NEW YORK UNIVERSITY: WAGNER SCHOOL
SYLLABUS - 2009
Land Use Law: The Planning Perspective
“…if a policeman must know the Constitution, then why not a planner?” Justice Brennan.
Legal and administrative aspects of regulating land use at various levels of government, and understanding the changing legal framework of the regulations such as zoning, urban renewal and eminent domain, inverse condemnation, landmarks and religious considerations, environmental laws, growth management and the relationship of the planner to the law. The course will cover a basic understanding of legal procedures and use case law to develop a more nuanced command of the arguments, to supplement the basic land-use planning skills.
P11.1605 (001) Spring 2009
Thursdays from 6:45 – 8:25 pm
Office Hours – by appointment only
Professor Richard Landman Call#50069
Email: rick.landman@nyu.edu
for an appointment or call 212 233-7867.
All the assigned readings are on BLACKBOARD. Assignments should be read in advance of classes to enhance classroom discussion and for each student to prepare their own Study Guide. The course will include a “case method” approach to learning, similar to what is utilized in law school classes. Each student will be given the opportunity to brief 3 cases and be the “expert” on that topic for the day and make a short presentation to the class. There will be one in-class midterm exam, one take-home written examination at the conclusion of the course and several “briefs” to hand in. Classroom participation is also considered towards the final grade. A sign-up sheet will be available at the first session to reserve cases for you to “summarize”. A field trip may be conducted at the end of the semester showing the actual locations where many of the cases occurred in the NYU area (Urban Renewal, Landmarking, Law Suits, etc.) Most classes include a short lecture on a legal topic that will help students to understand the holdings of cases or just how to think like a lawyer.
*Seminal cases that are usually found on AICP exams etc. are highlighted on a special page on
Blackboard and noted in the syllabus with an asterisk.
Competencies and Skills that the course is designed to strengthen:
1. How to use primary sources, such as court cases, to be able to understand and brief a judicial case, including the fact pattern, and holding and compare it to other cases in the same and different jurisdictions.
2. How to understand the court system and how it operates, including the appeals process.
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3.
4.
How to understand if a land use regulation is legal or constitutional.
How to defend a viewpoint and compare it to various other viewpoints.
5.
6.
How to find and analyze legal trends in society.
How to see how the law affects development, zoning, discrimination, housing priorities, and growth management techniques.
7. How to use this information pragmatically to find a career.
8.
9.
How to think like a lawyer and communicate with lawyers.
To gain experience speaking in front of an audience.
1. INTRODUCTION TO THE COURSE :
(January 22, 2009) a. b.
Introduction to the Course and Professor
Planners Relationship to the Law and this class c. Understanding the influence of time and culture and politics on law, especially the politics of the Supreme Court
Statutes vs. Constitutional law d. e. f. g. h.
Comparing Jurisdictions, Hierarchy of Courts
Case Method vs. Lecture Method of Teaching
Comparing Fact Patterns - What is “Case Law?” Reviewing similar fact patterns to narrowly define the specific tests or elements. Majority and
Minority Opinions.
How to read a case on Blackboard? (Headnotes, Syllabus-Summary, i.
Opinion)
Analyze Udell v. Haas – NYS’s salient court case stating a comprehensive planning requirement for zoning.
READINGS: Go to BLACKBOARD and Review the Syllabus for Class 1:
UDELL v. HAAS
Court of Appeals of New York
(1968)
[New York State’s requirement for comprehensive planning]

Write a ONE PAGE summary that includes:
1) the fact pattern, what happened?
2) the court’s ruling from the lower level up to the highest level;
3) what is the “holding”…what did the Court rule?
4) try making a map of the land involved (use any mapping tool);
5) look at the headnotes and copy the pertinent ones to create your own study guide.
6) Make an additional copy of your ONE PAGE SUMMARY to hand in on the first day of class so that I can see if you are doing it correctly. It will not be graded.
