPOLICY.
Want to contribute to the PLD
News l e t t e r ? S e nd u s y ou r
proposals for articles, casestudies, case law updates, orbook reviews. Be creative; thinkbeyond the ordinary and send us
something our membership is not
likelytofindanywhereelse.
S u bm i t y o u r p r o p o s a l s t o
CallforSubmissions
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Spring2018 18 PLANNING&LAW
RecentBooksbyPLDMembers
DavidL.Callies,RobertFreilich&Thomas
Roberts,CasesandMaterialsonLandUse(AmericanCasebookSeries-6thedition),WestAcademicPublishing,May2017.
BrianJ.Connolly,Ed.
LocalGovernment,LandUse,andtheFirstAmendment:ProtectingFreeSpeechand
Expression,ABAPublishing,2017.
CharlesR.Wolfe,SeeingtheBetterCity:HowtoExplore,Observe,andImproveUrbanSpace,IslandPress,2017.
AdamLoveladyandDavidW.Owens,
Quasi-JudicialHandbook:AGuideforBoardsMakingDevelopmentRegulationDecisions,
UNCSchoolofGovernment,2017.
StewartSterk,EduardoMoises
Peñalver&SaraC.Bronin,
LandUseRegulation,WestAcademicPress,2016.
JohnR.NolonandPatriciaE.Salkin,
LandUseinaNutshell,ThomsonWest,2017.
DavidL.Callies,DanielR.Mandelker&
J.GordonHylton.PropertyLawandthePublicInterest:CasesandMaterials.
FifthEdition,2016.
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Spring2018 19 PLANNING&LAW
2018
DwightH.Merriam,FortheRecord,TheCommissioner(2018).
EvanJ.Seeman,JohnF.X.Peloso,Jr.,KarlaL.Chaffee,andDianaE.Neeves,RobinsonColeLLP,LocalGovernment
RegulationofReligiousLandUsesUnderRLUIPA,ThomsonReutersPracticalLaw(2018).
2017
SaraC.Bronin,RezoningthePost-IndustrialCity:Hartford,ABAProbate&PropertyJournal(May/June2017).
CarolN.Brown&DwightH.Merriam,OntheTwenty-FifthAnniversaryofLucas:MakingorBreakingtheTakings
Claim,IowaLawReview,Vol.102(2017).
DavidL.Callies,HousingDiscriminationandExclusionaryZoningintheUnitedStates,(withDerrick)JournalofInternationalandComparativeLaw,Vol.3(2017).
BrianJ.Connolly,UnderstandingtheFirstAmendmentLimitationsonGovernmentRegulationofArtwork,StateandLocalLawNews,Vol.40,No.2(Winter2017).
DwightMerriam,MeetingandBeatingtheChallengeofOff-CampusStudentHousing,ZoningPractice(August2017).
DwightMerriam,YourLaunchPadforDroneRegulations,Planning(June2017).
DwightMerriam,The2016ZiPLeRs:TheTwenty-SecondAnnualZoningandPlanningLawReportLandUseDecisionAwards,ZoningandPlanningLawReport(February2017).
JohnR.Nolon,Zoning’sCentennial:ACompleteAccountoftheEvolutionofZoningintoaRobustSystemofLandUse
Law--1916-2016(PartIV),ZoningandPlanningLawReport(January2017).
EvanSeeman,KarlaChaffee,DwightMerriam,andJohnPeloso,RLUIPACaseoftheYear?MinnesotaMunicipality
UsesRLUIPA’sSafeHarborProvisiontoAvoidLiability,Planning&Law(Spring2017).
EdwardJ.Sullivan,TheSlowEvolutionofEnergyPlanning–OneState’sExperience,ZoningandPlanningLawReport(2017).
EdwardJ.Sullivan,ReconsideringtheLandUseandTaxationImpactsofOneAspectofThe‘SharingEconomy’inthe
UnitedStates,ZoningandPlanningLawReport(2017).
RecentArticlesbyPLDMembers
ForafulllistofpublicationsbyPLDmembers,visit:www.planning.org/divisions/planningandlaw/member/memberpublications.htm
IfyouareaPLDmemberandwouldlikeustoaddyourbook,article,orotherpublicationtoourwebsite,contactChair-Elect,EvanSeeman,[email protected].
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Spring2018 20 PLANNING&LAW
PLDAnnouncesWinnersof34thAnnualSmith-Babcock-WilliamsStudentWriting
Competition
PLDsincerelycongratulatesthewinnersofthisyear’sSmith-Babcock-Williams
StudentWritingCompetitionfortheirexemplarycontributionstotheplanning
field.
First prize goes to Matthew Scarano for his article“Withholding Municipal Services to Facilitate Coastal
Retreat: Legal Risks and Possibilities. Matt graduated in
2017fromColumbiaLawSchoolandwillstartasalawclerk
inthecorporatedepartment at DavisPolk inNewYorkCity
thisfall.
Second prize was awarded to ToddM i c h a e l H i r s c h f o r h i s a r t i c l e
“PreservationandProgress:AnArgument
in Favor of Transferable Development Rights." Todd
graduated in 2017 from Boston University School of Law
withaJ.D.andanLL.Mintaxation.This fall, hewill start at
PricewaterhouseCoopers (PwC) as an associate in the
InternationalTaxServicesgroup.
Finally,honorablementionwasawardedtoMoniqueM.Trammellfor “TheBenefits andImplications
ofDevelopingTinyHomeCommunities.”Moniquegraduated
in2017fromGonzagaUniversitySchoolofLawandplans to
pursueacareerinpropertylawinPhoenix,Arizona.
We express our deep appreciation to Alan Weinstein, the
Chair of the SBW Writing Competition Committee, for his
continued dedication to this program. Many thanks to all
PLD members who supported our competition by passing
along theannouncement to eligiblestudentsandencouragingthemtosubmit
entries
AnnouncementofNextCompetition–deadlineisJune5th!
PLD’s 35th Annual Smith-Babcock-Williams Student Writing Competition is
open to law students and planning students writing on a question of
significance inplanning, planning law, landuse law, localgovernment lawor
environmental law. The deadline for entries is June 4, 2018 The winningentrywillbe awardedaprizeof $2,000andsubmittedfor publicationinTheUrban Lawyer, the law journal of the AmericanBar Association's Section ofState&LocalGovernmentLaw.TheSecondPlacepaperwillreceiveaprizeof
$400andoneHonorableMentionprizeof$100alsowillbeawarded.Clickhere
forofficialrulesandfurtherdetails.
Please support the Smith-Babcock-Williams Student Writing Competitionby
sharing this announcement with eligible students and encouraging them to
submitentries.
Hirsch
Scarano
Trammell
GoingtoNew
Orleans?Checkoutour
conference
previewon
page33!
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Spring2018 21 PLANNING&LAW
of the Equal Protection Clause."
Absent that showing, the Court said,
the Seventh Circuit’s finding of a
"discriminatory 'ultimate effect' is
without independent constitutional
significance." Indeed, the Court’s
decision inArlington Heights laid thefoundationfordisparateimpactclaims
under theFHA to become one of the
most prevalent mechanisms for
f i gh t i ng modern -day hous ing
discrimination.
b.TheFHAandDisparateImpactIn 1968, Congress enacted the FHA
“following the urban unrest of the
mid-1960s and the chaotic aftermath
of the assassination of the Rev. Dr.
Martin Luther King, Jr.” The FHA’s
goal,asstatedwithinitsstatutorytext,
is to provide, “within constitutional
limitations, fair housing throughout
the United States.” In 1968, Senators
Celler and Mondale articulated
Congress’s ambitious belief that the
FHA’s proscription of discriminatory
housing practices would “remove the
walls of discriminationwhichenclose
minoritygroups”and“replaceghettos
with truly integrated and balanced
livingpatterns.”
The thrust of theFHA is foundwithin
i t s two p r ima r y s u b s t a n t i v e
provisions. First, 42 U.S.C. §3604(a)
makes itunlawful“to refuseto sellor
rent after the making of a bona fide
offer,orrefusetonegotiateforthesale
or rental of, or otherwise make
available or deny, a dwelling to any
personbecauseofrace,color,religion,
sex, familial status or natural origin.”
Second, 42 U.S.C. §3606(b), makes it
unlawful to “discriminate against any
persons in the terms, conditions, or
privileges of sale or rental of a
dwelling, or in the provision of
services or facilities intheconnection
therewith.”
Today,theFHAprotectsthefollowing
classes, and no others (in particular,
there is no per se protection foreconomicstatus):Race;color;religion;
sex(butnotsexualorientation);family
s tatus ; nat ional or ig in ; and
handicappedstatus.
c . Disparate Impact and I t sEmergenceUndertheFHAPrior to Inclusive Communities, theSupreme Court had previously
recognized, and upheld, disparate
impact claims under a number of
statutes,includingTitleVIIoftheCivil
Rights Act (“Title VII”), the Age
Discrimination in Employment Act
(“ADEA”), and the Americans with
DisabilitiesAct(“ADA”).Theoriginsof
disparate impactclaims canbetraced
to the Court’s decision in Griggs v.Duke Power Company. In Griggs, anemployer implemented new policies
that required prospective employees,
except for the company’s labor
department, (or current employees
seeking to transfer departments) to
have a high school education and to
pass two professionally prepared
aptitude tests to be eligible for
employment. While the new policies
were facially neutral, the Court
nevertheless found that they violated
TitleVIIbecauseof thelonghistoryof
inferior educationreceivedbyAfrican
Americans and because
the employer failed to
establ ish that e i ther
r e q u i r e m e n t h a d a
demonstrablerelationship
t o s u c c e s s f u l j o b
performance.
