|
|
|
Who's Who: Land Use Cases and Issues 1997 |
. |
|
Robert H. Freilich, AICP, J.S.D. and John Trevor Wood
|
Author Info |
While there were no major breakthroughs by the Supreme Court in land use this year, the court did address several issues, including ripeness and transfer of development rights (Suitum v. Tahoe Regional Planning Agency, 117 S.Ct. 1659 (1997)), the Religious Freedom Restoration Act applied to historic preservation (City of Boerne v. Flores, 117 S.Ct. 2157 (1997)), jurisdictional issues relating to land use (City of Chicago v. International College of Surgeons, --S.Ct.--, 1997 Lexis 7502.) and takings under the Indian Land Consolidation Act (Babbitt v. Youppee, 117 S.Ct. 727 (1997)).
Suitum represents the continuing evolution of the ripeness doctrine as created by the Supreme Court in Williamson County Regional Planning Commission v. Hamilton Bank, 105 S.Ct. 3108 (1985). Under Williamson County, before a property owner may seek compensation for a regulatory taking in federal court, the owner must first seek all available administrative remedies to determine if an unconstitutional economic deprivation has occurred; second, the owner must be denied compensation in state court. This is because a Fifth Amendment taking violation is not triggered until the state has denied "just compensation." The general rule is that the property owner must receive a "final decision" regarding the application of the challenged regulation to the land at issue. Without a final decision, the federal court can not know just how far the regulation goes. The Williamson County case left a number of possibilities open regarding what finality is, and Suitum merely represents one answered question of a potentially infinite bundle which may give rise to a ripeness challenge. While ripeness was the sole issue on appeal, the case implicitly has implications for transfer of development rights programs as well.
The Suitums purchased a parcel of land in Washoe County, Nevada in 1972. In 1980, Congress enacted the Tahoe Regional Planning Agency, an interstate compact between California and Nevada designed to create a land-use plan which would help preserve the Lake Tahoe region. The plan called for an "Individualized Parcel Evaluation System" to rate the suitability of vacant lots in the area for new construction. Parcels lying within "Stream Environmental Zones" (SEZs) are given a score of zero out of five on the Individual Parcel Evaluation System, and are not allowed to be developed in non-SEZs. In order to develop a parcel of land, the owner must obtain a "residential development Right" and a "Residential Allocation." The right is given to each parcel in existence in 1987, while the Allocation must be obtained by lottery. Further, owners need land coverage rights in order to place an impermeable cover (a structure) on their parcel. In the event that a parcel is located within an Stream Environmental Zone, the owner is allowed to transfer the development right, the Allocation and the coverage rights to other landowners in the area to receive compensation in lieu of development and thus avoid a taking.
Suitum's parcel was in a Stream Environmental Zone and was therefore not developable. The Suitum's were denied permission to construct a home on the parcel, and relief was denied on appeal. No attempt was ever made to transfer any of the rights to other landowners in the area, as authorized by ordinance. Plaintiff filed a § 1983 suit in federal court, claiming a per se regulatory taking of her property under Lucas v. South Carolina Coastal Council, 112 S.Ct. 2886 (1992). The test for whether a taking has occurred under Lucas is whether the landowner has been denied "all reasonable and economically viable use" of the land.
The Ninth Circuit Court of Appeals affirmed the trial court's ruling that the claim was not ripe for adjudication since one could not determine whether there was an interference with the owner's reasonable investment-backed expectations until the plaintiff had attempted to transfer her development rights under the plan.
On appeal, the Supreme Court held that under the agency's regulations, the Suitum parcel was undevelopable. In addition, the landowner had sought, and been denied, a permit to build a residence on the parcel. The regulations clearly apply to restrict the use of the land, and the Agency is without discretion to alter them. While no final decision was reached regarding the owner's ability to transfer the development rights, the Williamson County doctrine does not require her to seek permission to transfer the rights since the administrative finality requirement only applies to processes before local government. The sale of the TDR was after all administrative remedies were exhausted and applies only to whether a taking was effected or to mitigation of compensation owed if a taking occurred. The fact that expert testimony will have to be taken in order to determine the value of the transfer of development rights does not mean that the case is not ripe for adjudication.
The net effect of this case is that within the planning and land use field, local government's employing TDR programs for regulatory purposes (attempting to avoid a finding of taking by employing an alternative compensatory technique) will need to think ahead. If they wish to avoid litigation they may have to incorporate purchase of the TDR by the government itself as part of the administrative process. This will make the process more efficient and attractive for landowners. As mentioned above, this is only one application of the ripeness doctrine to a variety of settings - but it may provide additional guidance for governmental units in understanding what constitutes a "final decision" within the regulatory process.
