UPDATE LETTER FOR PLANNING AND CONTROL OF LAND DEVELOPMENT

2009 UPDATE LETTER FOR PLANNING AND CONTROL OF LAND DEVELOPMENT Daniel R Mandelker Howard A Stamper Professor of Law, Washington University School of Law Peter W Salsich, Jr McDonnell Professor of Justice in American Society, Saint Louis University School of Law Nancy E Stroud Lewis Stroud & Deutsch, P.L., Boca Raton, Florida Stuart Meck Associate Research Professor and Director, Planning Practice Program, Edward J Bloustein School of Planning and Public Policy at Rutgers University Dwight H Merriam Robinson & Cole LLP, Hartford, Connecticut Julie A Tappendorf Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., Chicago, Illinois 2009 UPDATE LETTER FOR PLANNING AND CONTROL OF LAND DEVELOPMENT By Daniel R Mandelker, Peter W Salsich, Jr., Nancy E Stroud Stuart Meck, Dwight H Merriam and Julie A Tappendorf Lauren Ashley Smith, J.D Cand 2010, Washington University School of Law, General Editor We welcome our new authors to the casebook team Stuart Meck is a member of the faculty at the Edward J Bloustein School of Planning and Public Policy at Rutgers University Stuart is the coauthor of a treatise on Ohio land use law and a longstanding author of books and articles on land use planning and law Dwight is a partner and chair of the land use group at Robinson & Cole, a law firm in Hartford, Connecticut Julie is a partner in the law firm of Ancel Glink in Chicago, Illinois Both Dwight and Julie take on teaching assignments, and both have published extensively on land use law We report with regret the passing of John Payne, a longtime coauthor of this casebook His contributions to our book are unmatched for their depth of insight, knowledge and humor He will be truly missed Additional Resources from the Authors Additional resources can be found on the Land Use Law website, available at http://law.wustl.edu/landuselaw/index.html The website contains casebook updates, model codes, comprehensive plans, and many more up-to-date materials related to the topics covered in the casebook ii TABLE OF CONTENTS CHAPTER .1 CHAPTER .3 CHAPTER .17 CHAPTER .28 CHAPTER .35 CHAPTER .49 CHAPTER .53 Chapter 60 iii Chapter An Introduction to Land Use Controls A Why Land Use Controls? The Challenge of Land Use Policy Insert at the end of Notes and Questions on p 8: Changes in urban structure Urban geographers and others have tied changes in the pattern of land use in a city to the relationship of the city to its surrounding area, the type and extent of transport and changes in the nature of industries and the technologies they use In an influential article written at the end of World War II, urban geographers Chauncy D Harris and Edward J Ullman focused on three generalized forms of internal city structure in the U.S In the first, the concentric zone, the city was described as a series of simple circular zones, with a central business district at the heart, and zones of successively less intensity emanating outward In the second, the city was seen as series of sectors, and growth takes place along main transportation routes and usually consisted of similar types of land use Under this concept, for example, upper-end residential growth in the eastern quadrant of a city would tend to migrate outward, but always staying in the same quadrant In the third, the multiple nuclei, the land use pattern is not built around a single center, but around several discrete nuclei This pattern reflects a combination of the need for specialized support facilities, such as access to ports, the benefits certain businesses obtain by being close to one another (such as law offices being near a court building), the undesirability of land use conflict (such as a prohibition of heavy industry near high-end residential uses), and the inability for certain businesses to pay high rents (such as wholesaling and storage businesses that require much horizontal space.) Harris and Ullman observed: “Most cities exhibit aspects of the three generalizations of the land-use pattern.” However, they noted that the concentric theory and the sector theory emphasize the general tendency of central residential areas to decline in value as new construction takes place on the outer edges, with the sector model being “more discriminating” in its analysis of that movement Harris & Ullman, The Nature of Cities, 242 Annals Am Acad of Pol & Soc Sci 16-17 (1945) The impact of circumferential expressways and airports in the U.S compelled Harris to formulate an additional theory of form, the peripheral city, to supplement the previous three models in an article published in 1997 Here, Harris described a peripheral model that differed from the concentric zone model “in that its patterns are defined with other parts of the peripheral zone, not in terms of distance to the central city but in its relation with other parts of the iv peripheral zone ” The peripheral zone includes diverse clusters of economic activities in both new development and recently transformed older centers It is tied together with a circumferential highway, large blocks of land for development and similar social, economic and housing characteristics The area, according to Harris, is characterized by “the absence or lesser severity of problems of the inner city.” Around this peripheral road are airports, airport-related businesses (such as motels and car rental agencies), regional shopping malls, distribution and warehouse clusters and well-landscaped office parks that are often home to national corporations In addition, the area includes “large tracts of relatively homogenous private homes and some specialized communities offering well-advertised amenities such as hills, lakes, or woods with names such as ‘country-club estate.’” Harris commented that the peripheral model did not exist when Ullman and he wrote their original article in 1945 Harris, The Nature of Cities and Urban Geography in the Last Half Century, 18 Urb Geography 18-19 (1997); see also J Garreau, Edge City: Life on the New Frontier (2001) More recently—in part as a reaction to rising energy costs and the impacts of the national recession, including the subprime mortgage crisis, on real estate markets—some have questioned whether the outer edges of metropolitan areas will remain viable or turn into a depressed zones, and whether the next cycle of urban growth will be redirected at central cities Leinberger, The Next Slum?, The Atlantic, March 2008, http://www.theatlantic.com/doc/200803/subprime (maintaining that “much of the future decline is likely to occur on the fringes, in towns far away from the central city, not served by rail transit, and lacking any real core ”); see also Nelson, Leadership in a New Era, 72 J Am Plan Ass’n 395 (2006) (contending “[t]he challenge for planners in the outer suburbs is to organize land uses and infrastructure investments to meet current development pressures while preparing for future down cycles and shifts in market demand”) B Land Use Controls: An Introduction to Planning State and Regional Planning b Regional Planning Agencies and Plans Insert at the end of Notes and Questions on p 47 Regional planning legislation in Connecticut In 2008, Connecticut amended its regional planning statute to establish a “regional performance incentive program,” by which grants are made available to study the potential for services to be provided on a multijurisdictional basis The purpose of the legislation is to determine whether there are any economies that might result from regional delivery of services In addition, the legislation gives authority to the Secretary of the Office of Policy and Management to establish uniform criteria by which to evaluate regional plans for conservation and development for consistency with the state plan of