CMO Licensing & Permitting 4 — Questions and Answers
Question 1: A municipality's conditional use permit includes a condition requiring the applicant to dedicate a strip of land for a sidewalk. This condition is legally valid only if it:
- Is approved by two-thirds of the planning board
- Has an essential nexus to a legitimate government interest and is roughly proportional to the permit's impact (Correct answer)
- Is consistent with the state's master plan
- Applies to all similarly situated permit applications in the jurisdiction
Correct answer: Has an essential nexus to a legitimate government interest and is roughly proportional to the permit's impact
Under Nollan and Dolan, permit conditions that require dedication of property must satisfy essential nexus and rough proportionality tests to avoid an unconstitutional taking.
Question 2: A municipality requires all massage therapists to obtain a local license in addition to their state license. This dual licensing is generally lawful when:
- The local license fee does not exceed the state license fee
- State law does not preempt local regulation of the occupation (Correct answer)
- The municipality operates a public health department
- The therapist works in a commercial rather than residential zone
Correct answer: State law does not preempt local regulation of the occupation
Dual licensing at the local level is permissible where the state has not preempted the field or explicitly prohibited additional local requirements.
Question 3: Which of the following best describes a 'permit by right'?
- A permit that never expires and cannot be revoked
- A permit issued ministerially when an application meets all objective requirements without discretionary review (Correct answer)
- A permit granted by the state legislature
- A permit that conveys a vested property right immediately upon application
Correct answer: A permit issued ministerially when an application meets all objective requirements without discretionary review
A permit by right is issued without discretionary review as long as the applicant satisfies all objective criteria established in the code.
Question 4: A municipality's zoning board denies a variance application. The applicant may seek judicial review under what legal standard?
- De novo review, allowing the court to substitute its judgment for the board's
- Strict scrutiny, because property rights are fundamental
- Arbitrary and capricious or substantial evidence standard, deferring to the board's expertise (Correct answer)
- Preponderance of the evidence, as in civil litigation
Correct answer: Arbitrary and capricious or substantial evidence standard, deferring to the board's expertise
Courts generally review zoning board decisions deferentially, overturning them only if arbitrary, capricious, or unsupported by substantial evidence in the record.
Question 5: A home-rule municipality may enact a local licensing ordinance that is stricter than the state minimum standard, unless:
- The ordinance raises the license fee above $500
- State law expressly prohibits stricter local standards or completely occupies the regulatory field (Correct answer)
- The ordinance affects a business operating in more than one municipality
- The mayor has not signed an executive order authorizing the stricter standard
Correct answer: State law expressly prohibits stricter local standards or completely occupies the regulatory field
Home-rule municipalities may exceed state minimums unless the state has expressly or implicitly preempted more stringent local regulation.
Question 6: The concept of 'vested rights' in permitting means that an applicant has a protected right to complete a project when:
- A complete application has been submitted but not yet reviewed
- The applicant has obtained a valid permit and made substantial expenditures in reliance on it (Correct answer)
- The applicant has paid all required fees
- The planning commission has recommended approval
Correct answer: The applicant has obtained a valid permit and made substantial expenditures in reliance on it
Vested rights arise when a permit has been validly issued and the holder has made substantial good-faith expenditures in reliance before a subsequent regulation change.
Question 7: A city council member who owns a restaurant votes on an ordinance expanding outdoor dining permit hours. This scenario most likely raises a concern under:
- The First Amendment's free speech clause
- Conflict of interest or ethics laws requiring recusal (Correct answer)
- The Fourteenth Amendment's equal protection clause
- Federal antitrust law
Correct answer: Conflict of interest or ethics laws requiring recusal
Ethics and conflict-of-interest laws typically require officials to disclose and recuse from votes where they have a direct financial interest in the outcome.
CMO Licensing & Permitting 4
A municipality's conditional use permit includes a condition requiring the applicant to dedicate a strip of land for a sidewalk.
This condition is legally valid only if it: