Richard D. Ducker
March 2011
Annot. Land Use Outl.
LAND-USE LAW:
SELECTED TOPIC OUTLINE
I.The Legal Bases for Land-Use Controls
A.Nuisance Law
1.Nuisance:
a.An unreasonable interference with rights to the use and enjoyment of land
b.Considerations include social values regarding use, the suitability of the use to the area, and the ability of the victims(s) to avoid harm
c.Unaesthetic activities generally not nuisances
2.“Per se” or “in fact”
a.Per se nuisance: activity, occupation, or structure that is a nuisance under any circumstances regardless of location
b.Nuisance in fact: a nuisance because of location, surroundings, or manner of operation
3.Public or private nuisance
a.Public nuisance
i.Unreasonable interference with right common to public which impairs public health, safety, welfare, or morals
ii.Usually continuing over period of time or has produced a permanent effect
iii.Nuisance producer generally has to know or have reason to know of effect that nuisance causes
iv.Whether victim “comes to the nuisance” is only a factor to be considered
v.If use conforms to zoning, the use generally cannot be public nuisance.
vi.If public nuisance found, it may be abated or enjoined
vii.Unless a statute provides for it, no compensation need be paid for “property” destroyed in abatement since no property interest recognized. See Hadacheck(LPC, p. 23)
b.Private nuisance
i.Interference without trespass of another person's interest in private use and enjoyment of land
ii.Suit may be brought by party that suffers special injuries different in kind from damages suffered by general public
iii.Damages is preferred remedy
B.The Police Power
1.The police power (regulatory power) held by the states and is typically delegated to local governments.
2.Delegation comes in several forms:
a.Enabling authority: State constitution or state statute may authorize local governments generally to exercise certain specific powers.
b.Dillon's Rule: Traditionally, and before home rule, the rule of interpretation governing local government power held that the only powers that a municipal corporation may exercise are those expressly granted, those necessarily or fairly implied in or incident to those expressly granted and those essential to the declared purposes of the municipality.
c.Home rule: State constitution or state statutes may provide for home rule for certain local governments
i. Local government must typically adopt a charter that
incorporates or refers to those powers in the
constitution or statutes that it may be delegated,
but in some cases home rule provisions in the
constitution or statute directly grants substantive
powers to city.
ii. Home-rule city or county given some measure of autonomy
in "local" or "municipal" matters but state legislature
retains authority over matters of statewide concern.
iii. Separate grant by statute of authority to regulate land
use may or may not be necessary.
3.Preemption: the law of a higher level of government supersedes or nullifies the law of a lower level of government because the latter conflicts with the former or because there is a need for statewide or nationwide uniformity in regulation.
4.Initiatives and referenda
a.In the federal government and in most state and local governments an elected legislative body exercises the legislative power. However, in some states the qualified voters of the state or of a local government may be authorized to exercise legislative power more directly.
b.Initiative: a procedure allowing voters to propose or amend a law and then to adopt it as law at a popular election.
c.Referendum: a procedure that allows qualified voters to ratify or repeal a legislative action already taken by the elected legislative body.
d.If adoption of zoning or other planning legislation is affected by an initiative or referendum, is it subject to the same constitutional and statutory limitations that would apply if the legislative body adopted the law and no initiative or referendum was involved? See Cityof Eastlake (LPC, p. 21)
5.Improper delegation of legislative power
a.Improper delegation to administrative agencies
b.Improper delegation to neighbors
C.The Constitutional Framework
1.Substantive Due Process
a.Fifth Amendment to U.S. Constitution: "(No person) shall be deprived of life, liberty, or property, without due process of law." Made applicable to state and local government by 14th Amendment.
b.Regulatory measures must be justified as promoting the public health,
safety, morals, and general welfare. Actions may not be arbitrary and
capricious and must be reasonable.
c.Constitutional test generally requires the following:
i.The object of purpose of the regulation must be within the scope of authority of the legislative body and rationally related to a legitimate public process.
