The April 2008 issue of Research Works, published by HUD, highlights a study HUD’s Office of Policy and Development commissioned to determine whether subdivision regulations that dictate infrastructure and site requirements pose unnecessary barriers to affordable housing.  The Research Center of National Association of Home Builders conducted the study, collecting data on some of what they considered to be the economically influential subdivision regulations and zoning rules for 469 municipal and county level planning jurisdictions across the country. Benchmarks were developed by a team consisting of residential land developers, architects, civil engineers and land planners, who developed what they believed to be national minimum standards necessary for healthy, sustainable communities.  The study then measured lot size, floor space requirements, lot width, roadway width, sidewalk requirements, and curb and gutter drainage against these benchmarks. According to the summary, “subdivision requirements that went beyond the benchmarks were termed excessive and defined as regulatory barriers.”

 

Not surprising, 91% of communities studies had one or more regulatory standards that exceeded the benchmarks, with a reported additional cost of compliance of $11,910 per dwelling unit.  Over the course of the study year, it was reported that cumulatively, this amounted to roughly $14.6 billion.  The study concluded that excessive subdivision requirements limit affordable housing by increasing development costs, and called upon local governments to reduce regulatory barriers by balancing affordable housing goals with other community amenities. The study recommended that HUD focus efforts on addressing what was found to be the largest contributors to excessive subdivision requirements – lot size, lot width and floor area.

 

Note: Of course, readers are cautioned to consider the reasons why municipalities choose certain subdivision requirements, and that much has to do with, among other things, community character, environmental protection goals, public health and safety concerns, and community demographics.  While communities should always keep affordability in mind, other considerations are appropriate to balance when developing the final regulations. Although this report calls for such a balancing, it is understandably focused on monetary costs.  It should not be read to suggest that all subdivision regulations must require high density, compact subdivisions.  Where appropriate, however, such considerations might offer more affordable housing options.  Consider that market price has an equal, if not greater influence on the cost of single family dwellings than do subdivisions regulations, absent local regulations that specifically limit housing costs.

 

The report may be accessed at: http://www.huduser.org/rbc/rbcNews/subdvsn_req.html

 

Information about HUD’s Affordable Communities Initiative can be found at: http://www.hud.gov/initiatives/affordablecom.cfm 

On April 28, 2008 the South Dakota Attorney General issued an opinion determining that it is appropriate for a state agency to sell land to a city or local economic development organization so that the land may be leased to a private company for economic development. In interpreting two statutory provisions (S.D. C.L. 5-9-34 and 5-9-35) which provide, in part, that such land be used for a “public purpose,” the Attorney General relied on the U.S. Supreme Court’s interpretation of “public use” and “public purpose” in Kelo v. City of New London, 545 U.S. 469 (2005) as well as on interpretations by the South Dakota Supreme Court to reason that there are distinctions between the phrases “public use” and “public purpose.”  Citing to a string of cases where the South Dakota Supreme Court has explicitly found that economic development is a public purpose, the Attorney General opined that since the applicable statute uses the phrase “public purpose,” the legislature’s use of this judicially defined term suggests that the broader interpretation applies to the statute and there therefore, economic development is included as one of its valid purposes.  The Attorney General further reasoned that if the Legislature wanted to, they could have used more limiting language by restricting the power of the Commission to circumstances where there was a valid “public use.”   Lastly, the Attorney General commented that since under these statutes, the Legislature allowed organizations other than strictly public or governmental bodies to purchase public lands, had the Legislature sought to restrict the statute to “public use,”  it probably would have restricted the purchasers to public or governmental organizations.

 

Op. S.D. Att’y. Gen. 08-02 (4/28/2008).

