Rich Ducker
Inst. of Govt.
AICP-Supp Topic Lists
SUPPLEMENTAL TOPIC OUTLINES AND LISTS
SOME ZONING DEFINITIONS
Downzoning: Amending the zoning ordinance in such a way that property may be
developed less intensively or at a lower density than before.
Vested right: A right of a property owner or developer to complete a development
project under the terms of whatever regulations were effective when the project was
begun.
Amortization: A zoning technique that requires the owner of property that is
nonconforming in some respect under the zoning ordinance to comply with the current
terms of the ordinance by the end of a certain grace period.
Regulatory taking: The unconstitutional application of a regulation to property in such
a way that it has the effect of confiscating all practical use of the property.
Development exactions: A requirement of development permission that the developer
provide or pay for land or infrastructural improvements to be taken over and managed by
a governmental entity.
Impact fees: A system of regulatory fees that is designed to allow a government to
recover a prorated portion of the cost of the new community capital improvements and
infrastructure made necessary by new development.
Adequate public facilities criterion: A regulation in a development ordinance that
makes project approval contingent upon a demonstration that pubic facilities necessary to
serve the project are or will be available when the project is completed.
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Transfer of development rights: A land-use regulatory system in which the right to
develop property can be separated or severed from land in a particular zoning district,
sold or transferred to other property owners, and exercised in connection with the
development of land in some other area of the jurisdiction (in a “receiving district”).
Special use district (SUD) or conditional use district (CUD): Establishment of zoning
districts in which a use is permitted only upon the issuance of a special use permit or
conditional use permit and in which property may be placed only in response to a petition
by the owners of all of the property to be included.
Planned unit development: A comprehensively planned project with a master land
development plan that exhibits a mix of housing types or land uses, that provides areas of
commonly-held open space, and that preserves significant natural features.
Cumulative zoning: Zoning structured so that uses allowed in higher or more restrictive
districts are also allowed in lower or less restrictive districts.
Performance zoning: Zoning based on standards that establish minimum requirements
or maximum limits on the effects or characteristics of a use, defining what the community
wants as an end result but allowing the developer choice in the means used to achieve that
result.
Floating zone: A zoning district that is provided for in the ordinance text, but which
may not appear on the zoning map when it is first adopted. The floating zone is typically
“mapped” when a petitioner can show that the land meets guidelines and standards in the
text for applying the district.
Cluster zoning: Zoning designed to allow the grouping of dwellings to increase
dwelling unit densities on some portions of the development tract in order to leave other
portions free from development.
Overlay district: A zoning district intended to be applied to land already subject to at
least one other zoning designation.
Moratorium: A stop-gap measure, effective for a specified period time, adopted to
suspend the granting of a developmental approval or opportunity to use a public facility
until a governmental unit can prepare a long-term response or solution to the problem.
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State “Pay or Waive” Laws
These ballot initiatives or measures adopted by state legislatures require
governments to either (1) pay landowners when regulatory barriers and development
regulations impose substantial burdens on their property statutory or (2) waive the
regulaton so that it does not apply. When compensaton is required, it generally must be
“just compensation”
Measure 37 (Oregon)
Propositon 207 (Arizona)
Propostion 90 (California)
Propostion 2 (Idaho)
Initiaitve 933 (Washington)
Bert J. Harris, Jr., Private Property Rights Protection Act
The State of Florida in 1995 enacted the Bert J. Harris Jr. Private Property
Protection Act that created a new cause of action for aggrieved property owners. If
property owners could demonstrate that a governmental action "inordinately burdens"
their property, they are entitled to some form of compensation.
There are two parts to the Bert J. Harris Private Property Rights Protection Act.
Under part one, a land owner must demonstrate that unreasonably "disproportionate"
limitations or restrictions have been placed on investment-backed expectations for the
existing use of the real property or a vested right to a specific use of the real property was
denied by the governmental action.
Under part two, the act provides a mediation process for property disputes. The
property owner may apply for relief if he alleges that the governmental action is
"unreasonable" or "unfairly burdens" the property's use.
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GENERAL PRINCIPLES OF LAND-USE LAW
* No one has an absolute right to use land in a way that may harm the public health or
welfare, or that damages the quality of life of neighboring landowners, or of the
community as a whole.
* Historical precedent and recent case law make clear that reasonable land
use and environmental regulations will have little trouble withstanding
constitutional scrutiny in the vast majority of cases. Only in rare instances will
such regulations be deemed so onerous as to effect a "taking" under the Fifth
Amendment to the U.S. Constitution, which holds that private property shall not
be taken for public use without just compensation.
* Courts have outlined several broad factors to be considered on a caseby-case basis in determining if a taking has occurred, including: the economic
impact of the regulation on the property owner; the public purpose for which the
regulation was adopted; and the character of the governmental action.
Generally, a regulation will be upheld if it (I) furthers a valid public purpose; and
(2) leaves a property owner with some viable economic use of the property.
* Property owners have a right to a reasonable return or use of their land,
but the U.S. Constitution does not guarantee the most profitable use.
* Courts have upheld a wide variety of purposes as valid reasons for
enacting environmental and land use regulations--including pollution prevention,
resource protection, historic preservation, design controls, and scenic view
protection,
* Communities can legitimately insist that development pay its own way.
Land dedications or mandatory exactions are valid, assuming that they are
adopted to respond to the demands created by the project.
* Before a landowner or developer can bring a lawsuit to claim a taking, a
development plan must be submitted for review and all administrative avenues for relief
must be exhausted.
* The focus of the takings inquiry continues to be on the entire property
interest. A severe adverse impact of a regulation on one portion of the property
or ownership interest will not amount to a taking if the property as a whole
continues to have a reasonable economic use.
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* On the rare occasion that a taking is found to have occurred the
community does not have to buy the entire property. Damages are payable only
for a temporary taking for the period in which the regulations were in effect.
Generally, the measure of damages will take into account the difference in value
of the property without the offending regulations in place and with them, an
appropriate interest to be applied for the temporary loss of value, and the length
of time the regulations were in effect.
* Lawmakers should adopt an administrative process in regulatory legislation that
allows those who administer the law to consider the specific effect of the law on an
individual landowner, and, consistent with the interest of the public being protected,
afford an administrative relief process for undue economic hardship.