Gr i gg s p rov ided t heanalytical framework for
theEighthCircuitCourtof
Appeals’s1974decisionin
United States v. City ofBlack Jack,whichsignaledt h e e m e r g e n c e o f
disparate impact claims
under the FHA. In BlackJack, the Eighth Circuitconsidered whether a
zoning ordinance that
p r o h i b i t e d t h e
cons t ruc t i on o f new
multi-family dwellings
violated the FHA. The
Eighth Circuit reversed
t h e d i s t r i c t c o u r t ’ s
determination that the
ordinance did not have a
discriminatory effect and
heldthatthelowercourtfailedtotake
intoaccount“eithertheultimateeffect
or the historical context of the City’s
actions.” Having found that the
plaintiffs established a prima faciecase of disparate impact, the Court
shifted the burden to the City to
demonstrate that its conduct was
necessary to promote a compelling
governmental interest. The Court
ultimately invalidated the ordinance
and found therewas no factualbasis
to support theCity’s assertionthat its
proffered interests were furtheredby
theordinance.
III.InclusiveCommunitiesProject
a. Background and Lower CourtDecisionsInMarch2008,InclusiveCommunities
Project, Inc. (“ICP”) filed suit against
theTexasDepartment ofHousingand
Community A f fa i rs ( “TDHCA”)
alleging, inter alia, discriminationunder the FHA. ICP is a non-profit
organization dedicated to achieving
racial and socioeconomic integration
in the Dallas metropolitan area.
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The Supreme Court Building, Washington, D.C. Photo by Dennis McClendon, 1989
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Spring2018 22 PLANNING&LAW
TDHCA , a c co rd ing t o Texas ’ s
Government Code, is the agency
vested with the responsibility of
a d m i n i s t e r i n g t h e f e d e r a l
government’s Low Income Housing
Tax Credits (“LIHTC”) program in
Texas. Under theLIHTCprogram, the
federal government provides tax
credits to developers of low-income
housing that the developers can then
sell to finance construction of the
low-incomeprojects.
I CP a l l e g ed t h a t TDHCA had
improperly exercised its discretion in
making decisions regarding the
allocation of tax credits by allocating
the credits in a manner that had a
discriminatory effect on African
American residents. Specifically, ICP
c o n t e n d e d t h a t T DH C A w a s
disproportionately approving tax
credit units for developments in
p r e d o m i n a n t l y m i n o r i t y
neighborhoodsanddisproportionately
disapproving tax credit units for
developments in predominantly
Caucasian neighborhoods . The
consequence, according to ICP, was
the continued concentration of
a f f o r d ab l e un i t s i n m i no r i t y
neighborhoods,alackofsuchunits in
Caucasian neighborhoods, and the
p e r p e t u a t i o n o f t h e h ou s i n g
segregationthattheFHAseekstoend.
In 2012, the district court found that
ICP successfully proveda prima faciecase of disparate impact under the
FHA, althoughit failedonits claims of
intentional discrimination. Onappeal,
the Fifth Circuit Court of Appeal’s
reviewwas limited to a single issue:
“[W]hether thedistrict court correctly
found that ICP proved a claim of
violation of the [FHA] . . . based on
disparate impact.” Subsequent to the
d i s t r i c t cour t ’ s dec i s i on , t he
Department of Housing and Urban
d e v e l opmen t ( “HUD ” ) i s s u ed
regulationscodifyingdisparateimpact
under the FHA. Adopting HUD’s
burden-shifting approach, the Fifth
Circuit reversed and remanded the
case back to the district court for
applicationofHUD’sregulations,given
its “demonstratedexpertisewith[the]
facts.” However, on October 2, 2014,
the Supreme Court granted THDCA’s
petition for writ of certiorari, which
presentedto theCourtthequestionof
whetherdisparateimpactclaimswere
cognizableundertheFHA.
b . Supreme Cour t De c i s i on :DisparateImpactSaved?MaybeOn June 25, 2015, the U.S. Supreme
Court handed down its decision in
Inclusive Communities. The fact thatthe Court found disparate impact
claims cognizableunder the FHA was
noparticularsurprise.ElevenFederal
CircuitCourtsofAppealsopinionshad
previously done so, andthe Supreme
Court itself had similarly done so in
cases brought under the ADEA, ADA,
and Title VII. What is particularly
significant, however, is the likely
lastingeffect the Court’s decisionwill
have on the ability of plaintiffs to
prevailonsuchclaims.UnderInclusiveCommunities, the substantiation of aFHA violation through a disparate
impact claim requires satisfactionofa
three-prong analysis: First, the
plaintiff must show that a policy or
practice has a disparate impact on a
class of persons protected under the
FHA: race, religion, national origin,
family status, or handicapped status.
Second, the defendant must be given
anopportunity to rebut the charge of
discrimination by demonstrating that
the practice or policy is not for
discriminatory purposes, but for a
benign and neutral public goal or
purpose or polity, such as protection
ofthehealth,safety,andwelfareofthe
community. Third, the plaintiff
alleging discrimination may still
succeediftheplaintiff canshowthere
are other, less burdensome methods
to accomplish the benignandneutral
goals the defendant claims for the
purposes of the challenged public
policy. Justice Kennedy’s opinion in
Inclusive Communities concentratedprimarily on the first prong, under
whichaplaintiffmustsetforthaprimafacieviolationoftheFHA.
First, there is no liability if the
allegationofdisparateimpact isbased
solely on a showing of statistical
disparity. Second, that statistical
disparity must also fail if plaintiffs
cannot point to a policy of the
offending government, rather than a
single instance of an action having
such a statistically disparate impact.
As the Court explained, “racial
imbalance alone does not without
more establish a prima facie case ofdisparate impact” and a “fiscal
disparity must fail if the plaintiff
cannot point a defendant’s policy
caus ing d ispar i ty . ” The Court
characterized this as a “robust
causalityrequirement.”
In consideration of the second and
third prongs, the Court ruled that it
wouldbe“paradoxicalto construethe
FHAtoimposeonerouscostsonactors
who encourage revitalization of
dilapidated housing merely because
some other priority might seem
preferable.” According to Justice
Kennedy, “disparate-impact liability
has always been properly limited in
key respects that avoid the serious
constitutional questions that might
arise under the FHA, for instance, if
such liability were imposed based
solely on a showing of a statistical
disparity.” Further, “[d]isparate-
impact liabilitymandatesthe‘removal
ofartificial,arbitrary,andunnecessary
barriers,’not thedisplacementofvalid
governmental policies.” Accordingly,
“[t]he FHA is not an instrument to
force housing authorities to reorder
their priorities, [but rather] aims to
ensure that those priorities can be
achieved without arbitrarily creating
discriminatory effects orperpetuating
segregation.” Similarly, “[i]t may also
be difficult to establish causation
becauseof themultiplefactorsthatgo
intoinvestmentdecisionsaboutwhere
to constructorrenovatehousingunits
....”Therefore,whiletheCourtupheld
the use of disparate impact claims
undertheFHA, it also unquestionably
elevated a plaintiff’s burden for
substantiatingsuchclaims.
IV. Disparate ImpactafterInclusiveCommunities
a. InclusiveCommunitiesonRemandandRehearing
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Spring2018 23 PLANNING&LAW
The district court’s treatment of
InclusiveCommunitiesonremandfromthe Supreme Court best illustrates
how lower courts are construing
InclusiveCommunities as elevatingtheburden for plaintiffs, particularly at
the prima facie stage. The Courtreconsidered whether ICP had
established aprima facie case,notingthat it had previously granted ICP
partial summary judgment “without
the benefit of the Supreme Court’s
opinion.”
Relying upon Justice Kennedy’s
“cautionary language,” the Court
concluded that it had not previously
“give[n] the prima facie requirementthesameemphasistheSupremeCourt
had given it.” The Court noted that,
while ICP had not relied solely on
statist ical evidence
alone, many of the
other sources ICPcited
also largelyreliedupon
statisticalevidence,and
thus theCourt arguably
had “not analyze[d]
ICP’s evidence through
the prism of the ‘robust causality
requirement’ envisioned by the
SupremeCourt.”
The Court further emphasized that
TDHCAalsodidnothavethebenefitof
the Supreme Court’s decision. Noting
that TDHCA “essentially d[id] not
contest ICP’s prima facie case,” theCourt concluded that “TDHCA should
be permittedto challengeICP’sprimafacie showing based on a clearerunderstanding of the requirements
andconsequencesofICP’sestablishing
aprimafaciecase.”Consequently,“theinterests of justice and fundamental
fairnessrequire[d]not only that ICP’s
disparate impact claim be decided
anew under the burden-shifting
regimenadoptedbyHUDandtheFifth
Circuit, but that the Court start with
whether ICP has establisheda primafaciecase.”