conservation and development and the state economic strategic plan Conn Gen Stat § 4-124s (session law available at http://www.cga.ct.gov/2008/ACT/PA/2008PA-00182-R00HB-05324-PA.htm) v Material for this chapter was prepared by Stuart Meck vi Chapter The Constitution and Land Use Control: Origins, Limitations and Federal Remedies Nuisance Law The search for energy alternatives that reduce the threat of global warming is leading to wind farms in many parts of the country, particularly in the west and southwest But wind farms, featuring rows of 400-foot tall wind turbines, raise nuisance law problems? A Texas court, in Rankin v FPL Energy, LLC, 266 S.W.3d 506, (Tex App 2008), concluded that “an emotional reaction to the sight of [lawful] wind turbines” was an insufficient basis for a nuisance claim The court stated We not minimize the impact of FPL's wind farm by characterizing it as an emotional reaction Unobstructed sunsets, panoramic landscapes, and starlit skies have inspired countless artists and authors and have brought great pleasure to those fortunate enough to live in scenic rural settings The loss of this view has undoubtedly impacted Plaintiffs A landowner's view, however, is largely defined by what his neighbors are utilizing their property for Texas caselaw recognizes few restrictions on the lawful use of property If Plaintiffs have the right to bring a nuisance action because a neighbor's lawful activity substantially interferes with their view, they have, in effect, the right to zone the surrounding property Conversely, we realize that Plaintiffs produced evidence that the wind farm will harm neighboring property values and that it has restricted the uses they can make of their property FPL's development, therefore, could be characterized as a condemnation without the obligation to pay damages Texas caselaw has balanced these conflicting interests by limiting a nuisance action when the challenged activity is lawful to instances in which the activity results in some invasion of the plaintiff's property and by not allowing recovery for emotional reaction alone Altering this balance by recognizing a new cause of action for aesthetical impact causing an emotional injury is beyond the purview of an intermediate appellate court Alternatively, allowing Plaintiffs to include aesthetics as a condition in connection with other forms of interference is a distinction without a difference Aesthetical impact either is or is not a substantial interference with the use and enjoyment of land If a jury can consider aesthetics as a condition, then it can find nuisance because of aesthetics Because Texas law does not provide a nuisance action for aesthetical impact, the trial court did not err by granting FPL's motion for partial summary judgment and by instructing the jury to exclude from its consideration the aesthetical impact of the wind farm Id at 512-13 Contra Burch v Nedpower Mount Storm, LLC, 647 S.E.2d 879 (W Va 2007) See generally Andriano, The Power of Wind: Current Legal Issues in Siting for Wind Power, Planning & Envtl L., May 2009, at The Takings Issue: Eminent Domain While the court in Kelo stressed that deference must be given to the legislative declaration of public purpose, the legislative discretion is not absolute The Supreme Court of Hawaii, applying vii Justice Stevens’ warning that “the City would [not] be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit,” Kelo, 545 U.S at 477, remanded a challenge to condemnation of a condominium development for construction of a public highway bypass that was to be built by a private developer for a determination whether the stated public purpose was a pretext County of Hawaii v C&J Coupe Family Ltd P’ship, 198 P.3d 615, 620 (Haw 2008) (“[A]lthough our courts afford substantial deference to the government’s asserted public purpose for a taking in condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner’s defense of pretext.”) For an argument that the Religious Land Use and Institutionalized Persons Act (RLUIPA) should not be viewed as giving religious institutions any extraordinary ability to resist condemnation, see Serkin & Tebbe, Condemning Religion: RLUIPA and the Politics of Eminent Domain, 85 Notre Dame L Rev - (2009), Brooklyn Law School Legal Studies Paper No 127, available at http://papers.ssrn.com/so13/papers.cfm?abstract_id=1328921 The Takings Issue: Regulatory Takings Woodyard & Boggs, Public Outcry: Kelo v City of New London—A Proposed Solution, 39 Envtl L 431 (2009), believe that [T]he Supreme Court should trust local governments to use eminent domain in these types of cases properly, but verify their actions by increasing the standard of review to the intermediate level Using only the rational basis standard trusts local governments too much, and strict scrutiny does not trust them enough Raising the level of review to the middle level standard, that is ‘intermediate scrutiny,’ offers the advantages of increasing the standard to afford greater protection to property owners, but not unnecessarily hamstringing the legislative branch and local governments Id at 450 The Takings Issue: The Balancing Test The United States Court of Appeals for the Federal Circuit, in Amerisource Corp v United States, 525 F.3d 1149 (Fed Cir 2008), affirmed a dismissal by the Court of Federal Claims which held no compensable taking occurred when pharmaceutical drugs belonging to a wholesale distributor were seized from a pharmacy by the United States Attorney Id at 1150 The Federal Circuit reasoned that “the government’s seizure, retention, and damaging of the property did not give rise to an actionable claim for a taking because ‘items properly seized by the government under its police power are not seized for ‘public use’ within the meaning of the Fifth Amendment.’” Id at 1153 In Tennessee Scrap Recyclers Ass'n v Bredesen, 556 F.3d 442 (6th Cir 2009), the Sixth Circuit Court of Appeals affirmed the denial of a “motion for a preliminary injunction to enjoin the viii enforcement of a city ordinance requiring scrap metal dealers to ‘tag and hold’ the scrap metal they acquire for a period of ten days.” Id at 446 The ordinance also required “that the tagged scrap metal be open to inspection ‘by anyone desiring to investigate.’” Id at 453 Citing Loretto v Teleprompter Manhattan CATV Corp., 458 U.S 419 (1982), the court found The holding period does not constitute a “direct governmental appropriation or physical invasion” of the scrap dealers' property protected by the Fifth Amendment Neither the government nor a third party authorized by the government physically invades the scrap dealers' property by means of the holding period Nor does the holding period physically appropriate the scrap dealers' property-either their scrap metal or their premises Rather, the holding period limits the scrap dealers' use of their scrap metal (and derivatively, wherever they choose to keep it) for a period of ten days Regulations of a party's use of its property are not physical takings (“So long as these regulations not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity.”) The inspection requirement does not physically take the scrap dealers' property either The scrap dealers analogize the inspection requirement to the Supreme Court's decisions in Loretto and Nollan v Cal Coastal Comm'n; however, those cases are not on point-they involve complete, permanent appropriations of the owner's right to exclude others that are fundamentally unlike the limited, temporary intrusion at issue here 556 F.3d at 453 (internal citations omitted) The Illinois Supreme Court, in Empress Casino Joliet Corp v Giannoulias, 896 N.E.2d 277 (Ill 2008), held that an act imposing a percent surcharge on casinos with adjusted gross receipts in excess of $200 million