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This Michigan Supreme Court Case Has the Potential to Guide Drone and Air Rights Law for the Nation

While at first glance the Michigan Supreme Court case of Long Lake Township v. Maxon, appears to be a simple zoning dispute with a Fourth Amendment twist, the real impact of the case may ultimately fall on drones and air rights law, particularly the rights of landowners to exclude drones from flying in the airspace immediately above their land, and relatedly the ability of state and municipal governments to regulate such flights.

The history of the case is straightforward. When the Michigan municipality of Long Lake Township sought to enforce a zoning ordinance against Todd Maxon, Mr. Maxon asked the trial court to exclude all evidence obtained by flying a drone over Mr. Maxon’s land. After the trial court refused to exclude the evidence on the grounds that the photographs did not violate the Fourth Amendment, an appellate court ruled that the Fourth Amendment issue was irrelevant because a legal proceeding to enforce a local zoning ordinance is not required to exclude evidence obtained in violation of the Fourth Amendment (the requirement to exclude such evidence is known as the “exclusionary rule”).

Now, we await the Michigan Supreme Court’s decision as to whether the exclusionary rule applies, and if so, whether the use of the drone to inspect Mr. Maxon’s land for zoning compliance violated the Fourth Amendment’s prohibition of unreasonable searches.

A decision on that second question will center on landowners’ right to exclude drones from the airspace immediately above their land, because a warrantless search violates the Fourth Amendment if there is a reasonable expectation of privacy in the searched area that society recognizes as reasonable. It follows then, that, if a landowner has no legal right to exclude drones from flying over his or her land, then it would be inherently unreasonable to expect privacy in portions of their property that can be observed from such public drone flight paths above their land, as courts routinely rule that there cannot be a reasonable expectation of privacy in land that can be observed from adjacent, publicly-accessible space.

As drone technology developed from a curious, niche hobby into a potential billion-dollar business with the ability to change the way packages are delivered to our homes and offices, legal debates quickly followed about whether all airspace above the blades of the grass constitutes “publicly navigable airspace” that is beyond the control of the landowners below, or if those landowners maintain some residual control over some airspace above their land. A decision from the Michigan Supreme Court on this issue would be one of the highest level state or federal courts to confront this question.

Hopefully, the exclusionary rule will not prevent a thorough analysis of the issue, as its resolution will ultimately be necessary to confirm the permissibility of local government regulation of the time, place, and manner of drone flights, and landowners’ airspace control rights, and only when those questions are resolved will drone technology be able to fully flourish in the United States as part of a legal regime that acknowledges and respects the traditional property rights of landowners.

This is a bellwether. This decision will affect the course of not just Michigan, but all of America about how it treats drone surveillance.

More Places, Less Spaces: California is Driving Down Development Costs

In an effort to decrease the skyrocketing development costs and reduce greenhouse gas emissions, Assembly Bill 2097 (AB 2097) aims to eliminate a key obstacle for new developments: parking. More specifically, starting on January 1, 2023, this law prohibits public agencies from imposing minimum automobile parking requirements for residential, commercial and other development projects if the project is located within a 1/2-mile of a “High-Quality Transit Corridor”[1] or a “Major Transit Stop.”[2]

Prior to the enactment of AB 2097, cities and counties retained the authority to impose a minimum number of parking spaces required for new developments. This condition is typically the result of a calculation found in the city or county’s zoning code, and is usually determined based on the use or type of project being developed, regardless of project specifics. Oftentimes, the use of a universal calculation results in excess parking. For example, a new restaurant may be required to provide 4 parking spaces for every 100 square feet of use even if the restaurant concept does not necessitate a large number of parking spaces or if the restaurant is in a pedestrian- or transit-friendly location. While California remains in the throes of a housing crisis, some areas within the state boast an oversupply of parking spaces. For example, Los Angeles County has 18.6 million parking spaces, which equates to almost 2 parking spaces for every 1 resident.[3] This statistic is similar in the Bay Area where there are 1.9 parking spaces for every 1 resident.[4]

Moreover, not only can a static calculation result in unnecessary parking (and blacktop), it can add untenable costs to new developments. For example, new residential developments are typically required to provide 1 to 2 parking spaces per unit. The requirement results in an additional cost of approximately $36,000 per unit.[5] As the cost to develop residential projects is at an all-time high,[6] builders are welcoming all efforts to reduce the cost and eliminate unnecessary development “standards.”

To avoid a complete free-for-all, under AB 2097, public agencies will still retain the ability to impose a minimum parking requirement, if, within 30 days of the receipt of a completed application, the public agency makes a written finding that not imposing a minimum automobile parking requirement would have a substantial negative impact. However, there are a number of exceptions to this caveat that wholly restrict public agencies from imposing a minimum parking condition. These exceptions include certain affordable housing projects or small residential housing projects.

