LAND USE REGULATION
FINAL EXAM: MAY 1, 2002
PROFESSOR MICHAEL GRAF

Instructions:

 

Part I: 25 Points

 The City of Hillvale adopted its General Plan in 1995_ In 1996, a developer named Fillin submitted a tentative map to subdivide a 4 acre parcel into 16 units, on which the developer proposed to build luxury homes. The zoning for the 4 acre parcel is single family residential with a 1 acre lot minimum. As part of the project, Fillin proposed to fill in approximately 300 feet of perennial creek flowing down the hillside through the project. After deliberation, the City proposed to adopt the tentative map and posted a notice of hearing and availability of draft documents for public review (including CEQA documentation) on the project at the City Hall and in the local paper. At the hearing, the City Council approved the tentative map and a variance for the project, and issued a negative declaration under CEQA. The City Council's findings in support of the project approval are: 1) there is a need for housing in Hillvale; 2) the developer has complied with all applicable laws and regulations; and 3) the significant impacts to the stream will be avoided by the developer Fillin, who has agreed to fund a study to determine the feasibility of creating a new stream at a different site.

Three months later, and prior to the developer's obtaining either a final map or a building permit for the project, the City Council amended its General Plan to state that it is now the policy of Hillvale that streams and creeks within City limits shall not be filled or have their course altered by development projects. This is based on new information showing that the surface streams in Hillvale are habitat for a run of steelhead trout that has recently been listed as endangered under the federal Endangered Species Act. After the General Plan Amendment, a local citizens group contacts you to advise them on the possibility of bringing a lawsuit to challenge the project.

Please discuss what information you would request from the group and how you would advise them depending on what they tell you.

Part 2: 25 Points

In the recent Supreme Court decision, Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002), the landowner Petitioners brought a "facial" takings challenge to a 32-month moratorium imposed by the TRPA on building in the Lake Tahoe Basin, arguing that a moratorium on development was a per se, categorical taking a la Lucas. Writing for a 6-3 majority, Justice Stevens rejected this challenge, holding that the question whether a moratorium on development constituted a takings must be analyzed under the balancing test of Penn Central Since the Petitioners had not raised the Penn Central argument, the Court denied their Petition.

 a. Assuming that the landowners wished to be compensated for a taking, explain how the landowners' attorneys made a mistake in bringing the facial, as opposed to an as-applied challenge. (5 points)

b. Justice Stevens held that Petitioners' property interest could not be segmented into separate periods of time for purposes of assessing whether a takings had occurred, but instead the entire period of ownership had to be considered. flow does this holding relate to the "denominator" issue that we have discussed in class? (5 points)

c. Property rights commentators have stated that the result of this case will have limited precedent. Explain whether you agree or disagree with this statement specifically in regards to the following statement by Justice Stevens writing for the majority opinion:

 An interest in real property is defined by the metes and bounds that describe its geographic dimensions and the term of years that describes the temporal aspect of the owner's interest. Both dimensions must be considered if the interest is to be viewed in its entirety. Hence, a permanent deprivation of the owner's use of the entire area is a taking of "the parcel as a whole," whereas a temporary restriction that merely causes a diminution in value is not. Taking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. (5 points)

d. Justice Stevens found that First English did not control the outcome in this case since First English dealt with the appropriate remedy only after a taking had been found. (all you explain this statement based on your knowledge of First English? (5 points)

e. In supporting its ruling, the court upheld the importance of good planning, stating that "to the extent that communities are forced to abandon using moratoria, landowners will have incentives to develop their property quickly before a comprehensive plan can be enacted, thereby fostering inefficient and ill-conceived growth." Do you agree or disagree with this statement? Support your answer with reference to class discussions, textbook or cases, etc. (5 points)

Part 3: 20 Points
A recent local initiative by the citizens of Freeview banned the use of commercial billboards along 12 roadways found to be "high risk" areas for driving by a recent study. The stated purpose of the initiative was to "improve traffic safety by reducing distracting signs along non-federal highways." The study relied upon by the initiative cites 22 roadways in the City that are "high risk" for driving. The initiative does not provide for an amortization period, but instead offers commercial billboard holders the rights to first access at a 30% discount on a number of billboard rentals that the City had acquired over the last 2 years w hick arc located on streets not subject to the ordinance.

Bob Bleakview is the owner of hundreds of billboard concessions w within Freeview including many on the 12 roadways subject to the ordinance. I le w fishes to brim claims under the 1s`, 5`h and 14'h amendments to the federal constitution. Advise him on the merits of cacti claim that he might bring.

Part 4: 10 points

The City of Goslow adopts a growth ordinance which limits approval al of any development application to a finding by the local water district that the water supply for the development will be adequate to meet projected demand. The City is immediately sued by the local building industry association (BIA), which argues that the ordinance violates substantive due process and the City's housing element. The building association also argues the City's ordinance is entitled to no deference by the court due to the scope and nature of its impacts.

a. Evaluate briefly the merits of each of the BIA's substantive challenges. (5 points)
 b. What is the appropriate standard of review in this instance? How might a court vary its typical review standard for legislative actions in this case? (5 points)

Part 5: 10 points

A landowner applies to the Calaveras County Board of Supervisors to subdivide its land and build 10 vacation rental units. The Board would like to grant the tentative map application, but only on the condition that the landowner build a new fire house for the County due to the fire danger posed by the new homes. If the landowner will not agree, the Board wishes to deny the request due to the fire danger. The Board contacts you as county counsel to advise them on 1) whether either of these approaches creates the potential for a takings under the 5th and 14th amendments; and 2) what other approaches might be available to achieve the Board's Objectives. Please advise.

 Part 6: 10 points
A neighborhood group in South San Francisco has approached you to advise them on the possibility of blocking the attempt by the Home Depot chain to locate a new store in its neighborhood. Your research shows that 1) the zoning for the area allows for the establishment of large businesses through the issuance of a conditional use permit; 2) there is evidence that the siting of other Home Depots has put small business owners in the immediate vicinity out of business; 3) there is significant unemployment in the area, and many locals are in favor of having a new Home Depot relocate in their neighborhood; and 4) there is a possibility that the Board of Supervisors will enter into a development agreement with Home Depot, in order to obtain n needed funding for city services in the area.

 Prepare a brief summary explaining how the neighborhood group may possibly prevent the new Home Depot from moving into the neighborhood, including an assessment of the likelihood of prevailing on each approach that might he used.