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Land Use Law: Zoning in the 21st Century

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Brent Denzin, Julie Tappendorf, Adam Simon, David Silverman, Gregory Jones, Daniel Bolin


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As the U.S. Supreme Court has recognized, zoning is ultimately defined by local circumstances, which change from town to town and year to year. Land uses that were prohibited in the past may be celebrated in the future, and vice versa.

Land Use Law: Zoning in the 21st Century was created to provide land use professionals with practical advice on zoning issues and up-to-date analyses of the legal issues they are likely to encounter in their practice.

These tools go beyond the black letter law and focus on modern examples. In some cases the tools are familiar, but used in unique ways. In others, the circumstances demand truly “outside-the-box” thinking.

A range of modern topics is covered in this volume, including:
•    Harmonizing zoning goals
•    Promoting economic development
•    Managing stormwater
•    Promoting pedestrian- and transit-oriented development
•    Regulating adult use establishments
•    Setting standards for gun sales and use
•    Planning for urban agriculture
•    Addressing foreclosures and blight
•    Zoning for cellular communications
•    Regulating hydraulic fracturing
•    Planning for wind-generated energy
•    Regulating digital signage

Additionally, this volume provides appendices containing checklists, tips and guidelines, as well as sample ordinances, agreements, forms and other documents that land use professionals will find practical and helpful.

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Page Count: 448
  • ISBN: 978-1-58852-385-3
  • Pub#/SKU#: 732
  • Pub Date: 01/23/2015

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  • Brent Denzin

Brent O. Denzin is a partner, practicing in the areas of environmental law, land banking, litigation and ocal government law. He has represented local governments and private residents in zoning litigation, federal environmental lawsuits, and state tort claims, and has represented a regional land banking authority in acquiring,managing, and repurposing vacant and abandoned properties. Brent guides municipal clients through environmental due diligence requirements and advises municipal clients on a variety of land use and zoning matters. He is a contributing author of the land use law newsletter In the Zone.



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  • Julie Tappendorf

Julie A. Tappendorf is a partner, practicing in the areas of local government, land use, economic development, and zoning litigation. Julie has published on a variety of land use and government issues,including: Development by Agreement: A Toolkit for Local Governments and Land Developers; Planning and Control of Land Development: Cases and Materials; Bargaining for Development; and Social Media and Local Governments:Navigating the New Public Square. Julie is co-chair of Ancel Glink's land use practice and co-editor of the group's newsletter In the Zone. She is an Adjunct Professor at The John Marshall Law School and is on the faculty of the ALI-CLE Land Use Institute. Julie is also the author and moderator of the local government blog Municipal Minute, where she writes about land use and other local government issues. Prior to her law career, Julie served in the U.S. Army, Military Intelligence Branch, as a Korean cryptologic-linguist.



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  • Adam Simon

Adam B. Simon
is a partner in the Zoning and Land Use Group of the firm. His practice focuses on public finance, zoning and economic development, real estate law, and telecommunications. Adam combines his experience in economic development and public finance to counsel municipalities on the leveraging of public debt financing and private investment to create new public improvements and enhance economic development opportunities. He has helped organize special service areas, business redevelopment districts, and tax increment financing (TIF) districts. Adam also counsels the firm’s clients on cellular zoning and ground leases, right-of-way management, and franchising.


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  • David Silverman

David S. Silverman
is a partner, practicing in the areas of local government, land use, economic development, and real estate. He has published on a variety of land use issues, including: Tax Increment Financing; Greening Local Government; and Urban Agriculture: Policy, Law, Strategy, and Implementation. David is co-chair of Ancel Glink's land use practice and co-editor of the group's newsletter In the Zone, and is a regular contributor to and moderator of @AncelGlinkLand, which covers an array of current and evolving land use topics. Prior to his career as an attorney, he was an urban planning and economic development consultant working with several neighborhood-based development organizations in both Detroit and Chicago. David is a member of the American Institute of Certified Planners and the land economics fraternity Lambda Alpha International—Ely Chapter.


