Richard D. Ducker

March 2010

Answers-Problem Set

AICP EXAM REVIEW

PLANNING LAW PROBLEMS

ANSWERS

PROBLEM AA

a) False. Land dedication requirements do not lend themselves to off-site

applications because there is no guarantee that the developer will own or control suitable sites for dedication at other locations.

b) False. Public facilities funded with the fees must provide sufficient

benefit for the residents or users of the development or, viewed differently,

defray the costs that new development would otherwise impose on

government.

c) True. The fees that developers pay are then more likely to be used for facilities located closer to their projects, thus providing more direct benefit to those who will purchase property in or use their projects. Finance directors, public works directors, and representatives of operating departments are more likely to be interested in flexible arrangements that allow funds to be spent for a variety of projects in a larger district. It is also true, however, that funds may accrue and be expended more quickly for projects in larger districts. Developers are also interested in faster project funding.

d) False. Impact fees must almost inevitably be supplemented by other

revenues.

e) True.

f) True. Developers may be expected to bear only those costs that their

activity imposes.

g) True. In some communities the developer may also enjoy credit for facilities that are not yet complete but which have been "programmed."

h) Debatable, but probably true. Governments tend to resist committing funds for projects that they may be able to induce developers to build at a future point in time.

PROBLEM BB

a) Adv: Land cheaper if bought in advance. More flexibility in buying best

sites since land not already developed.

Disad: Land may not be close to where existing population lives;

General population funds public facilities that may primarily

serve new residents.

b) Adv: Development of official map will necessitate good planning and capital improvement programming. Mapping will protect best sites from development or subdivision.

Disad: Reservation period may last no more than several years and

may be afford inadequate time for county to acquire sites. Official map may be unconstitutional if reservation area encompasses sizable portion of property.

c) Adv: May be a good way to conserve rural land, especially if it is not under development pressure. Recognizes that there is no reason to zone such land for urban densities.

Disad: Most courts say that zoning may not be used to depress value of

land planned for future acquisition.

d) Adv: Allows subdividers and lot purchasers to bear part of burden of

providing parks that will benefit them.

Disad: Exaction requirement must bear proper connection to the impact

of the development on the need for new public facilities. It may not

be possible to obtain all of the land needed since some land may

not go through subdivision review process.

e) Adv: May encourage rural property owners to allow their land to remain in undeveloped form.

Disad: May be ineffective in stemming conversion of land into other

uses. Amounts to a tax subsidy at public expense. In some cases it

may not even be needed.

f) Adv: Parks are financed by those who will most benefit from them.

Disad: Benefit zones may be difficult to calculate. Larger parks provide

benefits to patrons scattered over large geographic area.

g) Adv: Burden of financing parks proportional to the value of property one

owns, but those not owning property within the district need not pay.

Disad: Park boundaries are bound to be arbitrary. Burden of financing

falls strictly upon owners of property.

h) Adv: Less expensive to acquire such easements rather than the full title to the land. Allows land to be retained in private ownership, used for some profitable use, and remain on the tax rolls.

Disad: Generally conservation easements (development rights) may not

be acquired by eminent domain; they must be acquired by negotiated purchase. Conservation easements generally impose significant restrictions on public access.

PROBLEM CC

(a & b): Statement (b) is more correct. The strongest basis for

architectural controls still remains the protection of historically significant

areas.

c) True. However, many appearance standards are written so that they apply

to individual buildings or sites without any direct reference to the character of neighboring properties.

d) False. All of the propositions are true, but that does not mean that

architectural review must be conducted by the legislative body. It may be

conducted by an administrative board if proper safeguards are used.

e) False. The emerging trend in administrative law is to emphasize procedural safeguards to protect the applicant and to deemphasize the need for specific decision-making standards.

f) False. Although the free speech doctrine does apply to commercial

advertising, city-wide bans on commercial off-premise signs have been

upheld.

g) True. Virtually all states have adopted such legislation so that they will not

lose any federal highway aid.

PROBLEM DD

a) False. The action of the city may amount to a taking because it deprives the owner of a vested right based on reasonable investment-backed

expectations to complete the project under the original zoning. In such an

instance it is the property interest in the investments made to complete the

project that must be analyzed. For this reason it is not correct to say that

this is a taking because it deprived the developer of all reasonable use of its land. The property could probably be profitably developed under R-2

zoning.

b) False. It is unlikely that the neighbors have any constitutionally-protected

right to be notified that a building/zoning permit on a nearby property has

been issued.

c) True. The building permit was issued, contractors hired, and footings

poured by the time the city tried to halt the project. Under just about any

vested right theory the developer would enjoy a vested right to complete the project under the original zoning.

d) False. Although the city tried to "down zone" the property, such actions are not necessarily unconstitutional.

MULTIPLE CHOICE

PROBLEM FF b.

PROBLEM GG c.

PROBLEM HH b.

PROBLEM JJ d.

PROBLEM KK

a) i. One approach would be to ration the nonresidential development

quota on the basis of which landowner succeeds in obtaining

development approval first (first come, first served).

Possible variations:

First come, first served anywhere within watershed

First come, first served within pre-designated (zoning) districts

First come, first served within particular categories of

nonresidential development with sub-quota for each

(quota for industrial uses; quota for office and institutional)

ii. Development quota could be allocated on the basis of a competition conducted among property owners who wished to develop their land during a particular time period (e.g., six months). Competition could be based on any of following criteria:

Contribution to nonpoint source surface water pollution

(inverse relation)

Contribution to tax base (positive relation)

Rating according to particular planning criteria

(proximity to existing or planned public facilities)

(suitability of land for nonresidential development)

(proximity to residential development)

iii. Development quota could be allocated by the real estate market. A

system permitting the transfer of severable development rights could be devised based on the idea that each owner of land in the

watershed is entitled to develop one-tenth of the land for

nonresidential development or, in lieu of doing so, sever a

nonresidential development right (NRDR) and sell it to another owner within the watershed who could exercise the right and develop more than 10% of that owner's land.

iv. Development quota could be allocated on the basis of need. Criteria might include:

Income of the property owner (inverse relation)

Amount of existing nonresidential development within particular subarea of the watershed (inverse relation)

Statement A is correct. Section 404 permits are subject to consistency determinations under the Coastal Zone Management Program. Statement B is also correct, at least to the extent that it appears to be true that the proposed project is not water-dependent. Statement C is also true. Statement D is incorrect because even if adverse environmental impacts may be identified, those factors do not necessarily change the legal authority used by a federal agency in approving or disapproving a project.

(1) Police power

(2) Police power

(3) Eminent domain

(4) Spending power, if prohibition is result of a condition of federal highway aid

(5) Police power and power to acquire land (eminent domain)

(6) Taxing and spending powers

(c)

It appears that the developer has not been deprived of all beneficial uses of the property. Therefore the holding in Lucas is inapplicable. The Penn Central case implies a balancing of factors: (1) the character and extent of the regulation; (2) the extent to which the regulation interfered with investment-backed expectations; and (3) the impact of the regulaton on the property owner. That analysis would appear to be relevant here. First English concerns the nature of the remedies that are available to the owner of the property that has been “taken.” Tahoe concerns moratoria.

(d)

The key questions here concern the principles concerning developer exactions. The Overton Park case concerns the location of highway corridors. Petaluma concerns the use of a growth management program establishing permit quotas. Nollan concerns the relationship between a government permitting requirement and a permissible governmental objective. That’s not an issue here because arranging for road-related improvements as a condition of development permission is undoubtedly within the scope of a local government’s power. Dolan concerns the extent to which the requirements are appropriately related to the scope and impact of the development project.