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BACKGROUND READING:
1. 5 th Amendment of the U.S. Constitution – Highlight Property Clause and copy it for your notes. ( http://www.usconstitution.net/const.html#Am5 )
2. Blank Chart for Analyzing Cases
2. NON-ZONING LAND-USE CONTROLS:
(January 29, 2009)
What preceded Zoning and what other non-Zoning land use approaches still exist?
(Torts, Nuisances, Codes, Deed Restrictions, etc.) What were the advantages/disadvantages of these non-zoning approaches and what were the political influences on the cases? Who created the nuisance? Who was there first? Did the ruling follow the concept of the one who created the nuisance was liable? What kind of things can be considered a “nuisance” in today’s world? How were they resolved?
Legal Topic: Torts and Deed Restrictions
READINGS:
Respublica v. Urbin Duquet 1799 - PA
Rose v. Socony 1934 - RI
Alevizos v. Metropolitan 1974 - MN
Powell v. Taylor 1954 - ARK
Boomer v. Atlantic 1970 - NY
Keystone v. DeBenedictis 1987 - US
Rodrique v. Copeland 1985- LA
3. CONSTITUTIONAL BASIS FOR LEGAL ZONING:
(February 5, 2008)
Why and when is Zoning Constitutional?
How do Regulations (Police Powers) Differ from Takings (Condemnation)? How does
Enabling Legislation affect the outcome? Even if Zoning is constitutional, can a specific plan be unconstitutional? Is interim zoning or pre-mature zoning legal? What is spot zoning? Does everyone benefit from zoning or can single owners be impacted for everyone else?
Legal Topic: How to understand majority, concurring and minority opinions and their effects on the legislative and executive process.
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READINGS:
1. VILLAGE OF EUCLID* ET AL. v. AMBLER REALTY COMPANY SUPREME COURT OF THE
UNITED STATES November 22, 1926, Decided
2. NECTOW v. CITY OF CAMBRIDGE ET AL. SUPREME COURT OF THE UNITED STATES May
14, 1928, Decided
3. ARVERNE BAY CONSTRUCTION CO , Appellant, v. Edwin H. Thatcher, as Commissioner of
Buildings of the Borough of Brooklyn, City of New York et al., Respondents Court of Appeals of New York
May
24, 1938, Decided
4.
5.
KLINE v. HARRISBURG , Appellants The Supreme Court of Pennsylvania June 25, 1949
VERNON PARK REALTY, INC ., Respondent, v.
CITY OF MOUNT VERNON, Appellant.Court of
Appeals of New York July 14, 1954, decided
6. MARION L. ROCKHILL, PLAINTIFF -APPELLANT, v. TOWNSHIP OF CHESTERFIELD, IN THE
COUNTY OF BURLINGTON, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT Supreme
Court of New Jersey January 14, 1957, Decided
7. EVES v. ZONING BOARD . The Supreme Court of Pennsylvania S eptember 26, 1960
4. EMINENT DOMAIN:
(Feb. 12, 2009)
What is “Public Use/Purpose” and Just Compensation?
Current Ruling of the U. S. Supreme Court on Eminent Domain and its effects on the rest of the country. Discussion of Urban Renewal Process (Blight) and Condemnation in general. How did the Urban Renewal Process affect Greenwich Village and NYU and how is the law involved in future development? Review 5 th Amendment of the U.S.
Constitution. Can eminent domain be used to help certain property owners gain at everyone else’s expense? How is compensation fixed and is it always fair?
Legal Topic: Appeals Process – Certiorari (Review of law and not facts, and when an appeal is possible).
READINGS:
1. DENIHAN v. O’DWYER -
Court of Appeals of New York May 24, 1951
2. KASKEL v. IMPELLITTERI -
Court of Appeals of New York October 23, 1953
3. SCHNEIDER v. DC -
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA November 5, 1953
4. BERMAN v. PARKER-
SUPREME COURT OF THE UNITED STATES - November 22, 1954
5. RILEY v. DC 1956 and 1957
UNITED STATES COURT OF APPEALS DISTRICT OF
COLUMBIA CIRCUIT
6. KELO v. NEW LONDON -
US Supreme Court certiorari granted Sept. 28, 2004
Please take a look at the examples of a previous NYU Wagner School Final
Exams on the Blackboard site. If you have any questions, please ask them at the next session.