ii.The means selected to carry out the purpose must be reasonably necessary to its accomplishment.
iii.The means selected are unduly oppressive on the individuals affected.
d.Federal courts have decreasing interest in substantive due process; the doctrine is stronger and more often applied in state courts.
e.See applications of doctrine in Village of Belle Terre (LPC, p. 21) and Moore.(LPC, p. 20)
2.Procedural Due Process
a.As a general rule, constitutional due process guarantees apply only to judicial, administrative, and quasi-judicial proceedings, not to legislative decisions
b.In general, due process requirements apply when (i) the rights of individuals are affected by the decision substantially more than public at large, and(ii) the party claims a protected property interest or “entitlement,” rather than just an expectancy (a decision requiring the exercise of governmental discretion.)
c.Actions of planning boards, boards of adjustment, governing boards, and staff may be subject to due process requirements.
d.Legislative actions (such as amending the zoning ordinance in most states) do not require these guarantees and are also accorded a presumption of validity by the courts
d.A small, but growing number of states, led by Oregon and Florida, now treat certain zoning map amendments as quasi-judicial in nature, rather than legislative, and thus impose more strict procedural requirements. See Fasano(LPC, p. 22)
e.Constitutional procedural due process depends upon nature of the decision but generally includes following elements:
i.Adequate and timely notice
ii.Opportunity to be heard (may be informal hearing or the trial-type hearing of a quasi-judicial proceeding)
iii.If hearing is quasi-judicial, the right to present evidence and cross- examine
iv.Opportunity to see, hear, and know all of the statements and evidence considered by decision-making body
v.If hearing is quasi-judicial, then decision-making body required to make findings of fact
vi.Decision free from conflicts of interest, bias, and the appearance of impropriety
vii.Prompt decision
viiiComplete and accurate record of proceedings
3.The "Taking" Issue
a.Fifth Amendment to U.S. Constitution: "Private property (shall not) be taken for public use, without just compensation." Provision is made applicable to state and local governments by 14th Amendment.
b.Clause applies to use of eminent domainthrough government purchase of property
c.“Public Use Clause” found to allow use of eminent domain to acquire blighted properties through urban redevelopment program to be cleared, replatted, and then resold to private parties in accordance with redevelopment plan. See Berman, (LPC, p. 23).
d.“Public Use Clause” found to allow use of eminent domain to acquire properties that are not blighted for clearance and resale to private developers in accordance with a redevelopment plan. See Kelo (LPC, p.1).
e.“Taking” can also involve “inverse condemnation” where unintended
government action results in physical invasion and occupation.
f.“Regulatory taking” can result when regulations that excessively burden or restrictthe use of land.
g.Traditional approach was for court merely to invalidate regulation that amounted to a "taking." However, in 1987 First English Evangelical Lutheran Church (LPC, p.15) found that U.S. Constitution requires that property owner whose property has been taken also be compensated for "temporary damages" during the period when the regulation was in effect.
h.It is never an unconstitutional taking without compensation if government acts to abate or destroy an existing nuisance. Similarly, no taking occurs if a regulation makes unlawful a proposed future use of land if the activity would be a nuisance if established or if principles of real property law would permit the prohibition of such use. See Lucas (LPC, p. 13). For example, a regulation could prohibit the filling of land if the effect of such filling would cause the flooding of neighboring property. In such instances a regulation may be valid even if it effectively eliminates all economically beneficial use of the regulated property.
i.It is always an unconstitutional taking without compensation if government acts to physically invade or occupy private property or if a regulation purports to authorize such a physical invasion. For example, regulation might amount to a taking if it purported to authorize planes using a municipal airport to use any necessary airspace over adjacent property properties for landing approaches.
j.It is always an unconstitutional taking without just compensation if the prohibited uses are not nuisances under the nuisance exception (see # 3 above), but the regulation effectively deprives the owner of all economically beneficial uses of the land. (See Lucas.)