Uponre-briefing andafreshroundof
oralarguments,thedistrict courtheld
thatICPhadfailedtoestablishaprimafacie violation of the FHA anddismissed the entirety of ICP’s
disparate impact claim. The Court’s
decision was not based on a single
deficiency in ICP’s claims, but rather,
ICP’s wholesale failure to satisfy the
newly-informed disparate impact
standard.
First, ICP“failedto point to aspecific,
faciallyneutralpolicythatpurportedly
caused a racially disparate impact.”
Specifically, “[b]y relying simply on
TDHCA’s exercise of discretion in
awarding tax credits, ICP has not
isolated and identified the specific
practice that caused the disparity in
the location of low-income housing.”
I n s t ead , I CP r e l i ed upon the
“cumulative effects” of TDHCA’s
decision-making process over a
multi-year period, an argument that
has been rejected as insufficient to
underlie disparate impact claims in
othercontexts.ICP’sfailuretoidentify
a specific, facially-neutral policy also
became apparent when the Court
considered what potential remedy
would be available in the event that
ICPwere to prevail.According to the
court, Justice Kennedy’s opinion
requires that “[r]emedial orders in
disparate-impactcases ...concentrate
on the elimination of the offending
practice, and courts should strive to
design race-neutral remedies,” and
that “lower courts should be careful
not to “impose racial targets or
quotas,”becausedoingso“mightraise
difficult constitutional questions.” In
other words, “[t]o remedy disparate
impact, the court must craft a
race-neutralremedythatremovesthe
offending practice.” Yet, “[a]lthough
ICPcomplains of TDHCA’s exercise of
discretioninhousingdecisions,itdoes
not ask the court to prohibit TDHCA
from using its discretion; rather, it
asks the court to require that TDHCA
exercise its discretion in a specific
way: to desegregate housing.” Sucha
remedy, therefore, would not be
race-neutral.
Second, the Court found that ICP’s
claim must be dismissed because,
“regardless of the label ICP places on
itsclaim, it[wa]sactuallycomplaining
about disparate treatment , notdisparate impact.” As the Court
explained, “[w]here the plaintiff
establishes that a subjective policy,
suchas theuseofdiscretion,hasbeen
usedto achievea racialdisparity, the
p la int i f f has shown d isparate
treatment.” Therefore, because ICP
was not complaining about the
existence of TDHCA’s discretion, but
rather how TDHCA was exercising
suchdiscretion, its claim wasactually
oneofdisparatetreatment.
Third, the Court found that even if
TDHCA’s use of its discretion is a
specific, facially-neutral policy, ICP
nevertheless failed to
e s t ab l i sh a c ausa l
relationship between
the exercise of that
d iscret ion and the
racialdisparityclaimed.
Noting that Justice
Kennedycautionedthat
“[i]t may be difficult [for ICP] to
establish causation because of the
mul t ip le f ac tors tha t go in to
investment decisions about whether
to construct or renovate housing
units[,]”theCourtconcludedthat “ICP
has not provedthat TDHCA’s exercise
of discretion and not other factors
causedthestatisticaldisparity.”
Finally, further buttressing its
conclusion,theCourt foundthat, even
if ICP could establish that a specific,
facially-neutral policy caused the
disparityitcomplainedof,ICPfailedto
prove a statistically significant
disparitywarrantingtheimpositionof
FHA liability. Simply put, the Court
concluded that the evidence ICP
submitted failed to prove that the
statistical disparity would have been
lessenedifTDHCAdidnotexercisethe
discretionthatICP’sclaimtargeted.
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ITHASBECOMESIGNIFICANTLYMOREDIFFICULTFOR
PLAINTIFFSALLEGINGDISCRIMINATIONTOSUCCEED
THANITWASBEFORETHECOURTWEIGHEDIN.
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Spring2018 24 PLANNING&LAW
b. Other Cases Focusing on ICP’sCautionaryLanguageThe decisionsof a significant number
of courts that have confronted FHA
disparateimpactclaimssubsequent to
the Supreme Court’s decision in
Inclusive Communities similarlydemonstrate that plaintiffs nowmust
carry undeniably heightenedburdens
simplytoproceedpast theprimafaciestage. Generally, plaintiffs’ claims in
thesecases failforoneormoreof the
followingreasons:(1)failuretosatisfy
the robust causality requirement; (2)
inadequateevidencetodemonstratea
statistical disparity; and(3) failure to
identify a specific, facially-neutral
policy.
Perhaps the most frequent identified
deficiency is the failure to satisfy
Justice Kennedy’s “robust causality”
requirement. For example, inAzamv.Cityof Columbia Heights, the plaintiffallegedthat the City’s enforcement of
its health and safety codes with
respect to his rentalproperties “ha[d]
the effect of making affordable rental
dwellingsunavailable.. .[resultingin]
a disparate impact [on] persons
intended to be protected by the
[FHA].” In granting the defendant’s
motion for summary judgment, the
Court for the District of Minnesota
found that the plaintiff failed to
establish a prima facie case of
disparate impact, particularly the
“robust causalityrequirement”and,in
any event, failed to submit an
alternative practice with a lesser
impact.
With regard to a plaintiff’s failure to
prof fer suf f i c ient ev idence to
demonstrate a statistical disparity,
CityofLosAngelesv.WellsFargo&Co.is illustrative. In that case, the City
allegedthat Wells Fargo’s issuance of
“high-cost loans,” that is, loans with
interest rates three-percentagepoints
o r more above t he f ede ra l l y
establ ished benchmark , had a
disparate impact onracialminorities.
The C i t y submi t t ed ev idence
demonstrating “that an [sic] Hispanic
Wells Fargo borrower with average
non-race characteristics had a
0.0033% likelihood of receiving a
High–Cost Loan, a similarly situated
Afr ican–American Wel ls Fargo
borrowerhada0.0067%likelihoodof
receiving a High–Cost Loan, while a
similarly situated non-Hispanic white
borrower face only a 0.0008%
likelihood of receiving a High–Cost
Loan.” While the Court noted that
evidence is not to be weighed at
summaryjudgment,italsopointedout
that the Supreme Court’s “recent
guidance in Inclusive Communitiesprecludes the City’s statistical
disparity evidence from creating a
genuine dispute regarding a prima
facie case.” Therefore, the Court
concluded, the “difference between
0.0033 percent and 0.0008 percent
doesnotcreateagenuinedisputesuch
thatajurymustdecidethisissue,”and
“ compar ing thousandths o f a
percentagefails tomeet theminimum
thresholdofInclusiveCommunities.”
Similartothedistrictcourt’srehearing
in Inclusive Communities, in City ofJoliet, Illinois v. New W., L.P., theSeventh Circuit Court of Appeals
upheldthedistrictcourt’sdismissalof
the plaintiff’s claim for, inter alia,f a i l ing to ident i fy a spec i f i c ,
facially-neutralpolicy.Inthatcase,the
City commenced condemnation
proceedings against an allegedly
dilapidated, crime-ridden apartment
complex that was comprised of
a p p r o x im a t e l y 9 5% A f r i c a n
Ame r i c a n s . N o t i n g I n c l u s i v eCommunities’ cautionthat “a one-timedecisionmaynotbeapolicyatall,”the
Seventh Circuit upheld the “district
court ’s f indings . . . that the
condemnationof [the complexwa]s a
specificdecision,notpartofapolicyto
closeminority housing in Joliet.” The
Cityof Joilet Court further noted that“governmentalentities.. .mustnotbe
prevented from achieving legitimate
objectives” and that the city’s
condemnation was in furtherance of
the goals approved by the Court in
InclusiveCommunities.
Other important cases includeEllis v.CityofMinneapolis,findingthat,evenifplaintiff statistically demonstrated
disparateimpact,itnevertheless failed
to satisfy the “robust causality
requirement”; De Reyes v. WaplesMobileHomeParkLimitedPartnership,where plaintiff’s claims challenging
mobile home park’s newly instituted
identification policy failed to satisfy
robust causality requirement; CobbCountyv.BankofAmericaCorp.,wherethe plaintiff failed to demonstrate
causal connection between lender’s
lending pract ices and a l leged
disparity; and City of Miami v. WellsFargo & Co., where the City failed tomeet ICP ’ s “ ‘ robus t causa l i t y
requirement,’ which requires theCity
to‘allegefactsatstatisticaldisparity.’”
