Legal Dimensions of Land Use. Issues and Trends

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1 Legal Dimensions of Land Use Issues and Trends

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4 van Hemert s Top 10 List 1. Eminent domain 2. Property rights (pay to regulate) 3. Inclusionary zoning 4. Form based codes 5. Ballot Box Zoning

5 van Hemert s Top 10 List 6. RLUIPA 7. Growth Management 8. Land Trusts 9. Environmental Protection 10...

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7 What Happened in Connecticut? Big Drug Company trumps Little Homeowner

8 Susette Kelo Registered nurse; bought in 1997 with husband, Tim

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10 What happened at the U.S. Supreme Court?

11 What is Happening Now? Major backlash: 43 states introduced legislation to tighten the reins Enacted in 27 states Everybody is talking about it Major boost to property rights groups

12 Categories of State legislative changes 1. Prohibition on economic development, tax revenue, and transfer to private entity 2. Definition of pubic use 3. Restriction to blighted properties 4. Public notice, hearings, negotiations 5. Compensation 6. Moratorium 7. Study committees

13 Blight abuse

14 Heartless condemnations

15 Slum clearance affects the poor & less powerful

16 Big business vs. little business

17 Who Benefits? We ALL do in myriad ways

18 Roads Utilities Uses of Eminent Domain Blight remedies Historic Preservation Economic Development

19 Community Development It s the Policy STUPID

20 Property Rights Oregon s Measure 37

21 The Future of the Oregon Planning Program Continuing Problems Dual Regulation Ambiguous Grants of Waivers Third Party Opposition Undermines comprehensive planning

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23 Inclusionary Zoning Antidote to exclusionary zoning: Minimum lot area Minimum floor area Limits on multi family & mobile homes Min yard setbacks Extraordinary bulk requirements Growth management caps

24 Inclusionary Zoning Fair share community obligations Significant court decisions» Supreme Court of N.J.: Southern Burlington County» N.A.A.C.P. v. Township of Mt. Laurel

25 Inclusionary Zoning Removing excessive restrictions and exactions Using Affirmative Measures State and federal subsidies Inclusionary zoning devises Zoning for Mobile Homes Providing Least Cost Housing

26 Inclusionary Zoning Fair Housing Types Incentive zoning (opportunity only) Mandatory set-asides (more effective, 5-25% affordable in developments)

27 Inclusionary Zoning Applicability Whose responsibility Resort communities One tool in a big tool box Enhances diversity

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29 Form Based Zoning Purpose to promote traditional urban form Form vs. use Contributions: Connectivity and walkability Focus on public realm Improved small area design highly illustrated Promote mixed use Predictable

30 Form Based Zoning Drawbacks One-size fits all. Highly prescriptive little choice Few natural resource protection, energy, safety standards Little focus on rural areas Not comprehensive Excessive discretion Lack of response to context Affordable Housing concerns Administered by architects and urban designers

31 Form Based Examples Columbia Pike, Arlington, VA Louisville, KY (overlay) Austin, TX Denver, CO (main street district) Mountain towns

32 Form Based Applications Imbedded in existing codes Hybrid codes Overlay Development based PUD Redevelopment and infill

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34 Why Do Electors Choose the Initiative and Referendum? 1. The Populist Case for Direct Democracy 2. Unresponsive Government 3. A Means of Avoiding Debate 4. Agenda Setting Mechanism

35 1. The Populist Case for Direct Democracy Direct is Better Than Indirect Empowerment Mary Lease, Kansas 1890s "raise less corn and more hell."

36 2. Unresponsive Government Growth Control

37 3. A Means of Avoiding Debate 4. Agenda Setting Mechanism

38 Public Service Message #2: Why men don t live as long as women

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46 RLUIPA (Religious Land Use and Institutionalized Persons Act) Treat religious and non-religious on equal terms No discrimination No exclusion No unreasonable limits

47 RLUIPA Practical guidance 1. Review your ordinances 2. Train staff. 3. Have a staff liaison 4. Draft Sufficient Findings of Fact. 5. Be careful not to discriminate politically against less well known religious groups

48 RLUIPA Practical guidance 6. Historic preservation ordinances 7. Undertake planning study re needs of religious uses, including social services 8. Don t assume compatibility 9. Liaison with local communities of faith 10.ENGAGE the religious advocates

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50 Land Trusts Land Trust Alliance estimates that from 1998 to 2003 number of acres protected by land trusts using easements jumped form 1.4 to 5 million acres nationwide 1500 land trusts, not all run professionally, lack of consistency Alliance developing accreditation process

51 Land Trusts Conservation easements Restrictions on land Sale or donated to land trusts or government entities Expanded use in 1980s following federal tax reform Can be used by developers Mapping where are they? According to a plan?

52 Growth management

53 Growth Management Is it smart growth? Adequate Facilities Concurrency Infrastructure deficit of $2 trillion, growing by $200B/yr. Development Charges Exactions Impact Fees

54 Growth Management Timing Ramapo case Tiers NIMBYism

55 Environmental protection

56 Environmental Protection Overlay zones, for example Wildlife Natural resources Riparian complexes Visual

57 Environmental Protection Performance standards, for example Setbacks Storm water No adverse impacts on flood plains

58 Environmental Protection Planned Unit Development Clean Water Act Wetlands Rapanos decision

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60 Rocky Mountain Land Use Institute th Annual Land Use Conference March 7-9, 2007, University of Denver