For parking spaces that are voluntarily included in proposed project designs, public agencies may still require: (i) spaces for car share vehicles; (ii) parking spaces to be shared with the public; or (iii) for the project to charge for parking. Nothing in AB 2097 shall reduce or eliminate the requirement that new developments provide for the installation of electric vehicle supply equipment (i.e., EV-charging stations) or to provide parking spaces accessible to persons with disabilities.

AB 2097 is intended to give developers more flexibility and lower the costs associated with development, which will – hopefully – result in an influx of housing and the redevelopment of vacant buildings where it may not have been previously feasible to provide parking in a quantity necessary to meet a jurisdiction’s minimum requirements. By reducing the oversupply of parking, there is the expectation that the use of mass transit will increase, thereby reducing traffic, greenhouse emissions and air pollution.

Critics of AB 2097 are concerned that the elimination of parking requirements could actually weaken local efforts to provide more affordable housing as many public agencies offer reductions in parking requirements to incentivize developers to add on-site affordable housing units to the project.[7] There is also concern that, despite the decrease in availability, many residents will continue to own vehicles, which – ironically – will lead to increase parking demand and congestion.

Although there is a lot of speculation of AB 2097, many are hopeful that it is a step in the right direction when it comes to addressing California’s housing crisis. As Governor Gavin Newsom stated when he signed the bill: “Reducing housing costs for everyday Californians and eliminating emissions from cars: That’s what we call a win-win.”

FOOTNOTES

[1] “High-Quality Transit Corridor” means a corridor with a fixed-route bus service with service intervals no longer than fifteen minutes during peak commute hours.

[2] “Major Transit Stop” means a site containing an existing rail or bus rapid transit station, a ferry terminal served by bus or rail, or the intersection of two or more major bus routes with a frequency of fifteen minutes or less during peak commute periods.

[3] Aguiar-Curry, Cecilia. Assembly Committee on Local Government – AB 2097 (Friedman) – As Introduced February 14, 2022. (April 20, 2022. )

[4] Inventorying San Francisco Bay Area Parking Spaces: Technical Report Describing Objectives, Methods, and Results. Mineta Transportation Institute – San Jose State University. (February 2022.)

[5] Some estimates place the aveage cost of one residential unit at $1,000,000 in development costs. (The Costs of Affordable Housing Production: Insights from California’s 9% Low-Income Housing Tax Credit Program. Terner Center for Housing Innovation – UC Berkley. A Terner Center Report [March 2020].)

[6] Dillon, Liam and Posten, Ben. Affordable Housing in California Now Routinely Tops $1 Million per Apartment to Build. Los Angeles Times. (June 2, 2022.)

[7] California Daily News.

Article By Amanda S. Lee of Sheppard, Mullin, Richter & Hampton LLP

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Real Estate Developer Rights When Cities Demand Too Much [PODCAST]

ANTHONY DE YURRE

Welcome to Land Development in the 305, a podcast featuring news, observations, and analysis on the redeveloping and reshaping of the Miami skyline. My name is Anthony De Yurre, I’m a partner in Bilzin Sumberg’s Land Development and Government Relations Practice Group, and I have with me today, my partner and chair of our department, Stanley B. Price. On my side, I focus most of my day on transit-oriented development, large scale mixed-use projects, and P3 development with government infrastructure. Stan, why don’t you tell us a little bit about yourself and your practice?

STANLEY B. PRICE

Thank you, Anthony. I have practiced for 45 years as a zoning attorney, and I had the privilege of being an assistant county attorney for ten years in charge of zoning in Miami-Dade County. I’ve been in private practice since 1981, and as you indicated, my practice is almost exclusive land development regulations, planning, and governmental law.

ANTHONY DE YURRE

So today, Stan, we’re very glad to have you here with us. We’re going to talk about a very important case in Florida. The decision of Koontz v. Saint Johns River Water Management District is a 2013 case that essentially requires municipalities to follow the constitutional rule of law and reigns in some aggressive requirements that were made on behalf of property owners in order to try to move forward with a particular project they had. Tell us a little bit about your view on the significance of the Koontz case.