V.ConclusionFedera l remedies for hous ing
discrimination have a long history in
the United States. After the Supreme
Cour t r equ i red a showing o f
intentional discrimination as a
prerequisite for a constitutional
c h a l l e n g e , t h e emph a s i s f o r
challenging housing discrimination
shifted to the FHA. In a series of
federal appellate court decisions over
the past 40 years, federal courts
established the theory of disparate
impact: no need to show intent to
discriminate but only that the
c omp l a i n e d - o f a c t i o n h a s a
discriminatory effect ona class (race,
religion, gender, family status,
disabilities)protectedbytheFHA.Itis
not particularly surprising, therefore,
that the Supreme Court upheld this
theory in Inclusive Communities.However, the Court hedged its
application with so many conditions
and expressedsomany concerns that
arguably it has become significantly
more difficult for plaintiffs alleging
discriminationto succeedthan it was
before the Court weighed in. Such
difficulty is apparent in the wave of
federal district cases approving
government actions and dismissing
discrimination claims over the past
twoyears.Thistrendisnowheremore
apparent than in the district court’s
decision in Inclusive Communities onremand from the Supreme Court to
reverse its previous finding of
discrimination after the “guidance”
fromtheSupremeCourt.♦
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Spring2018 25 PLANNING&LAW
Constitution’sEqualProtectionClause.
TheMorrowsallegedthattheCityonly
p r o s e c u t e d r e s i d e n t s i n
l o w - t o - m o d e r a t e i n c o m e
neighborhoods pursuant to the City’s
Proactive Code Enforcement Project
(PCEP), part of a 2009Memorandum
of Understanding (“MOU”) between
the NCCD and the City’s Community
DevelopmentBlockGrant Program. In
response, the CZI declared the
Morrows were targeted only after he
noticed their grading violation on
August 1, 2007,well before theMOU
was signed and not as proactive
enforcement targeting the MOU. The
Court further found that the PCEP
targeted neighborhoods with higher
rates of zoning violations and lower
rates of zoningcomplaints because of
theirhighnumber ofrentalunits. The
program was therefore rationally
relatedtoalegitimatestateinterest in
m a i n t a i n i n g d e t e r i o r a t i n g
neighborhoods. Lastly, the Court also
foundtheMorrowsfailedto showthat
other similarly situated individuals
werenotprosecutedortopresent any
e v i d e n c e o f t h e p r o g r a m s
“discriminatory purpose,” as required
under an equal protection claim. For
these reasons, theMorrows couldnot
c laim they were denied equal
protection by the City’s enforcement
oftheMOU.
United States District Court,NorthernDistrictofIllinois,FederalDistrict Court in Illinois DeniesRLUIPA Equal Terms and EqualProtection Claims Arising fromParkingRequirementsonChurch
In ImmanuelBaptist Church v. City ofChicago, aUnitedStatesDistrictCourtdenied a church's suit under the
RLUIPA.ImmanuelBaptistChurchwas
notifiedby the City that it needed to
meet the parking requirement of one
off-street parking spot forevery eight
seats. However,under theOrdinance,
other nonreligious assemblyuses had
different requirements. Cultural
exhibits and libraries required no
parking for facilities up to 4,000
square feet, and only one parking
space per each additional 1,000
squarefeet.TheChurchwasunableto
meet the City's requirement and was
therefore unable to operate. The
Church contended that the City’s
parking regulations violated the
“equal-terms” provision of RLUIPA.
The Court foundthat theburdenwas
on the Church to es tab l i sh a
reasonable inference that the parking
needsofchurcheswerecomparableto
thatof librariesortheaters.TheCourt
foundthat theChurchcouldnotshow
less equal treatment than theaters
because theaters were not permitted
in the pertinent zoning district.
Meanwhile, the Court held that the
Church had failed to present facts
demonstrating that a library of 4,000
s q u a r e f e e t c r e a t e d r e g u l a r
assemblagesofpeople. Therefore, the
Church failedto meet its burden, and
the Church’s motion for summary
judgment on its facial RLUIPA claim
was denied. However, the Court
grantedleave to theChurch to file an
as-appliedRLUIPA claim. The Church
n e x t a r g u e d t h a t t h e C i t y ' s
requirements violated its right to
equal protection under the 14th
Amendment.TheCourtnotedthat the
City’s Ordinance did not discriminate
among religions anddidnot severely
interferewiththepracticeof religion,
triggering rational basis review. The
City contended it was rational to
distinguish among land uses when
determining parking requirements.
The Court agreed and granted the
City’s motion for summary judgment
ontheequalprotectionclaim.
UnitedStatesDistrictCourt,DistrictofMaryland, Federal DistrictCourtof Maryland Finds Landowner DidNot Have a Property InterestCreatedbytheRecommendationsofa MasterPlan, Despite Reliance onThem
Plaintiffs in Pulte Home Corporationand Shiloh Farm Investments, LLC v.Montgomery County, Maryland spent$62 million to purchase land and
transferable development rights with
the intent to develop.Despite part of
thepropertybeingwetlands,Plaintiffs
relied onMontgomery County’s 1994
MasterPlanand2014Amendment to
do so. They brought suit under 42
U.S.C. § 1983andalleged substantive
andproceduraldueprocessviolations,
equal protection violations, and a
takings claim after Montgomery
CountyandotherDefendantsinhibited
the intended development through
zoning changes, added restrictions,
and the delay or denial of water
services to Plaintiff’s property. The
Court dismissed all three claims. The
Courtheldthat Plaintiff failedto offer
sufficient proof of their property
interest to proceed with their due
process claims. The Court reasoned
thatthe“NoticetoReaders”sectionof
t h e Ma s t e r P l a n empowe r e d
Defendants with broad discretion to
amend the Master Plan over time.
Defendants retained this discretion
despite Plaintiffs’ heavy reliance on
theMasterPlan. Even if Plaintiffs had
possessed a valid property interest,
Defendants still acted reasonably.
First,theAmendmentsPlaintiffsrelied
on stated that uncertainty continued
“about the ability to protect sensitive
resources . . . if full development
occurred under the original Plan
recommendations.” Second, the
Amendment’s explicit purposes
included “the preservation of natural
resources critical to the County’s
well-being.”Plaintiffs’equalprotection
Continuedonnextpage
CaseDigestcontinuedfrompage4
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Spring2018 26 PLANNING&LAW
claimalso failedbecausePlaintiffsdid
notshowhowDefendants’singledout
theirproperty fromothers. The 2014
Amendment clearly distinguished
more sensitivewatershed lands from
other areas. Finally, the Court held
Plaintiffs did not experiencea taking.
First, 93 of 541, or 17.2%, of their
acreage could still be developed, and
second, for thesamereasontheCourt
denied Plaintiffs’ due process claim,
Plaintiffs could not have had a
reasonable investment -backed
expectation.
UnitedStatesDistrictCourt,Districtof Massachusetts, Federal DistrictCourt in Massachusetts Finds CityOrdinance Regulating Drones wasPreempted
In Singer v. City of Newton, a UnitedStates District Court invalidated a
City's Ordinance regulating drones.
Plaintiff Michael Singer challenged
Newton,MA's Ordinance, for the sake
ofresidents'privacy,thatallownersof
pilotless aircraft (“drones” or "UAS")
registertheirpilotlessaircraftwiththe
City and prohibited the operation of
pilotless aircraft out of the operator’s
lineofsightorincertainareaswithout
permit or express permission. Singer
contended that the Ordinance was
preempted by federal law because it
attempted to regulate anarea of law
almost exclusively under federal
control. Singer first argued that
because the federal government
regulates unmannedaircraft andlocal
aircraft operations, there was federal
intent to occupy the field. However,
the Federal Aviation Administration
(FAA)states that“State lawandother
legalprotectionsforindividualprivacy
may provide recourse for a person
whose privacy may be affected
through another person’s use of a
UAS.” Since the FAA explicitly
contemplated state law, the Court
rejected Singer’s argument that the
entire field was exclusive to the
federal government. Singer next
contendedthatthechallengedsections
of the Ordinance obstructed federal
objectives and conflictedwithfederal
law. Singer argued that the FAA
explicitlyhas indicatedits intentto be
the exclusive regulatory authority for
registrationofpilotless aircraft. Since
Newton intended to register all
d r one s , t h e Cou r t f ound t h e
Ordinance’sregistrationrequirements
were preempted. Next, the Court
agreed with Singer that because the
FAA mandated that drone operators
keepdronesbelowanaltitude of400
feet,Newton’srestrictionofanydrone
use below this altitude was likewise
preempted. Lastly, the Court found
that thesectionof theOrdinance that
limited the methods of piloting a
dronewas preempted by federal law.
Accordingly, these portions of the
OrdinancewereseveredbytheCourt.
UnitedStatesDistrictCourt,EasternDistrict of New York, FederalDistrict Court in New York HoldsGardenCity'sProfferedReasonsforits Chosen Zoning Change CouldHaveBeenMetbyAnotherPracticethat Had a Less DiscriminatoryEffect
InMHANY Management, Inc. v. Countyof Nassau, a United States DistrictCourtinvalidatedtherezoningofalot
by Garden City, NY. Garden City
decided to rezone a parcel of land
called the “Social Services Site." It
r e z o n e d t h e s i t e t o
Residential-Townhouse(R-T).MHANY
complainedthattheR-Tzoningwould
no t a l l ow fo r any a f f o rdab le
mul t i fami ly hous ing , but s t i l l
s u bm i t t e d a b i d t o b u i l d a
n o n c o n f o r m i n g m u l t i f a m i l y
development on the site. After the
contract was awarded to another
company, MHANY and New York
Communities forChange,Inc. brought
suit chal lenging Garden City 's
rezoningof the siteas discriminatory.