5.
INVERSE CONDEMNATION OR A “TAKING”:
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When have regulations or governmental actions stepped over the line to become confiscatory or a “taking”?
What kind of things can be considered a “taking” even if no one intended for the government to acquire the property? When does the taking occur? Is the government responsible for any loss during this time period? Initial discussion of Downzoning and what happens if the government wants to prevent development in areas where foreseeable environmental disasters are common?
READINGS:
1. UNITED STATES v. CAUSBY ET UX. SUPREME COURT OF THE UNITED STATES
May 27, 1946, Decided
2. Fred F. French Investing Company, Inc., Respondent-Appellant, v. City of
New York, Appellant-Respondent, and Ramsgate Properties, Inc., et al., Respondents-
Appellants, et al., Defendant Court of Appeals of New York May 4, 1976, Decided
3. AGINS ET UX. v. CITY OF TIBURON
SUPREME COURT OF THE UNITED STATES June 10, 1980, Decided
4. SAN DIEGO GAS & ELECTRIC CO. v. CITY OF SAN DIEGO ET AL.
SUPREME COURT OF THE UNITED STATES March 24, 1981, Decided
5. FIRST ENGLISH EVANGELICAL LUTHERAN CHURCH OF GLENDALE v. COUNTY
OF LOS ANGELES, CALIFORNIA USSC- June 9, 1987, Decided
6. DAVID H. LUCAS, PETITIONER v. SOUTH CAROLINA COASTAL COUNCIL
SUPREME COURT OF THE UNITED STATES June 29, 1992, Decided
BACKGROUND READING:
Takings Decisions: A Chronology for Congress (2003:) A good source for review of many cases dealing with the subject.
6. MIDTERM – & “FRIVILOUS LAW SUITS” AS COMMUNITY RESISTANCE
TO DEVELOPMENT:
(February 26, 2009)
The Multiple Choice Midterm will only take half of the class time. The rest of the class will be on “
Frivolous Law Suits
” as a way of preventing development and what are the deeper reasons behind certain law suits. (See chart on Kimmel Case).
READING:
KIMMEL LAW SUIT- Committee to Washington Square v. NYU
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7. GROWTH MANAGEMENT OR OPPORTUNISTIC LEVERAGING?
(March 5, 2009)
How innovative can a planner be with private sector restrictions before the Courts intervene and invalidate the zoning provisions? What is necessary for the plan to be constitutional, reasonable and part of a comprehensive plan with the proper enabling legislation? Does the Enabling Legislation permit this kind of planning? What tests are needed to ensure that the plan fits under the general welfare of the public or has a close relationship to the goals of the legislation and is not just a taking? When is a moratorium constitutional? How does it differ from interim zoning?
Legal Topic: Standing – Who can sue?
READINGS:
1. In the Matter of Ruth Golden et al., Respondents, v. Planning Board of the Town of
Ramapo et al., Appellants; Rockland County Builders Association, Inc. et al., Respondents, v. John McAlevey et al., Constituting the Town Board of the Town of Ramapo, et al.,
Appellants Court of Appeals of New York May 3, 1972, Decided
2. NOLLAN ET UX. v. CALIFORNIA COASTAL COMMISSION
SUPREME COURT OF THE UNITED STATES June 26, 1987, Decided
3. FLORENCE DOLAN, PETITIONER v. CITY OF TIGARD
SUPREME COURT OF THE UNITED STATES June 24, 1994, Decided
4. TAHOE-SIERRA PRESERVATION COUNCIL, INC., ET AL., PETITIONERS v. TAHOE
REGIONAL PLANNING AGENCY ET AL. USSC April 23, 2002
8. GROWTH MANAGEMENT: EXCLUSIONARY ZONING OR PRESERVING
THE CHARACTERISTICS OF THE NEIGHBORHOOD?