In Boerne, the Religious Freedom Restoration Act and a city's authority to create a local zoning ordinance restricting the destruction or alteration of an historic structure collide. The Roman Catholic Archbishop of San Antonio authorized a local parish to expand its church structure in order to accommodate its increasing numbers. After learning of the plans, the city enacted a historic district by ordinance which the church arguably fell within. The city denied the church's application to expand the building because of proposed changes to the building's exterior.
The Religious Freedom Restoration Act (RFRA) was designed to restore the Sherbert compelling state interest test to freedom of religion issues in lieu of the "neutral effects" test. The Sherbert test was replaced by the "neutral effects" test after Employment Division v. Smith, wherein the use of drugs for religious purposes was invalidated because the regulation prohibiting such behavior was neutral on its face and not specifically directed at the free exercise of religion.
In Boerne, the church argued that the zoning ordinance substantially violated the free exercise of religion, and violated the RFRA. The Supreme Court invalidated the RFRA, finding that Congress did not have the power to enact it. Congress relied upon the broad powers granted to it under section 5 of the 14th Amendment(section 5 permits Congress to implement the 14th Amendment by the passage of laws; the 14th Amendment has been held to incorporate the 1st Amendment as applied to the states), believing that it was implementing the liberty interest of the free exercise of religion in establishing the RFRA. While the powers granted are broad, they were intended to be remedial. The line that must be drawn around legislative enactments is one which separates measures designed to prevent unconstitutional actions from measures designed to make a substantive change in governing law.
The church's argued for construction of the powers given Congress under the Constitution were held by the Court to be too broad - there is nothing in section 5 of the 14th Amendment to suggest that the drafters intended to give the power to interpret laws to Congress. The RFRA went beyond providing remedial measures for constitutional violations of the free exercise of religion, and in fact changed the substantive meaning of the meaning itself. This the Court in emphatic terms held to be void. Congress can not replace the judicial function of interpreting the Constitution. The "[s]weeping coverage [of the Act] ensures its intrusion at every level of government, replacing laws and prohibiting official actions of almost every description and regardless of subject matter . . . Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion."
The curtailment of state and local regulatory power is unsurpassed under the RFRA. It attempts to enact a positive rule of law. As such it is neither an enforcement mechanism nor a remedial statute under Section 5 of the 14th Amendment.
The City of Chicago case involved the claim that a local administrative ordinance violated federal constitutional substantive due process. There were other pendent state-law claims as well. The question was whether, given the state-law claims for on-the-record judicial review of the administrative findings, the case could be removed to federal district court because of the federal constitutional claims. To a large extent, this case just reviews and solidifies federal jurisdiction principles. This case is important since, as demonstrated, the challenge of local land use authorities may involve both state and federal claims.
Following the Chicago Landmarks Commission's preliminary determination that two of the respondent ICS's buildings qualified for protection under the city's Landmarks Ordinance, the city enacted a Designation Ordinance creating a landmark district that included the respondent's buildings. The International College of Surgeons then applied for permits to demolish all but the front facades of the buildings. The permits were denied, whereupon ICS filed actions in state court under the Illinois Administrative Review law seeking a declaration that the two ordinances and the manner in which the commission conducted its proceedings violated the Federal and State Constitutions, and seeking on-the-record review of the Commission's decisions. The city removed the action to federal district court, which exercised pendent claim jurisdiction over the state-law claims. The district court granted summary judgment in favor of the city, finding that neither the State nor the Federal Constitution had been violated, and that the actions of the city were not arbitrary and capricious. On appeal, the Seventh Circuit Court of Appeals reversed and remanded to state court and held that no pendent claim jurisdiction would lie for state law claims for on-the-record review of local administrative decisions.
The Supreme Court reversed, holding that the federal district court properly exercised original jurisdiction over ICS's federal constitutional claims, and it could therefore exercise supplemental jurisdiction over ICS's state law claims. Once ICS's case was removed, its state law claims were properly before the district court under the supplemental jurisdiction statute, which holds that "in any civil action of which the district courts have original jurisdiction, they shall have supplemental jurisdiction over all other claims that . . . form part of the same case or controversy." The entire point of supplemental jurisdiction is to allow the district courts to exercise pendent jurisdiction over claims as to which original jurisdiction is lacking.
The court disagreed with ICS's contention that claims involving deferential review of a local administrative decision can never be so related to claims within original jurisdiction that it forms part of the same case or controversy for supplemental jurisdiction purposes. Congress could have established a rule which held such, but it has not. The court finished by explaining that even where supplemental jurisdiction is there, a federal court may opt not to hear the case, or to abstain from hearing the state claims.
