GEOG 335 Legal Aspects of Planning

Standard State Zoning Enabling Act of 1922 (Major Federal Zoning Laws)

Sanctioned dividing of land into zones by local governments, with uniform codes for each -These laid out model ordinances, but did not make any requirements

"development which meets the needs of current generations without compromising the ability of future generations to meet their own needs"

The Brundtland Commission's report defined sustainable development as:

-The purpose of the ordinance is to promote 'timed' growth to assure continuous development within the town's capabilities -The town does not seek to freeze population at present levels -It seeks to bring about the efficient use of land

The Descision of Rampo

Berman vs. Parker Backround:

The District of Columbia Redevelopment Act allows the National Capital Planning Commission to prepare plans and designate land for redevelopment The first redevelopment took place in Southwest Washington D.C. in Area B 65% of the dwellings were beyond repair 57% had no inside toilets 82% had no wash basins 17% of the units were in satisfactory condition P.S. - 97% of the residents were African-American

Environmental Quality Social equity Economic Development

What are the three goals of Planning for Sustainability (The three goals of sustainable development planning (The three "E's"))

Most actions by a local governmental agency that affect the use of the land may not be taken officially until the agency has conducted a thorough review of their potential environmental impact.

What does SEQRA do?

Planning Board limited a subdivison to 8 lots even though the ordinance setting the minimum lot area requirement would have authorized 13 lots *proposed subdivision was a threat to the survival of the unique saltwater pond outside the confines of the subdision

What is an example of how an environmental regulation can prevent harm caused by pollution to a communty?

Economic Development (Sustainable Planning)

Planning for the feasibility of commercial and industrial development

Subdivision of Land

The legal division of a parcel into a number of lots for a purpose of development and sale

Growth Management

means specific regulatory policies aimed at influencing how growth occurs, mainly with a locality. These affect density, availability of land, mixtures of uses, and timing of development

Non-conforming uses:

"Any use, whether of a building or tract of land or both, existing on the effective date of this chapter, which does not conform to the use regulations of the district in which it is located" -Created when existing (permitted) land uses are prohibited by a new or amended zoning law. -Regulations will usually prohibit or limit changes in buildings and lot uses that are nonconforming and will provide for the termination of nonconforming uses in a variety of ways

Area Variance

(Dimensional, physical) Modifications for height and building size or placement

Site Plan

-A drawing, prepared in accordance with local specifications, that shows the arrangement, layout, and design of the proposed use of a single parcel of land *Ensure that the development of individual parcels of land do not have an adverse impact on adjacent properties or the neighborhood -Euclidian Zoning has been criticized for producing a "sterile" environment through excessive separation of uses

Floating zones

-A zoning district that is added to the zoning law but doesn't come into effect until an application is made to apply the new district to a certain parcel. Upon approval of the application, the zoning map is amended to apply this district to that parcel of land. -A floating zone is an unmapped district with detailed and conditional use requirnments -Generally involves predictable uses that have significant community impacts such as shopping centers, or uses that the city wishes to encourage (Affordable housing, and Housing for the elderly)

Planned Unit Development

-A zoning district/ ordinance that permits land developments on one large or several smaller parcels to be planned as single units and to contain both residential dwellings and commercial uses. -Often treated as a floating zone -Mixing of land uses -Development at a greater density -More design flexiblity -Opportunity for negotiation between local government and developers

Local Legislature (elected body)

-Adopt and amend zoning regulations (Legislative function) -Establish other local boards such as ZBA &PB (Delegate authority to these boards) -Responsible for adopting and amending (Official map, Comprehensive plan)

People vs. Stover

-Aesthetic purposes would support a restriction on the use of land

Penn Central Transportation Company Vs. New York City

-Affirmend community power to adopt ordinances which control what owners of historic buildings can do with their properties -Even if a property is listed on the National Register of Historic Places, additional protection is needed to prevent alteration or demolition of historic properties by private individuals or state and local governments -wanted to build up but NYC decided against it and made some deal for the air space

Zoning Board of Appeals

-Authorized to hear all variance requests & appeals, and can interpret the zoning law -has appellate jurisdiction only. Applicant cannot go directly to the ZBA for an interpretation of the law or for a variance -A majority vote is needed for approval

Requirements of the Board

-Decisions must be made in an open and fair manner -Actions can only be taken after after a public hearing is held -Must have a detailed record of their deliberations -Decisions must be based on reliable evidence contained in "the record" -Must provide public access to governmental records (Freedom of Information Law) -Must follow open meetings law -Cannot create a conflict of interest

Zoning Law (Euclidian Zoning)

-Divides a community into land use districts -Establishes building restrictions limiting height, low area coverage, and other dimensions of structures on structures within each district -Four kinds of controls: Use, Height, Bulk, Density

Subdivision Regulations

-Enforcement is an exercise of police power -Control the manner in which blocks of land over a certain size may be converted into building lots -Each new parcel must comply with the provisions on the zoning law (use and dimensional requirements)

Euclid vs. Ambler Realty

-In 1926, the U.S. Supreme Court first held that the enactment of zoning use districts is a permissible use of local government's police power. -Ambler Realty challenged the validity of a law that divided the town into various use districts. The court found that the plaintiff did not carry its burden of proving "that such provisions are clearly arbitrary and unreasonable, having no substantial relationship to the public health, safety, morals, or general welfare. sided with euclid, separation of uses

Zoning Practice

-Local governments in NY are not required to adopt zoning laws or other land use regulations -If zoning laws are adopted, the local legislature must establish a Zoning Board of Appeals. Other boards may be formed but are not required.

Sections 239 L&M of NYS General Municipal Law

-Local governments in NY are required to refer certain land use matters to a county planning board or regional planning council in their area before taking final action on them. -County agencies must review the adoption of a comprehensive plan, zoning law (and any amendments), and the approval of development application where the action occurs in the or affects land within 500 Feet of certain boundaries

Process of Adoption of Comprehensive Plan

-May be prepared by the local legislature, planning board, consultant -Public Meetings are necessary -Plan is subject to environmental review -The proposed plan must be submitted to the appropriate county or regional planning agency for review (General Municipal Law ~239-m) -Local Legislature Adopts plan -Plan must be filed with the municipal clerk and county planning agency

10 accepted principles that define Smart Growth

-Mix land uses - Take advantage of compact building design - Create a range of housing opportunities and choices Create walkable neighborhoods -Foster distinctive, attractive communities with a strong sense of place -Preserve open space, farmland, natural beauty, and critical environmental areas -Strengthen and direct development towards existing communities -Provide a variety of transportation choices -Make development decisions predictable, fair, and cost effective -Encourage community and stakeholder collaboration in development decisions

Legal Status of Comprehensive Plans

-NY state statutes require that zoning, and all other land use regulations, be in conformance with the _____ -NY State statutes strongly encourage, but do not require local governments to adopt ______ -adopting land use regulations that conform to the _______ provides significant legal protection for such regulations -Decisions challenged in the courts must show conformity with a formally adopted________ -Where a plan has not been formally adopted, the courts will look to "all relevant evidence', including the zoning law itself, policy statements, and previous land use decisions to determine the ________ objectives that have guided the community in the past (precedent)

Euclidian Zoning

-Primary tool that local governments use to regulate land use -Law allows legislative body to: *Regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of the lot that may be occupied, the size of the yards, courts, and other open spaces, the density of the population, and the location and use of buildings, structures and land for trade, industry, residence, or other purposes

Planning Board/ Commission

-Provides advisory and administrative functions -Usually delegated to review and approve site plan, subdivision applications, and issue special use permits

How are subdivision regulations more than just he site plan?

-Specs for streets -Drainage -Sanitary and storm sewers -water mains Regulations go beyond zoning to protect neighborhoods from flooding and erosion, traffic congestion, noise pollution, erosion of neighborhood character, and protect aesthetic of neighborhood

Golden vs. Planning Board of Town of Ramapo

-The court found that an ordinance that limited growth based on the availability of public services and infrastructure for an eighteen year period was within the scope of powers granted to the municipality -"to avoid undue concentration of population to facilitate the adequate provision of transportation, water, sewerage, schools, and parks

Police Power

-The power that is held by the state to legislate for the purpose of preserving the public health, safety, morals, and general welfare of the people of the state -The authority that localities have to adopt comprehensive plans and zoning and land use regulations is derived from the state's police power and delegated by the state legislature to its towns, villages, and cities.

Basic topics of a zoning ordinance

-The purpose of the ordinance -Various definitions -The establishment of zoning districts -The uses permitted in those districts -Building and parking restrictions that apply in each district -How preexisting, non-conforming uses are to be treated -Uses allowed as accessory uses or by Special Permits in certain districts -Formation and operation of ZBA -How the code is to be enforced

Growth Management Polices

-are not as common in older central cities since the problem is usually more likely to be shrinkage or stagnation rather than rampant growth - are more common in suburban areas and in those cities where there is still substantial growth potential

Form Based Codes

-foster predictable built results and a high-quality public realm by using physical form (rather than separation of uses) as the organizing principle for the code. -address the relationship between building facades and the public realm, the form and mass of buildings in relation to one another, and the scale and types of streets and blocks. -The regulations and standards in ______ are presented in both words and clearly drawn diagrams and other visuals. -They are keyed to a regulating plan that designates the appropriate form and scale (and therefore, character) of development, rather than only distinctions in land-use types.

