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Case Study: Reconciling Land Use Issues

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Case Study: Reconciling Land Use Issues 3.1.1 Overview of State & Local Authority State Constitution Vests authority in state legislature and governor Delegates ... – PowerPoint PPT presentation

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Title: Case Study: Reconciling Land Use Issues


1
Case Study Reconciling Land Use Issues
  • 3.1.1 Overview of
  • State Local Authority

2
State Constitution
  • ?Vests authority in state legislature and
    governor
  • ?Delegates certain powers to County Charters
    which vest authority in county council
  • ?Municipal charters set forth local jurisdiction
    which is vested in mayor, city manager, or
    council
  • ?Delegates implementation to local agencies via
    local ordinances

3
Separation of Powers
  • US Constitution
  • Bill of Rights-protect privacy, free speech.
  • Legislators-Full time, elected, w/ full staff
  • Executive ? President w/ oversight over executive
    departments
  • Judiciary-Appointed positions w/ independence
  • State Constitutions
  • Bill of Rights-protect privacy, free speech.
  • Legislators-Part-time, elected, w/o full staff
  • Executive ?Governor w/ limited oversight
    Fragmented cause many in executive are elected,
    e.g. Sec of State, treasurer, attorney general
  • Judiciary-Most elected so political and less
    check and balance

4
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5
Zoning Land Use
  • Local governments have jurisdiction over land use
    issues zoning per delegation by states to local
    authorities.
  • Zoning Land use is designated by local
    ordinance.
  • Types, Nature Scope of land use are authorized
    pursuant to the governments exercise of Police
    Powers to protect public health, safety
    welfare.
  • Deviations from uses prescribed by law addressed
    through administrative boards commissions,
    e.g., zoning commission, planning, architectural
    review boards.

6
Addressing Competing Interests
  • Some uses may be necessary have utility but be
    undesirable.
  • Q Identify commercial uses that may be necessary
    but undesirable?
  • Why are the uses undesirable?
  • Why would a community agree to allow them?
  • Q Identify residential uses that may be
    necessary but undesirable?
  • Why are the uses undesirable?
  • Q How do you reconcile the competing interests?

7
Undesirable Uses
  • Undesirable Uses
  • Nuclear power plants
  • Prisons
  • Dumps
  • Liquor stores
  • Adult entertainment
  • Antenna towers
  • Halfway houses
  • Reasons for Undesirability
  • ?health, safety and risk of injury
  • ?safety, undesirable persons, reduce property
    values
  • ?odors, attract rodents, unsightly
  • ?attract loiters, intoxicated
  • ?appeals to questionable persons
  • ?unsightly, safety, radiation
  • ?reduce property values, safety

8
Reasons to Object
  • Objections not based on police powers include
    environmental concerns aesthetics, affect on
    property values.
  • Tests focus on balancing utility of use against
    detriment to surrounding communities.
  • Limit number, location, supervision, hours of
    operation

9
Location of Antenna Towers
  • Part 2

10
Facts
  • Developer owns a 4-acre triangular-shaped piece
    of property on the top of a mountain in the City
    of Saints. The property is currently used to
    locate broadcast, microwave, and satellite
    antenna towers. The satellite antenna is 10 feet
    in diameter, the microwave tower is 140 feet high
    and the broadcast antenna tower is 200 feet in
    height, both visible from Cool Housing,
    Interstate 54 and the beach. The property is
    zoned to permit as a matter of right,
    institutional or light industrial use. Design
    approval is required.
  • Q IS THIS A PREEXISTING USE? IF SO THEN SPECIAL
    EXCEPTION APPLIES, IF NOT THEN VARIANCE.

11
Facts
  • Developer inherited the property from his family
    and wants to move the existing towers to the
    northern end of the site, which will require a
    100-foot encroachment on to city property.
  • Wants to build a high-tech industrial park on the
    south end of the site.
  • Use of the site for antenna towers was
    grandfathered in under local zoning authority.
  • The proposed relocation and development plan
    requires a conditional use permit. Such uses
    would likely be prohibited as a matter of right,
    requiring either a special exception showing
    compliance with local regulations or a variance,
    since the property is located in an area that
    under current zoning would prohibit such use.
  • The current towers are located within 1500 feet
    of the nearest residential area.

12
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13
Special Exception
  • Applies where the use is not barred, but the
    statute provides that the use can only be
    permitted on a showing that certain conditions
    have been met.
  • The requirements are less stringent than
    variances.
  • State Zoning Enabling Acts vest authority in
    local zoning boards to hear and decide such
    issues.

14
Variances
  • Variances are appropriate where the use is
    prohibited as a matter of right and is not
    self-created but for some unique physical
    circumstance, an unnecessary hardship created.
  • Variances should be used where the physical
    characteristics of the land make it necessary
    for the reasonable use of the property. Unique
    topography is one basis for granting a variance.
  • Bottom line HARDER TO PROVE, MUST SHOW HARDSHIP.

15
Problem
  • 1) Local land use authorities that regulate the
    location of antenna towers within a community
    apply the criteria for special exceptions and
    variances inconsistently, leading to ad hoc and
    arbitrary denial of applications by communication
    providers.
  • 2) There is a need to reconcile environmental,
    aesthetic, and safety concerns associated with
    location of antenna towers federal law that
    prescribes minimum standards and guidelines for
    RF radiation and community concerns.

16
Question
  • Is this a preexisting use?
  • If so, then special exception applies.
  • If not, then variance is required.