This case raises serious questions about the inconsistencies of the Supreme Court. In Williamson County, the Court held that with regard to taking and substantive due process claims, no action can be removed to federal court. It must be heard in state court to meet ripeness and subject matter jurisdiction requirements. In City of Chicago, the Court acts as if it never heard of the ripeness, abstention and subject matter jurisdiction rulings in Williamson County. This case is certain to cause enormous confusion as to remedies and jurisdiction.
Babbitt involved a takings challenge to the escheatment of Indian allotted land under the Indian Land Consolidation Act (the Act). William Youppee, an enrolled member of the Sioux and Assiniboine Tribes, owned several fractional interests in allotted lands. Upon his death, he devised to respondents these interests. Each interest was devised to a single descendant, therefore perpetuating fractionalization, but not splitting ownership further.
Under § 207 of the Act, upon the owner's death of any fractional interest in an allotment which comprised less than two percent of the allotment and produced less than $100 over the past five years, the interest escheated back to the tribe, unless it was devised or descended to owners of another fractional interest in the allotment. This is the same provision which was previously struck down in Hodel v. Irving. After it was declared unconstitutional in Hodel, Congress amended it in three respects - first, it looks back on the income stream of the interest for five years instead of one, and it created a rebuttable presumption that the income stream will continue; second, it permitted devise of otherwise escheatable interests to persons who already owned an interest in the property; and third, it authorizes tribes to develop their own codes governing the disposition of fractional interests.
The Court found, as in Hodel, that amended § 207 was unconstitutional as providing a taking without just compensation under the Fifth Amendment of the constitution. While the United States argued that the new provision moderated the economic impact of the original provision, it still had the effect of valuing the property based on its income rather than its actual value. Even if the income from the property could be termed de minimis, the value of the land may not fit that description. Further, Congress failed to correct another of Hodel's fatal flaws - it virtually abrogated the law of descent and devise.
While none of these cases creates a breakthrough test, significant confusion has been made to federal case law regarding federal jurisdiction, ripeness, and what constitutes a violation of the United States Constitution with regard to land uses. The Supreme Court's decisions effecting land use will hopefully continue to evolve, and resolve many of these dilemmas.
A flood of cases have followed the Supreme Court takings law. Dolan v. City of Tigard, 114 S.Ct. 2309(1994), announced the rough proportionality test for exactions, which result from conditioning development approval on ad-hoc situations and require "higher scrutiny." The rough proportionality test modeled itself after the fairly liberal test previously adopted by several state courts, whereby the government must show that its dedication requirement, after meeting an essential nexus, is roughly proportional between any harm caused by the proposed land use and any benefit resulting from the condition. This test is different from the "reasonable relationship" test, which requires a lesser showing of necessity for the exaction, and the "uniquely and specifically attributable" test, which requires an almost mathematical one to one calculation of the harm caused by the new use to the benefit of the exaction on the development. See Callies, Freilich and Roberts, Cases and Materials on Land Use, Chapter 3 (West, 2nd ed. 1993). The Dolan Court held the rough proportionality test would apply if the exaction was applied in an individualized, ad-hoc adjudicatory setting. It did not discuss whether a generally applicable exaction required by a pre-adopted legislative ordinance would be covered.
Ehrlich v. City of Culver City, 911 P.2d 429(1996), was remanded from the U.S. Supreme Court back to California at the time of the Dolan decision. Ehrlich involved a taking challenge to an art fee and a recreation fee (monetary exactions) as conditions to approval of a condominium development. While the Supreme Court did not specifically rule on this case, it remanded it in light of Dolan, allowing lower state and federal courts to determine whether the "rough proportionality" test should apply to exactions other than title dedications. The Dolan and Ehrlich line of cases is of greatest importance to planners as the dedications and impact fees which they involve constitute significant sources of income cities rely on for new growth infrastructure financing.
Ehrlich held that the "rough proportionality" requirement of Dolan applies to all development exactions, not merely to exactions which require a developer to deed portions of property to the government. It also held, however, that the test does not apply to exactions conditioned upon preexisting legislative standards where ad-hoc determinations are not made.
In Homebuilders Association v. City of Scottsdale, 930 P.2d 993 (Ariz. 1997), the Arizona Supreme Court held that Dolan did not apply to a water service fee required as a condition to issuing a building permit. The court felt that it was limited to dedications of land imposed in an adjudicatory fashion, since it was a "taking" case and therefore applied to real property interests.
