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TAKE HOME EXAM
LAND USE PLANNING AND CONTROL LAW
FALL 2007 LAW 7320
PROFESSOR JUERGENSMEYER
Instructions: This exam is being posted to the College of Law’s exam website. You may access it at any time during the exam period. Once you do so, the honor code in regard to individual work becomes applicable. You must submit your answers no later than 4:00 pm the last day ofexams, December 19, 2007. The maximum number of “typed” double spaced pages (normal margins and font size) for answers to each of the two questions is indicated below. Grading weight will correspond to the maximum page allocation to each question (i.e. it is equal). The grader will reward specificity, thoroughness and originality. Also don't worry about citations for cases or articles unless they are not found in your casebook or the hornbook
QUESTION I (7 pages maximum) You are an attorney and planner with an internationally known consulting firm. Your firm has recently been retained by the Georgia Department of Community Affairs and the Atlanta Regional Commission to formulate a Smart Growth Program to guide the State and its local governments (and particularly the Atlanta urban area) for the next 25 years. Write them a memorandum setting forth the essential parts of such a program. Explain the basis for yourrecommendations and which problems they will avoid or alleviate, how current Georgia law will support the Program, and/or what state statutes or constitutional provisions will need to be adopted or amended to permit or facilitate its adoption and implementation. Compare and contrast the Program you formulate with the smart growth/growth management programs of other states. Explain what “approaches” from other states you chose to copy or reject and yourreasons for doing so.
QUESTION II (7 pages maximum) The City of Destiny, Georgia, a wealthy coastal community, is considering the adoption of the work force housing ordinance set forth below. You have recently been retained by the Greater Destiny Homebuilders Association to advise them in regard to the validity of the ordinance if it is adopted. Write a memorandum analyzing the ordinance, the legal issues raised by it, the attacks which could be made on it under Georgia and federal law, and the defenses available tothe City under Georgia and federal law. Don't concern your self too much with the "numbers" - i.e. assume that the City has used well-qualified experts that would defend them at trial. (I have left many of the numbers blank to keep you from the temptation to deal with them. I have also omitted the exhibits referred to in the ordinance for the same reason.) Be careful that you don't foreclose discussion of important issues by resolving the validity/invalidity on a particular point.
DRAFT
MODEL WORK FORCE HOUSING MITIGATION ORDINANCE
AN ORDINANCE OF THE CITY OF DESTINY, COUNTY OF
KUMQUAT, STATE OF PARADISE; AMENDING THE CITY OF
DESTINY’S LAND DEVELOPMENT REGULATIONS” BY CREATING
SECTIONREGULATION OF THE USE AND DEVELOPMENT OF LAND IN THE _______, AN ORDINANCE RELATING TO THE
CITY OF DESTINY, BY IMPOSING WORKFORCE HOUSING
STANDARDS ON LAND DEVELOPMENT FOR THE PROVISION OF
AFFORDABLE WORKFORCE HOUSING NECESSITATED BY SUCH
NEWFOR PURPOSE; PROVIDING FOR AUTHORITY; PROVIDING FOR DEVELOPMENT; PROVIDING FOR FINDINGS; PROVIDING
TECHNICAL SUPPORT; PROVIDING FOR APPLICABILITY;
PROVIDING FOR EXEMPTIONS; PROVIDING FOR PROCEDURES;
PROVIDING WORKFORCE HOUSING STANDARDS; PROVIDING FOR
INDEPENDENT CALCULATION FOR ALTERNATIVE MITIGATION;PROVIDING FOR COLLECTION AND ACCOUNTING FOR
WORKFORCE HOUSING FEES IN-LIEU; PROVIDING FOR
DEFINITIONS; PROVIDING FOR SEVERABILITY; PROVIDING FOR
THE REPEAL OF ALL CODE PROVISIONS AND ORDINANCES
INCONSISTENTINCLUSION IN THEWITH CITY THIS CODE; ORDINANCE; AND PROVIDING PROVIDING FOR FORTHE
TRANSMITTAL OF THIS ORDINANCE TO THE SECRETARY OF
STATE.
