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<br />8akke, 438 U.S. 265 (t978) and the University
<br />ot: Michigan cases, 6rutter v. Bollinger, ~23
<br />S.Ct. 2.3~$ (zoo3), and developers of strictly
<br />market-rate housing decrease diversity by
<br />adding only to the big.her-end stock. Once
<br />again, cities must make ~he plannin§ case
<br />demonstrating that building market-rate hous-
<br />lng does not t,ree up, one for one, affordable
<br />units, as "housing filtering" theory could
<br />argue. At the end of the day, cities would be
<br />wise to perform p~anning studies to show that
<br />they are justified in imposing the linkage or
<br />indusionary zoning burden on developers
<br />within their communities.
<br />
<br />are expressly disallowed - is social equity
<br />zoning. Whether the market can be made to
<br />cooperate is another story.
<br />
<br />HOW FAR L.$ TOO FAR?
<br />In t98t, U.S. Supreme Court lustice Brennan
<br />penned the notorious phrase, "After ail, if a
<br />policeman must know the Constitution, then
<br />why not a planner?" Since then, planners have
<br />wondered how much policemen really have to
<br />know, The Federal Constitution's ~fth
<br />Amendment and state constitutional corollaries
<br />command that private proper-o/not be taken for
<br />public use without paying just compensation,
<br />
<br />The U.S. Supreme Court has issued a number of opinions
<br />creating an impression among some that zoning and
<br />other land-use restrictions are vu[nerab[e to takin§s
<br />challenges and l:hat government could be saddled with
<br />unanticipated financial liability/.., that impression could
<br />chi[[ l:raditional, let alone innovative, zoning efforts.
<br />
<br /> Social equity zoning need not be con-
<br />fined to linkage and inclusionary zoning. For
<br />example, storewide efforts that require each
<br />growing community to provide its fair share of
<br />affordable housing might potentially benefit
<br />big' cities if the state requirements offer sub-
<br />urban communities a buyout option through
<br />which they "purchase" their way out of their
<br />in situ fair share obli§ation through affordable
<br />housing payments to big cities. Moreover,
<br />social equity zoning need not be confined to
<br />affordable housing. Taking a page from the
<br />environmental justice movement, zoning
<br />might take note of the existing and anticipat-
<br />ed distribution of public and private facilities
<br />that benefit or burden neighborhoods (like
<br />police stations, libraries, parks, sewage treat-
<br />men: facilities, etc.), and make sure there is a
<br />fair, equitable distribution of such facilities.
<br />Some cities have enacted fair share laws out-
<br />side zoning, but (here is no reason that zon-
<br />ing itseff could not take this into account.
<br />Finally, zoning' for uses most beneficial to
<br />tower-income workers - for example, exc[u-
<br />sive manufacturing zoning districts, where
<br />the only permitted use is manufacturin§, and
<br />{oft conversions and other popular evolutions
<br />
<br />another phrase for full fair market value.
<br />Starting in t987, the U.S. Supreme Court has
<br />issued a number of opinions creating an
<br />impression among some that zoning and other.
<br />~and-use restrictions are vulnerable to takings
<br />challenges and that government could be sad-
<br />dled with unanticipated financial liability, Taken
<br />to heart, that impression could chill traditional,
<br />let alone innovative, zoning' efforts.
<br />
<br /> Happily for piannin§, that impression is
<br />generally inaccurate. The constitutional tests
<br />continue to favor governmental exercise of
<br />re§uta[ory authority. Under the takings
<br />clause, government action conclusively
<br />effects a taking' only if it denies an owner all
<br />economically viable use of her tend, meas-
<br />ured as a diminution in value to zero. If the
<br />g.overnment action causes less than a
<br />percent wipeout, then the owner must
<br />demonstrate to the court a dramaric econom-
<br />ic impact and interference with distinct
<br />investment-backed expectations, and that the
<br />character of the government's action is deeply
<br />t-(awed. Although this test is to be applied
<br />case-by-case by judges, and aithough'.it is
<br />hardly a certain, absolute, outcome-determi-
<br />native rule to apply, the treasure chest of fed-
<br />
<br />erai. and state cases provides a decent feel for
<br />how courts might react in a given fact pattern.
<br />Can government downzone? Absolute(y. How
<br />much of a downzoning is acceptable? A tot,
<br />al/hough changing the zoning from z5 FAR to
<br />open space [s un(ikely to pass constitutional
<br />muster. What about changing from t5 to
<br />five? Probably fine, although t5 to lo would
<br />be better. What about [ndusionary zoning',
<br />linkage, and similar programs? No problem
<br />under this version of the takings test, unless
<br />the owner is put in a rea( economic bind
<br />(note that there are other aspects of the
<br />Constitution that might be implicated by
<br />social equity zoning). What about changes
<br />to other use, shape, and bulk restrictions?
<br />Not to worry. In sum, the law continues to
<br />favor government zoning action exercised to
<br />advance the public interest.
<br />
<br /> Nonetheless, the perception, if not reali-
<br />bt, ora more favorable property rights
<br />jurisprudence, coup:ed with the emergence of
<br />a politically active property rig.bls-libertarian
<br />movement, has made planners more cautious
<br />in their application of restrictive zoning meas-
<br />ures. What might public planners do to
<br />address these concerns? At minimum, plan-
<br />ners should review in advance the economic
<br />impact ora proposed zoning change on
<br />affected property owners, to be sure such
<br />measures do not deeply upset long-standing,
<br />reasonable expectations. Al/hough there is no
<br />bright-line rule that says one percent is the
<br />minimum reasonable return on investment
<br />that is constitutionally required, one might
<br />expect judges to intervene at some point
<br />aLong the way.
<br />
<br /> A more innovative approach would res-
<br />cue transfer of development rights (TDR), that
<br />much-discussed, ~ittle.used technique that
<br />tantalizingly promises-to redress the cons:itu-
<br />lionel vatue-wipeout problem by creating an
<br />avenue to valorize otherwise unusable prop-
<br />erty rights. Under TOR, property owners are
<br />permitted to sell their once zoning-author-
<br />izod, now restricted development rights to
<br />owners of other parcels who seek them.
<br />Depending on the aggressiveness of the city
<br />planners and their legal counsels, the devel-
<br />opment dghts couid be transferred to adia-
<br />cent parcels, transferred to any parcel within
<br />a geographically defined receiving district
<br />that includes or does not include the sending
<br />
<br />ZONINGPRACTICF_ o~.o~
<br />AMERICAN PLANNING ASSOCIArlON I pad. e ]2
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