 

The opinion can be accessed at: http://www.state.sd.us/attorney/applications/documents/oneDocument.asp?DocumentID=1556

The Johnsons own a unit at the Pine Harbor Condominiums (PHC).  Sheepshead Bay acquired an adjacent lakefront parcel to PHC separated from the Johnson’s unit by one common area. Sheepshead proposed to replace an existing seasonal cottage with a larger year-round dwelling about 500 feet from the Johnson’s property and 200 feet from the boundary line of the PHC property.  The Johnsons asserted that this larger proposed structure would interfere with the use and enjoyment of their unit and the common area in which they own an undivided interest. Since the proposed dwelling would lie within the wetlands buffer zone, a special use permit was required.  The Johnsons submitted a written document to the planning board, urging them to deny the special use permit since the application failed to satisfy the criteria set forth in the ordinance. The planning board granted the permit.

 

The Johnson’s appeal to the superior court was dismissed for lack of standing.  The trial court found that the Johnsons did not have an interest separate from that of the PHC board, and that when the PHC board decided to take no action to oppose the application, they did so on behalf of all of the unit owners.

 

The Supreme Court noted that the State Condominium Act provides that the board of directors shall have the irrevocable power as attorney-in-fact to act on behalf of the unit owners to grant and accept certain easements.  It also provides that a board’s by-laws shall specify the powers and duties of the board.   While acknowledging that the PHC bylaws give the board, among other things, responsibility for the common areas, the Court said, “Nowhere in the PHC Declaration or bylaws…is this authority said to be exclusive of the unit owners’ legal rights as individual property owners.” Further, the Court noted that the bylaws do not address participation in land use decisions regarding abutting properties, and that “there is no provision in the PHC declaration or bylaws granting the board the authority to contract away the standing rights of individual unit owners.”

 

Finding that the Johnsons had standing as a matter of law, the Court noted that their unit is approximately 200 feet from the Sheepshead parcel and less than 500 feet from the proposed structure, and that the proposed change is significant. The Court also noted that the Johnsons actively participated in the planning board hearing.  The Supreme Court reversed the trial court and remanded the matter.

 

Johnson v. Town of Wolfeboro Planning Board, 2008 WL 899274 (N.H. 4/4/2008). 

 

The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2008/johns034.pdf

Marras was notified by the City ordinance enforcement officer on a number of occasions over a two year period that he was in violation of the zoning regulations regarding sign postings and placements. Specifically, he was informed that the parking of a vehicle advertising his business in front of his store, as well as the use of LED and Banner signs were prohibited. In each case, Marras complied with the requests to eliminate or relocate the offending signs. Marras then employed a man dressed as Santa Claus to hold a sign that read “Piano Sale” on one side and “Guitar Sale” on the other side.  The enforcement officer cited Marras for violating the portable sign prohibition in the zoning ordinance. Marras was ticketed for this incident when he refused to move the sign inside the store. A misdemeanor complaint was later filed against Marras not for the violation of the portable sign ordinance, but rather alleging a violation of the restrictions pertaining to right-of-way access.  After the State District Court dismissed the complaint because the relevant right-of-way in front of his store was defined vaguely, Marras filed a federal complain alleging First Amendment, due process and equal protection violations. The District Court previously dismissed the due process claim, and allowed Marras to amend the complaint to plead a “class of one” for purposes of equal protection.  In this opinion, the Court is responding to a request for summary judgment by the City to dismiss the rest of the claims.

 

As to the Plaintiff’s claim that the ordinance violates the First Amendment both facially and as applied to them, the Court reviewed the City’s thirty-three pages dedicated to sign regulation. The Court considered first whether the ordinance was content neutral or content based. Finding that the ordinance includes explicit exceptions to its general prohibitions, the Court determined that the regulations were not content neutral.  Specifically, the Court noted that three sections of the ordinance provided for certain exemptions/exceptions.  Finding that the regulations reach both commercial and non-commercial speech, the Court applied the strict-scrutiny test to the content-based restriction on the non-commercial speech; and the four-part Central Hudson, 447 U.S. 557 (1980) test to the regulations applicable to commercial speech.