k.If the rules under # 3, 4, and 5 do not apply, then whether a "regulatory taking" without just compensation has occurred depends on the weighing of various interests:
i.The nature of the governmental interest (and whether the regulation substantially advances it);
ii.The economic impact of the regulation upon the claimant; and
iii.The extent to which the regulation has interfered with reasonable investment-backed expectations. The fact that the party claiming a taking bought the property after the regulation was effective does not preclude a taking claim but is a factor to be considered in determining whether the expectations were reasonable. See Palazzolo (LPC, p. 6)
l.The economic impact of the regulation may be analyzed more informally by considering the following factors:
i.Diminution in value: Does restriction result in significant diminution in value of private property?
ii.Confiscation: Does restriction leave owner with a practical use of the property?
iii.Average reciprocity of advantage: Though all owners in area are burdened by restriction, do they gain benefit because all land is subject to common restriction?
iv.Balancing: Does the harm suffered by the property owner exceed the benefits conferred by the restriction on the public?
4.Equal Protection
a.14th Amendment to U.S. Constitution: "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." State constitutions generally include similar clauses.
b.Equal protection requires only that similarly situated people (and their property) be treated in a similar way.
c.Principal test is one of classification:
i.How carefully is classification made?
ii.Is the classification necessary to achieve the objectives of regulation?
iii.Is classification too narrow (it is underinclusive), or is it too broad (is it overinclusive)?
d.Classification may be made
i.Expressly by statute
ii.Through the administration of a statute or program
iii.In effect (though there generally must be a demonstration of discriminatory purpose)
e.Courts now using three tests
i.Rational basis test: Court will uphold a classification if it finds a rational basis for its justification. Most classifications in planning reviewed under this test and most are upheld.
ii.Strict scrutiny test: Classification applies to a suspect class or burdens a fundamental interest, then government must show compelling interest to justify classification. (Racial classifications are treated as suspect under the strict scrutiny test.)
iii.Intermediate test: Courts occasionally use a third test and ask whether the means selected substantially further the purposes of the legislation.
f.Applications in land-use regulation
i.Setting zone boundaries and regulating locations
ii.Difference in requirements for private and public uses of same type
iii.Differences in requirements for existing activities and new ones
iv.Differences in requirements for similar uses (single-family versus multi-family), especially exclusionary requirements
v.Definitions of the term "family"
vi.Distinctions based on ownership or tenure
vii.Differences in the provision of public services
g.U.S. Supreme Court has held in Village of Arlington Heights (LPC, p.20) case that "racially disproportionate impact" of a classification is not necessarily a violation of equal protection. Plaintiff must prove that classification has racially discriminatory purpose.
5.First Amendment
a.First Amendment to U.S. Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." It is made applicable to state and local governments by the 14th Amendment.
b.Freedom of religion
i.Constitution guarantees "free exercise" of religion and also prohibits the "establishment of religion" See City of Boerne(LPC, p. 7). But see Religious Land Use and Institutionalized Persons Act of 2000) (RLUIPA), which prohibits a government from placing “substantial burdens” on the free exercise of religion without a “compelling interest.”
ii.Land use issues
aa.Regulating the location of churches and religious activities
bb.Protecting churches from hostile uses
c.Freedom of speech: signs and billboards
i.Signs and billboards are a form of protected speech, but are subject to reasonable time, place, and manner restrictions
ii."Commercial speech" entitled to protection if lawful and not misleading, but to extent that political speech is protected
iii.Restrictions will be upheld if they only incidentally restrict the freedom of expression in pursuit of aesthetic objectives, so long as local government does not appear to be judging speech on the basis of its content or restricting a form of expression for which there are no adequate alternatives. See City Council of Los Angeles v. Taxpayers for Vincent (LPC, p. 18).
d.Freedom of speech and expression: sex-related businesses
i.Sexually oriented adult businesses (e.g., adult book stores, movie houses, topless bars) are forms of commercial speech that are subject to First Amendment protection. See City of Renton (LPC, p.17)
ii.Units may disperse such businesses by regulation or concentrate them. However, since restriction is speech-content-related, a more rigorous standard of judicial review is used. Restriction must serve a significant government interest and may not have effect of eliminating this form of expression by excluding it from the community entirely. Zoning focuses on containing “secondary impacts.”
e.Freedom of speech: architectural and design controls
i.Architectural expression involves exercise of rights protected by First Amendment since such controls are not unrelated to free expression.