and the proceeds being distributed to the five horse racing tracks in Illinois is not subject to a takings challenge Id at 282 “The Act does not involve an interest in physical or intellectual property, nor does it operate upon or alter an identifiable property interest The case at bar does not involve the state's exercise of its eminent domain powers, but rather involves its exercise of its taxing powers.” Id at 293 An Ohio court, in reversing and remanding a summary judgment against a plaintiff’s partial taking claim based on the rezoning of adjacent property, held that a trial court cannot enter summary judgment on a partial taking claim without considering the Penn Central partial taking factors Clifton v Vill of Blanchester, 2008 WL 4058098 (Ohio App Sep 2, 2008) A Utah court held that denial of a rezoning application from single to multifamily for a small house and lot in an area that had been down-zoned from multifamily to single family several years earlier was not a taking because the owner was not deprived of all economic use Tolman v Logan City, 167 P.3d 489 (Utah App 2007) The owners’ claims—that they were not able to sell their house (appraised at $130,000) because the only offers they received ($70, 000 and $100,000) were for substantially less than the appraised value and that renting the house had proved unsatisfactory—were unpersuasive to the court ix A similar result was reached in Haisley v Mercer County Bd of Zoning Appeals, 2007 WL 3342768 (Ohio App 2007), in which an Ohio court held that denial of a variance to enable construction of a single family house on an undersized lot was not a taking Robert Meltz, Legislative Attorney with the Congressional Research Service, has written an “attempt to comprehensively set out the highlights of current substantive takings law as succinctly as possible [which] [t]akings mavens may find useful as a checklist for missed arguments.” Meltz, Takings Law Today: A Primer for the Perplexed, 34 Ecology L.Q 307, 310 (2007) For an argument that “‘Average Reciprocity of Advantage’ is a legal term of art without a settled definition,” see Wade & Bunting, Average Reciprocity of Advantage: "Magic Words" or Economic Reality Lessons from Palazzolo, 39 Urb Law 319 (2007) Partial regulatory claims are discussed in Goodin, The Role and Content of the Character of the Governmental Action Factor in a Partial Regulatory Takings Analysis, 29 U Haw L Rev 437 (2007) and Armstrong Coffey, Recent Developments in Land Use, Planning and Zoning Law: High Hopes, Hollow Harvest: State Remedies for Partial Regulatory Takings, 39 Urb Law 619 (2007) First English: The Inverse Condemnation Remedy For an argument that a compensation requirement “could improve environmental conservation efforts” rather than hinder them, see Adler, Money or Nothing: The Adverse Environmental Consequences of Uncompensated Land Use Controls, 49 B.C.L Rev 301 (2008) The citation to Wennsmann Realty, Inc v City of Eagan on pages 139, 178, and 621 of the casebook should be updated as follows: Wennsmann Realty, Inc v City of Eagan, 734 N.W 2d 623 (Minn 2007) The Lucas Case: A Per Se Takings Rule In an opinion that amounts to a short course in the law of takings, the Court of Federal Claims recognized a Lucas categorical takings claim as well as a Penn Central ad hoc takings claim of a solid waste disposal site as a result of a wrongful assertion of jurisdiction by the Army Corps of Engineers under § 404 of the Clean Water Act However, the court remanded on causation and delay as taking issues, primarily because of the overlapping federal, state and local regulations involved in the case and because neither party had confronted the causation issue at the summary judgment stage Resource Invs., Inc v United States, 85 Fed Cl 447 (Fed Cl 2009) For a discussion of Lucas by the private practitioner hired by the South Carolina Coastal Council to develop a strategy for defending the state’s Beachfront Management Act, including allowing South Carolina to avoid additional liability for hundreds of beachfront lots after the Court’s x Chapter Residential Subdivisions and Planned Communities A Subdivision Controls The Structure of Subdivision Controls Add at the end of the fourth paragraph of Note after Baker on page 683: See also Pansy Rd., L.L.C v Town Plan & Zoning Comm’n, 926 A.2d 1029 (Conn 2007) (because the commission’s function was administrative when reviewing a subdivision application, it could only consider off-site congestion for the purpose of addressing traffic flow within the subdivision site and entering and exiting site, and could not deny the application on the basis of off-site traffic considerations) Add the following paragraph to Note on page 685, before the discussion of the Standard Act: For a unique twist on the relationship between zoning and subdivision regulations, see Lord Family Windsor, L.L.C v Plan & Zoning Comm’n, 954 A.2d 831 (Conn 2008) (holding that the Planning and Zoning Commission did not have the authority to require a special use permit for subdivisions over a certain size and stating that no authority existed “for the proposition that a proposed development that satisfies a district’s land use regulations governing the type and density of activity lawfully may be subject to additional regulations as a distinct ‘use of land’ because of its particular size”) Add the following new paragraph at the end of Note on page 686, after discussion of the Standard Act: “Consistent” with the comprehensive plan does not necessarily mean “identical.” In holding that a development plan was consistent with the General Plan, Policy Plan and density statutes where there were traffic concerns, increased residential development and a large density bonus, the court in Friends of Lagoon Valley v City of Vacaville, 65 Cal Rptr 3d 251 (Cal App 2007) explained that California law “does not require perfect conformity between a proposed project and the applicable general plan; ‘rather,’ to be ‘consistent,’ the subdivision map must be ‘compatible with the objectives, policies, general land uses, and programs specified in’ the applicable plan.” Id at 251, 259 (citations omitted); see also Trail v Terrapin Run, L.L.C., 943 A.2d 1192 (Md 2008) (strict compliance with the county comprehensive plan was not required; the development must be “in harmony with” the plan) B Dedications, Exactions, and Impact Fees The “Rough Proportionality” Test Add to Note after Dolan on page 706 as a new paragraph before the final paragraph: lii In B.A.M Dev., L.L.C v Salt Lake County, 196 P.3d 601 (Utah 2008), the Supreme Court of Utah provided further insight on the meaning of Dolan’s “rough proportionality” standard The court held that “rough proportionality” analysis really means a “rough equivalency” test that compares the costs of the municipally required exaction and the costs of the impact to the developer In deciding whether a municipally mandated widening of a street constituted an unconstitutional taking, the B.A.M court examined whether the costs to each party were roughly equivalent Revisiting Dolan, the court asserted that “rough proportionality” did not mean “proportionality,” because this term was used to avoid the confusion that “reasonably related” might cause to those who compare it with “rational basis.” According to the Utah Supreme Court, the aim of Dolan’s “rough proportionality” test was to ensure that the cost of the exaction was more or less equivalent to the cost of the impact The court overturned the determination at the trial level stating that the correct inquiry is whether the “imposition on the community of a proposed development is roughly equal to the cost being extracted to offset it.” Id at 604 Is the B.A.M court’s interpretation of the “rough proportionality” standard