WHEREAS , pursuant to the State of Paradise Smart Growth Act the City of Destiny has provided a housing element in its Comprehensive Plan , which includes provisions related to the current and future housing needs of the City; and WHEREAS , the City has prepared and adopted The City of Destiny Affordable Workforce Housing Study (hereinafter Workforce Housing Study ), dated _______, attached as “Exhibit __” and incorporated herein by reference, that identifies the is a workforce housing affordability problem in the City; and WHEREAS , as The City of Destiny Workforce Housing Study demonstrates, beginning in 2000, a significant increase in housing prices within Destiny has made private housing
A. The City of Destiny Needs a Resident Workforce to Ensure Sustainable Local Economy. One of the overarching goals of the City and its Comprehensive Plan is to maintain a balanced and sustainable local economy. Maintenance of a balanced and sustainable local economy requires the availability of a stable and qualified workforce.
B. Ensuring Workforce and Their Families Live in the City Is Important for Maintaining Community Character. A second important goal of the City and its Comprehensive Plan is to maintain and enhance the City’s community character, including the social, economic, and political fabric, and general sense of community that occurs when persons and families who work in the community, live in the community, attend schools in the community, participate in civic organizations in the community, worship in the community, and vote in the community. One of the primary factors that has allowed this special sense of community, and the maintenance of the City’s community character is that for many years the cost of housing was affordable to those persons living and working in the City.
C. Provide Adequate Affordable Housing Another goal of the Comprehensive Plan is to ensure there is an adequate supply of affordable housing to the City’s workforce at prices they can reasonably afford.
D. Housing Costs Have Outpaced Ability of Workforce to Afford Housing. Beginning in 2000, there has been a rise in housing prices that has made private housing unaffordable to many working residents of the City.
E. Unaffordable Housing Has Been Documented. Review of state and national census and other wage and labor data, in conjunction with Kumquat County and City real estate sales data, demonstrate the amount of housing within the price ranges that are affordable to the City workforce has been declining since 2000 to the point there are now only a very limited number of market units available today at prices the workforce in the City can afford.
F. Forced Out-Migration of Workers and Their Families. The unaffordability of workforce housing within Destiny has or will soon result in a number of persons employed in the City and their families being forced to move from the City. Data outlined in The Workforce Housing Study demonstrate the following: a. From 2000 to 2006, the gap between median household incomes and median housing costs in the City increased to the point that housing is not affordable to workforce households in Destiny earning the area median income.
- The estimated earnings of households of persons employed in Destiny approximate but rarely exceed the area median household income, confirming that Destiny housing is typically unavailable to those employed in Destiny.
G. Deterioration of Local Workforce and Local Economy. This lack of affordable workforce housing has placed increasing stress on the capacity of the local community to maintain a viable workforce. Estimates indicate this problem will worsen in the future, potentially affecting the long-term sustainability of the local economy unless additional housing is provided within price ranges that are affordable to the workforce.
SECTION 3: AUTHORITY.
The City has the authority to adopt these Workforce Housing Standards in accordance with Article ____of the State of Paradise Constitution and by Paradise Statutes, Chapters _____ and Sections _______,
SECTION 4: TECHNICAL SUPPORT. The technical support and analysis upon which these Workforce Housing Standards are established are based on the Workforce Housing Study.
SECTION 5: APPLICABILITY.
The standards of these Workforce Housing Standards shall apply to the development or re-development of all lands within the City of Destiny, unless exempted pursuant to this ordinance.
SECTION 6: DEFINITIONS For the purposes of this Division, the following terms shall have the following meanings.
Affordable Workforce Housing Unit means a dwelling unit which is provided for a person employed in the City of Destiny and their families, either through sale or rent, at prices that are restricted to ensure the unit is maintained as affordable to persons employed in the City. All Other Residential Unit(s) means all other residential units not classified as Units Occupied by Full-Time Residents of the City of Destiny. Applicant means is the person, persons or entity that applies to the City of Destiny for site plan or plat approval. Average Just Value means the mean or average estimate of market value for Vacant Residential Lands in the City, as determined by the Kumquat County, State of Paradise Property Appraiser. The Average Just Value is the quotient of the calculation where the numerator is the sum of the Just Value for all Vacant Residential Lands and the denominator is the total number of parcels categorized as Vacant Residential Lands in the City. Building Permit means that development permit issued by the City before any building or construction activity can be initiated on a parcel of land.
