In This Issue

Real Estate

Spot Zoning: New Ideas for an Old Problem

Assume the owner of a small computing business looked for a new site for an office building. She found sites already zoned for this use, but they are not convenient or are more than she can afford. She then finds an affordable site on a convenient street with residential zoning. The site is affordable because the market has priced it for residential, not commercial, use. The business owner may have to pay a premium to buy the site for commercial use, but it will be less than a site zoned for commercial use.

Landlords & Tenants

Promise Unfulfilled? Zoning, Disparate Impact, and Affirmatively Furthering Fair Housing

On June 28, 2016 the Board of County Commissioners of Douglas County Colorado, a wealthy suburban county of approximately 325,000 residents near Denver, held a public meeting to determine whether the county should submit its annual action plan as required to receive more than $700,000 in U.S. Department of Housing and Urban Development (HUD) funds for the Community Development Block Grant (CDBG) program.1 During the hour-long meeting, county staff informed the board of the benefits of HUD programs, and the initiatives that the county accomplished as a result of the program.2 Despite these benefits, at the end of the meeting, the board voted to decline CDBG funding for the 2016 fiscal year.3

Landlords & Tenants

Affordable Housing Ordinances: Exactions or Use Restrictions in the Post- Koontz Era? An Analysis of California Building Industry Association v. City of San Jose

MANY LOCAL GOVERNMENTS AND MUNICIPALITIES require a developer or property owner to absorb some of the costs or negative impacts of proposed development. These conditions attached to development approval, commonly known as “exactions,” serve to mitigate potential harm caused by new development, including providing for the need for public services and facilities created by that development.1 For example, if a developer wishes to build a new strip mall, the municipality may condition permit approval on the developer providing infrastructural necessities that the project will require such as streets, sewer lines, water lines, and utility structures, which would otherwise not be needed but for the new development.2 Some other common examples of exactions include impact fees, construction requirements, dedications of land, or conditions on future land use.3 While developers and property owners may consider exactions a burden on development, exactions are essential for local governments to prevent costs associated with new development from being externalized onto taxpayers.4

Real Estate

Recent Developments in Eminent Domain

THE FOLLOWING ARE THE SIGNIFICANT EMINENT DOMAIN CASES decided in the past year, as well as some notable inverse condemnation and property rights cases that involve issues common to eminent domain litigation. I. U.S. Supreme Court: Horne v. Department of Agriculture: Way More than Silly Raisin Jokes “Separate educational facilities are inherently unequal.” Chief Justice Earl Warren, Brown v. Board of Education1 “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Justice Oliver Wendell Holmes, dissenting in Lochner v. New York2 “. . . prejudice against discrete and insular minorities . . .” Justice Harlan Fiske Stone, United States v. Carolene Products Co.3 “Raisins . . . are a healthy snack.” Chief Justice John Glover Roberts, Horne v. Department of Agriculture4 A Supreme Court win is a win, particularly by a margin of eight-toone, so no one ought to complain too much about the Court’s opinion in Horne v. Department of Agriculture, holding that the United States Department of Agriculture’s requirement that raisin producers physically turn over a percentage of their yearly crops to the government without being provided compensation is a making in violation of the Fifth Amendment.5

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