correct? Was the court too quick to dispense with the term “proportionality?” Add as a new paragraph at the end of Note 2, after Dolan, on page 707: In Kameole Pointe Dev LP v County of Maui, 573 F Supp 2d 1354 (D Haw 2008), the U.S District Court for the District of Hawaii addressed the developer’s contention that a county ordinance requiring a set-aside for affordable housing was an unconstitutional condition The court held that the developer’s claim properly fell under the ambit of a facial regulatory takings claim rather than under the unconstitutional conditions doctrine The court rejected the developer’s argument that the Nollan/Dolan analysis applied in its case because the developer was mounting a facial challenge to the ordinance Moreover, the developer was not alleging a physical invasion of property as was the case in Nollan and Dolan The court found that Lingle abrogated the “substantially advances test” for takings The only way to avoid the Williamson County ripeness requirement to litigate in state court before proceeding to federal court was if the case fell under the “substantially advances test.” Since this test has been abrogated, the developers were required to seek damages in state court After Lingle, facial takings claims are limited to the Lucas analysis Dolan Applied a Dedications of Land Add as a new paragraph in Section before the paragraph entitled “Impact fees and rough proportionality” on page 711: At least one court has rejected limiting Nollan/Dolan to physical exactions In St Johns River Water Mgmt Dist v Koontz, So 3d (Fla App 2009), the court held that requiring offsite mitigation work in exchange for a development permit effected a taking and that such an exaction was properly analyzed under the Nollan/Dolan test The court rejected the District’s liii argument that Dolan did not cover cases other than those involving physical dedications of property The court stated that it would include required physical improvements in the set of exactions subject to Nollan/Dolan analysis The court also dispensed with the District’s argument that the fact that the developer never had to the exacted mitigation work meant that there was no taking The imposition of conditions requiring an exaction was enough to fall under the Nollan/Dolan analysis, and in this case, result in a taking Does this case result in a linedrawing problem for courts? Is the line for possible takings properly drawn at the imposition of conditions requiring an exaction? Add as a new paragraph at the end of Section 3, on page 713: The plaintiffs in Action Apartment Ass’n v City of Santa Monica, 82 Cal Rptr 3d 72 (Cal App 2008) attempted to alter the bright-line, legislative-versus-adjudicative distinction by arguing that the city’s ordinance was a facial violation of the Nollan-Dolan test The ordinance required developers of multifamily housing units in multifamily residential zones to construct affordable housing on-site or elsewhere The plaintiffs unsuccessfully argued that Lingle disrupted the consensus view that the Nollan-Dolan heightened scrutiny applied only to individual adjudicative decisions and not legislative zoning decisions The court found that Lingle only held that the “substantially advances” test was no longer the only test for a regulatory taking According to the Action court, Lingle did not open the door for the application of the Nollan-Dolan test to facial challenges (which essentially challenge legislative enactments) Are there other ways in which the bright-line prohibition of Nollan-Dolan scrutiny of legislative decisions has become blurred? b Impact Fees Add the following to the end of Note on page 724: Also significant is the point in time during the development process a local governmental body may collect an impact fee Section 66007 of the California Government Code permits local agencies to collect impact fees, except school impact fees, at the close of escrow The law was amended on August 1, 2008 to clarify that local governments have the option of deferring impact fee collection until the close of escrow rather than the common practice of collecting during the building permit process This law was designed to relieve developers of the burden of paying the impact fees and then suffering cancellations and other uncertainties during difficult economic times See also Raintree Homes, Inc v Vill of Long Grove, 906 N.E.2d 751 (Ill App 2009), holding that the Village had abused its powers by requiring impact fees to be paid at the time that building permits were issued for residential units Raintree Homes paid impact fees for ten years to the Village, without a formal protest It then filed a lawsuit to invalidate the fees The impact fees, over a period of time, increased from $4,300.00 to $7,300.00 per building permit The court found that the fees were improper because they were collected at the time of building permit, and not at subdivision approval as authorized by state statute, and entered a judgment in liv the builder’s favor in the amount of $114,700.00 In addition, the appellate court found that the impact fees were improperly used to pay for school district operations rather than to acquire land and that the bulk of the park fees went to the Village rather than to the park district The court further found that the way in which Long Gove had been charging these fees and using the funds did not comply with the “specifically and uniquely-attributable” test required under Illinois’ constitutional standard The Village subsequently filed an appeal with the Illinois Supreme Court, which is currently pending C Planned Unit Developments (PUDs) and Planned Communities Add the following text at the end of the first paragraph of Note which follows “Planned Unit Development as a Zoning Concept” on page 734: However, where a municipality’s code allows for a density increase within a PUD upon the developer’s securing a conditional use permit, and where the code distinguishes between density changes that require rezoning and those that not, a density change may not constitute a rezoning See City of Gig Harbor v N Pac Design, Inc., 201 P.3d 1096 (Wash App 2009) Add the following text at the end of Note following Cheney on page 740: In Mikell v County of Charleston, 654 S.E.2d 92 (S.C App 2008), the court held that the Charleston County Council had the authority, under state statute and the county’s zoning regulations, to adopt a planned development ordinance even where the ordinance resulted in the rezoning of parcels from agricultural residential and agricultural preservation districts to a planned development district The court also held that the planned development ordinance could serve as an amendment to the zoning ordinance and that the county council had the final decision-making authority regarding planned developments and zoning map amendments Add the following text in Note on page 742 after the sentence beginning “Though there is some support…:” See Watergate E Comm Against Hotel Conversion to Co-Op Apts v Dist of Columbia Zoning Comm’n, 953 A.2d 1036 (D.C App 2008) (holding that owners of adjacent apartment building and members of a PUD association did not have a vested right to prevent a modification of a PUD to allow conversion of an adjacent hotel to a co-op apartment building) Material for this chapter was prepared by Julie A Tappendorf lv Chapter Growth Management and Alternate Urban Development Forms New and Noteworthy The Lincoln Institute of Land Policy has published an evaluation of growth management programs in four states, Smart Growth Policies: An Evaluation of Programs and Outcomes 2009), available at http://www.lincolninst.edu/pubs/PubDetail.aspx?pubid=1571 The study focused on four states with well-established smart growth programs, Florida, Maryland, Oregon