APA Minnesota State Planning Conference St. Cloud, Minnesota September 30, 2011 Jean Coleman,...
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Is that zoning change a “taking”: Legal and practical responses for planners APA Minnesota State Planning Conference St. Cloud, Minnesota September 30, 2011 Jean Coleman, Attorney/Planner CR Planning, Inc. [email protected]
APA Minnesota State Planning Conference St. Cloud, Minnesota September 30, 2011 Jean Coleman, Attorney/Planner CR Planning, Inc. [email protected]
APA Minnesota State Planning Conference St. Cloud, Minnesota
September 30, 2011 Jean Coleman, Attorney/Planner CR Planning, Inc.
[email protected]
Slide 2
Planners are good guys. Right? We want the best for our
community We try to balance community goals with private property
owners rights We write zoning ordinances so the development process
is Predictable Consistent Fair
Slide 3
So why do we so often get accused of taking peoples property
rights?
Slide 4
4 When you own land, you have rights, but the community also
has rights
Slide 5
5
Slide 6
Federal Takings Clause U.S. Constitution Fifth Amendment No
person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger;
nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of law; . nor shall
private property be taken for public use, without just
compensation.
Slide 7
Federal Takings Clause U.S. Constitution Fifth Amendment No
person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger;
nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of law; . nor shall
private property be taken for public use, without just
compensation.
Slide 8
Straight up eminent domain Government takes title or an
easement Public use of the property Roadways Trails Parks Public
buildings Government pays landowner fair market price
Slide 9
Not so straight up eminent domain Government takes private land
and gives it to another private entity to develop Public benefit is
higher tax revenues or a better use Kelo v. City of New London, 545
U.S. 469 (2005) Held that New London's economic development plan
qualified as a public use Not a taking
Slide 10
Post Kelo legislative changes Minnesota Legislature responded
by passing Laws of Minnesota 2006, chapter 214 "eminent domain may
only be used for a public use or public purpose Clarifies that
"public benefits of economic development, including an increase in
tax base, tax revenues, employment, or general economic health, do
not by themselves constitute a public use or public purpose"
Slide 11
A Minnesota twist Removal of nonconforming uses 2006 change -
Minn. Stat. 117.184. Local government must compensate the owner of
a nonconforming use if the local government requires its removal as
a condition of granting a permit, license, or other approval for a
use, structure, development, or activity. Does not apply if the
permit, license, or approval is for construction that cannot be
done unless the nonconforming use is removed
Slide 12
But a regulation doesnt take property for a public use? Does
it?
Slide 13
The case that started it all Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922) State law said you cant mine coal so as to
cause a persons home to fall down USSC case established regulatory
takings doctrine Holding - a mere restriction by government on the
use of land, in the absence of any physical occupation or
appropriation of land, can trigger a Fifth Amendment right to
compensation. If a regulation "goes too far" it is a taking
Slide 14
Slide 15
The case that started it all Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922) State law said you cant mine coal so as to
cause a persons home to fall down This USSC case established the
regulatory takings doctrine Holding - a mere restriction by
government on the use of land, in the absence of any physical
occupation or appropriation of land, can trigger a Fifth Amendment
right to compensation. If a regulation "goes too far" it is a
taking
Slide 16
The easy takings cases When the loss of use or loss of value is
total Categorical taking compensation is required when a regulation
requires a physical invasion of the property Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) Per se
taking - regulation denies the owner of all economically viable use
of the property Lucas v. South Carolina Coastal Council, 505 U.S.