All 4 criteria for a use variance MUST be satisfied to be granted: Use Variance:

1. The owner cannot realize a reasonable return on the property as zoned. The lack of return must be substantial and proven with competent financial evidence. It is insufficient for the applicant to show only that the desired use would be more profitable than the use permitted under the zoning. For example, the owner of residentially zoned property sought a use variance to allow him to construct offices for an insurance agency and a real estate business. The owner testified in support of the application that it would not be economical to renovate the property for residential purposes and that a greater rent could be charged to a commercial rather than residential lessee. The court held that a showing that "the permitted use may not be the most profitable use is immaterial." What must be established is that "the return from the property would not be reasonable for each and every permitted use under the ordinance." Hardship must be unique to the owner's property 2. The hardship must be unique to the owner's property and not applicable to a substantial portion of the zoning district. If the hardship is common to the whole neighborhood, the remedy is to seek a change in the zoning, not to apply for a use variance. In another case, the applicant had failed to establish that the hardship -- being located near a city landfill-- was unique to his property. Rather, it was held that the hardship was common to all properties in the area. Thus, the property owner should make an application for rezoning to the local legislature. 3. Granting the variance will not alter the essential character of the neighborhood. In making this determination, the court often considers the intensity of the proposed development as compared to the existing and permitted uses in the neighborhood. For example, a use variance to permit construction of an office building in a single-family neighborhood where several tall commercial structures already exist would not alter the essential character of the neighborhood. Conversely, a cemetery would alter the essential character of a district zoned for residential development, despite the fact that the land in the district was undeveloped at the time of the application. 4. The hardship is not self-created. In Clark v. Board of Zoning Appeals of Town of Hempstead, the Court of Appeals held that "one who ... knowingly acquires land for a prohibited use, cannot thereafter have a variance on the ground of special hardship." For example, a developer may not acquire land zoned for residential use at the time of acquisition and successfully petition for a variance to construct office buildings. Whether the purchaser actually knew about the use restriction is not relevant; it was his responsibility to discover such restrictions.

5 criteria for an area variance: (a balancing act of positive vs. detriment) Area Variance:

1. Will an undesirable change be produced in the character of the neighborhood or a detriment to nearby properties be created by the granting of an ________? 2. Can the benefit sought by the applicant be achieved by some method, feasible for the applicant to pursue, other than an _______? 3. Is the requested _______ substantial? 4. Will the proposed variance have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district? 5. Is the alleged difficulty self-created? This consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the ____

Comprehensive Plan

A written document that identifies the goals, objectives, principles, guidelines, policies, standards, and strategies for the growth and physical development of the community. -Health -Public Safety -Circulation -Provision of service and facilities -Fiscal Health -Economic Goals -Environmental protection

Use Variance

Allowing a use inconsistent with uses permitted of right

Berman's Argument

Berman owned a department store building in the redevelopment area The building was in satisfactory shape and since it was not a "slum" he argued that it cannot be taken. His justification: "To take property for the clearance of slums is one thing - but to take property just to build a more balanced, more attractive community is unconstitutional!!"

City Planning Enabling Act of 1928 (Major Federal Zoning Laws)

Created model ordinance of the general plan process, including recommended powers of planning commissions -These laid out model ordinances, but did not make any requirements

-Woodlands -wetlands -watersheds -lakes -ponds -Habitat -Steep slopes -Soil erosion -Mitigate pollution from nonpoint sources control chemical applications

Examples of environmental resources that need protection beyond zoning.

Social Equity (Sustainable Planning)

Greater equality of wealth and more opportunity for poorer and less-advantaged people

Added rules to make it possible to turn down development proposals that met zoing requirnments if the development didn't have enough 'points' Point system for presence of or proximity -sewers -drainage -park, recreation facility, public school site -roads -fire stations * development must attain at least 15 points for special permit approval -linkage to 18 year capital improvement program

Growth Mangement Ramapo, NY (ORDINANCE)

Transfer of Development Rights

Incentives are given in exchange for the developer providing community benefits Community benefit examples -open space or parks -Affordable housing -"any specific physical, social, or cultural amenity of benefit to the residents of the community"

Zoning Hierarchy:Single-Family to Industrial

Intensity of Use: -Intense use: large variety of activities, high or large buildings, high densities, little open space, traffic generating uses -Non-intensive use large lot, single -family, agricultural

-curtails growth -moutain surrounded by gated communites couldnt hike anymore -urban renewal with a block -reduce sprawl

Making Sense of Place: Phoenix the Urban Desert: How does regional planning address growth and development and the impacts created by them?