STANLEY B. PRICE

The Koontz case is a seminal case in that it provides protection to property owners and the bane of every zoning attorney is standing in front of a public hearing and asking the local government to respond to exaction requests, money for a park, money for a school program, and the like. That practice used to be legalized extortion, but the Koontz case has changed that procedure, and the Supreme Court has recognized a constitutional condition — a principle which applies to Koontz. I think it’s important to understand the background of Koontz and it goes back to the taking jurisprudence of Penn Central Railroad in the 1970s where the Supreme Court indicated that as long as government takes property and gives you an equal compensation in that case in terms of transferred development rights, there is no governmental taking. We fast forward many years later to the Nollan case out of California. The Nollan case was a situation where a property owner was remodeling a house along the ocean in California, and the California Coastal Commission required him, as a condition of getting the permit to remodel his home, to grant a public easement through his property to the beach for the use of the general public. The Supreme Court rejected that concept. They said this is nothing more than an appropriation of private property and found that to be a regulatory taking. A few years later, in the Dolan case, the Dolan case involves the construction of a store, and as part of the condition of approval, the local government required the property owner to build a bike path and other improvements which bore no reasonable relationship to the project. The Court held and has become the framework of the Koontz case that before a government can impose a burden on a property owner, there has to be a rational nexus between what is being asked for and the request must be in conformity with the impact caused by the property. Fast forward to 2013 and the Koontz case, which was authored by Justice Alito. Justice Alito seemed to get in the head of every zoning attorney who practiced in the United States, and he recognized that a zoning hearing is nothing but authorized extortion. And he used those terms in the case and indicated that it is inappropriate for a government, exact donations from a private property owner, which have no conceptual reality to what is the impact is. The property owner owned a 13-acre parcel of property. It was designated wetlands under the local plan. The property owner came forward with a plan to development uplands three-and-a-half acres which were not wetlands by definition and the state agency said well if you want to develop that, we only want you to develop one acre, or if you develop the three-and-a-half acres we want you to give us $150,000, so we can nourish wetlands several miles from the property.

ANTHONY DE YURRE

Stan, that is literally the definition of extortion. Which is why I think the court uses such strong language, and we’re all thankful they did. And what is also interesting is that you know when you talk about constitutional rights what we see in the news nowadays, we will talk about you know First Amendment rights, religious freedom rights, things of that nature. But people just seem to gloss over the fact that this country was founded on property rights, and that is really one of the biggest issues that we deal with on a daily basis, upholding constitutional property rights. I guess it just does not get the same headline attention that the other constitutional protections do, but without that and particularly the Koontz case, you know, it really goes to the heart and fabric of what ownership in the United States is all about.

STANLEY B. PRICE

When the Koontz case was decided, I was going through a zoning process in a town in Northeast Dade to build a religious facility, and the city manager came to me and said: “I want you to donate $100,000 for town beautification and I want you to pave a roadway several blocks from your synagogue.” And my client was obviously very upset. I was very upset. We waited. The Koontz case came out. I brought the Koontz case to a meeting, and I said, do you want to be the picture in the dictionary for the Koontz case. They dropped their demands immediately, and we were able to develop the property.

ANTHONY DE YURRE

And you know what is interesting about that is that really is a great anecdote about the importance of constantly staying on top of all the latest case law that comes out. Whether it is our local jurisdiction here in Miami-Dade County, at the State of Florida level, at a federal level, and even at the Supreme Court level, you know? I think that of the almost 20 members of our department each mention an anecdote about a matter we had at hand that was pressing and because we specifically monitored case laws that came out, just like you did in this instance with the Koontz case, we were able to win the day and really, you have to practice this type of law, you have to do land development, you have to do zoning, it has to be focused, and you cannot be a jack-of-all-trades, so to speak. You really have to be focused in that particular field and stay at the cutting-edge and the tip of the spear with the case law.

STANLEY B. PRICE

What has occurred as a result of Koontz is that generally United States Supreme Court cases, while they are important on a national basis, usually don’t filter down to local governments. But in this instance, the Koontz case formed the foundation of the state legislature in Florida forming and creating section 70.45 of the Florida statutes which basically provides a cause of action for a property owner who feels that they have been aggrieved by an illegal exaction, which is defined as an exaction which has no correlation to the impact caused by the development. The statute is a very clean statute. It puts the burden of proof on the government, not on the property owner.

ANTHONY DE YURRE

Incredibly important.

STANLEY B. PRICE

Yes.

