Alcp EXAM REVIEW

Richard D. Ducker January 2008 Problem Set

AlCP EXAM REVIEW PLANNING LAW PROBLEMS

PROBLEM AA

The city council has directed the planning director to recommend techniques that will help fund new capital facilities necessitated by new growth without draining the city treasury in a manner consistent with managing growth. The council appears interested in exploring ways of shifting the costs of providing public facilities to developers. There is some confusion about the nature of these techniques, their feasibility, and their legal permissibility. You are expected to clarify things.

Which of the following statements are correct?

(a) Both land dedication requirements and fees-in-lieu-of-dedication requirements are types of exactions that lend themselves to both on-site and off-site applications.

(b) An impact fee system is constitutionally sufficient if the city can show that the fees it charges are such that each developer bears no more than its proportionate share of the costs of providing public facilities needed to serve new growth, and the public facilities funded with the fees are provided in such a way as to be available for use by all city residents.

(c) Developers in jurisdictions that use impact fees generally favor dividing the jurisdictions into service areas (within or for which the funds must be spent) that are smaller and more numerous. Public works directors, operating departments, and finance directors favor fewer, larger districts.

(d) Experience has shown that a local government that has established a system of impact fees can expect these funds to be sufficient to fund entirely those public facilities for which they are earmarked; supplemental capital improvement funding from other revenues is typically not needed.

(e) Capital cost recovery systems or capital improvement "buy-in" systems are designed to allow a unit of government to recover through development fees the costs of needed capital improvements that it has already furnished and financed in anticipation of the kind of growth it is experiencing. f) The level of service that a governmental unit determines is adequate for public facilities funded by development fees is important because developers may not be charged the costs of upgrading an existing system to better serve existing users and customers. (g) One formulation of the "adequate public facilities test" is the concurrency criterion: a development may (should) be approved only if it can be shown that excess capacity is already current available in those neighborhood and community-wide public facilities necessary to serve the additional growth created by the development or a condition of the development permission will ensure that necessary capacity becomes available concurrently with the need for the capacity generated by the development.

(h) One drawback to the use of the "adequate facilities test" is that if key facilities are found to be inadequate to handle new growth, it may be unclear whether the developer or a governmental agency or, for that matter, anyone necessarily assumes the responsibility for providing them at some future time.

PROBLEM BB

As a planner for a medium-size, growing county you have been supervising the preparation of a county parks and recreation plan. One of the key features of the plan is the development of a "greenway" or linear park system along some of the rivers and streams that traverse the county. Now you have been asked by the board of county commissioners and manager to suggest ways in which the county might control or acquire cheaply the land necessary to carry out the plan. Assume that most of the land to be acquired is currently undeveloped. What are the advantages and advantages of the following methods?

(a) The county might, by negotiated purchase or the exercise of eminent domain, begin to acquire property in undeveloped areas well in advance of population growth in those areas.

(b) The county might adopt an “official map” indicating the boundaries of the property which is desired so as to reserve it and protect it against development until the county is ready to purchase the property or take it by eminent domain.

(c) The county might zone the property desired for park land into its Conservation District, which allows various agrarian uses, private camps, campgrounds, and picnicking areas.

(d) The county might require subdividers to dedicate whatever land each owns that is encompassed within those areas shown in the comprehensive plan as future parks and recreation areas.

(e) The county might assess areas indicated for future parks at their use value rather than their fair market value for property tax purposes.

(f) The county might establish a special assessment district and assess a portion of the cost of developing a particular park against adjoining property.

2 (g) The county might establish a special tax district and levy a special property tax against all property owners within the district to finance land acquisition within that district.

(h) The county might acquire the "conservation easements" (development rights) for certain key properties along the streams.

PROBLEM CC

Port Elizabeth is situated on a bay not more than a few miles from the ocean. The town has a long but undistinguished history as a small manufacturing port and fishing village. More recently, its harbor has attracted those interested in water sports and some entrepreneurs interested in capitalizing on the town's increasing tourist trade. The town board has become image-conscious and has come to the view that improving the community's appearance makes for good business. One priority is to revise the provisions of the old sign regulations so as to prohibit billboards throughout town. The board is also interested in working up regulations for the waterfront district that would require each applicant for a building permit for a commercial building in the waterfront district to submit architectural and building plans so that the planning board may determine whether the proposed development is "compatible with the character of commercial structures located within the waterfront district."

Which one of the next two statements is more correct?

