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Land Development

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  1. Land Development The Law of Physical Allotment Land Subdivision

  2. Brought to You By: Keller 2003 - 2004

  3. The Land Subdivision Keller 2003 - 2004

  4. Land Development Regulation • Rules for the physical development of land are old – dating back to the 8th Century • When Great Britain and Spain first settle America they sent “regulations” for the development of villages and towns in the colonies • Land development is not zoning. It is the process of land design form, infrastructure, amenities, and services used to bring order to physical development Keller 2003 - 2004

  5. Why Have Land Development Regulations? • Order and efficiency in development • The use of consistent & common development standards throughout a jurisdiction • To establish exactions and allocate responsibility in the provision of infrastructure and hold the community harmless • Consumer protection • Preservation of natural resources • Prevent harm to others Keller 2003 - 2004

  6. Types of Land Development • The site planning process • Used as an intermediate and final stage in the fine grained design of physical development • The platting process • A plat (not a plot plan) is a map and precise plan • The plat is a precise survey of a tract of land that contains the necessary bearings, monuments, curves, and notations necessary to locate any lot. • Platting is also used to divide a tract of land into “lots” rather than using a metes and bounds description Keller 2003 - 2004

  7. Early Development • Land speculation was rampant in the U.S. from the very beginning of settlement. • Speculation became a serious concern when early 20th Century towns began to expand from the limits of the original town plan • Speculators (developers and subdividers) used standards for development that were inferior to those developed by the host community • Land development regulations evolved over a period of 20 – 30 years in the U.S. and were not guided by the exact standards and models used in zoning Keller 2003 - 2004

  8. The Need For Consistency Keller 2003 - 2004

  9. Zipper of the Day • Freda Mae Batts Binford Freda Mae Batts Binford, 56, of Louisville, died Tuesday at her home. She was a native of Huntsville, AL, and a member of Sweet Leaf United Primitive Baptist Church. She is survived by several nieces and nephews; a godson, Pee-Air Binford; and other relatives and friends. Funeral services will be held at 11 a.m. Saturday at her church, 1814 Cedar St., with burial in Louisville Cemetery. Visitation will be from 6-9 p.m. Friday. . Keller 2003 - 2004

  10. To Begin • Last week, I stated this woman was the ugliest woman I had ever seen.  I have since been visited by her sister . . . . and now wish to withdraw that statement. ~Mark Twain Keller 2003 - 2004

  11. Was There A Euclid v Ambler for Land Development Regulations? • Not really! There has never been an federal appellant level test of physical regulations • Why? One of the reasons is the constitutional nature of zoning versus subdivision • Use of the land (zoning is burdened with numerous constitutional protections) • Land development has few protections other than the right to a consistent procedure • Land use is a right – but building is commodity • Selling lots to the public is somewhat like selling used cars Keller 2003 - 2004

  12. Mansfield & Swett, Inc Town of the Twsp. Of West Orange • Facts • A 4.5 acre plat is prepared and sent to the Planning Commission for review • The plat contains 19 lots and 2 streets and is know as “Shadowlawn.” • The projected sales price is $15,000 - $18,000 (in 1939) • The Planning Commission disapproves the plat on the basis that the proposed plan does not conform to the “estate” nature of the vicinity (which were estate homes on 4 – 5 acre tracts and 3 times the value) • Does not conform to the wishes of the neighbors • Too much density Keller 2003 - 2004

  13. ShadowLawn Thomas Edison’s home in West Orange N.J. Located by Shadowlawn near his movie studio and lab Glenmont Keller 2003 - 2004

  14. The Developer Sues • This is a constitutional attack on the substantive due process of the subdivision approval process • Tests the validity of the West Orange statute which requires a precise plan even after the property is zoned • Mansfield – Swett claims that zoning powers are valid but that subdivision is actually a planning process where objective standards rule – not deliberations • The trial court holds for the city and the developer appeals to the N.J. Supreme Court Keller 2003 - 2004

  15. Legal Analysis • The court distinguishes between planning and zoning. • The character of zoning is the dedication of particular uses to designated districts designed to protect the public welfare • Planning (as subdivision) is a term of broad meaning but is used to designated the inherent authority of the town – in its building and development – to resort to such measures as are necessary to assure that the community has a common essential fabric. • There can be no question that the power to properly plan and design the community is constitutional Keller 2003 - 2004