STANLEY B. PRICE

To show that there is a reasonable proportionality. The statute awards attorney’s fees for the prevailing party, which is very important. And what it does, it creates a cause of action that basically provides that you have rights that you did not have before. Generally, zoning decisions are handled by a petition for a certiorari. This creates a de novo action you can take if you are at a hearing, and you are concerned that these conditions will be egregious to your client. You could wait until after the hearing. You do not have to object at the hearing. And then you avail yourself by this statute. Now, what is important about this statute is that…

ANTHONY DE YURRE

Before you continue, I just want to jump in on something you noted, which is the fact that you get statutory attorney’s fees for this. And in the State of Florida, unless you have a contractual right to attorney’s fees or a statutory right to attorney’s fees, you are not awarded attorney’s fees for causes of action in the State of Florida. But even more so, it is important in the case where you are dealing with litigation with a government entity because remember, the government entity really has an unlimited resource of attorneys at their disposal. They really have very deep pockets with tax dollars, and so ultimately that is something that I think both of us have had experience with, and when a client looks at that and says, you know when I go up against the government, the problem is I have a finite amount of dollars, am I ever going to get that back because the expense might be significant in this case.

STANLEY B. PRICE

— and the way to developers, of course, by unnecessary litigation. What is interesting about section 70.45 is that there is – the government has tried to wave their liability by having applicants sign a waiver beforehand that they will not seek damages.

ANTHONY DE YURRE

Yeah, sure, of course.

STANLEY B. PRICE

This specifically indicates in the statute it cannot be waived. You can sign every contact you want, but it can’t be waived. Number two it requires you to file an action no earlier than 60 days but no later than 180 days, to make your claim. The government has the ability to respond, they must respond, and what they say cannot be used against them at a later time except as to attorney’s fees. And the government has the burden of showing that the unconstitutional condition basically is in proportion to the impact of the development.

ANTHONY DE YURRE

So we have 2013 Koontz comes out. Then we have the Florida statue. Where are we right now in more recent case law? Because obviously, this goes back again, as you mentioned, in Penn Central, Nollan, Dolan, then we have Koontz. Now we have the Florida statues. Tell us where we are today. In particular, I think it would be helpful to talk about the city of Venice and mandarin development as well.

STANLEY B. PRICE

The City of Venice case is an interesting case in that the cause of action accrued prior to the effective date of the Florida statute 70.45. So the rules of procedure were somewhat different, and a clever municipal attorney had the applicants sign a waiver of liability to say that this was an annexation case. This was not a zoning case. And he said if you want to be in next to our jurisdiction, you have to make a list of 15 things. One of which was to make what they call an extraordinary monetary contribution to the local government. The Court struck down that extraordinary contribution as an unconstitutional condition, and in addition, the Court held that you could not waive — a party cannot waive a constitutional right in writing and must — and it cannot be foreclosed from bringing such an action. A somewhat similar case was decided shortly thereafter in Manatee County. It really wasn’t a decision, but the property owner was asked to dedicate property far in excess of what the impact of his project would be, and the property owner filed an action, once again a pre 70.45 action — and many land-use cases take several years to go through the court system — and the county — the judge in the Manatee County case refused to grant summary judgment to the local government. And in fact, wrote in his order what the county was doing here was an unconstitutional condition because the proportionality test of Nollan and Dolan was not met. The parties subsequently settled this case, and the settlement is interesting in that Judge Hall, who was the judge in this case, wrote a 45-page opinion indicating that the property rights were trampled in a good way. What does this mean to our practice and the like? Number one, applicants for zoning hearings no longer have to be a punching bag and get up and play Let’s Make a Deal. You want door number one, door number two, or door number three? Those days are over. However, you still see the local government attempting to do this on a regular basis. Sophisticated local attorneys, municipal attorneys know the Koontz case and know about 70.45. Unfortunately, several jurisdictions do not know that. I had a case earlier today, which I had been on a conference call.

ANTHONY DE YURRE

I heard you through the wall, by the way.

STANLEY B. PRICE

Right.

ANTHONY DE YURRE

It was an interesting conversation.

STANLEY B. PRICE

I talk loud. This indicates that this government is going to be sued under the Civil Rights Act and under the equitable estoppel principles were withdrawing a building permit for no basis whatsoever. Koontz is a tremendous weapon for a municipal attorney, a zoning attorney to know how far your client can be pushed and when you can push back. And I urge everyone to look at the statute and the decision of the Supreme Court, and it will make you feel good that Justice Alito may have been one time a zoning attorney.

ANTHONY DE YURRE

Well, Stan, I really appreciate your insight and walking us through the importance of Koontz and the pertinent Florida statutes. I think that we can’t forget that the constitutional right to this country was founded on really are those that pertain to property and it applies to everyone in this country from the largest developer on down to the apartment complex owner or the owner of the smallest condo unit and a micro-unit perhaps. It really defends people equally. Thank you all again for joining us on our podcast. Stan Price, again, chair of our department, thank you very much for your time in this podcast. Thank you for listening to us, and if you want more on this and other land development related topics, you can visit us at Bilzin.com and also subscribe to our new Miami blog at Newmiamiblog.com. We publish all the latest case law and other decisions that are pertinent to land use, zoning, and development in Miami-Dade County and as well as the State of Florida. Thank you.