Similar, however, to Ehrlich, the court further found that the rough proportionality test does not apply where the exaction was not conditioned upon a preestablished legislative enactment applicable uniformly across-the-board for all new development. The court felt that the risk of regulatory leveraging did not exist when the exaction was embodied in a generally applicable legislative setting. The Kansas Supreme Court similarly ruled that Dolan applies only to dedications of land in an adjudicative, not a legislative setting. See Pringle v. City of Wichita, 917 P.2d 1351 (Kan.App. 1996).
Other courts have followed the lead of Ehrlich in holding that Dolan's requirements are applicable to both dedications of land and fee exactions. In GST Tucson Lightwave, Inc. v. City of Tucson, 1997 WL 29426 (Ariz.App. Div. 2), a long-distance telephone competitive access provider brought a § 1983 action against the City of Tucson when it failed to approve its requested cable route. The city held that to process its application for a local service franchise, as a condition it had to give up its existing long-distance fibre optic cable license. The plaintiffs/appellants attempted to use the Doctrine of Unconstitutional Conditions spelled out in Dolan, arguing that the city's "conditioning the ability to obtain a local franchise on the surrender of its existing license, for which it had invested over $3 million, create[d] an 'unconstitutional condition.'" The court found that for an unconstitutional condition to exist, there would have to be a taking of private property, and a franchise which was revocable did not constitute a property interest.
Further, the court said that even if there had been some sort of taking, the Nollan v. California Coastal Commission, 107 S.Ct. 3141 (1987) and Dolan tests would be satisfied. There was an essential nexus between the city's requirements and the need for competition, and it was roughly proportional to the city's need.
In earlier cases, the test was used in nondedication cases such as in a challenge to an adequate public facilities ordinance, Steel v. Cape Corp., 677 A.2d 634 (Md.App. 1996), and a facial challenge to the validity of an ordinance requiring cash proffers for capital improvements, National Association of Homebuilders v. Chesterfield County, 907 F.Supp. 166 (E.D. Va. 1996). The types of exactions in which Dolan will be used is a debate which will likely continue until the Supreme Court comes down with a ruling explaining precisely when rough proportionality applies.
With all of the takings jurisprudence and the different types of takings (economic, regulatory and title) it would seem to be a matter of time before the bench misapplied the test. It is apparent that Dolan is used in the context of title takings. In Sintra, Inc. v. City of Seattle, 935 P.2d 555, (Wash. Banc, 1997). Justice Talmage attempts in a concurrence to extend the Dolan analysis to all takings jurisprudence in the state. Chief Justice Durham concurs in order to correct Justice Talmage's interpretation of Dolan and limit it to its facts. Durham analyzes the Nollan test and the Dolan refinement of that test, and holds that properly analyzed, these are not takings cases at all. If the property rights were excluded straight out based on the ordinances, they would not be takings. The purpose of Nollan and Dolan is to determine if the requirements imposed on uses individually is a taking.
Plaintiffs (or their attorneys) also misconstrue the Dolan opinion.. See Snider v. Board of County Commissioner of Walla Walla County, Washington, 932 P.2d 704, (Wash.App. 1997). In Snider, the plaintiff attempted to use Dolan to argue his property had been taken when the County commission conditioned the approval of a plat for a proposed 21-lot subdivision on his obtaining rights-of-way over third party property. The court of appeals held that his property had not been taken, and it was still usable for other purposes than for subdivision, so no taking occurred.
Again, this is an issue which was not directly dealt with in case law in 1997, but will remain a focus of scholars in the are. The Dolan opinion seemed clear in its language that the test was to be applied in individualized, adjudicative settings. Another case similar to Parking Ass'n of Georgia v. City of Atlanta, 450 S.E.2d 200 (Ga. 1994) cert. denied, 115 U.S. 2268 (1995), however, may eventually lead to a ruling that the rough proportionality test, or some equivalent to it, will be applied to legislative determinations as well. This means generally that an ordinance which applied to everyone generally would be subject to the test. In the denial of cert., two justices expressed an interest in a dissent to apply Dolan in a legislative setting.
Many of these cases have been summarized in Freilich and Bushek, Exactions, Impact Fees and Dedications: Shaping Land-Use Development and Funding Infrastructure In the Dolan Era, (American Bar Association 1995).
It seems that everyone in this day and age is carrying a cellular phone. Well, what seems to be happening and what is actually happening are two separate things. In reality, cellular phones are out, and everyone is switching to digital phones (personal communication systems or PCS). This represents the same problem that cellular phones have represented to local governments and planners - zoning for reception towers. The digital phones, which have a clearer signal, need even more towers than their cellular counterparts, as they operate within smaller cells. This creates the need to find more space for these often unsightly objects.