Institutional uses means churches; private schools; colleges; daycares; privately owned hospitals; homes for the aged; orphanages; clubs; cultural organizations; and similar uses. Maximum Extent Practicable means no feasible or practical alternative exists, as determined by the Planning Director, and all possible efforts to comply with the relevant standards or minimize potential harmful or adverse impacts have been undertaken by an applicant. Economic considerations may be taken into account but shall not be the overriding factor determining “maximum extent practicable. Tourist/Recreational uses means theatres; auditoriums; nightclubs; bowling alleys; tourist attractions; camps; race tracks; golf courses; hotels, “beds and breakfasts,” motels and ancillary spaces within hotels or motels such as restaurants and shops. Office uses means professional and non-professional office buildings, offices of financial institutions, professional services buildings, and insurance company offices. Person means an individual, corporation, governmental agency, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other entity. Planning Director means the Planning Director of the City of Destiny or a professional level subordinate appointed by the Planning Director to carry out a responsibility under this Ordinance. Retail uses means stores, department stores, supermarkets, supercenters, shopping centers, restaurants, bars and night clubs, repair service shops, service stations, auto sales and repair, parking lots, and wholesale or discount outlets.
Unit(s) Occupied by Full-Time Residents means a residential unit that an applicant/developer can ensure will be occupied full-time by a resident of Destiny, in perpetuity. Vacant Residential Land means land that is categorized by the Kumquat County, State of Paradise Property Appraiser as “vacant residential land,” and that is defined as being vacant, subdivided land available for development of single-family dwelling unit(s). Workforce Housing Study means the document providing the technical support and analysis upon which these Workforce Housing Standards are established. It is titled The City of Destiny Affordable Workforce Housing Study, and dated ________. Workforce Housing Trust Account means the account established in accordance with Section 11 A.: Workforce Housing Trust Account , to ensure the in-lieu fees collected pursuant to this ordinance are designated and used for affordable workforce housing units attributable to Employee-Generating Development that paid the in-lieu fees.
SECTION 7: EXEMPTIONS.
The following development shall be exempted from these Workforce Housing Standards:
A. Construction of an Affordable Dwelling Unit. The construction of a dwelling unit that is deed restricted to ensure it is maintained as an affordable workforce housing unit.
B. Development of Residential Units Less Than 1,000 Square Feet.
SECTION 8: PROCEDURES.
A. Submission of Workforce Housing Mitigation Plan. An applicant for a subdivision, site plan or similar approval for any Employee Generating Development not exempted in accordance with Section 7: Exemptions , shall submit a Workforce Housing Mitigation Plan to the Planning Director concurrent with the development application.
B. Contents of Workforce Housing Mitigation Plan. The contents of the Workforce Housing Mitigation Plan shall include the following:
- Workforce Housing Need. Calculation of the need for affordable workforce housing created by the Employee Generating Development based on the requirements of Section 9: Workforce Housing Standards.
- Method. The method by which affordable workforce housing is to be provided to comply with the requirements of Section 9: Workforce Housing Standards (on-site or off- site construction of units, conversion of free market units, payment of a fee in- lieu, conveyance of land for affordable housing, or a combination of the above), and appropriate justification for the proposed mitigation method.
- Construction of Affordable Workforce Units. If affordable workforce housing units are to be constructed (either on or off-site), the Workforce Housing Mitigation Plan shall include:
a. Conceptual Site Plan. A conceptual site plan and building floor plan (if applicable) illustrating the number of affordable workforce units proposed, the type and nature of those units, their location in relation to the other residential or non- residential developments on the site and surrounding land uses, and the number and size of bedrooms of each unit. b. Summary of Affordable Units. A summary of the number of affordable workforce units, the number and size of bedrooms of each unit, the rental/sale mix, and the sales price or rent for each unit. c. Restrictions. The proposed restrictions to be placed on the affordable workforce units to ensure they remain affordable to the workforce.
