Zoning

Supreme Court rejects regulatory takings challenge to zoning merger provision

In Murr v. Wisconsin, 2017 WL 2694699 (U.S. 2017), the Supreme Court held that a zoning law that treated two contiguous parcels owned by the same persons as one parcel to determine minimum developable lot size was not an unconstitutional taking of property without just compensation. The merger law provided for variances that might allow development for lots that contained less than one acre of developable...

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Town cannot impose greater parking requirements for a mosque than for churches or synagogues

A town violated the Religious Land Use-Institutionazlied Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5, when its planning board required a mosque to provide off-street parking for every single member as a condition of receiving a building permit when it had not imposed similar requirements for churches and synagogues. Islamic Soc'y of Basking Ridge v....

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State agency owed substantial deference when it exercises its legitimate authority to override local zoning law to enable construction of affordable housing

The Massachusetts Comprehensive Permit Statute, colloquially known as the Anti-Snob Zoning Act, Mass. Gen. Laws ch. 40B, §§20-23, enables developers to file a single comprehensive permit before the local zoning appeals board to construct affordable housing. Municipalities in which less than 10 percent of the housing stock is affordable face a heavy burden of proof to overcome the statutory preference for such housing. The statute delegates authority to a state agency, called the Housing Appeals Committee, that enables it to override local permit denials when necessary to allow affordable...

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Municipalities cannot regulate political content of signs

In the 2015 case of Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), the Court struck down a local ordinance that banned “ideological signs” that “communicat[e] a message or ideas.” The ordinance also limited “political signs” to election season and limited the times when plaintiff church was allowed to post “directional signs” bearing the name of the church and the time and location of the next service. The Court...

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Local sex offender law violates state regulatory provisions

Like other cities, the City of Lynn in Massachusetts sought to regulate where sex offenders live. It prohibited certain sex offenders from living within 1,000 feet of a school or park and defined "school" to include all public, private, and church schools. The effect of the ordinance was to prevent sex offenders from spending a night in ninety-five percent of the city, including in a shelter or half-way house designated for sex offenders. The Supreme Judicial Court struck down the local ordinance as exceeding the scope of local government powers because it was inconsistent with state...

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California Supreme Court Upholds San Jose Inclusionary Zoning Ordinance Against a Takings Challenge

The California Supreme Court has upheld the inclusionary zoning ordinance of the City of San Jose against a challenge that it constitutes an illegal exaction and violates the state constitution's takings clause or the federal constitution's takings clause. Cal. Bldg. Indus. Ass'n v. City of San Jose, 2015 Cal. LEXIS 3905 (Cal. 2015). The ordinance required all new development projects containing 20 housing units or more to reserve 15 percent for sale at affordable prices to low- or moderate-income families. San Jose...

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Conditional permits subject to relaxed standard of review rather than the rigorous proofs required for variances

New Jersey confusingly refers to conditional permits as "conditional use variances." This language makes it easy to confuse conditional permits and variances. In TSI East Brunswick, LLC v. Zoning Bd. of Adjustment of Tp. of East Brunswick, 71 A.3d 762 (N.J. 2013), the Supreme Court of New Jersey reaffirmed the traditional rule that variances should be granted only in cases of unusual hardship (or other statutory requirements) because they allow something to be done that violates the intent of the zoning...

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NJ Supreme Court holds that Governor Christie lacked authority to abolish the Council on Affordable Housing (COAH)

In 2011, Governor Chris Christie purported to abolish the Council on Affordable Housing (COAH), an agency set up by legislation and designed to implement the state's Mount Laurel obligations; he planned to transfer its responsibilities to the Department of Community Affairs. The Supreme Court of New Jersey had held in the Mount Laurel litigation that towns were required to implement zoning laws in a manner that made room for all kinds of housing, including housing affordable by low and moderate-income families. S. Burlington County, NAACP v. Twp. of Mount...

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Abutters have standing to challenge neighbor's compliance with zoning law

State zoning enabling statutes generally define who has the power to challenge decisions by zoning boards about allowable land uses. Many allow abutters who are specially affected by land uses to challenge the legality of building permits or zoning decisions on the ground that if they are not granted this right, there will be no deterrence to zoning boards who ignore the limits of local zoning regulations. The Massachusetts Land Court affirmed the right of abutters who can show they were affected by neighboring land use to challenge zoning permit decisions as "persons aggrieved" under...

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