The Court found that Garden City
p r o v i d ed s e v e r a l l e g i t ima t e ,
non-discriminatory reasons for the
rezoning,butfailedtomeetitsburden
indemonstrating“theabsenceofaless
discriminatory alternative.” The
Second Circuit remanded with
instructions to determine whether
P l a i n t i f f s p r o v e d t h a t t h e
nondiscriminatory interests advanced
byGardenCityinsupportofitszoning
shift “could be served by another
p r a c t i c e t h a t h a [ d ] a l e s s
discriminatory effect.” The Court
determined that Plaintiffs met their
b u r d e n i n s h o w i n g t h a t
Residential-Multifamily (R-M) zoning
would have served the Defendant’s
interests in not overburdeningpublic
schools and reducing traffic, and that
R-Mzoningwouldhaveprovidedfora
significantly larger percentage of
minority households thanR-Tzoning.
As such, the Court held that R-M
zoningcontrolswouldhavehadaless
discriminatory effect than R-T zoning
controls. Based on the reasoning
above, theCourt affirmedthe holding
that the adoption of R-T zoning
insteadofR-M zoninghadadisparate
impactonminoritiesinGardenCity.
NewYorkSupremeCourt,AppellateDivision, NewYorkAppellateCourtF i n d s D e v e l o pmen t R i g h t sConstitute Real Property forPurposesofRPAPL1602
In Hahn v. Hagar, the parties weresiblings who owned a 101–acre farm
in Pleasant Valley, New York. The
property had been in the parties’
family for over 240 years. Upon the
death of the parties’ mother, a
qualified life estate in the property
was conferreduponThomas G. Hahn,
Jr.,andtheremainder(future)interest
waslefttoherfourchildren(including
twoPlaintiffs andDefendant) inequal
shares. Plaintiffs Mr. Hahn, Jr., who
held a qualified life estate in the
property, and two of his sisters, who
held remainder interests, sought
authorization pursuant to Section
1602of the NewYork Real Property
ActionsandProceedingsLaw(RPAPL)
to sell their development rights in
order to preserve the property’s
future agricultural use. The parties
s t i pu l a t ed t o a d e f i n i t i on o f
“development rights” that the Court
held constituted “real property, or a
part thereof,” and that the specific
rights or burdens broadly referred to
by this term could vary according to
contractual terms or applicable
Continuedonnextpage
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Spring2018 27 PLANNING&LAW
governing statutes. Despite this, the
AppellateDivisionaffirmed the lower
court’s dismissal of Plaintiffs’ claim.
The Court agreedthat Plaintiffs failed
to establish that the proposedsale of
deve lopment r ights would be
expedient or to present sufficient
evidence (1) of the value of the
underlyingpropertywithandwithout
the development rights; (2) that a
proposed buyer for the development
rights existed; (3) of any other
tangible or intangible benefit that
could be achieved by a sale of the
development rights; or (4) that the
sale of the development rights was
necessary to preserve the propertyas
anagricultural asset.Accordingly, the
Court held that the Supreme Court
properly directedthedismissalof the
cause of action pursuant to RPAPL
Section1602.
Mich igan Cour t o f Appea l s ,MichiganAppealsCourtFindsLocalOrdinance Prohibiting the OutdoorGrowing of Medical MarijuanaConflicted with Michigan MedicalMarihuanaAct
InCharter Township of York v. Miller,Defendants David and Donald Miller
were qualified medical marijuana
patients, and Defendant Katherine
Null served as David’s registered
medicalmarijuana primary caregiver.
In 2014, Null directed David to
construct a structure in Donald’s
backyardforthecultivationofmedical
marijuana for patients connected to
Null through registration under the
Michigan Medical Marihuana Act
( “MMMA” ) . P l a i n t i f f ' s z on i ng
ordinance required that medical
marijuanabe growninside thehouse
inresidentialareas. Defendants failed
toobtainaconstructionpermit for the
medical marijuana outdoor growing
facility, never got permits before
installing an electrical and watering
system, and never obtained a
certificateofoccupancy.Afterlearning
that Defendants had failed to comply
wi th zoning and construct ion
r e gu l a t i on s , P l a i n t i f f f i l e d a
declaratory judgmentactionseekinga
determination of the validity of its
zoning and construction regulations
and its right to enforce them as they
applied to the cultivation and use of
medicalmarijuanainresidentialareas.
The trial court declared that Plaintiff
c ou ld no t en fo r ce i t s zon ing
ordinance’s prohibition against
outdoorgrowingofmedicalmarijuana
because theordinanceconflictedwith
theprovisionsoftheMMMA,andwas
therefore preempted . P la int i f f
appealed. The Michigan Court of
Appeals found that P la int i f f ’ s
prohib i t ion e f fect ive ly denied
registered caregivers the right and
privilege that the MMMA permitted.
Furthermore,theMMMAdidnotgrant
municipalities authority to adopt
ordinances that restricted registered
caregivers’ rightsandprivilegesunder
theMMMA.Accordingly, the Court of
Appeals held the localordinance was
voidandpreemptedbytheMMMA.
New Jersey Super ior Cour t ,Appellate Division, New JerseyAppealsCourtFindsBoardFailedtoConsider Whether Hardship wasSelf-CreatedinVarianceCase
InYuv.TomsRiverPlanningBoard,theNew Jersey Court of Appeals found
that a Planning Board failed to
consider whether the need for a
variancewasself-created.In2014,the
Schoelens applied to the Toms River,
NJ Planning Board for a minor
subdivision with bulk variances to
create a new lot out of their two
existing lots. Plaintiff Henry Yu and
another neighbor objected to the
subdivisionplan. ThePlanning Board
voted unanimously to grant the
applicationwithout any discussion of
self-created hardship. Plaintiff then
filed an action, claiming that the
Schoelens had not demonstrated a
hardship, that there was no need to
have new lot lines drawn so as to
require variances for existing sheds,
a n d t h a t a n y h a r d s h i p w a s
self-created. Yu also contended that
flag lots were not permitted by the
zoningordinance,werecompletelyout
of character for the area, and would
nega t i ve ly a f f e c t ne ighbor ing
properties. The Law Division Judge
deniedPlaintiff’s claim of self-created
hardship and held that although the
Schoelens “couldhaveoriginallymade
a road to divide the property into
variousneatlots,”theirfailuretodoso
did not equate to self-created
hardship. Plaintiff appealed. The
Appellate Division Court noted that
therecordreflectedthat theSchoelens
p r e v i o u s l y s u b d i v i d e d t h e i r
seven-acre parcel, and that their
current two lots were configured
exactly as they designed. Based on
these facts, the Court found the
Planning Board was required to
consider whether the c la imed
hardship was one of the Schoelens’
own making. As such, the Planning
Board’s failure to apply the correct
legalstandarddepriveditsdecisionof
the deference. The Appellate Division
Court therefore reversed the Law
DivisionJudge’sholding.
South Carolina Court of Appeals,South Carolina AppealsCourtFindsDepartment of Transportation HasExclusive Authority over the StateHighwaySystem
In County of Charleston v. SouthCarolina Dept. of Transportation, the
South Carolina Court of Appeals
upheld the lower court’s dismissal of
Charleston County’s claims on the
groundthattheirland-useregulations
unconstitutionally interferedwith the
exclusive, legislative authority of the
State Department of Transportation
(DOT) to construct and maintain a
highwaysystem.PursuanttotheSouth
C a r o l i n a L o c a l G o v e r nm e n t
ComprehensivePlanningEnablingAct
of 1994, which authorized local
governments to adopt zon ing
ordinances to regulate land use,
CharlestonCountyadoptedtheZoning
and Land Development Regulations
CaseDigestcontinuedfrompreviouspage
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Spring2018 28 PLANNING&LAW
AnnouncementofNewStudent
EditorialBoardMembers
EmmaLaglejoinsPlanning&LawasaJuniorEditorandStaffWriter.EmmagraduatedfromSUNYNewPaltzin2014withaBachelorofArtsinHistoryandSociology.Hersubsequentexperienceas
alegalassistantinarealestatelawfirmandworkontheWestchesterGreenBusinessCertification
Program for the GreenburghNature Center advancedher interest in land use and sustainable
practices.Emmaisasecond-year lawstudentat Pace’sElizabethHaub SchoolofLaw,whereshe
hasworkedasaSummerAssociateforPaceUniversity’sLandUseLawCenter,isPresidentofthe
LandUseandSustainableDevelopment Law Society, andamember of the PaceEnvironmental
LawReview. Sheexpectsto graduatein2020witha J.D.,Certificate inEnvironmentalLaw,anda
M.E.M.fromtheYaleSchoolofForestry&EnvironmentalStudies.
MarkFanelli joinsPlanning&Lawas aJuniorEditorandStaffWriter.Mark graduatedfromtheUniversity of Scranton in2015witha Bachelor of Science in Criminal Justice and a minor in
History.Heisasecond-yearstudentat theElisabethHaubSchoolofLawatPaceUniversity,where
heis expected to graduate in2019witha Juris Doctor anda Certificate inEnvironmentalLaw.
