Local Land Use Planning Cities incorporate to control

Local Land Use Planning • Cities incorporate to control land use – How do they use this power? • Cities affect land use & value with: – Taxing and spending – Zoning and eminent domain • Cities & counties regulate public health, safety, and welfare with police powers – Building design, food quality in restaurants, parking requirements, health codes, etc.

Local Land Use Planning • Police Powers – 10 th Amendment: reserved powers – states delegate to local governments – regulate sanitation, bikes, cars, liquor, gambling, beauty salons, hair cuts, professions, billboards, signs, noise, odor, smoking • education, morals, pot? – does the regulation have a real & substantial relation to the health, safety and welfare of the community – What about: drilling natural gas wells, fracking

Police Powers Gone Bad • St. Louis Co, MO. – 90 cities – 81 muni courts, many that ban observers – Black residents policed (fleeced) by white cops who live elsewhere – fines for failure to appear, traffic, seat belts, saggy pants. • number of outstanding warrants exceeds number of residents – 40% of local revenues from fines & fees collected by muni courts

Local Land Use Planning • Zoning – Innovation from the Progressive Era – Prevents incompatible land uses – Village of Euclid v. Ambler Realty Co (1926)—zoning is a logical extension of city’s police powers – Allows city to plan development

Local Land Use Plans as Taking? • Zoning – Some view it as regulatory taking • how far can local govt go in using ‘police powers’ ? – 5 th Amendment protections • “nor be denied life, liberty, or property, without due process of law, nor shall private property be taken for public use w/o just compensation”

Local Land Use Plans as Taking? • Zoning – How far can local govt go in using ‘police powers’? (pretty far) • Land use designations = value of land – if designation changes, value changes • Designate type of use – Ag, residential, type of residences, commercial, industrial, forestry, mining, recreational, etc. • Designate density of use – 10 homes p/ ac, 1 home p/ 20 ac. . .

Local Land Use Plans as Taking? No. • Zoning – Regulatory taking • • • Regulation is so onerous that it is de facto appropriation Prevents owner from putting land to any economic use Prevents owner from exercising most fundamental characteristic of property (private exclusion) • regulation is taking if limits use of private property to effectively deprive property owner of economically reasonable use or value • Govt occupation = taking • regulation that furthers legitimate public ends not = taking

Local Land Use Plans as Taking? No. • Zoning – What is a regulatory taking – Case-by-case • 100% devaluation • Permanent government structure • Govt. occupation = taking (see 3 rd Amendment) • regulation that furthers legitimate public ends not = taking

Local Land Use Plans as Taking? No. • Zoning – Regulatory taking • Zoning & regs that reduce property value are not a taking under federal case law – Nonetheless hugely controversial in states & localities • Property rights movement – Oregon, WA, ID Compensation initiatives – Change state law to require compensation if regulation decreases value of property

Local Land Use Plans as Taking? No. • Zoning – Just Compensation Clause (5 th Amend) • Federal case law does not protect against decrease in property value due to legitimate regulation • “Not a panacea for less-than-perfect investment” • Land must still be able to be put to some economic use, not most profitable

Local Land Use Plans as Taking? No. • Zoning; What is not a regulatory a taking? – Downzone ‘costing’ $millions • From residential to agriculture, forestry, etc. – Easements – Environmental standards – Moratoriums • What if project permitted? Vested? Property?

And then this. . . Holly & Railroad Samish Way

Eminent Domain • Eminent Domain – State and local government may take property for public use (by force) – must pay compensation • Conflict can be high – take private land for higher value private use?

Eminent Domain • Eminent Domain – When is eminent domain legitimate? – Condemnation for public use • OK, so what is public use? – public benefit (water supply) – remove blight, eliminate slums – site public facilities (roads, schools, fire station) – Court has very broad definition of public use

Eminent Domain • Eminent Domain – Kelo v. City of New London • Take non-blighted residential land, transfer to private developer in order to generate more local sales tax revenue

Exclusionary Zoning • Zoning can disadvantage poor and minorities • Does it violate 14 th Amendment? • Euclid = ‘hierarchy of land use’, segregate incompatible uses • Incentives to exclude: • Multi-family, lower income housing = ltd tax revenues, high demands for services

