Agenda - Planning Commission - 08/08/2005

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building, and then subsequent delay in ting approval, gives the city great negotiating strength to get architects to comply with its concerns about the future new building. The city has had re§uiations addressing the too- big house for many years. CONCLUSION A major challenge to new and old communi- ties across the nation is to maintain the character of the community or neighbor- hood. Teardowns are largely linked to an overheated economic condition that can - render a neighborhood obsolete. Commu- nities with small houses and charming neighborhoods can anticipate this problem. Planning can provide a way to upgrade existinghomes without teardowns that · tOtat[y alter the neighborhood's character, but the time to act is before economic con- ditions create a demand for those tear- downs. The tools described in this issue of Zoning Practice will he[p you achieve that end. A packet of information on zoning options for teardowns is available to Zoning Practice subsc{ibers by contacting Michael Oavidson, ed~£or, Zoning Practice, at the American Plannin§ Association, 122 South Michigan Aveoue, Suite z6oo, Chicago, IL 6o6o3, or by sending an e-mail to mdavidson@ planning.orB. Lnne Kendig is a consultant and a nationally recognized expert in the development of zon- ing and subdivision strategies. NEWS. BRIEFS UN~L~ gy Stuart Mock, ~c~ The United States Supreme Court has over- turned a 25-year-old ruling on what constitu- tional test should be applied in determining a taking, narrowing the grounds for landowner challenges. In the case, Lingle v, Chevron, decided in May, the Court, in a unanimous opinion written by Justice Sandra Oay O'Connor, abandoned the long-standing two-prong takings test of its 198o decision, Agins v. City of Tiburon. The ggins Court had held that application of a gem oral zoning law to a particular property results in a taking ffthe ordinance does not "substan- tially advance legitimate state interests.., or denies an owner economically viable use of its proper'o'." A takings claim coutd be brought under either prong. Reconsidering the Agins rule, the Court said that the "substantially advances" lan- guage is not an appropriate test for determin- ing a taking because "it prescribes.an inquiry in the nature of due process"-whether a rog: ulation fails to serve any legitimate govern- mentat obiective because it was arbitrary or irrational. The Agins language, the Court said, was "regrettably imprecise" and resutted in an ambiguous overlap between takings and due process claims. An addi- rio'hal problem was the practical problem of requiring courts to "scrutinize the efficacy of a vast array of state and federal regulations- a task for which .courts are not well suited." of a regulation to substantially advance a gov- ernment obiective is relevant to that inquiry. Land-use attorneys and law and planning professors contacted by Zoning Practice expressed mixed views about the ruling. Professor Daniel R. Mandetker, FAICP, of the Washington Universi~ School of Law declared that Lingle is "one more step toward the end of the property rights era in takings law." He pre- dicted that "if takings based on partial economic 1ass will be few and far between, then takings [aw will have a diminished role in zoning litigation." Nancy Stroud, AICP, a partner with the taw firm of Weiss Serota Helfman Pastoriza Cole & Boniske in Fort Laude)'dale, Florida, commented that land-use challenges under a. substantive due process theory have "been very difficult for plaintiffs to .win in the last' several decades, especially in certain federal circuits that require that the government action 'shock the conscience' of the court or The Agins language, the Court said, was "regrettably imPrecise" and resulted in an ambiguous overlap between takings and due process claims. Lingle was not a iand-use case. Instead, it involved an attack on the constitutionality of a Hawaii statute that limited the rent that companies may charge dea{ers leasing com- pany.owned stations. The statute's purpose was to prevent concentration of the retail gasoline market and the potential for high prices for consumers by maintaining the via. bilKy of independent lessee-dealers. Chevron's complaint included ~ takings - claim that the statute did not substantially advance the state's asserted interest in con- trolling retail gas prices. Tdal evidence failed to demonstrate that, even if the rent cap did reduce lessee-dealer's costs, they would not pass on savings to consumers and it was likely that the rent cap would discourage oil compa- nies from building new stations for lease. Applying the first prong of the Agins test, a federal district court had held the statute con- stituted an uncompensated taking, and the Ninth Circuit Court of Appeals affirmed. Justice Anthony Kennedy filed a concur- ring opinion in which he emphasized that Lingle "does not foreclose the possibility that a regulation might be so arbitrary or irrational as to violate due process," and that the failure that limit such claims to those involving leg- islative (versus administrative or quasi-judi- cial) actions." The analysis in Lingle, said Stroud, a member of APA's Amicus Curiae Committee, "confirms the folly of using the substantive due process clause to interfere with legislative decisions in the regulatory field. I would took instead to more litigation based On the equal protection clause, or even the ~rst Amendment, with claims based on alleged discriminatory motive because of the plaintiff's exercise of political speech or based on other improper motives." Edward Sullivan, a partne~with the law firm of Garvey Schubert and Borer in Portland, Oregon, and a member of APA's Amicus Cudae Committee, called Lingle "a si~ificant case which clarifies takings law considerably. No lan§er will landowners be able to threaten state or local governments with a costly battle of experts overwhether a regulation is effective in meeting its stated purposes as a taking issue." "In taking awayAgins' 'substantially advances' prong as a stand-alone takings test that had inadvertently 'found its way into our case )aw,'" says Brian W. Blaesser, a partner with Robinson & Cole in Boston. "The Supreme Court 208 ZONING PRACTICE 06.05 AMERICAN pLANNING ASSOCIAIgON I PaP~ 6