(a) The justification for public architectural review of private development in the waterfront district would be stronger if it could be shown that virtually all of the current buildings in the district were of similar vintage, the same type of construction, and generally the same architectural style.

(b) The justification for public architectural review of private development in the waterfront district would be stronger if it could be shown that although the buildings in the waterfront represented an architectural melange and heterogeneity of style, the district includes the town harbor and the old town center, which have remained largely unchanged since the turn of the century.

Which of the following statements are true?

(c) Standards for reviewing architectural plans or exterior building changes based on "compatibility" or "congruity" may be called "contextual" standards and can be applied by referring to the character of the physical environment of the neighborhood.

(d) Because of the sensitive nature of architectural review, because of the subjective nature of judgments about community appearance, and because regulation solely for aesthetic purposes has only rather recently been found by the courts to be within the scope of the police power, local government architectural review must be conducted only by the local legislative body.

3 (e) In order to ensure that the systems for allowing architectural review by an architectural review board or historic preservation commission do not amount to an unconstitutional delegation of legislative authority, the emerging trend is for courts to require legislative boards to adopt more precise, concrete standards to guide and limit the approving board's discretion.

(f) Recent court cases have expanded the application of the right of free speech to outdoor advertising with the result that although a city may restrict newly-erected commercial off- premises advertising signs, it is not permissible to ban entirely such signs within a city's jurisdiction.

(g) If outdoor advertising signs within a town's regulatory jurisdiction are located along Interstate or Federal-aid Primary highways and are made nonconforming by the town's ordinance, those signs may not be amortized and caused to be removed unless either the owners are paid "just compensation" or the state's full allocation of federal highway aid is jeopardized.

PROBLEM DD

The Washington Park Housing Corporation is a nonprofit housing corporation devoted to developing housing persons with low or moderate incomes in the south central part of the city. Much of the Washington Park area is developed with small single-family houses built between the world wars, but more and more small apartments and duplexes are being constructed here. The area north of Wayland Street is generally zoned R-6, a district that allows single-family units, duplexes, and multi-family units with a density of up to six units per acre. The R-6 zoning also applies just south of Wayland Street to several parcels of land that are vacant. These parcels, on the edge of the Avondale neighborhood, are surrounded on three sides by single-family development on lots of between one-third and one-half acre. The Avondale area iszoned R-2 (only single-family detached residences are permitted and on lots of at least 20,000 square feet); it extends for some blocks to the south.

About a year ago the housing corporation purchased one of the R-6 parcels on the south side of Wayland Street, a site of three acres once used as a commercial greenhouse. The corporation then proceeded to develop site and building plans for a townhouse project designed to provide subsidized housing. When the corporation submitted plans to the city, building permits for all 18 proposed units in three building groups were issued. However, when the excavation and clearing work was begun, several of the neighbors noticed. Soon a group of neighbors from the Avondale area protested to their ward alderman. Washington Park met with the alderman and neighbors to explain their plans. By the time the footings were poured, however, the Avondale Community Association had filed a petition with the city to rezone the Washington Park property to R-2. The next day the housing corporation was informed that its building permits had been revoked pending the outcome of a specially-called city council public hearing that was scheduled for three weeks hence to hear the rezoning petition. The nonprofit ordered its contractors to halt work. At the end of the public hearing the city rezoned Washington Park's property to R-2 and informed the corporation that its building permits were permanently revoked.

4 Which of the following statements about the legal issues in this matter are correct?

(a) The action by the city is likely an unconstitutional "taking" without payment of justcompensation because Washington Park has been deprived of all reasonable use of its property by the city's action.

(b) The neighbors have a case because their due process rights were violated when they were not given proper notice of the development and would not even have known about the project had they not seen construction beginning.

(c) The city's action may well have interfered unduly with Washington Park's investment- backed expectations concerning the property and deprived the corporation of its vested property right to complete the project under R-6 regulations.

(d) The city's action to rezone amounted to a "downzoning"; a downzoning is an unconstitutional taking per se.

MULTIPLE CHOICE PROBLEM FF

Bart recently added an attached garage to his existing single-family house. Now it turns out that the garage violates the ordinance's side-yard setback requirement. If Bart now applies for a variance, the board of adjustment should deny it

____a. Because use variances are illegal in most states.

____b. Because any hardship Bart claims was self-imposed.

____c. If the planning staff is in the process of developing proposed ordinance revisions which will alter the side-yard setback standard in this district.

____d. Because owners of property abutting Bart's signed a petition opposing the application.

PROBLEM GG Which of the following types of zoning districts is least likely to take the form of an overlay district?