  16. Approval • The court finds that, unlike zoning, a large measure of discretionary authority is vested in the City to determine the standards for development • HOWEVER • This is not to say that the power can be used in an arbitrary manner • Land development regulations “are not written in the context of advantage or detriment of a particular neighbor or owner but the effect on the entire community as a social, economic and political unit” Keller 2003 - 2004

  17. Conclusion • Although the density may be much higher than the surrounding neighborhood, Shadowlawn is nevertheless an area of stately brick homes in a well planned setting. If the density is too great, then the Planning Commission may modify it • When surrounded by appropriate safeguards it will not create abnormal traffic nor is there a reason to believe that it will degrade thee value of the nearby homes • Held for Mansfield and Swett Keller 2003 - 2004

  18. The Platting Process • Land and Infrastructure/Economic Studies • The Sketch Plan • The Preliminary Plat • The Final Plat • The Precise Plat Keller 2003 - 2004

  19. Studies Drainage Traffic Circulation Soil Keller 2003 - 2004

  20. Example Sketch Plan - Informal Keller 2003 - 2004

  21. Sketch Plan - Formal Keller 2003 - 2004

  22. Preliminary Plat – With Topography Keller 2003 - 2004

  23. Final Plat Keller 2003 - 2004

  24. The Subdivision/Development Keller 2003 - 2004

  25. The Integrated Fabric of Development Keller 2003 - 2004

  26. Even Manufactured Homes Keller 2003 - 2004

  27. Vesting, Platting and Approvals • What is the relationship between the preliminary and final plats? • What is the obligation of government? The obligation of the applicant? • When does the right to vest occur in subdivision? Keller 2003 - 2004

  28. Youngblood v Bd. Of Supervisors of San Diego County • This case involves the Rancho Del Dios subdivision • In 1974 the County approved a tentative plat for one acre lots which was then permitted by the zoning ordinance and in accord with the general plan • Later that year the County amended the general plan for this area calling for 2 acre lots • Final plat approval was given in 1975 for the one acre lots on 274 acres. In 1978 the County rezoned the area for 2 acre lots • Neighbors brought action for a mandamus to force the county to rescind the plat and conform to the two acre lots Keller 2003 - 2004

  29. Youngblood - Reasoning • The County – Since the lots are already platted and the infrastructure is installed and sized to the scale of development, the plat or any revisions do not have to conform to the current plan. • Youngbloods – The County has a duty to conform all densities and lot sizes to the current plan. If necessary, potential buyers can purchase two lots. • The CA Supreme Ct. – Once a tentative plan is approved, infrastructure is installed, and the final plat ready for signature, the rights of the developer are vested Keller 2003 - 2004

  30. The Real Argument • The opponents argue that even if the preliminary plat was consistent with the Comp. Plan, the Commission should not have approved the final plat because by this time the requirements had changed • Once the tentative map is approved, the developer often must expend substantial sums to comply with the conditions attached to that approval. These expenditures will result in the construction of improvements consistent with the proposed subdivision, but often inconsistent with alternative uses of the land. Keller 2003 - 2004

  31. Conclusion • “It is only fair to the developer and to the public interest to require the governing body to render its discretionary decision whether and upon what conditions to approve the proposed subdivision when it acts on the tentative map.” Approval of the final map thus becomes a ministerial act once the appropriate officials certify that it is in substantial compliance with the previously approved tentative map • Rancho Del Dios rules! Keller 2003 - 2004

  32. Governing Body Action • State law requires that the PLANNING COMMISSION approve the plat and the Governing Body endorse the dedications • Lawrence passed a home rule ordinance that gave the City Council the authority to APPROVE plats • Moore’s plat was reconsider and refused for reasons other than non-conformance of public dedications Keller 2003 - 2004

  33. Moore v City of Lawrence, 1982 • Mr. Moore submitted a subdivision plat to the City of Lawrence • The plat was found to be in conformance with the City’s subdivision regulation • The Planning Commission endorses the plat • The Plat was sent to the Governing Body as required by law • The Governing Body defers the endorsement for 4 months Keller 2003 - 2004