and New Jersey, and compared them with four other states that use a range of other land management approaches – Colorado, Indiana, Texas and Virginia Here are some of the conclusions: The evaluation reveals that the states, their policies, and their priorities are very heterogeneous; no state did well on all smart growth principles or on all performance measures, although individual states succeeded in one or more of their priority policy areas The message is clear: achieving smart growth is possible, but states have to remain focused on their key policy goals No single approach is right for all states, and the most successful states use a variety of regulatory controls, market incentives, and institutional policies to achieve their objectives Id at ix For an Executive Summary see Evaluating Smart Growth: State and Local Policy Outcomes, available at http://www.lincolninst.edu/pubs/PubDetail.aspx?pubid=1572 Douglas Porter published a second edition of his book Managing Growth in America’s Communities in 2008 The book is a revision of Doug’s first edition, which is much quoted in our casebook Patricia E Salkin, in Growth Management in the 21st Century: Smart Growth, Sustainable Development, Green Development, and Sprawl, ALI-ABA Land Use Institute: Planning, Regulation, Litigation, Eminent Domain, and Compensation (2008), writes that the three most important issues related to energy consumption—transportation, sustainability, and smart growth—are best addressed by a comprehensive land use plan Salkin suggests that plans with statements “promoting pedestrian transit over the use of the automobile” will bring about a number of positive impacts, including “increasing the overall livability of the community in conjunction with the promotion of sustainability and personal health.” Mixed used development, transit oriented development and cluster zoning can also be used to reduce reliance on automobiles For example, Brick, New Jersey implemented a mixed use overlay zone that set “regulations for the ‘Pedestrian Realm’ which increased sidewalk space, frontage requirements, and rear of building parking.” The New Jersey regulations also include water conservation and affordable housing measures and set environmental design standards Another important issue related to energy consumption, the use of solar energy, can also be promoted by state and local lvi legislation which allow property owners to install solar panels regardless of other local ordinances or community covenants (such as historical preservation regulations) that would prohibit doing so See also Salkin, Squaring the Circle on Sprawl: What More Can We Do? Progress Toward Sustainable Land Use in the States, 16 Widener L.J 787 (2007); Tarlock, Fat and Fried: Linking Land Use Law, The Risks of Obesity, and Climate Change, Pitt J Envtl & Pub Health L 31 (2009) For an interesting discussion of the effects of the built environment on travel behavior by Reid Ewing see Planning, July 2009, at 36 See also Frankel & Ashkenazi, Measuring Urban Sprawl: How Can We Deal With It?, 35 Envt & Planning B: Planning & Design 56 (2008) Moratoria and Interim Controls on Development A moratorium on private property development in shoreline areas was found to be beyond the city’s authority in Biggers v City of Bainbridge Island, 169 P.3d 14 (Wash 2007) In Biggers, the city council adopted a rolling moratorium in order to have additional time to revise its Shoreline Master Program The moratorium halted the processing of development and conditional use permit applications for more than three years The court found that shorelines were subject only to state regulation under Washington’s Shoreline Management Act and that the Act did not grant moratoria authority; thus, there was no state authority for the city’s moratorium Furthermore, since the state constitution also limited local governments’ authority to regulations “not in conflict with general laws,” the city had no authority to adopt the shoreline development moratorium in conflict with the SMA The court in Gardner v Bd of County Comm’rs, 178 P.3d 893 (Utah 2008) found state authority for a county’s temporary moratorium In Gardner, the county instituted a temporary moratorium on the approval of building permits that required septic systems after various geological studies found that the area may not be suitable for additional septic tanks because of slope destabilization The court upheld the moratorium under the state’s authorization that local governments may enact a temporary zoning regulation if there is a compelling public interest The court found that the county’s concern over the geology of the development area was a legitimate public interest However, the court held that an equal protection challenge should not have been dismissed by the district court on summary judgment when property owners claimed that they were subject to the moratorium while adjacent properties were not regulated A moratorium on the construction of new homes in an area where landslides had occurred constituted a taking in Monks v City of Rancho Palos Verdes, 84 Cal Rptr 3d 75 (Cal App 2008) In Monks, property owners who had been subject to the regulation for more than 24 years challenged the moratorium as inverse condemnation The court found that the moratorium deprived property owners of all economically beneficial use of their land and, thus, could be justified “only if plaintiff’s development of their lots would constitute a nuisance or violate property law.” The city asserted a nuisance defense based on harm to persons and property that would be caused by constructing homes in an area at risk to landslides However, the court found that the city failed to meet its burden in justifying the moratorium because “a permanent lvii ban on home construction cannot be based merely on a fear of either personal injury or significant property damage.” Resources: Krogstad, Constitutional Law—Inverse Condemnation: Decision that a Temporary Moratorium Does Not Amount to a Compensable Taking Signifies a Victory for Land-Use Planners, 83 N.D L Rev 1053 (2007) (concluding that the impact of Wild Rice River Estates will be that “in situations of temporary regulatory takings, the appropriate method of analysis will be an ad hoc factual inquiry, instead of a per se categorical rule.”) An Update on the Florida Growth Management Program The Florida legislature amended the state’s comprehensive planning (chapter 163) and development of regional impact (chapter 380) laws in a 2009 bill (“SB 360”), with the stated intent of encouraging economic development and improving mobility, while recognizing the physical and financial limitations of roadway building The primary means intended to accomplish this intent is the creation of “dense urban land area” designations for any city or county that meets certain population density and thresholds, according to U.S Census statistics The legislative Office of Economic and Demographic Research established the list of the designated qualifying cities and counties in July 2009 The first list, posted at www.dca.state.fl.us/fdcp/dcp/Legislation/2009/CountiesMunicipalities.cfm, includes counties and almost 250 cities The statute provides that each designated city and county (with some exceptions), is also a “transportation concurrency exception area” wherein previously mandated transportation concurrency no longer applies Within two years, these local governments are required to adopt comprehensive plan amendments that support and fund mobility, including strategies for alternative modes of transportation The designation of a statutory TCEA “does not limit a local government’s home rule power to adopt ordinances or impose fees” nor does it affect any contract or agreement Prior to SB 360, local