____a. A flood hazard district

____b. A local historic district

____c. Central business district

5 ____d. Road corridor district

PROBLEM HH

Which one of the following is not a feature of farmland protection or right-to-farm legislation?

____a. The right of a farmer with land in an agricultural district to be protected from nuisance suits brought by neighboring property owners or by units of government, if the farm is not negligently operated.

____b. The obligation of a farmer with land in an agricultural district to pay property taxes on the land based on its full market value.

____c. A requirement that a local government provider of water and sewer service hold in abeyance water and sewer assessments for line extensions to property within an agricultural district until improvements on such property are connected to the system.

____d. Procedural requirements that state and local governments must observe before initiating the purchase of property within an agricultural district by eminent domain.

PROBLEM JJ

Although "mobile home parks" are allowed in the town's R-A district, all parks that are non conforming with respect to any of the current mobile home park development standards for that district must conform within seven years. This type of requirement is an illustration of:

____a. A temporary taking.

____b. The abatement of a nuisance.

6 ____c. Equitable estoppel

____d. Amortization.

____e. Prospective zoning.

PROBLEM KK

The State of Bliss has recently adopted state legislation requiring local units of government to adopt land-use regulations to protect water supply watersheds. According to the state's regulations, a town whose land-use regulatory jurisdiction includes such a watershed may allow no more than 10% of its watershed to be developed for nonresidential purposes. a) What methods can you think of that a town may use to ration this development?

PROBLEM LL

A new large-scale retirement community that includes an 18-hole golf course is being planned in the sandy inlet area along the coast. The project will require the filling of the marsh areas near some of the estuaries and lakes that will be incorporated into the project. Considerable land will be cleared for the construction of the dwelling units, the clubhouse and related areas and the course. Unfortunately the timbering operations will substantially impact the habitat of a bird that is an endangered species. Which, if any, of the following statements are correct? a) If the head of a state coastal zone management program that qualifies under the federal Coastal Zone Management Act objects to the project, the Army Corps may not issue a section 404 permit unless the U.S. Secretary of Commerce overrules the state on the grounds that the proposed activity is consistent with the federal coastal zone management program or is necessary in the interest of national security. b) Under the EPA guidelines that the Army Corps administers when considering whether to issue a section 404 permit, it may presume that other practicable alternatives are available to the landowner unless it receives compelling proof to the contrary. c) Although the Endangered Species Act generally prohibits parties from harming or otherwise “taking” a species officially listed as endangered, the developer may be able to qualify an incidental-take permit (ITP), which requires the developer to prepare a habitat conversation plan (HCP) that minimizes and mitigates the take to the maximum extent possible. d) If an environmental impact statement is prepared for the project under the National Environmental Policy Act, and the study finds that adverse environmental impacts will occur, any federal permit that applies to the project must be withheld.

7 PROBLEM MM

Which powers of government are involved if government acts to:

(1) Prohibit the shooting of fireworks inside city limits

(2) Impose a fee on property owner to recover costs of inspecting property for fire hazards

(3) Condemn farmland on edge of town so county can develop airport

(4) Prohibit junkyards along certain federal highways

(5) Zone property “Conservation” so that city can acquire it for a park

(6) Collect revenues from municipal service district and distribute them in form of façade preservation grants

Problem NN

One of the River Knoll zoning districts calls for single-family residential lot sizes to be a minimum of five acres in area. A developer owns a sizable undeveloped tract of land in the town that is so zoned. The land in the vicinity has been developed for high-value, large-lot, single- family residential development. The town has refused the developer’s request to rezone the land to any other district. The developer brings suit against the town claiming an unconstitutional taking of land without compensation. The principles of which one of the following cases are most likely to be relevant to the outcome of the case?

a. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency . b. First English Evangelical Lutheran Church v. County of Los Angeles c. Penn Central Transportation Co. City of New York d. Lucas v. South Carolina Coastal Council

Problem OO

8 North-South Partners have submitted a site plan for a recreational complex that will include a fitness center, a swimming pool, other sports facilities, a restaurant, and a club venue for live entertainment. The city is interested in requiring the developer to provide a special access road, certain improvements on perimeter roads, certain intersection improvements,and some off-site traffic lights and related facilities, at least to the extent the law permits. The principles from which one of the following cases is most applicable?

a. Nollan v. California Coastal Commission b. Citizens to Protect Overton Park, Inc. v. Volpe c. Construction Industry Ass'n of Sonoma County v. City of Petaluma d. Dolan v. City of Tigard