Tuesday, October 16, 2012

TAPA Conference in Memphis

I'll be in Memphis tomorrow for the TAPA Conference. I'm on a panel and giving a short talk on What Planners Don't Know About Land Use Law. Here's the outline of my talk:

What Planners Don't Know About Land Use Law

1. Introduction
a. There's certainly not much planning law that the planning profession is not familiar with
b. We’ll discuss some issues where the answer is just aren’t clear so that no one knows what the law really is
2. Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407
a. Similar to the federal act that we all know, RLUIPA
b. But with several important differences:
i. Definition of substantial burden: infringes or curtails; very low threshold
ii. Burden of proof is clear and convincing, not preponderance
iii. “Essential to” [in furtherance of] a compelling governmental interest
c. Examples: homeless shelter, required dedications, athletic fields
3. Tennessee Non-Conforming Property Act, Tenn. Code Ann. § 13-7-208 (g) (4)
a. If the activity on the property is discontinued for 30 months or more, may it be resumed?
b. What is the meaning of subsection (g) (4): applies only if the owner intentionally and voluntarily abandons the nonconforming use and the government has the burden of proving an overt act of abandonment
c. Does (g) (4) strip all meaning from the 30 month discontinuation clause? How can these two sections be reconciled? Can they be reconciled?
d. I’ve only seen it addressed once in a trial court, and that court (a very fine judge) pretty much ignored the 30 month discontinuation clause.
4. Nolan and Dolan (and then BAM!!)
a. Nollan: Essential nexus
b. Dolan: Rough proportionality
c. BAM v Salt Lake County, 2008 UT 74, ¶ 8:
Of course, the Court did not mean rough proportionality at all. While 1 to 1 is a proportion, so is 1 to 1000, as any fifth grade student will be happy to tell you. Any two numbers, measured by the same units, form a proportion. So to be roughly proportional literally means to be roughly related, not necessarily roughly equivalent, which is the concept the Court seemed to be trying to describe. The proportion of 1 to 1.01 is roughly equivalent, while the proportion of 1 to 3 is not, for example. Unfortunately, by using the phrase "rough proportionality," the Court has engendered vast confusion about just what the municipalities and courts are expected to evaluate when extracting action or value from a land owner trying to improve real property. In this instance, rather than adopting the name chosen by the United States Supreme Court, we will use the more workable description of rough equivalence, on the assumption that it represents what the Dolan Court actually meant. 
d. Of course, it is still difficult to tell what rough equivalence is too. 

5. The Common Law Writ of Certiorari
a. This is the way most zoning cases are appealed to court
b. From the perspective of staff putting the papers together, there are several important considerations:
i. Ordinarily, the trial judge is limited to a consideration of the evidence that was heard by the planning commission/zoning board and included in the record; no additional evidence!
ii. Ordinarily, the trial judge may not substitute his/her judgment for that of the planning commission/zoning board, and then only reverse if the decision was arbitrary and capricious, beyond the board’s jurisdiction, or otherwise illegal
c. As a result, the staff should:
i. Make sure that all of the evidence necessary to support the decision of the planning commission/zoning board is in the written record which goes up to the trial court
ii. That includes ordinarily a copy of the subdivision/zoning regulations – just include a copy of the entire document in the record before the planning commission/zoning board
(1) If necessary, amend the rules of the commission/board and indicate in those rules that a copy of the regulations will always be included in any appeal
(2) Recently, in 411 Partnership v Knox County (2011), the Court of Appeals refused to consider certain arguments because the regulations were not in the record.
iii. Finally, writing the minute entry or order of the commission/board in the best way possible always assists a trial court in affirming the decision of the zoning board or planning commission.
(1) If the case is very controversial, have the city/County attorney prepare it or the attorney for the prevailing party before the board/commission
 d.Can a local government appeal a decision of its own zoning board?
6. Conclusion

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