Before attending law school, Mark worked in theprivate security industry. This past summer,
Markworkedasa studentassociate for theLandUseLawCenterandas ProfessorJohnNolon’s
ResearchAssistant.HeiscurrentlytheVicePresidentofPace’sEnvironmentalLawSocietyandthe
LandUseandSustainableDevelopmentLawSociety.Markserves as aJuniorAssociate for Pace’s
EnvironmentalLawReviewandiscurrentlyparticipatingintheFederalJudicialHonorsProgram.
MaximillianMahalek joinsPlanning &Lawas a ResearchEditor and StaffWriter.MaximilliangraduatedfromtheUniversityofIllinoisatUrbana-Champaignin2014withaBacheloroftheArts
inUrbanPlanningandin2015withaMasterofUrbanPlanning.Priortoattendinglawschool,he
worked as a Community Development Associate with the City of Urbana, IL, and as a Title
LitigationLegalAssistantwithMcCallaRaymer Leibert Pierce,LLC.Maximillianis inhis second
yearatPaceUniversity’sElisabethHaubSchoolofLawandexpectstograduatein2019withaJ.D.,
Certificate in EnvironmentalLaw andRealEstate andLandUseConcentration.Maximillian is a
member of the Pace Environmental Law Review andworked as a Summer Associate for Pace
University’sLandUseLawCenter.Inthisposition,heconductedresearchintothelegalobstacles
communities may confront as they work to adopt form-based codes, andhelpedadvise communities on how to best
overcometheseobstacles.
Ordinance (the ZLDR). In July 2012,
DOT received a Notice of Tree
Violation for removing three Grand
Trees without a permit and in
violation of the ZLDR. DOT removed
the trees after they were determined
tobehazardoustothetravelingpublic
andrefusedto complywiththeZLDR.
The trial court and Court of Appeals
agreedwithDOT’spositionsandfound
thatDOTwasexemptfromcompliance
with the ZLDR and that the County’s
r e g u l a t i o n e q u a t e d t o a n
unconstitutionaltaxonDOT’shighway
maintenance authority. In affirming
the lower court’s grant of summary
judgment toDOT,theCourtofAppeals
reasoned that any ordinances that
conflicted with such administrative
authori ty would be void . The
ordinance inquestion conflictedwith
DOT’s authority because the South
Caro l ina Const i tut ion d id not
authorize municipalities to set aside
the administration of state-wide,
uniform governmental services, DOT
had removed trees i t deemed
hazardous in conformance with their
administrative authority, and the
ZLDR attempted to limit DOT’s
exclusiveauthority.♦
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Spring2018 29 PLANNING&LAW
ThisreportreflectsCourtdecisions issuedinthelastyearin
matterswheretheAPAappearedasamicusandwhereAPA
amicusbriefswerefiled(orareexpectedtobefiled)inthe
lastyear.Italsodescribesseveralkeycasesthatwereonour
watch list for potential participation at the merits stage
beforetheU.S.SupremeCourtbutwhichultimatelywerenot
thesubjectsofsuccessfulcertioraripetitions.
I. Carruth,etal.v.CityofPlano
The APAandother interestedgroups joineda letterto the
Texas Supreme Court, in a case arising from an effort at
“ballot box guiding.” The letter sought to persuade the
Texas SupremeCourt to grant discretionary reviewover a
court ofappeals’decision.TheCourthasnowrequestedfull
briefinginthecase.
Texas authorizes initiative and referendum, with certain
judicially-enforced limitations. A petition to either repeal
Plano’s comprehensive plan or to put the plan up for a
referendum was submitted to the City Secretary. On
counsel’s advice, thesecretary didnot forwardthepetition
to the City Council for actions (that could have included
putting on the ballot or repealing it in its entirety).
(Counsel’s advice was that zoning regulations are not
subject toareferendumvote.) Amandamusclaimdirected
at the City Secretary andat theCity Councilfollowed. The
claim against the City Secretary sought to compel her to
present the petition to the City Council, and the claim
against the City Council sought to require the Council to
reconsiderthePlanandeitherput it ontheballot orrepeal
it initsentirety,andintheinterim treat theoldplanas the
effectiveone.
IntheTexasCourt ofAppeals’ decision, thecourt heldthat
“the trial court had subject matter jurisdiction over the
petitionforawrit ofmandamusagainsttheCitySecretary,”
butthattheclaimsagainsttheCityCouncilwerenotyetripe.
ThecaseisanimportantoneinpartbecauseitputstheCity
betweenarockandahardplace. UndertheCity’scharter,if
aregulationis removed(orapproved)byvoters,itcanonly
be reinstated (or repealed) by the voters. Thus, if a
comprehensive plan can also be subject to initiative and
referendum,onelikelyeffectisthat plannerswouldneedto
makerecommendations onpermits andzoningapplications
in the prolonged absence of an effective comprehensive
plan.
TheCommitteeauthorizedtheAPAtojoinaletterdraftedby
ScottHoustonoftheTexasMunicipalLeague,requestingthe
TexasSupremeCourt toreviewtheCourtofAppeals’ ruling
inthismatter.Membersof the committeehavecontributed
analysis for the letter. On January 26, 2018, the Texas
Supreme Court ordered fullbriefingof the case. That does
notguaranteethattheCourtwilldecidetotakethecase,but
itbringsitonestepclosertothatdetermination.
II. Murrv.WisconsinandSt.CroixCounty
TheSupremeCourt’sMurrv.WisconsinandSt.CroixCountycase arose from a Wisconsin family’s challenge to the
Wisconsin Court of Appeals’ ruling affirming summary
judgment in favorof the State andSt.Croix County onthe
Murrs’ claims that state and local regulations took their
propertywithoutjustcompensation.
The Murrs own two small, adjacent tax parcels along the
LowerSt.CroixRiver. TheRiverformspartof thewestern
border of Wisconsin and has been part of the Wild and
ScenicRiversAct’sprotectionssince1972. Theadoptionof
theAct promptedWisconsin andMinnesota stateagencies
to promulgate regulations of land uses inprotected areas
along theRiver (includingwheretheMurrfamily’s cabinis
located).Suchregulationsalso constitutetheupper limiton
the development that counties may allow in those areas.
Those state regulations restrict new development on
substandard lots but also include provisions that address
circumstances in which adjacent properties have common
ownership. They allow adjacent lots under common
ownership to be treated as asingle parcel forpurposes of
applyingthesubstandardlotprovisions.Butbecausethatis
dependent ontheparcelsremainingincommonownership,
they effectively limit the ability to sell one substandard
parceltoanunrelatedpartyfordevelopment.
TheMurrs’certioraripetitionwassubmitted(andgranted)
before the deathof Justice Scalia. The toneof someof the
early amicus briefs of property rights organizations
UpdateonAmicusCuriaeActivityoftheAPA
asofMarch23,2018byJohnM.Baker,Esq.
Continuedonnextpage
JohnM.BakerisafoundingpartneroftheMinneapolislawfirmGreeneEspelPLLP.Hetaughtland-uselawforninesemestersatalawschoolinSt.Paul.HehasbeenamemberofthePlanningandLawDivisionsince2006
andcurrentlychairstheAPA’samicuscuriaecommittee.
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Spring2018 30 PLANNING&LAW
encouraging the Court to accept thecase,presentedit as a
challenge to what is known as the “parcel as a whole”
doctrine in takings law. That doctrine limits the ability of
parties to successfully claim a taking of their property in
situations in which that party owns economically-useful
propertyonthesameparcel(or,insomecircumstances like
adjacent property), where their property may be put to
economically-valuableuses if viewedas awhole. Because
the “parcelas awhole”doctrine is an essentialpremise to
many kinds of land-use regulations, such as wetlands or
historic façadepreservationrequirements,theprospectthat
the Court would treat the doctrine as unconstitutional in
whole or inpart got theattentionof many intheplanning
community. Soonafter the grant of certiorari in January
2016,theamicuscommitteeelectedtoparticipateasamici.
TheMurrs’meritsbriefswerenotdueuntilApril,whichwas
after Justice Scalia’s death. When they were filed, they
reflectedaless revolutionaryapproach. For themost part,
they were not seeking to overrule the parcel as a whole
doctrine,butwereinsteadfocusedonattackingstateorlocal
laws that define the relevant parcel according to things
otherthanplatlines. Putanotherway, it seekstoundothe
effect of state and local laws that directly or indirectly
“merge”adjacentparcelsincommonownershipintoasingle
parcelforpurposesofapplyingtakingsdoctrines.
The APA’s amicus brief was written by Professor Michael
Allan Wolf of the University of Florida Law School and
Floridapractitioner(andcommitteemember)NancyStroud,
withthespecialassistanceofProfessorBrianOhm,thelegal
liaison to the board of the Wisconsin chapter. The APA
includes a tutorialonhowstate land-usedoctrines already
providemeaningfullimitationsontheabilityofregulatorsto
withholddevelopmentrightswhileenablingchangingpublic
priorities to influence future uses, then applies those
principles to the problembefore theCourt. Thecommittee
wasgivenausefulopportunity to reviewand comment on
outlinesanddrafts.