 

With respect to the regulations pertaining to non-commercial speech, the Court found that even if they were to find the government interest in traffic safety and aesthetics to be compelling, the City has not satisfied the Court that the regulations are narrowly tailored.  Turning to the commercial speech aspects of the regulations, the court determined that the City has not set forth sufficient proof as to how restricting certain signs, while permitting others, directly and materially advances its interests.  Although the City did cite to other studies, the Court said it not explain the disparate treatment between different types of signs. Further, the City did not satisfy the Court that this part of the ordinance was narrowly tailored to achieve the desired result. The Court therefore denied the City’s request for summary judgment.

 

Marras v. City of Livonia, 2008 WL 835816 (E.D. Mich. 3/28/2008).

Following a negative declaration finding no impact on the surrounding environment by the proposed project, the planning board issued site plan approval for the construction of seven light industrial buildings on a 36.68-acre parcel of undeveloped land. A portion of this land has been identified as a potential habitat for the Karner Blue Butterfly, an endangered species.  The petitioner, Save the Pine Bush, Inc. and several of its members filed this lawsuit challenging the planning board’s determination. They claimed they had standing because they are an environmental organization dedicated in part to preserving the Karner Blue Butterfly, and that the proposed development would destroy the species’ habitat. Further, the petition claimed that ten of the petitioner’s individual members have a special interest in the preservation of the species because they actively look for, and observe these butterflies, as part of their recreational activities.  

                 

In upholding the finding of the trial court that petitioners lacked standing, the Appellate Court found that the interests these petitioners sought to protect, were no different that the interest enjoyed by the public at large, and that there was no specific environmental injury established to confer standing under the State Environmental Quality Review Act. While three of the organizational members resided in the Town, it was not established that any of them lived in sufficient proximity to the site to qualify for standing. Furthermore, the petitioner failed to submit affidavits from any individuals who might be adversely affected by the development in a manner different in kind and degree from that of the public at large.

 

Save the Pine Bush, Inc. v. Planning Bd. of Town of Clifton Park, 2008 WL 1048993 (N.Y. A.D. 3 Dept. 4/11/2008).

 

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2008/503595.pdf

The Hammers use a portion of their 291 acres for flying gas-powered remote controlled planes four to five days per week. In addition, Mr. Hammer, who built two runways for the remote controlled planes, hosts two annual weekend flying events attracting hundreds of enthusiasts. The Aviation Cadet Museum (ACM), a museum commemorating military aviators and located on 73 acres, operates a privately held public access airport on its land, and the take offs and landings from this airport pass directly through airspace over the Hammer’s property. At the time the ACM was established, it was aware of the use taking place on the Hammer property.  ACM received a letter from the FAA indicating no objection to their proposed use of the property for an airport runway, but they indicated that such determination did not preempt nor waive an local ordinances, including zoning. The South end of the ACM runway is approximately 500 feet from the north edge of Hammer’s flying area for the radio controlled planes, and the ACM runway has no lights delineating a field and no navigation system. The Hammers filed suit to enjoin the ACM form using its property as an airport alleging that the use constitutes a nuisance and violates their surface rights to the enjoyment of their property.  They later amended their complaint to include a claim of common-law trespass. ACM counterclaimed for nuisance claiming that the radio controlled planes were hazardous to pilots attempting to land full-scale planes at its airport. ACM sought to enjoin the Hammers from flying radio controlled planes on their land in the flight path of ACM’s airport.

 

The Circuit Court found that ACM’s airfield was a nuisance and issued an injunction to prevent ACM from allowing planes to depart and land therefrom until such time, if any, that it can demonstrate to the court that it could operate in a manner that did not constitute a nuisance and would not trespass on the Hammer property. ACM appealed, arguing that with only 24 take-offs and landings per year, the use of its property as an airport was not a nuisance.  

