Legal Foundations of Land Use Planning: Textbook-Casebook and Materials on Planning Law / Edition 1

by Jerome G. Rose

Overview

Urban planning is a community process, the purpose of which is to develop and implement a plan for achieving community goals and objectives. In this process, planners employ a variety of disciplines, including law. However, the law is only an instrument of urban planning, and cannot solve all urban problems or meet all social needs. The ability of the legal system to implement the planning process is limited by philosophical, historical, and constitutional constraints. Jurisprudence is concerned with societal values and relationships that limit the effectiveness of the law as an instrument of urban planning. When law is definite and certain, freedom is enhanced within the boundaries created by the law. This doctrine of Anglo-American law imposes an obligation on courts to be guided by prior judicial decision or precedents and, when deciding similar matters, to follow the previously established rule unless the case is distinguishable due to facts or changed social, political, or economic conditions The author focuses on seven specific areas of law in relation to land use planning: law as an instrument of planning, zoning, exclusionary zoning and managed growth, subdivision regulations, site plan review and planned unit development, eminent domain, and the transfer of development rights. Jerome G. Rose cites more than one hundred court cases, and the indexed list serves as a useful encyclopedia of land use law. This is a valuable sourcebook for all legal experts, urban planners, and government officials.

Product Details

ISBN-13:	9781412849463
Publisher:	Transaction Publishers
Publication date:	12/15/2012
Pages:	561
Product dimensions:	6.90(w) x 10.00(h) x 1.20(d)

About the Author

Jerome G. Rose is professor emeritus of urban planning at Rutgers University. He served as editor-in-chief of Real Estate Law Journaland served on the Princeton Regional Planning Board (New Jersey) for eight years. His other works include Landlords and Tenants, The Legal Advisor on Home Ownership, and New Approaches to State Land Use Policies.

Table of Contents

Chapter 1 The Law as an Instrument of Urban Planning

A Philosophical Limitations 1

1 Certainty in the Law and Freedom 2

2 Certainty in the Law and Justice 3

Neiderman v. Brodsky 4

B Historical Limitations 6

C Constitutional Limitations 7

1 Federalism 7

U.S. v. Certain Lands in Lousiville 9

2 Separation of Powers 11

Thibodeaux v. Comeaux 13

Commonwealth, ex rel. Carroll v. Tate 14

3 Impairment of the Obligation of Contracts 15

U.S. Trust Co. of NY. v. New Jersey 16

In re Department of Buildings 26

4 Search and Seizure 30

5 Due Process of Law 32

a Substantive Due Process 34

Arverne Bay Construction Co. v. Thatcher 34

Safer v. City of Jacksonville 39

b Procedural Due Process 40

Shaugnessy v. Mezei 40

6 Equal Protection of the Laws 42

Rhonda Realty Corp. v. Lawton 42

Property Taxes, School Financing and Equal Protection, by Jerome G. Rose 45

7 Private Enterprise 48

Courtesy Sandwich Shop, Inc. v. Port of New York Authority 50

Board of Supervisors of Fairfax County v. DeGroff Enterprises, Inc., 51

Chapter 2 Zoning

A Relationship to Community Planning 53

N.J. Master Plan 54

California Master Plan 56

Baker v. City of Milwaukie 60

B Pre-Zoning Land Use Controls 62

1 Nuisance Doctrine 62

Hulbert v. California Portland Cement Co. 66

2 Private Agreements 71

Rhue v. Cheyenne Homes, Inc. 73

C Constitutional Issues 75

Village of Euclid v. Ambler Realty Co. 76

Shepard v. Skaneateles 81

LaSalle National Bank c. County of Cook 81

D Legislative Issues 82

California Code 82

Princeton, N.J. Code 83

E Regulation of Use, Bulk and Density 86

1 Regulation of Use 86

a Exclusion of Schools: Union Free School Dist. v. Village of Hewlett Bay Park 87