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  • Gregory Jones

Gregory W. Jones
is an associate, counseling municipalities, other public entities, and real estate professionals on a host of land use, zoning, construction and development matters. Before entering the legal field, Greg spent nearly a decade serving as a city planner and zoning administrator for several municipalities in the greater Chicago area. Greg is an active member of the American Planning Association and serves on the legislative committee for the Illinois Chapter. He frequently speaks to industry groups on a variety of zoning topics and has authored numerous articles on issues facing zoning practitioners.


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  • Daniel Bolin

Daniel J. Bolin
is an associate, representing public entities and property owners in land use, zoning litigation, real estate, property maintenance and many other local government matters. He has spent his entire legal career representing public entities and public officials in numerous aspects of local government law, including day-to-day board governance issues, practices and procedures, finance, litigation, municipal liens and building code compliance matters. As a municipal prosecutor, Dan prosecutes traffic and local ordinance violations, from insurance compliance to overweight truck violations.

Table of Contents

CHAPTER 1
Introduction
§ 1.01    Zoning and Land Use: A Historical Perspective
§ 1.02    Changing Circumstances
[1]    The Need for Twenty-First Century Zoning Strategies
[2]    Modern Land Use Issues
§ 1.03    Collaborative Zoning
§ 1.04    Economic Development
§ 1.05    Stormwater Management
§ 1.06    Climate Change
§ 1.07    Transit
§ 1.08    Adult Uses
§ 1.09    Second Amendment
§ 1.10    Foreclosure and Blight
§ 1.11    Urban Agriculture
§ 1.12    Cellular Communications
§ 1.13    Wind Energy
§ 1.14    Hydraulic Fracturing
§ 1.15    Digital Signage

CHAPTER 2
Collaborative Zoning Process
§ 2.01    Finding an Alternative to Traditional Zoning Procedure
§ 2.02    Pre-Review Process
[1]    Workshop with Decision Makers
[2]    Meetings with Staff
[3]    Meetings with Stakeholders
§ 2.03    Development Agreements
[1]    Benefits of Development Agreements
[a]    Benefits to the Government
[b]    Benefits to the Developer
[c]    Other Benefits
[2]    Procedures
[a]    Statutory Authority
[b]    Approval and Adoption of the Agreement
[c]    Public Hearing
[d]    Conformance to Plans
[e]    Amendment or Cancellation
[f]    Limits on Conditions
[3]    Potential Issues
[a]    Governments Are Tied to the Develop-ment Agreement
[b]    Local Government Overreach
§ 2.04    Community Benefits Agreements
[1]    Community Benefits Agreements: Defining the Term
[2]    Advantages of Community Benefits Agreements
[3]    Community Benefits Agreements in Action
[4]    Community Benefits Agreement Issues
[a]    Legal Issues
[b]    Policy Issues
§ 2.05    Conclusion

CHAPTER 3
Zoning for Economic Development
§ 3.01    Introduction to Economic Development: Supply and Demand
[1]    Local Market Analysis
[2]    Zoning Code Review
[a]    Economic Diversity
[b]    Fostering Success
§ 3.02    Zoning to Promote Economic Development in Economically Depressed Areas
[1]    Employing Alternative Uses to Reshape Disin-vested Areas
[2]    Supporting Emerging Industries and Industrial Employment Districts
[3]    Exploiting Regional Clusters
[4]    Smart Shrinkage
§ 3.03    Zoning’s Impact on Economic Development
[1]    Zoning Criteria
[2]    Schedule for Consideration
[3]    Hearing Rules
[4]    Training Administrative Bodies
[5]    Using Technology to Expedite Zoning Decisions
§ 3.04    Flexibility and Incentives to Meet Market Demands
[1]    Form-Based Codes
[2]    Overlay Districts
[3]    Performance-Based Regulations