 

The Arkansas Supreme Court, reviewed the testimony in the record which the Circuit Court relied on, demonstrating that the use of the ACM airfield was dangerous not just to the Hammer’s property and the remote controlled plane operators (as well as the pilots of the full scale planes), but with respect to a public road that planes flew over at dangerously low altitudes, and that nearby residents complained of the noise from the planes using the ACM airport. The Supreme Court said that “the planes flew at an altitude low enough to interfere with the then-existing use of the Hammers’ property and posed a danger to the persons on the land beneath.  Such flight amounted to a nuisance.” Therefore, the circuit court did not abuse its discretion in issuing an injunction enjoining ACM from using its airfield for allowing planes to land and depart therefrom.   

 

Aviation Cadet Museum, Inc. v. Hammer, 2008 WL 1747086 (Ark. 4/17/2008).

 

The opinion can be accessed at: http://courts.arkansas.gov/opinions/2008a/20080417/07-830.pdf

The City of Pasadena enacted an ordinance governing the issuance of licenses for used car dealers.  Among other things, the ordinance requires that each new license location be a minimum of 1,000 feet from an existing license location, and that a new license would not be issued for the operation of a used car lot within 150 feet of the lot lines of a residential area or subdivision, subject to certain exceptions. The ordinance also provides that where an applicant is denied a license by the city building inspector, there is a right to appeal to the city council, and that “[t]he hearing before the council shall be de novo and the applicant shall have the burden of proving he is entitled to the license.” 

 

The Lindquists, in an effort to expand their existing used car lot, considered purchasing two parcels, but were told by City officials that neither lot would qualify for a license since one lot was within 1000 feet of two existing dealerships and within 150 feet of a residential area, and the second lot was within a 1000 feet of an existing dealership. Unaware that the City sometimes issued these types of licenses on appeal, the Lindquists purchased one of the lots and received a license to sell a variety of vehicles, but not used cars. The Lindquists then discovered that someone else bought the second lot they had considered and the owners of that lot were granted a license by the city council after they appealed the decision of the building inspector, on the grounds that the denial caused economic hardship.  The Lindquists then applied for a license to operate a used car dealership in, on their lot which was denied, and on appeal, the city council also denied the license.  About two years later the city council granted a used car dealership license for another lot after a councilmember told the council that the owner was a “respectable businessman” who would suffer “economic hardship” without the license. The Lindquists then sued the City alleging a violation of their equal protection and due process rights. The District Court dismissed the complaint for failure to state a claim.

 

The Fifth Circuit Court of Appeals reversed on the equal protection claim.  They disagreed with the District Court’s belief that the Lindquists’ equal protection claim sounded like a selective enforcement claim that would require a showing that the city acted with illegitimate animus or ill will.  To ultimately prevail, however, the Court noted that the Lindquists will have to carry the heavy burden of “negative[ing] any reasonable conceivable state of facts that could prove a rational basis” for the differential treatment.  With respect to the due process claim, the Court upheld the dismissal, agreeing that this claim was the same at the equal protection claim simply recast in substantive due process terms. As to the procedural due process claims, the Circuit Court also upheld the dismissal since the Lindquists failed to brief the issue. The Court remanded the case for consideration of the equal protection claim.

 

Lindquist v. City of Pasadena, TX, 2008 WL 1726173 (C.A. 5 (Tex.) 4/15/2008).

 

The opinion can be accessed at:

http://www.ca5.uscourts.gov/opinions/pub/07/07-20013-CV0.wpd.pdf

Canton Property Holding submitted a comprehensive permit application to the Town of Canton for a project to consist of two developments: one consisting of 196 units of rental housing, and a subdivision containing 24 single family homes, one two-family plan, and three duplexes. Both of these developments would qualify as “low or moderate income housing” under state statute. The Zoning Board denied the application citing increased vehicular traffic and the belief that the project was inconsistent with local needs. The following month, the board also denied comprehensive permit applications from a second developer, Pequit.  Both Canton and Pequit appealed to the Housing Appeals Committee.  While Canton’s appeal was pending, the Town reached an agreement with Pequit, leading to an approval of 180 affordable housing units.  This agreement brought the Town into compliance with its mandated minimum requirement of 10% of its housing stock consisting of affordable housing units.  Therefore, the board moved to dismiss Canton’s appeal arguing that the Housing Appeals Committee no longer had power to decide the matter once the Town met or exceeded its requirement for affordable housing units, and that requiring the Town to approve the Canton project would result in more than 12% of the Town’s housing stock being affordable and that this was an “unreasonable” demand.  