- Conversion of Free Market to Workforce Housing If existing free market units are proposed to be converted to affordable workforce housing units, the Mitigation Plan shall include:
a. Site Plan. Identification of the location and construction quality of the free market units that are proposed to be converted to affordable workforce housing units.
development of residential units on the land, and that the site can generally be developed for affordable workforce housing. d. Appraisal. An appraisal of the fair market value of the land. e. Other Information. Any additional information or studies determined by the Planning Director to be necessary to verify the suitability of the land for affordable workforce housing units.
- Payment of In-Lieu Fee. If payment of a fee in-lieu is proposed, the Mitigation Plan shall include a commitment by the applicant that the appropriate workforce housing mitigation fee will be paid at the time of the issuance of building permits and in the amount required at the time of the request for the issuance of building permits. The Payments in-lieu fees are to be found in Attachments B and C, except as modified by the annual update as provided for in Section: 9 f.2 of this ordinance.
- Workforce Housing Agreement. A Workforce Housing Agreement (hereinafter “Agreement”) in which the applicant agrees to implement the Workforce Housing Mitigation Plan. The Agreement shall be in a form approved by the City Attorney, and shall include the following:
a. Construction of Units. If the Workforce Housing Mitigation Plan proposes the construction of affordable workforce housing units, the Agreement shall identify: the location, number, type and size of the units to be constructed; sales and/or rental terms; occupancy requirements; a timetable for completion of the units; construction specifications; and the restrictions to be placed on the units to ensure their permanent affordability to the workforce.
b. Conversion of Units. If the Workforce Housing Mitigation Plan proposes the conversion of free market units to affordable workforce housing units, the Agreement shall identify: the location, number, type and size of the units to be converted; sales and/or rental terms; occupancy requirements; a timetable for conversion of the units; and the restrictions to be placed on the units to ensure their permanent affordability.
c. In-Lieu Fees If the Workforce Housing Mitigation Plan proposes the payment of in-lieu fees, the Agreement shall provide the commitment by the applicant that the fees will be paid at the time of issuance of building permits.
d. Conveyance of Land. If the Workforce Housing Mitigation Plan proposes the conveyance of land, the Agreement shall identify the land to be conveyed, its fair market value, and the time at which the land will be conveyed to the City.
not be approved without a Workforce Housing Mitigation Plan approved in accordance with the procedures and standards of this Section. c. Amendment. An approved Workforce Housing Mitigation Plan may be amended or modified only in accordance with the procedures and standards established for its original approval.
SECTION 9: WORKFORCE HOUSING STANDARDS.
A. General Requirements.
- Mitigate Workforce Affordable Housing Demand. Each Employee Generating Development not exempted by Section 7: Exemptions, shall mitigate the demand for affordable workforce housing created by the development by one or a combination of the methods identified below. The Planning Director shall approve, approve with conditions, or disapprove the method of mitigation in accordance with the standards of this section. a. Construction of Affordable Workforce Housing On Site. Affordable workforce housing units shall be constructed on the site of the Employee Generating Development unless the Planning Director finds the provision of affordable workforce housing on-site is impracticable pursuant to Section 9.B.1: Construction of Affordable Workforce Housing On-Site Impractical.
b. Impractical to Construct On-Site. If it is determined it is impracticable to provide affordable workforce housing on-site in accordance with Section 9.B.1: Construction of Affordable Workforce Housing On-Site Impractical, the housing shall be provided either off-site, through the conversion of free-market to affordable workforce housing units, the dedication of land for affordable workforce housing, or through an in-lieu fee. This shall be done through the applicant making an offer of mitigation, and the Planning Director reviewing and accepting the most appropriate mitigation option, based on the standards of this section and the workforce housing goals of the City and the goals, objectives, and policies of the Comprehensive Plan. c. If the affordable workforce housing requirement results in less than one (1) housing unit, or a fraction of a required affordable workforce housing unit, the Planning Director shall accept a fee in-lieu, pursuant to Section 9.F, Payment of Fee In-Lieu.
- Amount of Affordable Workforce Housing Required. a. Residential Development. All Employee Generating Residential Development not exempted by Section 7: Exemptions, shall provide affordable workforce housing for __50 percent of the number of employee households generated by the Employee Generating Residential Development. All residential units,
