Environmental Regulation Prof. David Glazier April 12, 2007 PropertyProperty.

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Presentation transcript:

Environmental Regulation Prof. David Glazier April 12, 2007 PropertyProperty

Today’s Class Zoning Overview Refresher Spot Zoning State v. City of Rochester [Minnesota] Environmental Regulation Palazzolo v. Rhode Island Tahoe Sierra Preservation Council Course Wrap-up Scheduling

Zoning Overview Exercise of state police power, requiring: (1) Statutory delegation to localities (2) Comprehensive zoning plan development* (3) Zoning ordinance legislatively enacted after public hearings* Zoning enacted in accordance with these rules is presumptively valid

Euclidean Zoning Single Family Homes Duplex Homes Multi-family Apartments Commercial use/Schools/Churches Light Industry Heavy Industry

Spot zoning Single parcel rezoned for more intensive use Benefits property owner vice public Similar property nearby not rezoned Rezoning incompatible with comprehensive plan “Spot zoning” presumptively invalid

What else could it be?

Pre-existing (“Non-conforming”) Uses - Non-conforming uses may continue unless detrimental to public welfare, safety, or health - Owner may make “necessary additions” needed for “natural expansion” of use - Non-conforming use is alienable - May be terminated only -- if a nuisance -- abandoned -- taken by eminent domain -- discontinued for set time -- destroyed For sale: $254,000

Special Exception Use contrary to basic zoning but conditionally authorized by zoning ordinance - Legislative body authorizes as policy -- specifies specific criteria -- Zoning Bd to approve if criteria met - Ordinance must provide substantial guidance -- vague ordinances are unconstitutional -- Zoning Bd discretion must be limited

VarianceVariance Authorized zoning deviation for special hardship - Area: departure from size/setback rules - Use: allows normally prohibited use* Criteria: - Special conditions result in literal enforcement of ordinance creating unnecessary hardship - Not contrary to public interest - “Spirit” of ordinance observed * Subject to more rigorous review Many jurisdictions disallow

State v. City of Rochester R-1 R-2

Palazzolo v. Rhode Island (2001) Basic chronology: 1959: : 1971: 1978: 1983: > 1992:

Palazzolo v. Rhode Island (2001) Two key issues presented:

Palazzolo v. Rhode Island (2001) Succession of ownership:

Palazzolo v. Rhode Island (2001) Loss of value: Criteria: - regulation’s economic effect - reasonable investment-backed expectations - character of government action

Palazzolo v. Rhode Island (2001) Two key issues presented:

Palazzolo v. Rhode Island (2001) No economic value – Lucas - always a taking Substantial impact – Penn Central - can be a taking Broad public scheme – Euclid - not a taking

Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (S. Ct. 2002) Issue? Note narrowness of court’s review - Penn Central “disavowed” - 4 of 7 theories foreclosed

Tahoe-Sierra (2002) Holding?

The End is in Sight! Tuesday, April 17: Exactions (Last Class) Read Nollan v. CA Coastal Commission pp Read Dolan v. City of Tigard pp Office hours today: 1-1:30 and 3-3:30 Tomorrow (Friday): 12-3 Next week: T 1-3:30 and W Review session (subject to room availability)? Thursday April 26 at 2? Friday April 27 at 10/12/2?

Schedule Issues - Review session? -- Think about it, inputs by Thursday - Office Hours? -- T/Th 2:00 – 3:30 -- T + W next week -- afterwards?

Questions?