 

The Housing Appeals Committee denied the Town’s motion, concluding that the town’s compliance with the statutory minimum requirement was to be determined as of the date of the board’s decision on the permit application being appealed and that this application is not affected by subsequent events. The Housing Appeals Committee further ordered the Town to issue a comprehensive permit to Canton. It found that the Town’s concerns over traffic patterns were merely a matter of “inconvenience” and did not rise to a public safety concern that outweighed the need for affordable housing, and further that the fact that twelve percent of the Town’s housing units would be affordable was not “unreasonable.”

 

The Superior Court reversed the Housing Appeals Committee, reasoning that by the fixing the date of the town’s compliance with the statutory minimum at the time of the board’s decision on the Canton application, “skew[ed] the…delicate balance…too far in favor of developers and against municipal autonomy.” 

 

In reversing the Superior Court, the Supreme Judicial Court noted that the Department of Housing and Community Development had “promulgated a regulation stating that a town’s compliance with the statutory minimum levels of affordable housing is to be calculated as of the time a local board files its decision on a comprehensive permit application.”  Relying on its decision in Taylor v. Housing Appeals Comm (2008), the Court reiterated that the Department’s “choice of the date of filing of the board’s decision is neither irrational nor inconsistent with the statute.”  In fact, the choice of timing is a detail, explained the Court, within the agency’s discretion, and it did not affect the delicate balance between municipal autonomy and the need for affordable housing.   The case was remanded.

 

 

Zoning Bd. of Appeals of Canton v. Housing Appeals Committee, 2008 WL 962859 (Mass. 4/11/2008).

 

The opinion can be accessed at: http://www.malawyersweekly.com/archives/ma/opin/sup/1007308.htm

 

Read a comment on the Land Use Professor Blog at: http://lawprofessors.typepad.com/land_use/2008/04/too-much-afford.html

This case is the latest in the quest of plaintiffs trying unsuccessfully to get their takings claims heard in federal court after complying with the Supreme Court mandate of frst exhausting their state court remedies. Federal statute requiring federal courts to afford full faith and credit to state court decisions, combined with state preclusion doctrines, often have the effect of preventing these federal claims.  

 

 

 

In this case, Agripost subleased a plot of publically owned land from Dade County for the purposes of constructing and operating a waste-disposal plant that could convert waste into agriculturally useful compost.  One of the conditions of the sublease was that Agripost would obtain and maintain an unusual use zoning permit since the land was zoned only for agricultural use. In addition, the subleased was conditioned on Agripost’s continuing to use the land for the waste-conversion plant. Agripost did obtain the unusual use permit, which was conditioned upon Agripost complying with all conditions and requirements of the County Department of Environmental Resources Management (DERM).  The plant was constructed and began operating in 1989.  About a year later, odor emissions caused the DERM to revoke the permit on the grounds that it was a public nuisance.  The revocation was upheld by the zoning appeals board and by the county commission.  Agripost’s lease was thus terminated on its own terms.

 

Agripost sued in State court, and the Court affirmed the administrative decision.  Agripost then brought suit in the federal courts alleging that the revocation of the unusual use permit amounted to a regulatory taking without just compensation. This claim was dismissed on ripeness grounds since Agripost had not pursued their state remedies first.  Agripost went back to the State Courts, seeking damages based on, among other things, inverse condemnation, alleging that the permit revocation denied it all economically viable use of its property. Agripost’s complain sought damages under the 5^th Amendment, but expressly reserved the right to litigate this claim in federal court at the conclusion of the state proceedings. The state appeals court held that Agripost did not have a protected property interest against the revocation of a use permit where it was determined that they were in violation of the permit’s conditions. Agripost then returned to federal court, refilling its 5^th Amendment takings claim.  This time the federal district court dismissed the claim on the grounds of claim or issue preclusion.

