Agenda - 11-25-1985 - Laserfiche WebLink

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• 8-51 INCENTIVE ZONING § 8.03[2] • an unconstitutional"taking"of property;6(2)that in particular cases bonus zoning bears no rational relation to the exercise of the police power;' (3)that such zoning constitutes a denial of equal protection of the laws and (4) that the various state enabling acts do not • authorize municipalities to enact bonus zoning provision.9 [2]—Constitutional Objections [a]—"Taking" by Unreasonable FAR. Incentive zoning plans, Rv in order to encourage builders to include public amenities in their construction projects, commonly award bonuses in the form of in- creased floor area ratio(FAR).'0 Most builders will not benefit from such a plan,however,-if the underlying or"residual"FAR(the FAR to which the builder,will be subject if he does not choose to provide amenities) differs little from the bonus FAR. Thus, there is the danger that some municipalities may reduce the residual FAR to an excessively low level so as to encourage developers to apply for the bonus." l • Civello v.New Orleans 154 La.2771,284-285;Best v.Zoning Bd of Adjustment, _ 393 Pa. 106, 116-117;State ex ref:Saveland lurk Holding Corp. v. Wieland 269 Wis.262,271-272,cert.den.350 U.S.841;Churchill& Tait v.Rafferty, 32 P. L 580,app.dsmd.248 U.S.591;see,also,8 McQuillin,Municipal Corporations [3d ed.], § 25.31.)As Mr. Justice Douglas, writing for a unanimous court in Berman, put it(348 U. S.,at p. 33): - N "`The concept of the public welfare is broad and inclusive.***The values it represents are spiritual as well as physical,aesthetic as well as monetary. It is within the power of the legislature to determine that the community t i should be beautiful as well as healthy,spacious as well as clean,well-balanced as well as carefully patrolled. * * • If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.'" For a detailed discussion of Aesthetic Zoning, see Ch. 16 infra • 6 Sec§ 8.03[2] [a] infra 7 See§ 8.03[2] [b] infra. a See§ 8.03 [2] [c] infra 9 See § 8.03[3] infra. 10 As noted previously (see § 8.01[4] supra), the FAR regulates the physical volume of a building.The FAR is the ratio which the floor area within a building bears to the area of ground covered by the building.More floor area generally means more rentable space for a developer and thus potentially higher profits on his investment. 13 In San Francisco,for example,residual FAR in office districts was reduced to (Zoning Law) •4 t j . -'i• R- - •