b Exclusion of Churches: Congregation Temple Israel v. City of Creve Coeur 88

c Accessory Uses 93

Trenton Zoning Ordinance 93

Paul v. Board of Zoning Appeals 94

d Signs 95

Cromwell v. Ferrier 96

2 Regulation of Bulk 99

a Set-back Requirements 100

Trenton Zoning Ordinance 100

Robyns v. City of Dearborn 101

b Floor Area Ratio 102

San Francisco City Planning Code 102

c Open Space Ratio 103

d Sky Exposure Plane 103

N.Y.C. Zoning Handbook 104

3 Density Regulations 104

a Minimum Lot Size 105

Trenton Zoning Ordinance 105

b Minimum Building Size 106

Lionshead Lake v. Wayne Twp. 106

F Zoning Administration 111

1 The Zoning Board of Adjustment California Statutes 112

2 Variances 113

a The Standard State Enabling Act Provisions 114

Otto v. Steinhilber 115

b The N.J. Land Use Law 118

DeSimone v. Greater Englewood Housing Corp. No. 1 118

3 Special Exceptions - Conditional Uses 123

Kotrich v. County of Du Page 124

4 Amendments to the Zoning Ordinance - Spot Zoning 127

Fasano v. County Comm. of Washington Co. 128

Board of Supervisors of Fairfax Co. v. Snell Construction Corp. 131

5 Nonconforming Uses 135

Trenton Zoning Ordinance 136

Town of Seabrook v. D'Agata 137

City of Los Angeles v. Gage 138

6 Vested Rights 143

Cooper v. City of Greensburg 143

G Devices For Zoning Flexibility 147

1 Floating Zones 147

Rodgers v. Village of Tarrytown 148

Rockhill v. Chesterfield Twp. 153

2 Contract Zoning - Conditional Zoning 156

Church v. Town of Islip 157

Houston Petroleum Co. v. Automotive Products Credit Ass'n 158

3 Incentive Zoning 160

San Francisco City Planning Code, Sec. 122.3 160

4 Performance Zoning 164

5 Special Districts - Mixed Use Districts 167

a Erogenous Zones 168

Young v. American Mini Theatres 168

b Theatre Districts 174

6 Cluster Zoning 176

Princeton Township Code 23-31 176

Chapter 3 Exclusionary Zoning and Managed Growth

Introduction 179

A The Rate of Growth of the Community: Timed Sequential Development 180

1 Rate of Growth 180

Construction Industry Assoc. of Sonoma County v. City of Petaluma 184

2 Timed Sequential Development 188

Golden v. Planning Board of the Town of Ramapo 189

3 Obligations of a Public Utility 197

Robinson v. City of Boulder 197

B Social and Economic Composition of the Community 201

1 Exclusion of Unrelated Persons (Groupies) 203

Village of Belle Terre v. Boraas 203

Kirsch Holding co. v. Borough of Manasquan 207

2 Exclusion of Non-Elderly 213

Taxpayers Assoc. of Weymouth Twp., Inc. v. Weymouth Township 213

3 Exclusion of the Handicapped 221

Berger v. State of New Jersey 221

C The Mount Laurel Decision and its Progeny 228

1 Analysis of the Decision and the New Legal Issues 228

Southern Burlington County NAACP v. Township of Mount Laurel 228

The Mount Laurel Decision: Is It Based On Wishful Thinking? Jerome G. Rose 235

2 A Partial Retreat From Mount Laurel 243

Oakwood at Madison v. The Township of Madison 243

Oakwood at Madison: A Tactical Retreat By the N.J. Supreme Court Jerome G. Rose 253

A New Test For Exclusionary Zoning: Does It "Preclude the Opportunity" For "Least Cost" Housing? Jerome G. Rose 260

After the Recent N. J. Supreme Court Cases: What Is the Status of Suburban Zoning? Jerome G. Rose 267

