Bargaining for Development

by Callies, David L.; Curtin, Daniel J., Jr.; Tappendorf, Julie A.

• ISBN13: 9781585760619
• ISBN10: 1585760617
• Format: Paperback
• Copyright: 2000-11-01
• Publisher: Environmental Law Inst

Summary

Bargaining for Developmentis a one-of-a-kind handbook that explores the policy and planning principles behind land development conditions, vested rights, and development/annexation agreements, and provides guidance for the practicing professional, government, and land development communities in evaluating the need for, and the drafting of, land development statutes, ordinances, and agreements.The handbook's basic premises are two-fold. First, land development and annexation agreements offer an excellent vehicle for government and landowners to provide in detail for land developments. Second, because of the law pertaining to vested rights and land development conditions, the development community needs more assurances concerning the continued viability of their projects and the government community requires more in the way of public facilities than the common law grants to either. Vested rights to proceed with a development, including the multi-stage variety, are not easy to come by under the applicable legal principles. Public facilities not closely tied to a land development project through nexus and proportionality are similarly difficult to legally enforce. A development agreement provides for both.

Author Biography

David L. Callies is a Professor at University of Hawaii's William S. Richardson School of Law. Daniel J. Curtin, Jr. is an attorney at Bingham McCutchen, LLP. Julie A. Tappendorf is an attorney at Holland & Knight.

Table of Contents

Author Biographies	p. ix
Foreword	p. xi
Article
Introduction	p. 3
Land Development Conditions	p. 5
Introduction and Background	p. 5
Nexus, Proportionality, and Takings	p. 8
Overview	p. 8
Federal Constitutional Standard	p. 8
Nollan and the Nexus Requirement	p. 11
Dolan and the Proportionality Requirement	p. 14
Applicability of Nollan and Dolan to Land Development Conditions Generally	p. 16
Legislative Decisions	p. 22
Level of Detail Required for Showing Nexus and Proportionality	p. 29
Cost and Calculation of Fees	p. 31
Planning Consistency	p. 40
Land Development Conditions for Specific Facilities	p. 42
Streets and Roads	p. 42
Water and Sewer Improvements	p. 55
Housing	p. 67
Parks and Recreation	p. 71
Schools	p. 81
Fire Protection	p. 86
Historic Preservation	p. 86
Segregation of Funds, Credits, and Refunds	p. 88
Development Agreements	p. 91
Why Development Agreements?	p. 91
The Basic Problem: Bargaining Away the Police Power and Reserved Power	p. 91
"Freezing" and the "Contracting Away" Issue	p. 92
The Contracts Clause and Reserved Powers	p. 95
Statutory Authority: Critical for Development Agreements	p. 97
Protection of General Welfare	p. 97
Requirements	p. 98
A Statutory Checklist	p. 101
Enabling Ordinance	p. 101
Approval and Adoption	p. 102
Conformance to Plans and Other Reviews	p. 103
The Legislative/Administrative Issue	p. 105
Public Hearing	p. 107
Binding of State and Federal Agencies	p. 107
Amendment or Cancellation of the Agreement	p. 108
Breach	p. 108
When Local Government Changes the Land Development Rules	p. 108
Nonperformance of a Bargained-For Act: Dedications, Contributions, and Hook-Ups	p. 111
Limits on Local Government Conditions, Exactions, and Dedications Pursuant to Development Agreements	p. 111
Annexation Agreements	p. 115
Introduction	p. 115
Bargaining Away Police Power	p. 115
Enabling Act	p. 119
Issues	p. 120
Enabling Ordinance	p. 120
Approval and Adoption of the Agreement	p. 121
Public Hearing	p. 121
Conformance to Plans	p. 122
Amendment or Cancellation	p. 123
Breach	p. 123
When Local Government Changes the Land Development Rules	p. 123
Nonperformance of a Bargained-For Act: Dedications, Contributions, and Hook-Ups	p. 125
Limits on Conditions	p. 126
Vested Rights	p. 128
Introduction and Background	p. 129
Elements of Vested Rights	p. 130
Government Act or Omission	p. 130
Detrimental Reliance	p. 131
Good Faith	p. 132
What Constitutes Sufficient Governmental Action	p. 135
Building Permit	p. 135
Subdivision Plats or Plans	p. 140
Final Plats	p. 140
Preliminary Plats	p. 142
Planned Development Plan Approval	p. 145
Site Plan Approval	p. 148
Special or Conditional Use Permit	p. 150
Grading and Other Site Preparation Permits	p. 154
Zoning Classifications	p. 155
Legislative Solutions	p. 157
Case List	p. 161
Appendices
California Mitigation Act--Government Code	p. 181
Florida Impact Fee Statute	p. 188
Illinois Road Impact Fee Statute	p. 190
Model Impact Fee Ordinance	p. 202
Village of Northbrook, Illinois Impact Fee Ordinance	p. 218
Hawaii Development Agreement Statute	p. 226
California Development Agreement Statute	p. 231
Washington Development Agreement Statute	p. 235
Arizona Development Agreement Statute	p. 237
Sample Development Agreement (California)	p. 239
Illinois Annexation Agreement Statute	p. 258
North Carolina Annexation Agreement Statute	p. 261
Sample Annexation Agreement (Local Government-Oriented)	p. 265
Sample Annexation Agreement (Developer-Oriented)	p. 287
Checklist for Drafting Annexation and Development Agreements	p. 296
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