Summer 2013

Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism


Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism

This article examines a relatively recent entrant into the world of land use reform that holds the potential to reduce the exclusionary impact of local land use regulations favoring single family homes without imposing hidden regulatory costs that themselves undercut the purpose and benefits of the reform itself. Over the past decade, a number of local governments have amended land use regulations to permit or encourage the construction of so-called “accessory dwelling units” (ADUs) in residential (especially single-family) neighborhoods. Despite the flurry of legislative action, however, many questions about these efforts remain unanswered—especially whether the reforms will actually achieve their stated purpose of breaking down regulatory barriers to affordable housing by encouraging the construction of ADUs. In order to understand more about the effects and potential for ADU reforms, this article examines the effects of ADU regulations in a context which ought to predict a minimal level of local parochialism—that is, in a state where local governments are required to permit ADUs in residential zones. The authors examine the zoning law of all California cities with populations over 50,000 people (150 total cities) to determine how local governments actually implemented ADU reforms “on the ground” after the state legislation was enacted. They then categorize these responses into several legislative groups that exemplify the varieties of responses to the state mandate. Their analysis suggest that ADU reforms—even state-mandated ones—are not silver bullets that overcome local governments’ exclusionary impulses in the land use contexts.

This annual report deals with the relationship of zoning and other land use regulations and actions and the comprehensive plan (sometimes referred to as the “general” or “master” plan. It chronicles those cases decided on these matters between October 1, 2011, and September 30, 2012. The discussion begins with the three schools of thought on this relationship—one in which the plan is unnecessary and legally irrelevant, another in which the plan is a factor in judicial review of land use regulations and actions, and a third in which the plan achieves quasi-constitutional status, although it may be changed as can any policy. Following this tripartite analysis, the authors review the cases for this same period which relate to amendment, and then interpretation of the comprehensive plan, if the plan has legal significance, and proceeds to conclusions.

In the thirteen years that RLUIPA has been in effect, federal courts have come to a general consensus that the Act is constitutional. From there, however, courts have been far more varied in interpreting and applying the specific principles contained in RLUIPA’s land use provisions. Since RLUIPA litigation is a relatively new area, the body of case law interpreting the Act is constantly developing and changing. This article summarizes various noteworthy RLUIPA decisions from courts across the country issued in the last 18 months that provide a general synopsis of the dynamic and evolving area of religious land use litigation.

This article reviews those major regulatory takings and inverse condemnation decisions of the past year. Section II details cases about whether particular scenarios result in takings liability. Section III details what sort of property might be considered protected. Section IV details cases analyzing whether application of Penn Central results in a taking. Section V focuses on ripeness, the most frequently applied procedural dodge to takings cases. Section VI considers other decisions involving such topics as judicial takings and standing.

In Kelo v. City of New London, the United States Supreme Court held that a municipality’s exercise of eminent domain power supported only by claims that doing so would help the local economy was not a per se violation of the Public Use Clause of the Fifth Amendment. This article summarizes the past year’s decisions, several of which attempt to discern what Kelo means. It also discusses pipeline takings, the effect on a due process claim of a finding that a taking was pretextual, and other issues related to the power to condemn private property for public use.


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