Meanwhile, a citizens' timely referendum overturns the City Council's approval, based on the ballot argument that this land is best preserved as recreational open space for the citizens of Prettyville and thus should be acquired by the City. The City then withdraws its approval, rezones 100 of the acres as open space preservation ("O"), and the remaining 20 acres as "A-2," thus allowing for some development. In addition, the City offers Acme development credits on the 100 acres zoned as open space, which Acme or any transferee may use to build at twice the density of current zoning, provided certain other criteria (set forth in a "Guidelines" pamphlet published by the Planning Commission) are met. Acme, claiming that the credits are worthless, and by now completely frustrated from its years dealing with the City, brings suit against Prettyville under a variety of legal theories. The suits are consolidated in Grow County's Superior Court. Discuss and evaluate the merits of each appropriate legal theory brought by the two lawsuits.

 

Part II: 25 points

In the fall of 2000, a group of investors approaches the Prettyville City council hoping to capitalize on the current energy crises by building a power plant on the outskirts of the City. The investment group proposes the construction of a small facility, which will generate jobs and tax revenues for the City, and allow the City to be energy independent by the year 2005. The City Council is intrigued, and directs the Planning Commission to conduct an initial study under the California Environmental Quality Act (CEQA) to determine the potential for significant impacts on the environment. The initial study indicates that the amount of power generated will be 25% of the City's requirements. The study also shows that it may be necessary to construct a waste water facility to dispose of the power facility's solid waste. The study finds that the impacts will not be significant based on the following findings: 1) air emissions from the facility will be downwind of Prettyville; 2) the investment group has agreed to develop a form of emission "scrubber" that will eliminate solid particulate emissions, which might otherwise pose a threat to the public health, 3) the investment group has agreed to study the issue of whether a waste water facility will be required. The Planning Commission thus recommends adoption of a Negative Declaration, with the mitigation as described in findings No. 2 & 3. Pursuant to CEQA, the City Council posts a notice of a December 1, 2000 hearing on the proposed action for 30 days in the local paper and at the town hall. At the hearing, the Council adopts the Negative Declaration and accompanying findings, and approves a variance for the property in question. which is currently zoned A- 1, In adopting a variance, the Council makes the following additional findings. 1) the facility is necessary in this time of energy crises for the State; 2) the land area was appropriately chosen based on its level topography, which is unusual for the area.

After the approval, in March, 2001, neighbors from the nearby town of Puttsville, living 2 miles downwind of the proposed facility location, notice grading operations taking place on the land they had always assumed belonged to a local rancher. After learning of the approval of the proposed facility by the Prettyville City Council, the citizens form a group and contact you to advise them on their ability to bring a suit. One neighbor mentions that, "we were told we may have missed the statute of limitations under CEQA, but we never even heard about this project being under consideration." Another worries that the group has no standing to sue, since they do not reside within Prettyville. Please advise the citizens on whether they have any claims to bring against the City, and, if so, the specific merits of each.

 

 

Part III: 25 Points

In 1999, a local group Citizens Against Sensory Pollution (CASP) manages to pass an initiative in Prettyville to clean up the Prettyville downtown area, and to maintain the downtown as an area of primarily local business establishments. The initiative enacts an ordinance which implements the following zoning restrictions:

- prohibits all commercial advertisements within the entire downtown area, with an exception given for onsite advertising of local establishments that were operating a business within the downtown area as of January 1999;

- prohibits "Chain Stores" from locating in the downtown area; "Chain stores" are defined in the ordinance as any business operation that 1) has less than a 50% local (i.e. resident of Prettyville) ownership interest; or 2) is a recognized "chain" with more than 2 other business establishments in the State of California.

- requires all adult oriented entertainment facilities to relocate to a specific 1 block section of downtown; "adult oriented" is defined as facilities providing visual images of nudity or other obscene material;

The ordinance is based on a series of findings, which include: 1) commercial advertising is an aesthetic blight that detracts from the unique charm of the City; 2) the introduction of chain stores into the downtown area reduces local control and eventually forces local operators to go out of business, which has negative impacts on the unique character of Prettyville; 3) "adult oriented" entertainment attracts an unruly and often criminal element which has negative impacts on the image of Prettyville, and on the ability of its citizens to enjoy their downtown experience. The ordinance proposes a 3 year amortization period to eliminate all uses not in compliance with the new zoning code. The initiative also contains a provision requiring any court in construing the constitutionality of the ordinance, to eliminate only those parts found unconstitutional and retain the remaining sections. There is no dispute that the only commercial zoning in the City is located in the downtown area.

The initiative is immediately challenged in Federal District Court by several groups, including the Northern California Chain Store Association, Walmart, an adult theater and strip club that will be forced to relocate, and 2 local business owners who started operation in the downtown area after January 1999. The judge assigns you to make an initial assessment of the constitutional issues in this case. The judge is specifically interested in which parts of the ordinance can be saved and which are unconstitutional. Please provide this assessment and explain your reasoning.

 

 

Part IV: 20 points

Prettyville has been criticized for years regarding its failure to accommodate low and moderate income housing. The Prettyville General Plan includes in its housing element a reasonably comprehensive analysis of the low and moderate income housing needs that will be anticipated within the next 20 years, and states further that the City Council will adopt zoning amendments or grant variances to accommodate this growth in future years. As of 1998, however, no such amendments or variances have occurred, and Prettyville has yet to approve any residential development that would qualify as "low" or "moderate" income.

In the Spring of 1998, a housing non-profit group, Housing About People or HAP, purchases a 10 acre parcel located in an area zoned for residential "R" and immediately requests a rezoning to allow for the construction of a multifamily development. The Planning Commission recommends approval of the project given the solid reputation of the applicant and the clear need in Prettyville for the development of low and moderate income housing. A neighborhood group complains that the proposed use is inconsistent with the residential character of the neighborhood, and that the neighbors built there in reliance on the "R" zoning. At a hearing, the City Council votes against the rezoning by a 4 to 1 margin, finding that "while the need for low and moderate income housing may exist in Prettyview, the proposed location would not be appropriate since a multi-unit development would be incompatible with the R zoning in that neighborhood."

After the hearing, members of HAP learn that one of the council members lives within 1/2 mile of the proposed project, which fact was never officially disclosed to either the public nor the other council members. Prettyview itself is ethnically undiverse, comprised of over 90% whites and less than 1% African American. The City Council is all white. It is also generally known that two of the Council Members have made disparaging remarks in other hearings regarding the need for affirmative action and for promoting racial integration in general. Based on other housing projects that have been developed in the region, the HAP coordinator believes the ethnic mix in the new project, were it approved, would be 40 % white, 25 % Asian, 20% Latino, and 15% African American.

The Non-profit group contacts you to identify any specific causes of action they might have against the City, and the strength and weakness of each claim. For those claims that may have merit, the Group asks you to discuss the evidence that will be necessary to prove the claim. They also ask you to identify any information that you will need to complete the assessment. Please provide this evaluation.