The Telecommunications Act of 1996, (the Act) which seeks to create competition in the telecommunications industry to the greatest extent possible, partially trumps local zoning authority with regard to the placement of such facilities. This area of law represented a virtual explosion in 1997. This is good and bad. On the one hand, cellular and digital service charges represent one of the fastest growing budget items for local governments. On the other hand, the quick growth has caused a flood of permit applications, and at times massive confusion. As Sprint, Sprint PCS, and their competitors riddle the nation with cellular and digital towers, planners wonder what they can do.*** In the American Planning Association's Guide To Implementing the New Telecommunications Law, several future legal challenges for local governments are outlined, including the authority to charge reasonable rents and franchise fees for use of public rights-of-way, challenges to local zoning authority, and requirements that the new entrants mitigate the adverse impacts on the public from the new construction problems.
Indeed, local governments all over the country are already dealing with these issues. However, the Act generally authorizes local governments to control siting, construction and modification of wireless telecommunication facilities. Further, under most circumstances, local governments are protected from federal review of zoning decisions as long as those decisions do not unreasonably discriminate against certain service providers or have the effect of prohibiting wireless telecommunications generally.
Paging v. Board of Zoning Appeals For County of Montgomery, 957 F.Supp. 805(1997) drove the point on the prohibition against discrimination home. There the court held that the Act preempts local action where state and local government treats functionally equivalent wireless communications differently, and does so unreasonably.
Local governments have attempted moratoriums on cellular communication towers, with similar results. See Sprint Spectrum, L.P. v. Town of West Seneca, 659 N.Y.S.2d 687 (1997), and Sprint Spectrum, L.P. v. Jefferson County, 968 F.Supp. 1457 (1997). In both instances the moratoria were held a violation of the Act's provision against unreasonable discrimination and the governments were required to act on the applications. A similar result was found where a town delayed action on an application for ten months after its submittal. See Sprint Spectrum, L.P. v. Zoning Board of Appeals of the Town of Guilderland, 662 N.Y.S.2d 717.
Genesee Telephone Company v. Lubomir M. Szmigel, 1997 WL 800699 (N.Y. Sup.) held that the Act does not allow the prohibition of cellular towers by a municipality. Rather, it merely preserves the right to local control over placement, construction and modification of new tower applications. This decision can also be squared with Westel-Milwaukee Company, Inc. v. Walworth County, 556 N.W.2d 107(1996), where a cellular telephone service provider sought review of the county park and planning commission's denial of a conditional use permit to construct a cellular tower. On appeal, the judge held that the Telecommunications Acct of 1996 did not require any change in fact finding procedures that local zoning authorities currently followed for purposes of zoning requests of such towers. The zoning authority to deny an application has been held valid while an act of discrimination has been found, however. See At&T Wireless PCS, Inc. v. City Council of the City of Virginia Beach, 979 F.Supp. 416 (1997).
One last interesting ruling emanates from the Newton Township in Pennsylvania. There, a cellular service provider attempted to argue that it was a public utility, and therefore exempt from zoning so as to be allowed to override a decision from the zoning hearing board that it could not place a mobile phone antenna on the roof of an apartment building. The court disagreed, and further found that denial of the permit did not violate the Act. See AWACS, Inc. v. Zoning Hearing Board of Newton Township, 702 A.2d 604 (1997).
A number of other new cases exist on the issue of federal preemption, unfair discrimination and arbitrary action. This area has already developed into a recognizable pattern, but the Act is a work-in-being, and new interpretations will likely emerge over time.
Another issue which regularly appeared in 1997 was adult use entertainment facilities. The majority of these cases involve violations of the freedom of speech clause contained in the First Amendment to the United States Constitution against overly restrictive ordinances. Among the restrictions complained of were setback requirements, landscaping requirements, limitations on proximity to schools, parks and residential areas, and sign restrictions. See T&D Video, Inc. v. City of Revere, 670 N.E.2d 162 (Mass. 1996). Restrictions which have the effect of barring an adult entertainment facility altogether have been found to unreasonably limit alternative avenues of communication.
However, where merely a setback restriction has been imposed, and the government stated particular reasons for its ordinance, namely, to cure the secondary effects associated with such establishments, the ordinance was upheld and did not offend the first amendment. See Schleuter v. City of Fort Worth, 947 S.W.2d 920 (Tx.App. 1997).