-economic growth (+) -Industry(+) -Smog (-) -Isolation (-) -NEED a car -Sparates people like socio economic class -transportation of utilities -Cheap labor keeps the cycle going

Making Sense of Place: Phoenix the Urban Desert: What are some of those impacts discussed in the movie (positive and negative)?

land that was set aside for education to build schools

Making Sense of Place: Phoenix the Urban Desert: What are the state trust lands?

supposed to be land that is sold to fund education aka income for the schools (instead its like a football that is being fought over becasue rapid development is bad but education and funding is good)

Making Sense of Place: Phoenix the Urban Desert: What is the purpose of the state trust lands?

like the ashetic of the desert -city finds you

Making Sense of Place: Phoenix the Urban Desert: Why has growth tended to extend outward in Phoenix?

-Reduction of restrictions from a certain part of a zoned area -incentives to develop contaminated or substandard properties

Overlay Zoning (Examples of relaxed regulations)

-Historic overlay -Environmentally sensitive overlay -Airport overlay (land under flight paths) -Floodplain zoning

Overlay Zoning (examples of more strict regulations)

Environmental quality (Sustainable Planning)

Planning for development that does not degrade the quality of the environment from one time period to the next

Local Natural Resource Protection

Regulation of development to protect particular environmental resources: (beyond zoning)

Comprehensive Planning Process

Research, Goals, Objectives, Formulation, Implementation, Review and Revision

-identify the action Type 1- likely to have a bad impact on the environment (rezoning of 25 acres)(Shopping mall) Type 2-

SEQR STEPS

State Environmental Quality Review Act

SEQRA (or SEQR)

Cluster Development

The modification of the arrangement of lots, buildings, and infrastructure permitted by the zoning law to be placed on a parcel of land to be subdivided. This modification results in the placement of buildings and improvements on a part of the land to be subdivided in order to preserve the natural and scenic quality of the remainder of the land.

The "taking issue"

The question of how much and for what purposes local governments can take some of the value of privately owned property is generally referred to as the _____

if it is determined that a "taking" has occurred, then the 5th Amendment requires that compensation be made to the property owner. -If no "taking" has occurred, then no compensation is needed.

The question of what regulatory action does or does not constitute a "taking" is crucial because

Overlay zoning

These zones are imposed over existing zoning districts and contain provisions that are applicable in addition to those contained in the zoning law

-Area Variance -Use Variance

Two Types of Variances Variance are granted to allow for exceptions to the regulations. There are always times when extenuating circumstances prevent the strict interpretation of the law. ZBA must grant the minimum variance necessary

Accessory Uses

Uses of land that are found on the same lot as the principal use and are subordinate, incidental to, and customarily found in connection with the principal use. -Ex. Garage, garden

Uses that the community desires but for various reasons does not know where they should be located -Allows developers flexibility in choosing a location

What are some benefits to floating zones?

-Consistent comprehensive plans -Consistent zoning laws/land use regs -Combination of local land use agencies (ZBAs/PCs) -Historic preservation -Erosion control

What are some examples of Intermunicipal coordination?

Use Height Bulk Density

What are the four kinds of controls for Euclidian Zoning?

-Preserve the scenic, open, historic, archaeological, architectural, or natural conditon of the real property -restriction of land use, may permit public access to hiking trails or biking paths

What is the purpose of a conservation Easement?

conservation of natural resources or promotion of certain types of development. -Essentially a property is simultaneously in two zone.

What is the purpose of overlay zoning?

-They can preserve the quality of life of a community by retaining and protecting existing environmental assets while still allowing development -They can prevent harm to the community caused by pollution related to the development of specific parcels of land

What purpose do environmental regulations serve?

- It was important to redevelop the entire area - not to just to pick slum buildings -It was important to redesign the whole area so as to eliminate the conditions that cause slums - the over-crowding of dwellings, the lack of parks, the lack of adequate streets and alleys, the absence of recreational areas, the lack of light and air -The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.

What was the decison of the Berman v. Parker?

Inter municipal Coordination

Where villages, town and cities share natural resources, transportation corridors, or economic markets, they are authorized to enter into ________ agreements to perform together any municipal function they have power to undertake individually

Incentive Zoning

_______ in exchange for community benefits ______(benefit developer) -increase in permitted building floor area -increase in building height -permitted number of residential units

Conservation Easement

is a voluntary agreement between a private landowner and municipal agency or a qualified not-for-profit corporation to restrict the development, management, or use of the land.

Enabling Act (NYS)

is legislation passed by the New York State legislature authorizing cities, towns, and villages to carry out functions in the public interest. -Adopt comprehensive Plans -Adopt zoning ordinances -Adopt land use regulations

Examples of flexible zoning

 Overlay zoning  Floating zones  Cluster development  Planned unit development  Incentive zoning  Transfer of Development Rights