  34. The Thought Plickens • The city commission refuses to accept the dedications because of an zoning issue with the Moore’s • The Lawrence ordinance requires endorsement by the city before filing the final plat • KS statutes vest the planning commission with the task of approving or disapproving the plat. Keller 2003 - 2004

  35. Conclusion • The planning commission is responsible for reviewing & approving all plats • The governing body may refuse to accept dedications only when such offers to dedicate do not meet the technical requirements for infrastructure development Keller 2003 - 2004

  36. In Kansas At Least - • The final plat must be approved by the planning commission and: • Endorsed by the governing body • The endorsement means that the proposed dedications conform to the city’s standards • Endorsement cannot be withheld for reasons unrelated to physical and engineering standards Keller 2003 - 2004

  37. Good Reasons For Standards Keller 2003 - 2004

  38. Things To Avoid Keller 2003 - 2004

  39. Two Reasons to Refuse Dedications Keller 2003 - 2004

  40. Ellington Const. V Hempstead • So how long does a plat last? • Where do old plats go? • Do lots die – or do they age in place? Keller 2003 - 2004

  41. The Background • Village Law provides for an exemption period of three years after the filing of a subdivision plat during which an amendment increasing lot area or dimension requirements shall not "be applicable to or in any way affect any of the lots shown and delineated on such subdivision plat“ • Prior to an increase in the applicable area and dimension requirements, Ellington failed to complete his approved subdivision to apply for building permits on all of the proposed lots. Keller 2003 - 2004

  42. What Did Ellington Do? • In 1975, the Town of Ramapo Planning Board accepted for filing petitioner's "average density" subdivision plat. As a condition of its "average density" approval, the town required that 12.105 acres of the 33.522 acres in the subdivision be irrevocably dedicated to it for parkland purposes. The subdivision was approved to be developed in two sections, the first to consist of nine lots and the second of twenty-two lots. • 3 months later the parkland was dedicated and Ellington files the final plat the following month Keller 2003 - 2004

  43. The Next Step • Between 1980 and 1984 seven homes were built • However, in 1982 the Town Board amended the platting ordinance (it did not change any lot or street arrangement) • All seven homes were constructed in phase one – phase two remained vacant but all its lots complied with the Town’s requirements • However, in 1984 the Town amended its ordinance to make the minimum lot 35,000 sq ft. Phase I lots were all 22,500 sq. ft. Keller 2003 - 2004

  44. The Saga Continues • In 1986 Ellington seeks a building permit for Phase II but is denied because he did not seek a permit during the 3 year exemption period (Sept. 1975 to 1978) • Ellington applies to the Board of Zoning Appeals for an area variance but is denied • Both the trial and the appeals court reversed the BZA findings that the development rights were vested and orders the Town to issue permits to Ellington • The case is appealed by the Town to the Supreme Court of New York Keller 2003 - 2004

  45. Vesting Gets Complicated • This is a question of statutory interpretation • It ain’t simple • On its face, the statute said that everything on the plat is exempt for three years but it does not say how you get the exemption • Do you have to apply for a building permit(s) – do you have to apply for all the building permits? • Do you have to construct all the homes within three years? • Is it enough that you just install all the infrastructure? Keller 2003 - 2004

  46. So – What Gives • The court says that the normal law will grant vested rights once the final plat is approved and the developer makes substantial investments • The Town says – no way – you have to apply for building permits – and you have to actually build • The court concludes by using common sense: • You have to have your preliminary and final plat approved before the change • When you made substantial improvements and expended $$$ sum of money you get vested rights • After this the 3 year rule does not apply Keller 2003 - 2004

  47. Garipay v Hanover • Can you flat deny a preliminary plat? • Put in another way – if the land is properly zoned doesn’t the owner have a right to develop it • What happens when you can’t get there from here? Keller 2003 - 2004

  48. Background • Garipay proposes a preliminary plat of 49 homes in the Town of Hanover • The road leading from the Town’s road network to the subdivision is steep, winding, an inadequate to carry the increased traffic. It is only 15 feet wide with no shoulders • There are already 18 homes in the area • The Planning Commission denies the preliminary plat • The egg sucking contest begins Keller 2003 - 2004

  49. Narrow, Winding Roads Are A Problem Keller 2003 - 2004

  50. Different Views • The Planning Commission says that this proposed development is premature • Garipay says how can it be premature if there are already 18 homes in the area? Keller 2003 - 2004