In Phillips v. Borough of Keyport, 107 F.3d 164 (2nd Cir. 1997), plaintiffs challenged an ordinance restricting the place of an adult use entertainment facility to 300 feet. Prior to knowledge that plaintiffs intended to open the facility, the borough had no ordinance relating to such establishments. After hearing of the proposed use, however, the borough created an ordinance which established a 300-foot setback from a number of other uses. The district court thought that the ordinance was content-neutral under Renton and further felt that there were ample alternative means of communication available.
The Second Circuit Court of Appeals felt that the borough had not met its burden of articulating its interests on the basis of which it sought to justify the ordinance, and felt that the burden was on the borough to show that its ordinance met the burden of achieving its stated goals. Particularly, it held that the borough needed to show that the ordinance would cure the secondary effects with particularity, not by reference to studies from other towns. "To insist on less is to reduce the First Amendment to a charade in this area." The court did suggest, however, that post-hoc rationalizations of the ordinance would be sufficient, and the borough did not need to show that there was pre-enactment evidence supporting their legislative judgment.
These serve as representative examples of the adult use cases which have generally been reported this year. They represent the general manner in which a court will analyze an ordinance for its regulation of speech, and demonstrate the use of Renton by the courts to analyze whether a violation has occurred.
As mentioned above, there were hundreds of lower federal and state court land-use cases in 1996 and 1997. This section serves to highlight some of which made major advancements in the law.
Villas of Lake Jackson represents the 11th Circuit's seeming withdrawal of its prior stance that some substantive due process taking claim exists independent and different from a regulatory taking claim. The court held that "there is no independent substantive due process taking cause of action. The only substantive due process claim is for arbitrary and capricious conduct."
Macri involved application for a plat approval of a tract of land located at the end of a dead-end road. The application was disapproved, and thereafter a state court action was filed. The § 1983 action alleged claims for the denial of substantive due process and for a regulatory taking under state law. The federal takings claim was dismissed as unripe, since there was an adequate state procedure for compensation.
In dealing with the developer's substantive due process claim based on alleged arbitrary and capricious action by the County in denying the subdivision plat, the Ninth Circuit held that an independent substantive due process claim would not lie. The court concluded that where the Fifth Amendment provides the principal protection against invasion of property rights, an independent substantive due process claim should be expanded only with the greatest care to protect liberties deeply rooted in our Nation's heritage. If the property owners can show that the land use restriction does not substantially advance a legitimate state interest, the have a Fifth Amendment takings claim, not a substantive due process claim.
Property owners brought an action for judicial review and a declaratory judgment action against the decision of a board of adjustment which allowed a neighboring property to continue accessory uses on the property as a nonconforming use. The city had allowed an automated car wash as an accessory use to a gas station, where the gas station originally existed as a noncomforming use in the B-1 zone. The court held that the installation of the car wash constituted the illegal expansion of a non-conforming use. The court rejected the adoption of the "Modern Instrumentalities Doctrine" from Pennsylvania, which would allow the expansion of nonconforming uses by replacing older methods of operation with newer methods.
East Cape May alleged a taking and a temporary taking after being denied a permit to develop 100 acres or wetland property on the east side of a state road. The developer's principal also owner 100 acres on the west side of the road, which had already been developed. The government claimed that the denominator for purposes of analyzing the taking was the entire 200 acre parcel, and therefore no taking had occurred since the developer had not been denied all beneficial use. The government also claimed that the developer had failed to exhaust administrative remedies because a state safety valve provision had not been used which allowed the government to relax its regulations and reconsider its denial of the permit.
The court held that a taking could only have occurred after the developer had exhausted its remedies. The court also found no delay in the administrative process which created a temporary taking. Regarding the denominator for the parcel, it remanded the case back to the trial court to determine: what entities own or owned the property west of the road and their exact relationship to East Cape May; what they built on the west parcel and were any parts disposed of; when and for what consideration was any of the property acquired; the differences in zoning on the east and west sides; and finally whether the development on the west side was restricted in anticipation of more stringent regulation on the east side.
The City of Albuquerque annexed land to the city, and adopted a sector plan for the area (a component of the city's comprehensive plan) which rezoned certain property when it was annexed into the city. A neighborhood group challenged the rezoning of a six acre parcel on the grounds that the city was required to follow the quasi-judicial procedures for the rezoning of a single parcel in New Mexico. The court agreed and found that the automatic rezoning of the parcel upon annexation and adoption of the sector plan was illegal.