governments could choose to create TCEAs that met more extensive criteria and were generally limited to infill and redevelopment areas Nondesignated local governments may designate TCEAs for infill, redevelopment and urban service areas under the new and less stringent requirement that they adopt mobility amendments within two years Within the “dense urban land areas,” the new law also provides that the development of regional impact (DRI) review and approval process will not apply to new development proposals Changes to existing approved DRIs will continue to be processed under the DRI law, but pending DRIs may choose to opt out of the review Additionally, an existing DRI may choose to have a DRI approval rescinded, but must how that all required mitigation related to the amount of development that existed on the date of rescission has been completed The new statute extends by two years certain state permits with expiration dates between September 1, 2008 and January 1, 2012 This extension also applies to local government permits lviii and development orders, including developments of regional impact Several other prior state planning restrictions were liberalized, including for example, requirements for school concurrency and financially feasible capital improvement elements The legislation has been criticized in that the new requirements contain substantial ambiguities, and apply too broadly across cities and counties to be effective It can be accessed at http://www.dca.state.fl.us/fdcp/dcp/Legislation/2009/index.cfm Resources: Chapin, Connerly & Higgins, Growth Management in Florida (2007); Rhodes, Florida Growth Management: Past, Present, Future, Fla Coastal L Rev 107 (2007) An Update on the Oregon Growth Management Program The legislature (HB 2229) made some modest changes to the Oregon program in 2009 following submission of the Final Report of the Oregon Task Force on Land Use Planning in January The Report is in the Archives of the Articles section on the course website One provision in the bill requires the establishment of a policy-neutral audit of Oregon’s land use statues and administrative rules The bill additionally included four “Overarching Principles” to be used as guides in enactment of legislation and rules and in the interpretation of the standards used in the Oregon land use system They are specifically “not judicially enforceable.” HB 2229 also expresses the hope that expenditures of funds will result in “compact development” and the use of “alternative modes of transportation” in areas of the state that are growing rapidly (Summary courtesy of the Oregon Chapter, American Planning Association.) In Hildenbrand v City of Adair Vill., 177 P.3d 40 (Or App 2008), the city expanded the urban growth boundary and rezoned agricultural land so that high-density residential housing could be developed The court found that the city’s conclusion regarding the quantity of land necessary to adequately expand the GB did not meet statewide planning goals, which required that changes to the GB be based on a demonstrated need to add land for housing or other urban uses The court held that “[t]he necessary justification under Goal 14 of the quantity of land to be added to the urban growth boundary requires a projection of likely development under the densities allowed by the city's high-density residential zoning rather than the local governments' assumption that all development will occur under the lowest density permitted by that zoning.” However, the court upheld the city’s decision to add lowest-priority land to the GB because, among other reasons, extending utilities to the first-priority land would be cost prohibitive Measure 37 waivers are binding, constitutionally protected contracts In Citizens for Constitutional Fairness v Jackson County, 2008 U.S Dist LEXIS 92049 (D Or Nov 12, 2008), the plaintiffs filed a claim with the county under Measure 37 seeking compensation for the reduced value of their property due to land use regulations Instead of paying compensation, the county waived enforcement of zoning regulation changes After Measure 49 amended Measure 37’s compensation provisions, the county refused to honor the waivers The court held that the waivers were binding and that the county “must honor its obligations under the Measure 37 waivers, [and] plaintiffs must comply with the conditions imposed by the waivers ” lix Measure 37 just compensation claims were also at issue in Bleeg v Metro, 229 Or App 210 (Or App 2009) In Bleeg, the owners of property in a regional growth boundary brought Measure 37 just compensation claims against the metropolitan service district The plaintiffs’ filed actions in circuit court after Metro denied their claims for just compensation The trial court entered general judgments awarding plaintiffs compensation the day before Measure 49 became effective Later, the day after Measure 49 became effective, the trial court entered nunc pro tunc judgments, adding money awards to the judgment for each plaintiff The Oregon Court of Appeals held that since plaintiffs’ Measure 37 claims were on-going at the time that Measure 49 became effective, plaintiffs’ Measure 37 claims were superseded by Measure 49 and were no longer justiciable The appellate court vacated the trial court’s judgments and instructed the trial court to dismiss plaintiffs’ claims on remand Resources: Hirokawa, Property Pieces in Compensation Statutes: Law’s Eulogy for Oregon’s Measure 37, 38 Envtl L 1111 (2008); Nelson et al., The Social Impacts of Urban Containment (2007); Sullivan, Through a Glass Darkly: Measuring Loss Under Oregon’s Measure 37, 39 Urb Law 563 (2007); Comment, The Battle Over Property Rights in Oregon: Measure 37 and 49 and the Need for Sustainable Land Use Planning, 45 Willamette L Rev 313 (2008) A Note on Growth Management Programs in Other States (1) Washington Program The court in Thurston County v W Wash Growth Mgmt Hearings Bd., 190 P.3d 38 (Wash 2008) (en banc) held that a Growth Management Hearings Board may not reject a county’s urban growth area solely because the land market supply factor used to designate the area is greater than 25 percent: Once a petitioner challenges the size of a county's UGA, the county may explain whether the difference between the supply and demand is due to a land market supply factor or other circumstances If the county asserts a land market supply factor was used in designating the UGA boundaries, the petitioner may argue the factor employed was clearly erroneous and unreasonable based on the facts in the record No bright-line rule regarding the reasonableness of a land market supply factor may be used by the GMHBs The court also held that a “GMHB may not use a bright-line rule to delineate between urban and rural densities, nor may it subject certain densities to increased scrutiny.” The court overruled a Growth Management Hearing Board’s determination that the county’s designation of a urban growth area was invalid in City of Arlington v Central Puget Sound Growth Mgt Hearings Bd., 193 P.3d 1077 (Wash 2008) (en banc) The GMHB did not consider evidence presented by the county to support its finding that property designated to be included in the UGA “was not land of long-term commercial significance to agriculture and thus eligible for redesignation to urban commercial use.” lx A Growth Management Hearing Board did not have authority to require the county to create a joint planning area within an established urban growth area with the city in Spokane County v City of Spokane, 197 P.3d 1228 (Wash App 2009) The court found that the Growth Management Act did not require counties to designate joint planning areas or require counties and cities to enter into joint planning agreements Thus, the GMHB’s decision was outside