 

The 11^th Circuit Court of Appeals began by explaining that the topic of claim and issue preclusion has been particularly troublesome in takings cases brought in federal court because the Full Faith and Credit Statute (28 U.S.C. §1738 ) which holds that if a state has already ruled on a matter it will not be reheard in federal court, combined with the requirement in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) that plaintiffs must go to state court before going to federal court on issues involving compensation for a putative taking, “might deprive the plaintiff of a chance to litigate his Takings Clause claim in a federal forum, unless there were some exception to the general principles of preclusion…”   Although prior law in the Circuit might have afforded Agripost the right to bring this claim in federal court since they were in state court involuntarily, more recently, in San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323 (2005), this type of issue reservation was rejected except in the narrow situation where the “antecedent state issue requiring abstention was distinct from the reserved federal issue.”  However, the 11^th Circuit said that San Remo should be read only as an issue preclusion case and not as a claim preclusion case, and therefore the Court accepted arguendo that Agripost successfully reserved its federal constitutional claim, and turned to the question of whether the claim is nonetheless barred by issue preclusion from going forward with that claim.    

 

Under Florida law, the issue preclusion doctrine applies forecloses relitigation where: the parties in both cases are identical; the issues are identical; there was a full and fair opportunity to litigate the issues and they were litigated; and those issues were necessary to the prior litigation.  The Court found all existed in this case. Although Agripost claimed it did not have a full and fair opportunity to litigate its state law takings claim since the court did not permit further discovery and relied extensively on prior litigation, the Court did not buy this because the state court had concluded as a matter of law that Agripost did not have a protected property right when they failed to comply with the terms of the conditional use permit. Since Florida law does not allow Agripost a second bite at the apple, and §1783 does not permit the federal court to second guess the correctness of the state court’s decision on the merits, the federal takings claim failed.   

 

 Agripost, LLC v. Miami-Dade County, Fla., 2008 WL 1790434 (C.A. 11 (Fla.) 4/22/2008).

 

The opinion can be accessed at: http://www.ca11.uscourts.gov/opinions/ops/200516499.pdf

At issue was a one acre parcel of residentially-zoned property that contained a one-family house.  The property had been zoned residential since 1947.  A comprehensive plan adopted in 1993 provided that the front of the subject property abutting the highway, to a depth of 250 feet, should be zoned commercial, while the rest of the property should remain residential.  The town never rezoned the subject property. In 2000, the plaintiff purchased the subject property with the intention of using it as an office for an accounting firm and for a chiropractor office. The plaintiff applied to the town for a rezoning of the entire parcel from residential to commercial which was denied.  Rather than seeking review of the denial of the application, the plaintiffs commenced an action alleging that the decision was inconsistent with the Town’s comprehensive zoning plan, or a violation of equal protection.  The Trial Court agreed with the plaintiff that the residential zoning of the property was inconsistent with the comprehensive plan.

 

The Appellate Court reversed. While Town Law sec. 272-a requires that zoning decisions be consistent with the comprehensive plan, the Court noted the long-standing interpretation in New York that such sentiment really reflects a requirement for comprehensiveness of planning, rather than slavish servitude to any particular comprehensive plan. The Court noted that the subject property is bordered to the north by a one-acre residential lot and to the west by thirteen residential properties, that the property is situated at the entrance to a residential neighborhood from a commercial roadway, and that the only access to the property is at the corner of the residential street. Therefore, the Court held that the “Board’s decision to deviate from the comprehensive plan and not to rezone the entire property for commercial use was justified and had a rational basis.”  Further, the Court noted that the Board’s determination promoted the public interest as there were legitimate concerns that rezoning the property for commercial use will have a negative effect on traffic congestion and the residential character of the access road.

 

Infinity Consulting Group, Inc. v. Town of Huntington, 2008 WL 808993 (N.Y.A.D. 2 Dept. 3/25/2008).

 

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2008/D18581.pdf