On June 23, 2017 the U.S. Supreme Court affirmed the
WisconsinCourt ofAppeals decisionthat enforcement ofa
“lot merger” provision did not result in a compensable
taking under the Fifth Amendment. It reaffirmed the
traditional“parcelasawholerule”intakingslitigation, but
tiedtheconceptto “reasonableexpectationsaboutproperty
ownership.” Italsoidentifiedthreefactors formeasuringa
claimant’s expectations: the treatment of the land under
stateandlocallaw, thephysical characteristicsofthe land,
and the effect of restricting useof onelandholding onthe
value of an adjacent holding. Most important, the court
declined to accept the property owners’ highly-formalistic
approach,whichwouldhaveinvitedanewwaveoftakings
challenges to various types of regulations in situations in
whichtheirpracticaleffectisnotclosetoconfiscatory.
III. ElvisCruz,etal.,v.CityofMiami
A Florida statute, Section 163.3215(3), authorizes an
aggrieved party to bring an action to challenge a
DevelopmentOrderthat“materiallyalterstheuseordensity
orintensityofuseonaparticularpieceofpropertywhichis
not consistent with the comprehensive plan.” Section
163.3194(3)(a) also requires that a development order or
land development regulation be consistent with the
comprehensive plan “if the land uses, densities or
intensities,andotheraspects of development permittedby
suchorder or regulation:arecompatiblewithandfurther”
theobjectives of the comprehensive plan.Florida’s Second
District Court of Appeals recently published a decision
narrowly interpreting statutory standing to challenge the
consistency requirements of a development plan, as
applying only to alleged inconsistent use, density, or
intensity of the subject property. SeeHeine v. Lee County,221So.3d1254,1257(Fla.2dDCA2017).Then,inOctober
2017,theHeinedecisionwasinterpretedbyalowercourtinMiami,inawaythatconstruedtheconsistencyrequirement
even more narrowly. The City had approved a furniture
sales showroom for an area guided as residential. But
becausethecircuitcourtdidnot considerthatthechallenge
was based on the allegedly inconsistent use, density or
intensity of the subject property, it granted summary
judgmentfortheCity.Plaintiffsthenappealed.
InJanuary2018thecommitteeauthorizedsubmissionofan
amicus brief to the Third District Court of Appeals. That
brief,whichtheFloridaAPAchapter joined,was submitted
inearlyMarch2018,andwaswrittenbycommitteemember
Nancy Stroud. It urges the court to construe the Florida
statutes as authorizing court challenges to ensure
consistency withany part of an applicable comprehensive
plan, not limited to matters related to uses, densities and
intensities.It urges theappellate court to allowanaffected
third party to challenge the consistency of a local
government development order with the comprehensive
plan if the order materially alters the use or density or
intensityoftheproperty(regardlessofwhetherthealleged
inconsistencydoessoaswell),andthentousesuchstanding
to attack inconsistencies with any element of the
comprehensiveplan,andwithanyobjectiveorpolicyof the
plan.
Thecaseisnotyetfullybriefed.
IV. Knickv.TownshipofScott
Withinthenextweek,theCommitteewillconsiderwhether
toparticipateasanamicusinthismatter,pendingbeforethe
U.S. SupremeCourt,on its calendar for considerationinits
nextterm.
Current takings jurisprudence provides that before a
property owner canstate a ripe claim of a takingwithout
justcompensationinviolationoftheFifthAmendment,heor
Continuedonnextpage
AmicusUpdatecontinuedfrompreviouspage
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Spring2018 31 PLANNING&LAW
shemust firsttryandfailtoobtainjustcompensationunder
reasonably available statelawremedies. This is generally
knownas “prong two”of theripeness requirements stated
in the 1985 Williamson County case, although therequirementpredatesthat decisionbymany decades.Over
the last fifteenor twenty years, many cert petitions have
askedtheCourttothrowoutthisrequirement.IntheCourt’s
2005opinions in the San Remo case(whichdidn’t directlyinvolve ripenessbut theeffect of a state-court adjudication
that resultedfrom trying to ripena federal takings claim),
four justices (Thomas, Rehnquist, Kennedy and O’Connor)
seemed ready to cut back onthis requirement, but Justice
Scaliadidn’tjointhatopinion.
OnMarch5, 2018, the U.S. SupremeCourt granted a cert
petition that presents that question, plus the question of
whether, iftherequirement stands,itshouldapplyto facial
takings claims. Thecase is Knickv. Township of Scott. It isless of a regulatory takings suit than a physical invasion
takingssuit.(TheTownshipadoptedanordinancerequiring
cemeteriestobeopento thepublic.)Butpetitionersarenot
just trying to repeal prong two in facialphysical invasion
cases.If theSupremeCourtdidso,itwouldbehardfor the
Courttolimititsreasoningtothatcontext.
The amicus committee will be conferring in thenext week
aboutwhethertoparticipateasanamicusinthismatter.
Because the Court granted certiorari so late in its current
term,thecasewillnotbehearduntilnextfallattheearliest,
so anextendedbriefing schedulehas beenissued. Amicus
briefsinsupportoftheTownshiparelikelydueattheendof
July 2018.Amicusbriefs insupport of thepropertyowner,
or insupport ofneither side,are likelydueinat theendof
May2018.
V. Thedisappearanceofothercasesonour“watchlist”
Themainreasonwhythecommitteehas beenlessactivein
recentmonths is thatkey cases thatwe identifiedas likely
candidates for U.S. Supreme Court or highest-state-court
review have fizzled out before reaching that point. For
example, in late 2016, we were tracking two decisions by
U.S. Courts of Appeals with potential implications for
planning,inwhichasuccessfulcertioraripetitionwaslikely
because thedecisions hadeitherdeclaredunconstitutional,
or required the district court to apply strict scrutiny to,
federalstatutes.Ass'nofAm.Railroadsv.U.S.Dep'tofTransp.,821F.3d 19,23(D.C. Cir. 2016)(whether substantive due
process is violatedwhenapublic entity regulates inafield
in which it also competes) and Free Speech Coal., Inc. v.AttorneyGen.UnitedStates,825F.3d149,154(3dCir.2016)(content neutrality). Surprisingly, the Solicitor General’s
Officedidnotpetitionforcertiorariineithercase.
ACaliforniaCourtofAppealdecisioninvolvingthepotential
app l i ca t ion o f the Nol lan/Do lan s tandards tolegislatively-mandated in lieu fees for affordable housing,
616CroftAve. LLC v. CityofWest Hollywood, 3Cal. App. 5th621(Cal.Ct.App.September23,2016),wasthesubjectofa
March2017 certioraripetitionto the U.S. Supreme Court.
After the Supreme Court conferred on the case at four
different conferences, the petition was denied on October
30,2017.
A Ninth Circuit decision involving a First Amendment
challenge to Oakland’s regulatory regime for unattended
donationbins,RecycleforChangev.CityofOakland,856F.3d666 (9th Cir. 2017), was the subject of a July 28, 2017
petition for certiorari. A grant of certiorari was plausible
because the Fifth Circuit and the Sixth Circuit had struck
down similar ordinances. On December 11, 2017 the
SupremeCourtdeniedcertiorari.
HelptheAPAAmicusCommittee!_________________________________________
TheAPAoccasionallyfilesamicuscuriae,or"friend-of-the-court,"briefsinstateandfederalcourtsincasesof
importancetotheplanningprofessionandthepublicinterest.TheroleoftheAmicusCuriaeCommittee(whichis
populatedentirelybyPLDmembers!)istofindandreviewcasesofpotentialinterestandtomakearecommendationas
towhetherAPAparticipationiswarranted.
TheCommitteeisalwaysinterestedinlearningaboutcasesthatitmightconsiderforparticipation,andisalways
searchingforattorneysinterestedindraftingamicusbriefs.Ifyouhearofaninterestingcaseorareinterestedin
joiningourbankofbriefwriters,pleaseemailJohnM.Baker,AmicusCommitteeChair,[email protected].
ForadditionalinformationonCommitteemembersandbriefs,visit:www.planning.org/amicus
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Spring2018 32 PLANNING&LAW
Long-time PLD member and University of Hawai’i
Law Professor David L. Callies received the 2017
Brigham-Kanner Property Rights Prize from theWilliam &
Mary Property Rights Project during the Project’s 14th
annual conference held at William & Mary Law School in
Williamsburg,Virginia,lastOctober.
Theprizeisnamedinhonorof thelifetimecontributions to
propertyrightsofTobyPrinceBrighamandGideonKanner
andispresentedannuallytoascholar,practitioneror jurist
whose work affirms the fundamental importance of
property rights. Recently it has goneto legal scholars from
Harvard, Yale, Columbia and the University of Michigan.
Retired Supreme Court Justice Sandra Day
O'Connorwasarecipientin2011.