(March 12, 2009)
When does ‘innovative zoning” step over the line and become discriminatory and a tool to prevent certain groups from being able to live in an area? Can you prevent future changes to the current characteristics of a neighborhood? Where should people of low or middle incomes live? Should municipalities or region house a fair share of their low or middle class or can they exclude certain kinds of housing units all together?
Legal Topic: Amicus Brief – Pro Bono groups.
READINGS:
1.) VILLAGE OF BELLE TERRE ET AL. v. BORAAS ET AL.
SUPREME COURT OF THE UNITED STATES
April 1, 1974, Decided
1A.) ROSEANN BAER et al., Respondents, v. TOWN OF BROOKHAVEN et al., Appellants
Court of Appeals of New YorkMarch 23, 1989, Decided
2. SOUTHERN BURLINGTON COUNTY NAACP v. TOWNSHIP OF MT. LAUREL (1974) (1975) I. CERT
DENIED. (1975)
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3.) VILLAGE OF ARLINGTON HEIGHTS ET AL. v. METROPOLITAN HOUSING DEVELOPMENT
CORP SUPREME COURT OF THE UNITED STATES January 11, 1977
4 .) CONSTRUCTION INDUSTRY ASSOCIATION OF SONOMA COUNTY , a California nonprofit
Corporation, et al., Plaintiffs-Appellees, v. THE CITY OF PETALUMA, a California Charter City, Defendants-
Appellants
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT August 13, 1975
5.) Continental Building Company, Inc., Respondent-Appellant, v. Town of North
Salem et al., Appellants-Respondents. SUPREME COURT OF NEW YORK, APPELLATE
DIVISION, THIRD DEPARTMENT April 27, 1995, Entered
9. CONTEMPORARY ZONING TOPICS:
(March 26 , 2009)
Today’s zoning is based on districts, classification of uses, bulk regulations and a zoning lot. How can we learn specific details from how different Courts interpret cases with similar fact patterns? How can planners be careful when using terms or concepts to make sure that they are constitutional under their state or municipality?
Initial discussion of downzoning and vesting.
Legal Topic: “Ultra Virus” and Enabling Legislation
READINGS:
1.
CHARLES L. CLEMONS, Appellant, v. CITY OF LOS ANGELES et al., Respondents
2.
Supreme Court of California September 28, 1950
Supreme Court of Illinois March 23, 1953, Filed
3.
Ronda Realty Corporation, Appellee, v. Samuel T. Lawton et al., Appellants
NORWOOD HEIGHTS IMPROVEMENT ASS'N, INC., v. MAYOR AND CITY
COUNCIL OF BALTIMORE et al.
Court of Appeals of Maryland June 17, 1948, Decided
4. KATOBIMAR REALTY COMPANY AND WILLIAM J. THOMPSON, PLAINTIFFS-
APPELLANTS, v. ROBERT A. WEBSTER, BUILDING INSPECTOR OF THE BOROUGH OF
NEW PROVIDENCE, AND THE MAYOR AND COUNCIL OF THE BOROUGH OF NEW
PROVIDENCE, DEFENDANTS-RESPONDENTS Supreme Court of New Jersey December
12, 1955, Decided
5. Newport Associates, Inc., Respondent, v. Sheldon S. Solow, Appellant
Court of Appeals of New York April 26, 1972, Decided
6. Macmillan, Inc., Respondent, v. CF Lex Associates et al., Appellants, et al.,
Defendants Court of Appeals of New York June 23, 1982, Decided
ADDITIONAL READING:
Please read the article by David Karnovsky, General Counsel for CPC, on “Rezoning to
Preserve Neighborhood Character: Downzoning in New York City (Vesting).
10. ZONING ADMINISTRATION – EXCEPTIONS PART 1:
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Non-Conforming/Complying Uses- How does the law treat Amendments, exceptions, variances, Zoning Changes, Special Permits, and referenda?