CHAPTER 4
Stormwater Management
§ 4.01    Introduction: Modern Stormwater Management
[1]    Financial and Environmental Threat
[2]    Opportunity for Financial and Environmental Gains
[3]    The Reality of Modern Stormwater Management
[a]    Stormwater Management Is Non-Discretionary
[b]    Centralized and Reactive Stormwater Management Is Expensive and Inefficient
§ 4.02    Approaching Local Stormwater Management
[1]    The National Pollutant Discharge Elimination System (NPDES)
[a]    Municipal Separate Storm Sewer Sys-tems (MS4s)
[b]    NPDES Permit Requirements for Regu-lated MS4s
[c]    Six Core Criteria for Small MS4s
[d]    Low Impact Development and Green In-frastructure Requirements
[2]    Stormwater Management and Watershed De-velopment Ordinances
§ 4.03    Zoning for Efficient Stormwater Management
[1]    Specific Zoning Tools
[a]    Impervious Footprint
[b]    Setbacks
[c]    Landscaping Ordinances
[2]    Green Infrastructure
§ 4.04    Intergovernmental Cooperation
[1]    Understanding Resources and Authority
[2]    Assessing Needs and Looking to Neighbors
[3]    Benefitting from Comparative Advantage
[4]    Case Example: Steeple Run Watershed, Naper-ville, Illinois
§ 4.05    Stormwater Utilities
[1]    Setting Up a Stormwater Utility
[2]    Funding Proactive Management
[3]    Promoting Equality: Pay for Your Pollution
[4]    Internalize Externalities
[5]    Legal Considerations: Is It a Tax or a Fee?
§ 4.06    Environmental Factors and Stormwater Management
[1]    Urban and Suburban Areas
[2]    Coastlines
[3]    Climate

CHAPTER 5
Climate Change
§ 5.01    Introduction: Think Globally, Act Locally
§ 5.02    Local Efforts to Address Climate Change
[1]    Setting Carbon Benchmarks
[2]    Meeting Carbon Benchmarks
[3]    Regulating the Regulators
[4]    Removing Regulatory Barriers and Leveling the Playing Field
[5]    Zoning Overlay Districts
[6]    Green Building Codes
[a]    Voluntary Green Building Requirements
[b]    Mandatory Green Building Requirements

CHAPTER 6
Pedestrian and Transit Oriented Development
§ 6.01    Transit Oriented Development
[1]    Framing the Economic and Environmental Is-sues
[2]    TOD as One Solution to Two Problems
§ 6.02    Policies for Implementing TOD
[1]    Comprehensive Plan
[2]    From Planning to Regulation
§ 6.03    Zoning for TOD
[1]    Land Use Strategies
[a]    Promote Density
[b]    Encourage Mixed Uses
[c]    Facilitate a Range of Housing Options
[d]    Deemphasize Parking and Promote Pe-destrian Circulation and Cycling
[2]    Site Design Strategies
[a]    Public Spaces
[b]    Building Character
[c]    Architecture
[d]    Environmental Sustainability
[3]    Zoning Tools
[a]    Base District Zoning
[b]    Overlay Districts
[c]    Floating Zones
[d]    Planned Unit Development
[e]    Incentive Zoning
[f]    Requiring Zoning Compliance with Comprehensive or “Master” Plans for Land Use

CHAPTER 7
Adult Uses
§ 7.01    Adult Uses and the First Amendment
[1]    The First Amendment to the United States Con-stitution
[2]    Adult Conduct Protected by the First Amend-ment
[3]    Adult Conduct Not Protected by the First Amendment
§ 7.02    Types of Adult Use Regulations
[1]    Content-Based Regulations
[2]    Secondary-Effect Regulations
[a]    Determining if a City Is Regulating the Content of Speech or Secondary Effects
[b]    Legislative Findings Supporting Second-ary Effects Regulations
[c]    Relevance and Sufficiency of Legislative Findings
[d]    Proof That Regulations Will Be Effective
[3]    Restrictions on Location of Adult Uses
[4]    Amortizing Adult Uses
[5]    Regulation Hours of Operation
[6]    Adult Use Licensing Requirements
[7]    Performer Interaction with Patrons
[8]    Adult Use Special Use Requirements
[9]    Adult Uses and Alcohol
§ 7.03    Drafting Adult Use Regulations
[1]    Void for Vagueness
[2]    Overly Broad Regulations