Incorporation • Becoming a suburb • How does this contribute to separation of social groups? • Boom in 1920 s, 1950 s • Specialization • Commerce, Industry, exclusive residential, working class • Control zoning & tax revenue • What is “local self-interest”

Exclusionary Zoning • Might a place have an incentive to adopt regs that only allow large, expensive single-family homes? • • lots size minimums (4 ac resid. ) Min sq foot size for houses (3000 s/f) Bldg. set back requirements design review standards

Exclusionary Zoning • 100% SF residential • Ban all apartments (rentals) • Allow some commercial zoning • Office parks, tech centers • This sort of zoning not challenged in courts until 1970 s • 14 th Amendment Equal Protection Clause • Related, does 14 th Amend. Protect against inequitable school funding based on property tax?

Exclusionary Zoning • Can suburbs ban apartments? • Some early cases said, “no. ” • California referenda requirement • USSC, ‘not unconstitutional’ • Lawton, OK 1970. Ban apartments • 10 th Cir: “Effectively excluded minorities” unconstitutional • Lackawanna, NY 1971. Ban minority housing. • 2 nd Cir: “explicit racial motivation - unconstitutional”

Exclusionary Zoning • Federal court challenges • Black Jack, MO (1974) • Incorporated to block 108 unit MF federally subsidized project • 8 th Cir: ‘Ban on MF housing unconstitutional; effect was discriminatory even if not intentional’ • 1975, USSC refused to hear appeal • Cir. court decision stands • What would happen if 8 th Cir. decision survived?

Exclusionary Zoning • Federal challenges not sustained • Arlington Heights, IL (1977) • Same ordinance as Black Jack • USSC: ‘effect of being discriminatory not enough, must show evidence of intent’ Today: discrimination based on income or class NOT unconstitutional logic applies to school funding

Exclusionary Zoning • Discrimination on the basis of income or class is NOT unconstitutional

Exclusionary Zoning • Some change w/ Obama admin. • Westchester Co, NY received federal community dev. $ • Fair Housing Act = “$ should further fair access to housing” • USDC: County failed • Ron Simms deal: County will spend $60 m of its own $ on housing in towns where blacks lt 3% of population

Exclusionary Zoning • Challenges in state courts • Mt Laurel, NJ (1975, 1982) • led to state legislation • Summary • must show effect, intent, and blatant

Ballot Box Zoning • Should voters decide land use? • What consequences of public votes on what gets built where? • If put to a vote, what incentives for voters to say yes or no?

Exclusionary Zoning • Ballot Box Zoning • Power of local vote varies by state • What is subject to direct democracy? • • • Set density? define allowed land use? adopt / reject entire general plan? grant / block rezone? grant / block variances to plan? Decide on individual properties?

Exclusionary Zoning • Ballot Box Zoning • Utah • rezone not subject to referendum; what else? • Oregon • Fassano case; map amendments, ‘general ordinances’ subject to referendum, not actions on specific property

Exclusionary Zoning • Ballot Box Zoning • Washington • Leonard v. City of Bothell (1975); rezone land to retail; opposed by citizens • General plan had land as agricultural • WA Court: referendums and initiatives can be held on “legislative matters”, NOT “administrative matters” • “amendments to zoning and rezone decisions require an intelligent choice by individuals who posses the expertise to consider total economic, social and physical character of community” • Not voters

Exclusionary Zoning • Ballot Box Zoning • California • Arnel Co. v. Costa Mesa (1980) • Citizens can use initiative and referendum to fight anything; a re-zone for a single property • legitimate use of direct democracy, since it sees the rezone not as an administrative procedure, but a change affecting lifestyle of city residents. • So, developers in CA must make voters happy

Private Communities Since 1980 s: Increase in % of (wealthy) Americans living in private communities 16% in places ran by private associations (2004) 10% in private ‘gated’ communities, as of 2012 Walled, gated, exclude based on age Private security forces Private roads Why pay city taxes?

Metropolitan Fragmentation (again) • Population growth has occurred in highly fragmented metropolitan areas • Areas are fragmented into cities, counties, towns, school districts, and special districts • Places have local land use powers – can & do use powers to exclude

Summary • Federal and local PUBLIC policies have shaped development of metro areas, and private sector • What equity issues?