Legal Topic: What are activist Judges (Justices)?
READINGS:
1.) RAYMOND DeSIMONE, DAVID McERLANE AND ELLIOT STAGNERI, PLAINTIFFS-
APPELLANTS, v. GREATER ENGLEWOOD HOUSING CORPORATION NO. 1, A NEW JERSEY
CORPORATION; BOARD OF ADJUSTMENT OF THE CITY OF ENGLEWOOD; MAYOR AND
COUNCIL OF THE CITY OF ENGLEWOOD; AND MAX PRIEGEL, BUILDING INSPECTOR OF THE
CITY OF ENGLEWOOD, Supreme Court of New Jersey, July 6, 1970.
2.) CITY OF EASTLAKE ET AL. v. FOREST CITY ENTERPRISES, INC.
UUSC June 21, 1976
3.) FASANO et al, Respondents, v. BOARD OF COUNTY COMMISSIONERS OF
WASHINGTON COUNTY – Supreme Court of Oregon – March 2, 1973
4.) William J. Kuehne et al. v. Town Council of the Town of East Hartford
Supreme Court of Connecticut – February 28, 1950
5.) MacDONALD, et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE
GEORGE'S COUNTY AND ISLE OF THYE LAND COMPANY
Court of Appeals of Maryland – May 5, 1965
11. ZONING ADMINSITRATION- EXCEPTIONS PART II:
(April 9, 2009)
What happens when the zoning changes and a once legal use no longer is in conformity with the zoning? What is a “grandfathered use”?
What if a developer makes a mistake and build too much? Can the developer be forced to remove bulk? What if the municipality makes a mistake in the zoning or the characteristics of the neighborhood changes over the years? How are various states such as Oregon handling the issue of “Downzoning” or more restrictive regulations?
Legal Topic: Levels of Scrutiny – rational basis, heightened, strict scrutiny.
READINGS:
1.) Parkview Associates v. City of New York71 N.Y.2d 274, (1988) Unanimous Court of Appeals.
2.) In the Matter of Toys "R" Us, a New York Limited Partnership, Respondent, v.
Gaston Silva, as Chairman of City of New York Board of Standards and Appeals, Appellant, et al., Respondent; Colette Coffman et al., Intervenors-Appellants.
Court of Appeals, December 20, 1996
3.)
THE CITY OF LOS ANGELES, Appellant, v. A. I. GAGE et al., Respondents, Sept.
16, 1954 CALIFORNIA Court of Appeals
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12. THE FIRST AMENDMENT – FREE SPEECH, “Sex in the City Planning”,
RELIGION, (RLUIPA), AESTHETIC CONTROLS AND LANDMARKING:
(April 16, 2009)
Can a municipality regulate aesthetics on privately owned property? Is it a taking requiring compensation? Can eyesores be removed? Are religious organizations treated the same as other non-profits when it comes to land use controls? How does the 1 st
Amendment or RLUIPA (Religious Land Use and Institutionalized Persons Act) affect religious land use issues? How do free speech (1 st Amendment) rulings affect land use issues, (ie. red light districts)?
Legal Topic: 1 st Amendment of the U.S. Constitution -
READINGS:
1. PENN CENTRAL TRANSPORTATION CO. ET AL. v. NEW YORK CITY ET AL.
2.
SUPREME COURT OF THE UNITED STATES – June 26, 1978
SANTA FE CITY. COURT OF APPEALS OF NEW MEXICO – 1995
3.
HENRY MANDEL, Plaintiff-Appellee/Cross-Appellant, vs. CITY OF SANTA FE,
The People of the State of New York, Respondent, v. Marion A. Stover and
Webster Stover, Appellants Court of Appeals of New York – May 9, 1963
4. In the Matter of Joseph E. Seagram & Sons, Inc., Appellant, v. Tax
Commission of the City of New York et al., Respondents Court of Appeals of New York
– June 10. 1964
5. NEW YORK BOTANICAL GARDEN V. BOARD OF STANDARDS AND APPEALS
June 19, 1996
6.