CHAPTER 8
Zoning and the Second Amendment
§ 8.01    Introduction
§ 8.02    The Second Amendment
[1]    Collective Right Approach
[2]    Individual Right Approach
[a]    Heller and McDonald: Fundamental Right to Possess a Handgun for Self Defense, Especially in the Home
[b]    Presumptively Lawful Regulatory Measures
[c]    Applicability of Second Amendment Rights to States
[3]    Application of the Second Amendment Outside the Home
§ 8.03    Analytical Framework: Two-Part Test
§ 8.04    Potential Land Use Implications
[1]    Residential Possession Bans
[2]    The “Sensitive Places” Exception
[a]    Schools and Government Buildings
[b]    Parks
[c]    Private Property
[d]    Areas Around Sensitive Places
[e]    Other Possible Sensitive Places
[3]    Gun Shops and the Commercial Sales Exception
[4]    Firing Ranges
[5]    Home Occupations
§ 8.05    Developing Facts to Support Regulation of Gun-Related Land Uses

CHAPTER 9
Foreclosures, Distressed Properties, and Blight
§ 9.01    Introduction
§ 9.02    The Impact of Foreclosures
[1]    Financial Impact
[2]    Social Service Impacts
§ 9.03    Tools to Address the Impact of Foreclosures, Distressed Properties, and Blight
[1]    Prevention
[a]    Guidance and Advice Programs
[b]    Litigation
[c]    Mediation
[d]    Reform Legislation
[2]    Redress
[a]    Property Maintenance Codes and Ordi-nances
[b]    Vacant Building Ordinances, Registries, and Databases
[i]    Ordinances
[ii]    Registries
[iii]    Databases
[c]    Municipal Liens
[d]    Demolition and Land Re-Use
§ 9.04    Redeveloping Foreclosed, Distressed, and Blighted Properties—Land Banking
[1]    Statutory Authority for Land Banking
[2]    Using Land Banking to Address the Impact of Foreclosures on Suburbs and Industrial Urban Neighborhoods
[a]    Suburbs
[b]    Industrial Urban Neighborhoods
[3]    Funding Land Banks
[a]    Federal Laws and Programs Funding Land Use Initiatives
[i]    Housing and Economic Recovery Act of 2008
[ii]    American Recovery and Reinvest-ment Act of 2009
[iii]    Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010
[b]    Local Funding Options
[i]    Tax-Increment Financing
[ii]    Local Partnerships with Lenders
[4]    Land Bank Controversies and Litigation
[a]    Land Bank Criticism
[b]    Land Bank Litigation
§ 9.05    Conclusion

CHAPTER 10
Urban Agriculture
§ 10.01    Introduction to Urban Agriculture
[1]    What Is Urban Agriculture?
[2]    Why Urban Agriculture?
[a]    Environmental Benefits
[b]    Health Benefits
[c]    Economic Benefits
[3]    Why Not Urban Agriculture?
§ 10.02    Adopting Urban Agriculture Policies
§ 10.03    Carrots: Tools to Promote Urban Agriculture
[1]    Resolutions, Policy Statements, and Executive Orders
[2]    Food Policy Councils
[3]    Identifying and Reducing Regulatory Obstacles
[4]    Long-Range Planning
[5]    Permitted Uses and Urban Agricultural Districts
[6]    Resources
[7]    Financing
[8]    Procurement Policies
§ 10.04    Sticks: Ways to Regulate Urban Agriculture
[1]    Topics of Regulation
[a]    Commercial Restrictions
[b]    Minimum Lot Size and Setback Re-quirements
[c]    Structure Regulations
[d]    Front Yard Ordinances
[e]    Public Health Regulations
[f]    Product Safety and Disease Regulations
[g]    Slaughter Regulations
[2]    Common Law Regulations
[a]    Nuisance
[b]    Restrictive Covenants
[3]    Land Use Regulations
[a]    Prohibited Uses
[b]    Special Use Permits
[c]    Accessory Uses
[d]    Floating Zones
[e]    Ordinances