its statutory authority Resources: McGee, Washington’s Way: Dispersed Enforcement of Growth Management Controls and the Crucial Roles of NGOs, 31 Seattle U L Rev (2007); McGee & Howell, Washington’s Way II: The Burden of Enforcing Growth Management in the Crucible of the Courts and Hearings Boards, 31 Seattle U L Rev 549 (2008) (2) Vermont Program A recent article examines Vermont’s new smart growth legislation: Kraichnan, Vermont’s Act 183: Smart Growth Takes Root in the Green Mountain State, 32 Vt L Rev 583 (2008) Kraichnan explains that “Act 183 codifies detailed guiding principles for local and regional land use decisions and encourages centralized development through economic and regulatory incentives.” The Act requires that priority in state grants and funding be given to downtown centers, village centers and growth centers which have been planned to meet smart growth principles and state development goals The Act also encourages infill development by prioritizing the leasing or construction of state buildings in growth centers and offers tax incentives to businesses who construct new buildings in growth centers Act 183 provides technical support from the regional planning commission to municipalities planning for growth center designation Controlling Growth Through Public Services and Facilities The court in MT Dev., LLC v City of Renton, 165 P.3d 427 (Wash App 2007) held that when a city is the exclusive provider of sewer services to property located outside its borders, the city cannot refuse to provide services and cannot require compliance with its zoning regulations Although a state statute authorized the city to impose reasonable conditions on its agreement to provide services, the court found that city could not require compliance with use, density and structure requirements on property outside of its borders The court did not accept the city’s defense that it established land use designations in a potential annexation area so as to plan for urban growth Agricultural Zoning Local zoning ordinances that prohibited the development of a housing subdivision in an agricultural district did not exceed the town’s authority to regulate open spaces, density and location and use of buildings for the general welfare The plaintiffs in Schlossin v Town of Marilla, 852 N.Y.S.2d 515 (App Div 2008) sought to rezone property located in an agricultural district to rural-residential in order to construct single family homes The town denied the lxi rezoning request, finding that it was inconsistent with the comprehensive plan, which sought to preserve open space and the agricultural integrity of the town In upholding the town’s denial, the court found that the agricultural zoning restrictions were within the town’s zoning power and that preserving the agricultural integrity of the town was a legitimate governmental interest Right-to-Farm Laws The Indiana Right to Farm Act, which limits nuisance suits against agricultural operations, was upheld against a takings challenge in Lindsey v DeGroot, 898 N.E.2d 1251 (Ind App 2009) The owners of property located near a dairy farm claimed that the Act amounted to a taking by awarding the farm an easement over their property The property owners relied on Bormann v Bd of Supervisors, 584 N.W.2d 309 (Iowa 1998), which held that Iowa’s land preservation act violated the federal and state constitutions insofar as it granted a farm operation immunity from nuisance actions The Iowa court found that the act effectively granted farmers the right to maintain a nuisance and that the right to maintain a nuisance is an easement—a compensable property interest The Indiana court, however, followed decisions in Idaho (Moon v North Idaho Farmers Ass’n, 96 P.3d 637 (Idaho 2004)) and Texas (Barrera v Hondo Creek Cattle Co., 132 S.W.3d 544 (Tex App 2004), rejecting the claim that the right to maintain a nuisance is an easement Resources: Centner, Governments and Unconstitutional Takings: When Do Right-To-Farm Laws Go Too Far?, 33 B.C Envtl Aff L Rev 87 (2006) Resources for the Chapter: Clark, Rocking the Suburbs: Incentive Zoning as a Tool to Eliminate Sprawl, 22 BYU J Pub L 255 (2007); Davies, Just a Big “Hot Fuss”? Assessing the Value of Connecting Suburban Sprawl, Land Use and Water Rights Through Assured Supply Laws, 34 Ecology L.Q 1217 (2007); Innis, Back to the Future: Is Form-Based Code an Efficacious Tool for Shaping Modern Civil Life?, 11 J.L & Soc Change 75 (2007-2008); Kirk, Decisive Planning, Urban Land, August 2009, at 38 (discussing mixed-use development); Korngold, Solving the Contentious Issues of Private Conservation Easements: Promoting Flexibility for the Future and Engaging the Public Land Use Process, 2007 Utah L Rev 1039 (2007); Meck & Retzlaff, The Emergence of Growth Management Planning in the United States: The Case of Golden v Planning Board of Town of Ramapo and Its Aftermath, J Urb Hist 113 (2008); Welch, Containing Urban Sprawl: Is Reinvigoration of Home Rule the Answer?, Vt J Envtl L 131 (2008); Ziegler, The Case for Megapolitan Growth Management in the 21st Century: Regional Urban Planning and Sustainable Development in the United States, 41 Urb Law 147 (2009); Note, Transportation Planning and the Prevention of Urban Sprawl, 83 N.Y.U L Rev 879 (2008) Material for this chapter was prepared by Lauren Ashley Smith, J.D Cand 2010, Washington University School of Law lxii Chapter Aesthetics: Design Review, Sign Regulation and Historic Preservation Outdoor Advertising Regulation and Free Speech Issues The court upheld ordinances which prohibited advertising signs viewed from a freeway and which banned the construction of new advertising signs anywhere in the city in Desert Outdoor Adver., Inc v City of Oakland, 506 F.3d 798 (9th Cir 2007) The court held that since the ordinance regulated only commercial speech, it did not impose any content-based restrictions on noncommercial speech in violation of the First Amendment The court also upheld the ordinance’s variance standards, which provided that a variance for the construction of new advertising signs may be granted only when “strict compliance would deprive the applicant of privileges enjoyed by owners of similarly zoned property” or result in unnecessary hardship and would “not constitute a grant of special privilege.” Applying Desert Outdoor Adver., Inc v City of Moreno Valley, 103 F.3d 814 (9th Cir 1996) and G.K Ltd Travel v City of Lake Oswego, 436 F.3d 1064 (9th Cir 2006), the court found the variance standards sufficiently concrete and objective to survive the First Amendment challenge A zoning ordinance that regulated electronic changeable signs was upheld in Carlson’s Chrysler v City of Concord, 938 A.2d 69 (N.H 2007) The ordinance prohibited “[s]igns which move or create an illusion of movement except those parts which solely indicate date, time, or temperature.” The court found that the city did not need to provide detailed proof that the ordinance advanced its interests of safety and aesthetics The court also held that prohibiting electronic signs was sufficiently narrow under the Central Hudson factors to achieve the city’s goals Another ordinance which regulated electronic changeable signs was at issue in Naser Jewelers, Inc v City of Concord, 513 F.3d 27 (1st Cir 2008) Similar to Carlson’s Chrysler, the court found that the ordinance was narrowly tailored to achieve the city’s substantial interest of safety and aesthetics because it did not “burden substantially more speech than necessary.” Since the ordinance was also content-neutral and left open reasonable alternative channels of communication by allowing static and manually changeable signs, the regulation was upheld as constitutional The court upheld a ban on all commercial and noncommercial mobile billboard