June 14, 1995
7.
ASSEMBLY OF GOD CHURCH OF BAY SHORE v. ISLIP
CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS
CHRIST OF LATTER-DAY SAINTS v. ZONING BOARD OF APPEALS
March 19, 2001
8. YOUNG, MAYOR OF DETROIT, ET AL. v. AMERICAN MINI THEATRES, INC., ET
AL. - USSC June 24, 1976.
BACKGROUND READING:
1. 1 st
Amendment of the U.S. Constitution – Highlight Establishment Clause and copy it for your notes. (Use Google to find a copy.)
2. Westchester Day School v. Village of Mamoroneck, Second Circuit Court of
Appeals, October 17, 2007 (for discussion in class.)
13. THE LEGALITY OF ENVIRONMENTAL REGULATIONS:
(April 23, 2009)
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How does the spirit of Earth Day affect the decision making process for discretionary projects? What exactly comprises the environment in a City and State Environmental
Quality Review? How is the Environmental Impact Statement (EIS) process utilized as a way of stalling projects if they are not deemed complete or scoped properly? How do
Environmental Groups obtain standing? How can you use hypothetical scenarios when proposing zoning changes?
Legal Topic: Burden of Proof: Civil v. Criminal Law standards, and shifting the burden.
READINGS:
1.) Chinese Staff and Workers Association et al., Appellants, v. City of New York et
al., Court of Appeals of New York November 18, 1986, Decided
2.) In the Matter of Gricel Neville et al., Appellants, v. Edward I. Koch, as Mayor of the City of New York and Chairperson of the Board of Estimate of the City of New
York, et al., Respondents, and Silverstein Properties, Inc. et al. COURT OF APPEAL
OF NEW YORK. May 5, 1992, Decided
3.) H.O.M.E.S. et al., Appellants, v. New York State Urban Development Corporation et al., Respondents. Supreme Court of New York, Appellate Division, Fourth Department
July 13, 1979
4.) SIERRA CLUB v. MORTON, SECRETARY OF THE INTERIOR, ET AL. - SUPREME
COURT OF THE UNITED STATES. April 19, 1972, Decided
14. COMMUNITY BENEFIT AGREEMENTS OR CONTRACT ZONING -Exactions or Extortion? And Federal Pre-emption
(April 30, 2009)
How does the law treat Bonus zoning, ‘contract’ zoning, exactions, and development rights transfer? Review of earlier cases where the government used regulations to get free public benefits, such as bike paths, etc. “Community Benefit Agreements”: the modern dilemma of decision-makers getting public free benefits, when voting on land use changes for comprehensive reasons.
Pre-emption or National Land Use Planning such as the Clean Air Act: When does the
Federal law pre-empt state land use laws?
Legal Topic: Pre-emption.
Final Discussion about the Final Exam.
Course Evaluation Forms are Distributed.
READINGS:
1. John Church et al., Appellants, v. Town of Islip et al., Respondents
Court of Appeals of New York - July 8, 1960, Decided
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2.)
Municipal Art Society of New York et al., Petitioners, v. City of New York et al.,
Respondents - Supreme Court of New York, New York County - December 7, 1987
3. HURON PORTLAND CEMENT CO. v. CITY OF DETROIT ET AL. SUPREME COURT OF
THE UNITED STATES April 25, 1960, Decided
BACKGROUND READING:
Clean Air Act (use Google for current articles)
AT THE END OF THIS CLASS YOU WILL RECEIVE A TAKE HOME FINAL. IT
WILL CONSIST OF SEVERAL NEW OR HYPOTHETICAL CASES FOR YOU TO
REVIEW AND ANSWER. YOU WILL HAVE ONE WEEK TO RETURN THE FINAL
ON MAY 7, 2008 by 7 pm.
I would like to acknowledge that much of this course material was compiled by the late Professor
Norman Marcus, who developed this course and taught it for decades.
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