CHAPTER 11
Zoning for Cellular Communications
§ 11.01    Introduction
[1]    History of Cellular Communications
[2]    The Need for Antennas and Networks
[3]    Regulatory Framework
[4]    Policy Issues
§ 11.02    The Law
[1]    Federal Law and State Authority
[2]    Substantive Rules
[a]    Nondiscrimination
[b]    Prohibition of Service and Gaps in Cov-erage: Actual vs. De Facto Exclusions
[c]    Evidence and Written Records
[d]    FCC Policies and Orders Related to Non-discrimination
[e]    Additional Limitations on Local Gov-ernment Zoning Authority
[i]    Substantial Change to a Tower or Base Station’s Physical Dimensions
[ii]    Defining “Wireless Tower or Base Station”
[iii]    Time Limits for Approval
[iv]    Application Requirements for Sec-tion 6409(a)-Sanctioned Actions
[f]    Further Efforts to Limit Local Zoning Au-thority
[3]    Procedural Rules
[a]    Shot Clocks: Time Limits for Decision Making
[b]    Litigation
[i]    Unreasonable Delay
[ii]    Failure to Act or Issue a Written Decision
[c]    Tolling
[d]    Remedy for Shot Clock Violations
§ 11.03    Distributed Antenna System Technology
[1]    Public Safety/First Responder
[2]    Cellular Technology: Regulation by Zoning or Right-of-Way Management
§ 11.04    Strategies for Regulating Cellular Facilities
[1]    Procedural Tips
[2]    Substantive Advice
§ 11.05    Conclusion

CHAPTER 12
Wind Energy
§ 12.01    A Brief History of Wind Energy
§ 12.02    Modern Wind Energy
§ 12.03    Technology
[1]    Site Selection
[2]    Tower Height
[3]    The Blades
[4]    The Rotor
[5]    Connecting to the Grid
[a]    Transmission Line Access
[b]    Grid Interconnection
§ 12.04    Economic Considerations
[1]    Construction Cost
[2]    Job Creation
[3]    Government Subsidies
§ 12.05    Environmental Issues
[1]    Turbines and Bird Populations
[2]    Endangered Species
[a]    Litigation
[b]    Minimizing Risks to Endangered Species
[3]    Emissions Reduction
[4]    Turbine Icing
§ 12.06    Community Opposition
[1]    Aesthetics
[2]    Property Values
[3]    Noise
[4]    Shadow Flicker
[5]    Turbine Lighting
§ 12.07    Local Control over Wind Power
[1]    Location and Setbacks
[a]    Large Turbines
[b]    Personal Turbines
[2]    Permitted or Special Use
[3]    Tower Height
[4]    Sound
[5]    Number Per Lot
[6]    Safety
[7]    Shadow Flicker
[8]    Blade Clearance
[9]    Road Protection
[10]    Abandonment and Decommissioning
[11]    Prohibition

CHAPTER 13
Hydraulic Fracturing
§ 13.01    Hydraulic Fracturing (“Fracking”)
[1]    Historical and Technological Background
[2]    Fracking as a Land Use and Zoning Issue
§ 13.02    Existing Statutes and Regulations
[1]    Federal Action
[2]    State Action
[a]    Transparency and Disclosure Require-ments
[b]    Bans and Moratoria
[c]    Water Protection: Quality and Quantity
[d]    Severance Taxes and Fees
[3]    Local Action
[a]    Regulations
[b]    Bans
§ 13.03    Strategies for State and Local Regulation
[1]    Local Control
[2]    Traditional Zoning

CHAPTER 14
Signage Regulation in the Digital Age
§ 14.01    Digital Signage Regulation
§ 14.02    Signs and the First Amendment
[1]    Content-Based Regulations
[2]    Content-Neutral Regulations
§ 14.03    Types of Communication on Signs
[1]    Commercial Speech
[2]    Noncommercial Speech
[3]    Total Ban on Speech
[4]    On-Site Advertising Versus Off-Site Advertising
§ 14.04    How to Adopt Digital Sign Regulations
§ 14.05    How to Effectively Regulate Digital Signs
[1]    Restrictions on the Size of a Sign
[2]    Restrictions on Sign Movement
[3]    Restrictions on Sign Brightness
[4]    Location of Digital Signs
[5]    Billboard Exchange Requirements
[6]    Public Use of Digital Signs

APPENDICES

Appendix A: 25 Guidelines to Drafting, Negotiating, and Enforcing Community Benefits Agreements
Appendix B: Sample Stormwater Regulations
Appendix C: Sample Zoning and Land Use Ordinance
Appendix D: Sample Overlay Regulations
Appendix E: Sample Firearms Sales Regulations
Appendix F: Sample Vacant Property and Registration Regulations
Appendix G: Guidelines for the Promotion of Sustainable Food Production
Appendix H: Sample Wind Energy Regulations