Landowners sued a the county seeking a declaration that the county's 1991 adoption of an ordinance amending its subdivision regulations by postponing "parcels of record" date from 1978 to 1990 exceeded the county's statutory powers. The court upheld the trial court's grant of summary judgment to the landowners, and held that the postponement of the effective date of the subdivision was actually the retroactive application of the county ordinance. The controlling state statute required that once a county adopted a comprehensive plan and subdivision regulations, the effective date of the subdivision regulations was not subject to change. "The effect of the retroactive repeal would be to validate all non-complying parcels without knowledge of the nature of each subdivision and how it fits into the regulatory scheme. . . ." Id at 522.
Sarasota County's settlement agreement in zoning litigation, under which the county agreed to rezone property subject to numerous conditions, constituted illegal contract zoning. The settlement bypassed more stringent notice and hearing provisions for rezoning, rendering the settlement illegal and not in compliance with state statute.
A town zoning and enforcement officer sought to enjoin a landfill officer from violating zoning regulations that established height limitations and from expanding nonconconforming uses associated with landfill. The trial court ordered an injunction and required the removal of waste above the established height limitation. The court of appeals upheld the injunction and order, finding that the trial court's action was supported in part by evidence of a willful violation by the landfill operator, based upon statements that the operator would never comply with the city's order unless a court issued the same order requiring compliance with the city height limitations.
A landowner appealed a decision of the city planning board which denied a subdivision application, which concluded the extension of a road for the creation of a shopping center. The property lied partially inside the City of Rockland and partially within the City of Hingham. The shopping center was proposed for construction in Hingham, and the Rockland plan commission only needed to approve the road connection to the shopping center site. The Rockland planning board found that the proposed shopping center use, although not within Rockland, violated the allowable uses on the parcel for which the road was proposed. The basis of this decision was the rule that the use of land in one zoning district for an access road to another zoning district is prohibited where the road would provide access to uses that themselves are barred if they had been located in the first zoning district (where only the road is located).
The citizens of Suffolk brought an action challenging the city's approval of a conditional use permit for an automobile racetrack in the city. The court upheld the grant of the CUP, declaring that its issuance was fairly debatable, based on the evidence that the city ordinance permitted CUPs in the business district for commercial recreational uses, the proposed racetrack qualified as a commercial recreational activity, and the city granted the permit subject to a number of conditions such days and times that the racetrack would be allowed to operate as well as specific security measures.
The Supreme Court of Virginia affirmed a municipality's implied right to prohibit the construction of additional facilities to support a nonconforming use. Further, the Court held that the statute must be judged by a standard of rationality to preserve rights in existing lawful buildings and uses of land. Therefore, the owner of a cemetery was prohibited from constructing new buildings to support the nonconforming use since such uses are not favored.
Apartment owners in Atlanta brought a suit against the city alleging a nuisance, inverse condemnation and a violation of equal protection for the city's policy of purchasing single-family residential property, but not multi-family property, as part of the Airport Noise Abatement Program. The court found that the purchase of single-family homes around the airport to the exclusion of multi-family units bore a rational relationship to legitimate government interest. The Texas Supreme Court found that the purchase of only single-family homes served the purpose of reducing land usage incompatible with airport noise in a sound fiscal manner while simultaneously avoiding the virtual elimination of the surrounding residential base. The required purchase of multi-family residential structures with the single-family structures would have cost the city in excess of $900 million, and would have destroyed the ability of the city to develop the former single-family property for commercial uses that were compatible with the airport noise. The initial purchase of only one type of property allowed the city to achieve the goals of state and federal noise reduction programs in phases.
The New York Court of Appeals found that the substantial discontinuation of a nonconforming use, as opposed to the complete discontinuation, for a 2 year period results in a forfeiture of that use. The court also held that the good-faith intentions of the owner is irrelevant to the determination of forfeiture. The Ne York zoning ordinance at issue defined discontinuance as something less than complete abandonment, and this was supported by the policy disfavoring nonconforming uses.
A property owner brought an inverse condemnation suit, arguing that the city's failure to rezone the property was an unconstitutional taking. The Michigan Supreme Court held that the denial of the rezoning request did not inflict an actual, concrete injury, and this combined with the failure to request a variance rendered the claim unripe for judicial determination. This decision comports with Suitum v. Tahoe Regional Planning Agency, 117 S.Ct. 1659 (1997), which reaffirmed all of the United States Supreme Court cases upon which the Paragon court relied.