Callies, a prolific scholar whose work explores
land use, property, and state and local
governmentlaw,haslecturedaroundtheworld
and written or collaborated onmore than 90
articlesand20books.Hehasbeenamemberof
the American Law Institute since 1990 and is
the Benjamin A. Kudo Professor of Lawat UH
Mānoa. Prior to entering academia, he was an
attorney in private practice and an assistant
state’sattorney.
Calliesgainedfame asa leadingexpert on land
use and development in Hawai‘i early in his
distinguished career, said Lynda L. Butler, Chancellor
ProfessorofLawatWilliam&MaryLawSchoolanddirector
of the school’s Property Rights Project. Callies' research
interestshavebecometrulyinternationalinscopeovertime
and encompass land use control, eminent domain, and
sustainable development in numerous other countries.
Butler noted that the annual Brigham-Kanner conference
has been held in China and in The Hague as well as in
Virginia.
UH LawDeanAviSoifer calledtheprize “amuch-deserved
honorforProfessor Callies”that notonlyresonates inlegal
circles,butinthewiderbusinesscommunity.“DavidCallies
bringstremendousbreadthtoourofferingsinbusinessand
land law,” said Soifer, “and his presence within this
constellationof prizewinners speaks to the importance of
his scholarship. Our students are very fortunate to be
receiving world-class instruction in the complex areas in
whichheexcels,fromoneoftheworld’sgreatexperts.”
Callies is renownedas a“scholar, teacher,lawyer,mentor,”
accordingto RobertH.Thomas,anattorneyanddirectorat
DamonKeyLeongKupchakHastert inHonolulu. “Forfour
decades, David Callies has shaped property law, and the
practiceofpropertylaw,asalegalscholar,practitioner,and
advocate. He has devoted his career to a search for
understandingthedeepermeaningofwhat itmeanstoown
property,andtherelationshipbetweenpropertyrightsand
individualliberties.Hisworkhasalsointegrated
property law's traditions with more modern
concepts such as environmental concerns and
thepublic trust. A trulydeservingprizewinner,
David Callies represents the best of the law’s
academicandpracticesides."
Michael Berger, a partner in the Los Angeles
officeofManatt, Phelps&Phillipswho received
theBrigham-KannerPrizein2014,calledCallies
“oneof the brightest stars inthe constitutional
property rights firmament.” His lengthy
academic career, Berger said, “has been
festooned with scholarly explorations of
property law that have enriched the scholarly
literature and influenced the way that courts
haveviewedthelaw.WhenIlearnedthat hewasto bethis
year’shonoree,allIcoulddowascheer.”
TheBrigham-KannerPropertyRights Prize,whichhasbeen
awarded annually since 2004, honors the work of Toby
PrinceBrigham, founding partner of Brigham Moore, LLP,
andGideonKanner,professoroflawemeritusatLoyolaLawSchoolinLosAngeles.
Callies’ previous recognitions includeTheOwners’ Counsel
of America’s Crystal Eagle Award, the Lambda Alpha
InternationalMember of theYearAward, andtheJefferson
Fordham Lifetime Achievement Award, which is conferred
bytheABA’sSectionofStateandLocalGovernmentLaw.♦
Callies
PLDMemberDavidCalliesHonoredwithPropertyRightsPrize
A Florida Court of Appeals decision rejecting a claim of a
Lucastakinginpartbecausethecityprovidedthepropertyowner with non-monetary credits, Ganson v. City ofMarathon,222So.3d17(Fla.3dDCA2016),wasthesubjectof a September 2017 certiorari petition. The amicus
committee conferred in January 2018 about potential
participationifcertiorariwas granted,andwaspreparedto
do so if necessary. However, on January 22, 2018, the
SupremeCourtdeniedcertiorari.
Wecontinueto inviteleads,requests,andothersuggestions
regardingpotentialamicusinvolvementinothercasesatthe
appellatelevelofparticularimportancetoplanning.♦
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Spring2018 33 PLANNING&LAW
PLD’sNationalPlanningConferenceGuide
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Spring2018 34 PLANNING&LAW
JOINTHEPLANNING&LAWDIVISIONFOROUREVENTSATTHE2018NATIONALPLANNINGCONFERENCE
HappyHourSunday,April22,5:45-7:15PM(AcmeOysterHouse,724IbervilleStreet)
NetworkwithPLDmembersandenjoygreatconversation.Appetizersandyourfirstdrinkareonus!LocatedintheFrenchQuarter
Thankyoutoourhappyhoursponsor:
BusinessMeeting&ReceptionMonday,April23,4:15-5:45PM(HiltonRiverside,Fulton)
Connectwithotherprofessionals,hearhowPLDisdoing,andlearnmoreaboutthebenefitsofmembership!
Thankyoutoourmeetingsponsor:
PLDEndorsedSessionsWranglingtheVeryComplexZoningCode
Saturday,April21st,10:45AM-12:15PM(ErnestM.MorialConventionCenter,Room213)
CM-Law1.5&CLE1.5
BETTMANSYMPOSIUM:AfterInclusiveCommunities:DisparateImpactRevisitedMonday,April23,8:30-10:00AM(ErnestM.MorialConventionCenter,GreatHallB)
CM-Law1.5&CLE1.5
Zoning,TakingsandWaterResourcesMonday,April23,8:30-10:00AM(ErnestM.MorialConventionCenter,Room213)
CM-Law1.5&CLE1.5
MeetingtheNeedforAccessibilityMonday,April23,10:15-11:45AM(ErnestM.MorialConventionCenter,Room213)
CM-Law1.5&CLE1.5
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Spring2018 35 PLANNING&LAW
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PLANNING&LAWNationalPlanningConference2018
UsethePlanning&LawDivision’ssuggested“Planning&LawTrack”tomakethemostofthe2018Conference.
Learnmoreabouttheintersectionofplanningandlaw,andgetanupdateonlegalissuesaffectingplanning.
SaturdayPLDENDORSEDSESSION
WranglingtheVeryComplexZoningCode10:45a.m.-12:15p.m.(Room213)CM-Law1.5&CLE1.5FriendsatLast:PreservationandZoning1:00-2:15p.m.(Room219)CM1.25SolarZoning:RooftopstoSolarFarms1:00-2:15p.m.(RoomR09)CM1.25ShouldZoningBeSimple?2:45-4:00p.m.(RoomR06)CM1.25DraftingContent-NeutralSignCodes2:45-5:15p.m.(GreatHallB)CM2.25,CM-Law1.5&CLE1.5CreationofOpenSpaceinDowntowns2:45-4:00p.m.(RoomR02)CM1.25
SundayBETTMANSYMPOSIUM:LawandPlanningforClimateChange8:30-10:00a.m.(RoomR05)CM-Law1.5&CLE1.5BETTMANSYMPOSIUM:Housing,HealthEquity,andLocalControl10:45a.m.-12:15p.m.(RoomR05)CM-Law1.5&CLE1.5InclusionaryHousing:TalesfromtheFront4:15-5:30p.m.(Room223)CM1.25
PLDHappyHourNetworkwithPLDmembersandenjoygreatconversation,Appetizers&yourfirstdrinkareonus!
5:45-7:15p.m.(AcmeOysterHouse,724IbervilleSt.—locatedintheFrenchQuarter)Sponsoredby:TheUnitedStatesSignCouncilFoundationInc.
MondayPLDENDORSEDSESSION
BETTMANSYMPOSIUM:AfterInclusiveCommunities:DisparateImpactRevisited8:30-10:00a.m.(GreatHallB)CM-Law1.5&CLE1.5
LegalandFinancialStrategiesforConservation8:30-9:45a.m.(RoomR03)CM1.25LivingwithYourForm-BasedCode8:30-9:45a.m.(Room216)CM1.25Short-TermRentalsinNewOrleans8:30-9:45a.m.(RoomR07)CM1.25
PLDENDORSEDSESSIONZoning,TakingsandWaterResources8:30-10:00a.m.(Room213)CM-Law1.5&CLE1.5
Zoning,TakingsandWaterResources8:30-10:00a.m.(Room213)CM-Law1.5BestPractices:RegulatingArtisanalFoodProduction10:15-11:30a.m.(Room207)CM1.25
PLDENDORSEDSESSIONMeetingtheNeedforAccessibility
10:15-11:45a.m.(Room213)CM-Law1.5&CLE1.5DoCitiesNeedZoningAdministrators?2:45-4:00p.m.(Room207)CM1.25Whiskey,Beer,andWine:LegislativeIndustryNeeds4:15-5:30p.m.(Room213)CM1.25
PLDBusinessMeeting&Reception
ConnectwithotherprofessionalsandhearmoreaboutthebenefitsofPLDmembership!4:15-5:45p.m.(HiltonRiverside,Fulton)
Sponsoredby:OttenJohnsonPC
TuesdaySignRegulationsthatEncourageCreativeDesign8:30-9:45a.m.(RoomR09)CM1.25FromVacancytoVitality8:30-10:00a.m.(GreatHallB)CM-Law1.5&CLE1.5HowtoEvaluateYourParkingPolicies10:15-11:30a.m.(Room210)CM1.25ZoningforSustainability10:15-11:30a.m.(RoomR07)CM1.25
TojointhePlanning&LawDivision:www.planning.org/divisions