17
Facts
  • The towers comply with current regulations by the
    Federal Communications Commission governing
    human exposure to RF radiation and minimum
    distance requirements to residential.
  • Q THE EXISTING TOWERS COMPLY, SO WHAT WOULD BE
    THE JUSTIFICATION FOR IMPOSING ADDITIONAL
    REQUIREMENTS, E.G., AS A QUID PRO QUO FOR
    ALLOWING THE USE OR BY LAW PASSED BY THE LOCAL
    AUTHORITY?

18
Assumptions
  • The City of Saints, acting through their city
    council, has enacted a local ordinance that
    mirrors the provisions of Title 5 governing
    Negotiated Rulemaking. See Sections 562-566, 570
  • The City of Saints, by charter, has delegated
    land use functions, including rulemaking,
    adjudication, and enforcement to the Zoning
    Commission.

19
Negotiated Rulemaking APA Section 561-570
  • An advisory group of stakeholders who reach
    consensus on a rule and then government puts out
    as NPRM
  • Gov. does not undertake independent review
  • Need has to be established where identifiable
    stakeholders and likelihood that compromise can
    be reached
  • Settlement agreement becomes rule proposed by the
    agency.
  • Increasingly used more often to reduce time and
    delay.
  • Key is that parties are seeking some consensus
  • The discretion to use, establish or terminate a
    negotiated rulemaking shall not be subject to
    review.

20
Indispensable Parties
  • Developer/owners-Seek to act
  • Adjoining neighbors-Object to action
  • City Planning Office-Enforce zoning laws
  • Community Environmental Organization-Represent
    community interests

21
Developer
  • Files for a special exception to relocate the
    towers.
  • Argues the location of the towers constitute as a
    pre-existing use, and he is not proposing an
    overall increase or change in the use.
  • There is no issue regarding the appropriateness
    of locating the towers on the site and,
    therefore, grandfathered in.
  • The only issue is whether the city will allow an
    encroachment onto its land.
  • The Developer argues that the towers must be
    located at that site because of its proximity to
    the citys power grid. Providers rely upon the
    grid to generate the power to operate the
    antennas.
  • The encroachment will be minimal and will not
    have an appreciable environmental impact on the
    biological resources or use of the property.
  • Developer has the support of the communication
    providers.

22
University of Saints
  • Opposes the towers because the use violates
    current zoning laws, reduces property values, is
    aesthetically unattractive, and threatens to harm
    the wildlife in the preserve.
  • Relies upon research by computer science students
    determined based upon studies in Europe and
    abroad, U.S.
  • RF standards are 10 percent below what has been
    found to be the maximum safe distances.
  • Believes construction of a high tech park would
    be incompatible and directly compete with a
    proposed expansion of a science lab.

23
Community Environmental Org.
  • Opposes the plan, supports the University and
    wants to restore the natural views, and
    encourage redevelopment to residential use.
  • Discriminates against persons with heart pace
    makers, hearing aids, and other medical devices
    that rely upon electricity.
  • Studies show devices used in close proximity to
    power plants malfunction or are subject to
    interference with their operation, causing a high
    risk to affected persons.

24
Interests to be Balanced
  • Need for electricity power, telecommunication
    services, security but requires construction of
    power lines and antenna towers that are visible
    and unsightly.
  • Property values, health and safety, aesthetic.
  • Development for residential, commercial, research
    development or existing uses.

25
Rules
  • Federal government has preempted state and local
    authority to the extent that it precludes or bans
    the activity in its entirety in the Telecom Act.
  • Action by a board must be based upon substantial
    evidence.

26
Rules
  • Ninth Circuit has ruled that a city cannot bar
    the construction, enhancement or location of
    antenna towers solely on the basis of aesthetics.
  • Not clear extent to which wireless providers
    need to upgrade to accommodate service.

27
Principles
  • How boards apply the rules have resulted in ad
    hoc decision making that is inconsistent and
    creates a hardship to providers. Fact specific
    but are the parties the same or different.
  • Negotiated rulemaking puts all of the critical
    stakeholders together to try to resolve the
    issues. The City acts as a mediator to
    facilitate a resolution, taking into account
    general planning and regulatory constraints in
    enforcement.

28
Principles
  • Antenna towers are fundamental to wireless
    telecommunications systems, and must be
    constructed above ground with clear line of
    sight, so they have to be erected somewhere in
    order to provide service. Can provide buffers,
    aesthetic covers to minimize visibility.
  • Service requirements often dictate minimum space
    requirements, line of site, so options for
    location are limited.

29
Principles
  • Wireless communications require clear
    line-of-site, which is why towers are generally
    located at high elevations or outside heavily
    populated areas with tall buildings.
  • Towers are placed in a pattern or grid to
    minimize dead zones, interference or
    disruption of the signal.

30
Goal
  • Your goal is try to resolve the concerns of all
    of the parties to permit the use through
    negotiation, rather than a third party decision
    maker where neither party may be pleased with the
    outcome, but still must live with and interact
    with same parties.

31
Questions
  • Q HAS THE AREA CHANGED TO THE EXTENT THAT THE
    PROPOSED USE VIOLATES LAND USE PLAN CALLING FOR A
    VARIANCE?
  • Q IF YES, THEN DID APPLICANT CREATE THE HARDSHIP
    THAT IS THE BASIS FOR THE VARIANCE, IF ONE IS
    SOUGHT?
  • Q IF NO, THEN CAN THE AREA ACCOMMODATE THE
    MODIFICATION AND ARE THERE ADVANTAGES THAT WOULD
    OUTWEIGH ANY OTHER INTERESTS?

32
Task
  • Identify the priority of interests for each
    party.
  • Develop a strategy that will address each partys
    concerns.
  • Negotiate a compromise.
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