1003 (1992)
Slide 17
But what if the loss of use or value is not total? Penn Central
Transportation Co. v. New York City, 438 U.S. 104 (1978) Grand
Central Terminal designated an historic landmark NYC denied
application for 55-story office building USSC denied the takings
claim Established a balancing test Balance the interest of the
state in regulating against the private loss
Slide 18
How do we know if it goes too far? Penn Central Transportation
Co. v. New York City, 438 U.S. 104 (1978) Applied when there is
less than total loss of value Three part balancing test the
character of the regulation is there a legitimate state interest
the economic impact on the landowner the extent of interference
with investment-backed expectations
Slide 19
Does the regulation further a valid public interest? Stop,
could be a Taking NO YES Does the alleged taking affect the entire
parcel? Stop, could be a Taking YES NO Does the alleged taking
severely reduce the value? YES Probably not a taking NO Does the
regulation interfere with reasonable investment backed
expectations? Probably not a taking NO Stop, could be a Taking YES
Rule of thumb regulatory takings flow chart
Slide 20
Can a moratoria get us in trouble? Tahoe-Sierra Preservation
Council, Inc. v. Tahoe Reg. Planning Agency, 535 U.S. 302 (2002)
USSC held that a temporary regulation that denies all economically
viable use of property is not a per se taking Since not per se,
then the Court applies the Penn Central factors to determine if the
regulation amounts to a compensable taking
Slide 21
We need to be able to do our job USSC held that a landowner has
the right to a reasonable use over a reasonable period of time, and
the mere loss of the present right to use land is not a taking
Moratoria are an essential tool of successful development and a
rule that required compensation for any deprivation of all economic
use, no matter how brief in time, might lead to hasty decision
making
Slide 22
Exactions Exaction - a government requirement that a landowner
dedicate land or a property interest as a condition for granting a
permit Dolan - permit to expand a store conditioned on the
dedication of a portion of the property for a greenway pedestrian/
bicycle path Dolan v. City of Tigard, 512 U.S. 374, 391 (1994)
Nollan - permit to build a larger residence on beachfront property
conditioned on dedication of an easement for public to cross a
strip of property Nollan v. California Coastal Commn, 483 U.S. 825,
831-832 (1987)
Slide 23
Exactions USSC held an exaction may be a taking unless: There
is an essential nexus between a legitimate government interest and
the condition exacted And there is a rough proportionality between
the planned development and the required dedication. No precise
mathematical calculation is required, but the city must make some
sort of individualized determination that the required dedication
is related both in nature and extent to the impact of the proposed
development. Dolan
Slide 24
Exactions In 2004 Minnesota amended statute to incorporate the
essential nexus and rough proportionality terms used in Dolan For
municipal park and utility dedications Minn. Stat. 462.358, subds.
2b and 2c
Slide 25
Minnesota Takings Clause Minnesota Constitution, Article l,
Section 13 Private property shall not be taken, destroyed or
damaged for public use without just compensation therefor, first
paid or secured.
Slide 26
A Minnesota perspective Very few regulatory takings cases
reviewed by MN Supreme Court under Minnesota Constitutional takings
clause A regulation that diminishes property value alone does not
constitute a taking Minnesotas uses a government enterprise or
arbitration test
Slide 27
A Minnesota perspective It may be a regulatory taking if the
regulation Benefits a government enterprise such as an airport And
it results in a substantial diminution in value McShane v. City of
Faribault, 292 N.W.2d 253 (Minn. 1980) It may be a regulatory
taking if the regulation Arbitrates between competing uses And it
deprives the property of all reasonable uses Concept Properties,
LLP v. City of Minnetrista, 694 N.W.2d 804, 823 (Minn. App. 2005
rev. denied)
Slide 28
MN Government Enterprise case DeCook v. Rochester International
Airport Joint Zoning Board, 2011 WL 1135459 (Minn. 3/30/2011)
Disagreement about whether state or federal takings clause should
be applied Disagreement about what test to apply to determine if
the regulation resulted in a taking
Slide 29
Airport Zoning 240 acre property In 1989 when purchased only 19
acres were subject to airport safety zone A 2002, zone A extended
and permitted land uses restricted Jury in the trial court found a
reduction in value of $170,000 3.5-6% of market value
Slide 30
Airport Zoning The MN Supreme Court held that the controlling
law was that of McShane v. City of Faribault, 292 N.W.2d 253 (Minn.
1980) Because it arose from an airport safety zone ordinance and
airports are government enterprises The broader MN constitutional
takings clause governed covers damage caused by regulation Held
that when a land use regulation benefited a specific governmental
purpose then compensation is owed if the there is a substantial and
measurable decline in market value 3.5-6% decline in value was
substantial
Slide 31
What does this mean to me? Very few Minnesota regulatory
takings cases DeCook is Being interpreted as a narrowly applying to
airport zoning only because it is clearly a government enterprise
Landowners may be emboldened Dont change your perspective on
regulatory takings based on this one case
Slide 32
I feel a chill Someone stands up a tells me that I cant stop
them from doing what they want on their land
Slide 33
When accused - Remember First, take a deep breath In general, a
regulation that diminishes property value alone does not constitute
a taking Very, very, very few regulatory takings cases are
successful
Slide 34
When accused - Respond No, it is not a taking The community
can, within reasonable bounds, put limits on how you use your
property This is a community decision, it is not me arbitrarily
saying you cant do what you want
Slide 35
Map source: www.fda.gov U.S. Supreme Court U.S. Federal Court
of Appeals 8 th Circuit includes Minnesota U.S. Federal Court of
Appeals 8 th Circuit includes Minnesota Supreme Court of MN MN
Court of Appeals District (Trial) Courts Final local land use
decision County CUP or Subdivision