3 An Alternative to the Mount Laurel "Fair Share" Approach 277

Berenson v. Town of New Castle 278

D Special Problems of Racial Discrimination 281

1 Judicial Enforcement of Restrictive Covenants 283

Shelley v. Kraemer 283

2 State Protection of Private Discrimination 286

Reitman v. Mulkey 286

3 Requirement of Zoning Referenum 289

James v. Valtierra 289

City of Eastlake v. Forest City Enterprises, Inc. 293

4 Thirteenth Amendment: Badges of Slavery 296

Jones v. Mayer 296

5 Fair Housing Laws 299

6 Discriminatory Effect Without Discriminatory Intent 300

Village of Arlington Heights v. Metropolitan Housing Development Corp. 302

E Federal Funding and Exclusionary Zoning 309

Chapter 4 Subdivision Regulation

A Introduction 313

B The Planning Board - Planning Commission 314

C Subdivision Procedure 315

1 Pre-Application Discussion 315

2 Preliminary Plat Approval 316

a Effect of Preliminary Plat Approval 318

N.J. Municipal Land Use Law 318

3 Final Plat Approval 319

Sketch Plat 321

Preliminary Plat 322

Final Plat 322

D Questions to Be Considered in Subdivision Review

N.J. Administrative Guide to Subdivison Regulation 323

E Enforcement of Subdivision Regulations 326

N.J. Municipal Land Use Law 327

F Statutory and Constitutional Validity 329

1 General Principles 329

Ayers v. City of Los Angeles 330

Wald Corp. v. Metropolitan Dade County 337

2 Schools and Parks 342

N.J. Municipal Land Use Law 343

Krughoff v. City of Naperville 344

3 Cash Fee in Lieu of Dedication 349

Jenad, Inc. v. Village of Scarsdale 349

West Park Ave., Inc. v. Ocean Twp. 352

4 Offsite Improvements 355

N.J. Land Use Law 355

Chapter 5 Site Plan Review, Planned Unit Development and Official Map

A Site Plan Review 357

1 Criteria and Standards of Approval 357

Princeton, N.J. Land Use Ordinance 358

2 Application Procedure 360

Princeton, N.J. Land Use Ordinance 360

3 Legal Issues 361

Sun Oil Co. v. City of Pittsburgh 362

McCrann v. Town of Bloomfield 365

B Planned Unit Development 370

1 Introductory Description 370

N.J. Municipal Land Use Law 370

2 Legal Issues 372

C Official Map 402

1 Introductory Description 402

N.J. Municipal Land Use Law 403

2 Legal Issues 404

a Is There a "Deprivation of Property?" 404

Headley v. Rochester 404

Miller v. City of Beaver Falls 410

b Compensation For Temporary Deprivation of Use 415

Lomarch v. Mayor of Englewoood 415

N.J. Municipal Land Use Law 417

Chapter 6 Eminent Domain

A Nature of the Power 419

B What Is A Taking of Property? 421

Horst v. Housing Auth. of County of Scotts Bluff 422

Washington Market Ent. v. City of Trenton 424

C What Is a Public Use? 431

1 Historic Development of the Expansive Definition 431

Connata v. City of New York 431

Berman v. Parker 439

2 Excess Condemnation 441

3 Advance Acquisition: Land Banking 441

4 Open Space Preservation 443

D What Is Just Compensation? 443

1 Comparable Sales 443

State of Louisiana v. Crow 444

1 Capitalization of Income 446

Denver Urban Renewal Autho. v. Cook 447

State v. Bare 449

3 Reproduction Cost Less Depreciation: Specialties 452

Keator v. State 453

Bartage v. Manchester Housing Auth. 455

4 Highest and Best Use 456

Masheter v. Ohio Holding Co. 456

5 Partial Taking 460

6 Consequential Damages 460

Lucas v. State 461

E Acquisition Procedure and Policy 462

1 Due Process Requirements 462

2 Federal Acquisition Policy 462

Federal Uniform Real Property Acquisitions Policy 463

Chapter 7 Transfer of Development Rights

A Introduction to the Concept of TDR 465

The Transfer of Development Rights: A Preview of an Evolving Concept Jerome G. Rose 465

A Proposal For The Separation and Marketability of Development Rights as a Technique To Preserve Open Space Jerome G. Rose 487

B Some Unresolved Legal Problems 509

Fred French Inv. Co. Inc. v. City of New York 509

The French Case and the Future of TDR Programs Jerome G. Rose 516

C Variations On the TDR Theme 520

Transfer of Development Credits (TDC): A New Form of Cluster Zoning William Queale 520

Index 531

Editorial Reviews

This is a combination textbook, casebook, and materials on planning law that covers the areas of law as an instrument of planning, zoning, exclusionary zoning and managed growth, subdivision, regulation, site plan review, planned unit development and official map, eminent domain, and transfer of developmental rights” —American Bar Association Journal “Primarily legal case material with editorial comments and will be most relevant for teaching and reference purposes.” —Robert Warren, The Western Political Quarterly “[Professor Rose] has as­sembled in one compact volume, judicial decisions and legislation that illustrate the legal foundations of the ongoing planning process. The significant contribution of this collection is that it illustrates not only where planning law has been but where it seems to be going.” —Melvin Levin "Typical high standard." —Public and Environmental Affairs Review

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