II.The Relation Between Zoning and Planning
A.State Planning Legislation
1.Standard Planning Act (proposed by U.S. Dep't of Commerce in 1920's) still evident in state legislation today. But see APA’s Growing Smart Legislative Guidebook,” Stuart Meck, 2002 ed., available on APA website and from Planners’ Bookstore
2.Legislation in many states authorizes the establishment of planning agencies and process.
3.State legislation typically authorizes or compels the adoption of a comprehensive plan with multiple "elements." These typically include a community facilities element, a circulation or transportation element, and a land use element."
4.At least 20 states make planning mandatory for all or some governmental units. these states may or may not require consistency between mandatory comprehensive plan and land use controls. See handout “State Growth Management Programs.”
5.American Law Institute Model Land Development Code (1976) de-emphasizes fixed, end-state planning and encourages continuing planning process with a short-or medium-term program based on both maps and textual policies.
6.Some states elaborate basic planning elements of Standard Act to provide for additional optional or mandatory elements (Calif. requires open space element; Fla. requires economic development element)
7.Some states require plans to address particular problems (Calif: housing element must provide for unit's appropriate share of regional demand for housing)
B.Zoning must be "in accordance with a comprehensive plan" in zoning enabling
statutes of most states
1.Standard Zoning Enabling Act included this language, appearing to require conformity with an adopted plan, if one existed.
2.However, commentary to Act suggests different view that zoning must simply by done comprehensively and not in a piecemeal fashion. The "comprehensive plan" is to be found within the ordinance itself.
3.Majority view of courts: preparation of an independently adopted plan is not a condition to the exercise of zoning, and no strict conformity is required even if there is. Some courts have read "in accordance" language simply to mean that ordinance must be the product of a rational process or simply that the ordinance is reasonable.
4.Even in those states with "in accordance" language, courts may look to any adopted comprehensive plan or land use plan for guidance in evaluating zoning and other land use decisions.
5.Zoning must be "consistent" with an adopted comprehensive plan or land use plan in enabling statutes of a small number of states (California, Florida, etc.)
a.States that have departed from Standard Zoning Act have adopted more specific requirements tying plan to zoning and other controls like subdivision regulations.
b.Of these, most require preparation of a plan; others require consistency only if locals choose to adopt one.
6.The practical problems of consistency requirements
a.How does timing of plan relate to regulatory decisions?
b.When is a plan adequate and complete?
c.How can generality of plan's policies and maps be related to specific nature of regulatory provisions?
d.How and how often is the plan amended to conform with ordinances, and vice versa?
7.The plan as a defense by government to a "taking" claim
8.The plan, if not followed, may offer support to a "taking" claim by landowner
However, plan designation itself generally found not to have binding effect because it only a guide.
III.Basic Zoning Concepts
A.Zoning Districts
1.See "Some Zoning Definitions" in Supplemental Topic Outlines and Lists
B.The Jurisdiction of Zoning
1.Extraterritorial zoning and planning. A number of states authorize extraterritorial zoning, planning, and land development regulation that allows cities to adopt extraterritorial zoning without giving residents in the area to right to vote on the ordinance. Such a system apparently does not violate equal protection clause under the U.S. Supreme Court right-to-vote decisions.
2.Zoning of uses of land by state and local government. Some states say such uses (particularly state uses) are absolutely immune from regulation. Other adopt balancing test, balancing the interests of the regulating local government and the State. Still others try to determine the "legislative intent."