The District Court, 937 F. Supp. 679 (N.D. Ohio 1996), granted a preliminary injunction against a growth management ordinance which placed an annual quota on the amount of zoning certificates issued by the city based upon a point system. The point system is based upon, inter alia, infrastructure availability, adequate public facilities, protection of wetlands and stream banks, storm water management, tree conservation, public amenities provided by the developer, finalization of subdivision build-out, and job/housing balance. The court found that the magnitude of growth in this case did not approach that of other cities in which growth control programs have been approved, citing Construction Industry Association of Sonora County v. City of Petaluma, 552 F.2d 897 (9th Cir. 1975), cert denied, 424 U.S. 934 (1976) (San Francisco suburb grew 25 percent in two years).
Because only a preliminary injunction is involved, the court has not made a final ruling as to the merits of the system. The court found that the cases support growth control ordinances only if they are (1) limited in duration and (2) tied to a specific and prompt plan for those corrective actions needed to lift the growth control, citing Almquist v. Town of Marshan, 308 Men. 52, 245 N.W.2d 819 (1976), and Golden v. Planning Board of Ramapo, 30 N.Y.2d 359, 334 N.Y.S.2d 138, 285 N.E.2d 291, app. dismissed, 409 U.S. 1003 (1972) The court ignored the fact that the Golden case involved an eighteen-year growth management ordinance designed to control the timing of growth. Further, the court seemed to confuse permanent ordinances regulating development timing with temporary ordinances such as interim development controls and timing and phasing based on adequate public facilities as in Ramapo above.
On appeal, the Sixth Circuit Court of Appeals dissolved the injunction, finding that it was not warranted since the growth management ordinance was rationally related to the city's legitimate concerns of controlling growth. Thus, the plaintiffs would not be able to carry their burden of showing that the ordinance was unconstitutional at trial. Further, the court stated that "despite the temptation, it is not the province of a federal court to act as a super-zoning board." Schenck, 114 F.3d 594. The lower court opinion is of critical importance. Many state courts might follow such logic if the case was within its own jurisdiction. The federal court of appeals simply seems to duck the issue on the grounds that federal courts will not sit as "super zoning boards". As the majority of circuits hold-unless the legislative body was so irrational as to flip a coin-the test will be met. See Bituminous Materials, Inc. v. Rice County, Minnesota, 126 F.3d 1068, 1070 (8th Cir. 1997). Chesterfield Development Corp. v. City of Chesterfield, 963 F.2d 1102 (8th Cir. 1992) (the theory of substantive due process is properly reserved for truly egregious and extraordinary cases).
The Village of Poland adopted a comprehensive zoning ordinance in 1978, zoning the property at issue "Professional Office and Service District." In 1990, the village rezoned the property at the request of the property owner to the "Village Commercial Center District." In 1991, the village repealed the 1990 rezoning by ordinance, but failed to redesignate the original Professional Office and Service 1978 zone as the applicable zone. The Ohio Supreme Court ruled that the intention of the 1991 ordinance was to return the zoning classification to the Professional Office and Service District, and not to leave the property unzoned. The failure of the village to redesignate the proper zone in 1991 was not fatal to the village's ordinance.
It seems that in this day and age, so much is dependent on what you do, who you are, and what you've accomplished. The achievers, those who have accomplished great feats, are rewarded for their efforts. One of those rewards is recognition in the Who's Who series of books. One could imagine such a book comprised of all of the landmark cases and issues in the law each year. In 1997, there were over 400 land use cases in the state and federal courts. All had their own personalities - they have contributed something substantial to the law.
One would wonder, therefore, what was our criteria for a "Who's Who" of land use cases? Certainly we decided to include the current Supreme Court rulings which guide our lower state and federal courts. Then there were the past rulings which continue to evolve, such as Dolan v. City of Tigard, the follow-up case to Nollan v. California Coastal Commission, 107 S.Ct. 3141 (1987), which established the "rough proportionality" test for dedications.
Next, we turned to the emerging issues - the legislative rulings which guide our courts, creating trends and developments which the lower courts uniformly follow. These include the creation of laws such as the Telecommunications Act of 1996.
Last of all, we included some of the major lower court rulings from '96 and '97 - the rulings of federal circuits on issues of great importance, such as ripeness and substantive due process, and the actions of state courts which speak to truly important questions, devising policy and bringing stability to the field of land use.
Of course, as in any Who's Who list, not all of the blockbusters and trends would make it. We hope our examples of some of the cases and issues would make your "Who's Who: planning and law" list of 1997.
Robert H. Freilich, AICP, J.S.D.
Partner, Freilich, Leitner & Carlisle; Professor of Law, University of Missouri-Kansas City; Immediate past President, Planning and Law Division, American Planning Association; Editor, The Urban Lawyer, The National Journal on State and Local Government Law, American Bar Association
John Trevor Wood**