STANLEY B. PRICE

Thank you, Anthony.

ANTHONY DE YURRE

Thank you, Stan.

ARTICLE BY Stanley B. Price and Anthony De Yurre of Bilzin Sumberg.

More on zoning laws & development on the National Law Review Real Estate law page.

The Zoning and Land Use Handbook

The ABA presents The Zoning and Land Use Handbook by Ronald Cope.

Zoning law has a major impact on the development of our cities and villages, and where we live and work; it also plays a major role in numerous business and real estate transactions. The Zoning and Land Use Handbook is a reference guide for zoning and related land use issues.

This book will help the busy general practitioner answer the most frequently asked questions and provide guidance on basic zoning procedures, property rights, and the nature of zoning litigation. In addition, this handbook provides an introduction to zoning law for land use practitioners, and will be helpful to laypersons and professionals not familiar with land use or zoning law.

Click here to purchase the book.

About the author:

“Ron Cope is the most authoritative and impressive source of knowledge about the legal aspects of land use, urban planning, and zoning. During my 45 years of planning practice, he has remained my go-to expert for every complex issue I have had regarding land use, planning, and zoning law. The Zoning and Land Use Handbook is a must-have resource that condenses Ron’s practical knowledge into a comprehensive guide.”
— Allen L. Kracower, Chairman, Allen L. Kracower & Associates, Inc.

“Ron Cope is the dean of Illinois zoning lawyers. He is legally erudite and knowledgeable in all areas of real estate law and combines those with practical common sense.”
— J. Samuel Tenenbaum, Director, Investor Protection Center, Bluhm Legal Clinic, Northwestern University School of Law

Troubles for Massachusetts Town’s Wind Turbine

In the long-running dispute between the Town of Falmouth and the neighbors to the Town’s wind turbine that powers the municipal wastewater treatment facility (WWTF), score one for the neighbors. The Massachusetts Appeals Court reversed the decision of Barnstable Superior Court Justice Robert C. Rufo in Drummey v. Town of Falmouth, 87 Mass. App. Ct. 127 (2015), finding that the Town was required to obtain a special permit from the Falmouth Zoning Board of Appeals to install the wind turbine on Town land.

Claiming harm from sound pressures and noise from the turbine’s operations, the plaintiffs first sought the building commissioner’s enforcement of the Zoning Bylaw. They alleged that the town violated the Bylaw by failing to secure a special permit for the turbine’s construction and maintenance. The building commissioner denied their request. The plaintiffs appealed to the ZBA and the Superior Court, both of which affirmed the building commissioner’s ruling.

Notwithstanding that the Bylaw provides that a petitioner may apply for a special permit to construct a windmill, the Superior Court found that this provision did not “apply in the limited circumstance where the Town itself desires to construct and operate a windmill for municipal purposes in a district where all such purposes are permitted as of right.” The Court explained that the turbine was a “municipal purpose” that fell within the enumerated community service uses permitted as of right in the Bylaw, which includes: “All municipal purposes, including the administration of government, parks, playgrounds, recreation buildings, Town forests, watershed, water towers and reservoirs, beaches, fire and police stations and armories.” Although turbines were not expressly included in the list of municipal purposes, the Superior Court found the list to be illustrative and not exclusive.

On appeal, the Appeals Court first recited the rule of law that the interpretation of a town’s bylaw raises a question of law. As such, the Court “reviews the judge’s… interpretations of zoning bylaws, de novo[anew or afresh].” It remarked that, as in other districts of the Bylaw, windmills were specifically designated in the public use district as an accessory use by special permit. Therefore, it logically followed that windmills could not have been intended to fall within the list of more general municipal uses allowed as of right. While the Superior Court’s understanding of the non-exclusive nature of the list was accurate, the Appeals Court found that that characterization of the list “did not adequately consider the weight that must be given a specific by-law provision that has been drafted to take into account the public welfare.” Specifically, the Bylaw included “a comprehensive scheme” for wind turbines including controls on their placement and impact on the town. In effect, the lower court erroneously reviewed the key Bylaw provision in isolation, not in context as the law requires.

The Court vacated the judgments of the Superior Court and remanded the case to the Superior Court for entry of new judgments consistent with its opinion. The Town has filed an application for further appellate review, which is pending before the Supreme Judicial Court.

ARTICLE BY

Brian C. Levey

Beveridge & Diamond PC

Tag: Zoning

This Michigan Supreme Court Case Has the Potential to Guide Drone and Air Rights Law for the Nation

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