advertising in Showing Animals Respect and Kindness v City of W Hollywood, 166 Cal App 4th 815 (Cal App 2008) The court found that the ordinance was content-neutral and reasonably calculated to achieve the city’s legitimate interests of reducing traffic hazards, visual clutter, and pollution The court dismissed the plaintiff’s objection that the ordinance was not narrowly tailored to achieve these goals because it exempted buses and taxicabs which also carried billboards, finding that eliminating traffic that has no real purpose apart from advertising was reasonably calculated to achieve the city’s interest With regard to the plaintiff’s argument that the regulation left no alternative means of communication that was as effective as their mobile billboard, the court lxiii found that “[t]he First Amendment does not guarantee an individual the most effective means of communication, only the means to communicate effectively.” Resources: Ames, The Regulation of Advertising in Transit Facilities Under the Public Forum Doctrine, Municipal Lawyer, March/April 2008, at 11; Mandelker, Decision Making in Sign Codes: The Prior Restraint Barrier, Zoning & Plan L Rep., Sept 2008, at 1; Menthe, Reconciling Speech and Structural Elements in Sign Regulation, 44 Gonz L Rev 283 (20082009) The United States Sign Council has a number of excellent studies of sign regulation One of the most recent is The Science of Sign Zoning They are available on the Council’s web site, ussc.org Historic District and Landmark Preservation “The mayor and city council [were] not required to consider economic feasibility at the time of historical designation” in Casey v Mayor & City Council, 929 A.2d 74 (Md App 2007) In Casey, the city designated an 80-year-old bungalow as historically/architecturally significant and placed the property within the city’s historical district Owners of the property challenged the historic designation, arguing that the designation hindered their ability to put the property to a more economically beneficial use The court found that no provision in the state historic preservation statute required a local legislative body to consider the economic feasibility of preserving the property or the financial hardship potentially incurred by the property owner The Connecticut Supreme Court reversed a denial of a certificate of appropriateness in Felician Sisters of St Francis of Conn., Inc v Historic Dist Comm’n, 937 A.2d 39 (Conn 2008) The plaintiffs’ owned property in the town’s historic district and applied for a certificate of appropriateness to repave a gravel parking area with blacktop so as to alleviate parking and traffic problems on the property The historic district commission denied the plaintiffs’ application, finding that the “pavement diminished the historic character of the property and the surrounding area.” The court concluded that “although the defendant had jurisdiction over the plaintiffs’ parking area its denial of the plaintiffs’ application was not supported by substantial evidence.” The city had failed to consider that the overall size of the parking area would decrease and would be farther from the view of a historic streetscape and that added vegetation would shield the parking lot from public view The Connecticut Supreme Court also reversed the denial of a certificate of appropriateness in Gibbons v Historic Dist Comm’n, 941 A.2d 917 (Conn 2008) The plaintiffs’ owned property in the town’s historic district and applied for a certificate of appropriateness to relocate an existing building The historic district commission denied the plaintiffs’ application, finding that the relocation of the building would damage the historical integrity of the area The court concluded that “the commission’s stated reason for its denial is within the authority granted to it in the historic district enabling statutes but that the record lacks substantial evidence to support the commission’s stated reason for its decision.” The court found no evidence documenting the lxiv historic importance of the building that was to be relocated and, thus, the commission’s denial was arbitrary and unreasonable An involuntary historic designation ordinance, adopted to designate a house as a historic landmark, was upheld against vagueness challenges in Kruse v Town of Castle Rock, 192 P.3d 591 (Colo App 2008) In a facial analysis, the court held that the ordinance was not void for vagueness because “when the criteria for involuntary historic designation are read in conjunction with the general criteria for historic designation,” the ordinance provides property owners with notice that their property may be designated if the criteria are satisfied In an as-applied challenge, the court found that the house met the historic designation criteria because it was one of the oldest remaining buildings in the area Another historic designation ordinance was at issue in Hanna v City of Chicago, 907 N.E.2d 390 (Ill App 2009) The Hanna court reversed the trial court’s dismissal of a complaint which alleged that the ordinance was unconstitutionally vague on its face The court found that the plaintiff’s allegations were sufficient to state a cause of action because the city “offered no criteria by which a person of common intelligence may determine from the face of the Ordinance whether a building or district will be deemed to have value or importance ” Resources: Lovelady, Broadened Notion of Historic Preservation and the Role of Neighborhood Conservation Districts, 40 Urb Law 147 (2008) Transfer of Development Rights as a Historic Preservation Technique A municipality may not “devise a transfer of development rights program other than as authorized by the State Transfer of Development Rights Act.” The ordinance at issue in Builders League of S Jersey, Inc v Twp of Franklin, 928 A.2d 88 (N.J App Div 2007) required clustering of all residential subdivisions that produced more than five lots and allowed—but did not require—persons owning property in a sending and receiving zone to send the units allowed to be developed in the sending zone to the receiving zone The court held that “the State Act is the exclusive authority for establishment of a TDR program” and that if a municipality elects to provide sending and receiving zones for a TDR program, it must follow the State Act Since the municipality did not provide several studies required by the State Act and did not get approval from the State Planning Commission or the county planning board, the ordinance was invalidated Resources: Bruening, The TDR Siren Song: The Problems with Transferable Development Rights Programs and How to Fix Them, 23 J Land Use & Envtl L 423 (2008); Kruse, Constructing the Special Theatre Subdistrict: Culture, Politics, and Economics in the Creation of Transferable Development Rights, 40 Urb Law 95 (2008); lxv Resources for the Chapter: Garvin and Jourdan, Through the Looking Glass: Analyzing the Potential Legal Challenges to Form-Based Codes, 23 J Land Use & Envtl L 395 (2008); Maximuk, Where Does Design Fit In?, Planning, December 2007, at 42 Material for this chapter was prepared by Lauren Ashley Smith, J.D Cand 2010, Washington University School of Law lxvi ... climate change and sustainability through land use, see Salkin, Zoning and Land Use Planning: Linking Land Use with Climate Change and Sustainability Topped State Legislative Land Use Reform Agenda... of Planning and Public Policy at Rutgers University Stuart is the coauthor of a treatise on Ohio land use law and a longstanding author of books and articles on land use planning and law Dwight... Introduction to Land Use Controls A Why Land Use Controls? The Challenge of Land Use Policy Insert at the end of Notes and Questions on p 8: Changes in urban structure Urban geographers and others