Land Use
Peterson
Fall 2010
LAND USE
Generally, land use involves a full spectrum of sources of law. Although federal law takes precedent
over state law. There are times where in limited home-rule situations, the local ordinances will trump
state statutes and common law. When examining a legal question in the land use context, it is often
beneficial to first look at the local ordinances to see if there is a simple, on-point answer (assuming there
are no contrary federal laws or constitutional issues at either the state or federal level).
Land Use Claims can be brought under—
Federal constitution
o Takings
o Equal protection - Illegitimate reason for differential treatment
o Substantive due process - Not a furtherance of a legitimate goal of gov’t
o Procedural due process - Notice and reasonable opportunity to be heard.
o Freedom of speech
Federal statute
o Federal Fair Housing Act
o Federal Highway Beautification Act
o National Historic Preservation Act
State constitution
o State versions of the takings clause, equal protection, substantive due process, etc. can
be interpreted different from federal
o Improper delegation of legislative power (stronger argument in state than federal)
State statute
o Authority under the zoning enabling act (CA has the home rule power so this isn’t often a problem, but it is a practical point to keep in mind in challenges in other
states)
E.g. Walnut Creek local initiative superceded by state statute
o Environmental review statute – CEQA
o Moratorium? Other problem? Check to see if there’s a state statute on point
State common law
o Vested rights doctrine (See Monsanto)
o Nuisance claims
Local ordinance
o Look at the specifics of the ordinance – are there procedural or substantive problems?
o The most practical place to start in practice
- Cal. Home-Rule & Charter Cities: permitted by Cal. Constitution & §§ 65803 et seq.
~ Charter Cal. county/city allowed supremacy of own law for local, "municipal affairs"
even if inconsistent w/state law
- Cal. Const. Art. XI § 3 – city/county may adopt charter by majority vote
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Peterson
Fall 2010
- Cal. Const. Art. XI § 5 – by charter, city may govern itself as to "municipal
affairs" AND vis "municipal affairs" charter "shall supercede all laws
inconsistent therewith" BUT in respect to other matters shall be subject to
general laws
- Cal. Const. Art. XI § 7 – county/city may make & enforce within its limits all
local, police, sanitary & other laws not in conflict with general laws
- BUT Cal. legislature can supercede on any matter declares one of "state-wide
concern" – i.e. charter cities on "short leash" – allowed to legislate in conflict
with state until state exerts power on issue
Tools Used by Land-Use Regulators
Zoning
Mechanisms for adding flexibility to zoning (e.g. variances, conditional use permits)
Mechanisms providing greater certainty to developers (development agreements, vested rights)
Subdivision map approval process, including subdivision exactions
Planning and consistency requirements.
Fairness?
Is it wise? Even if it’s legal, is this a good idea? (ex. aesthetic regulation)
II. ZONING & CONSTITUTIONAL Challenges
A. Evolution of ZONING
- early: developed ~ 1900 w/rise of cities & metropolitan areas; ~ simple height & bulk
restrictions; generally upheld on "health & safety" (mostly due to fire)
- developed into "use zoning" i.e. segregation of various uses (residential, industrial, retail
commercial, etc.) ~ favored single-family residential as "preferred" & most restrictive
- 1916: first widely publicized comprehensive zoning ordinance in NYC (~ to protect 5th
Ave. merchants & elegant retail stores from immigrant tenements)
- 1926: Standard State Zoning Enabling Act (SZEA) (p.75) – provided first ~ uniformly
adopted model zoning scheme; empowers local government to:
"regulate and restrict the height, number of stories, and size of buildings and other
structures, the percentage of a lot that may be occupied, the size of yards, courts, and
other open spaces, the density of population, and the location and use of buildings,
structures, and land for trade industry, residence and other purposes."
- pre-Euclid ~ states split on legality of zoning & use restrictions though majority has
upheld; minority (Tex): violation of substantive DP (subDP), i.e. restrictions further
no legitimate public purpose or not a close enough fit between means & ends
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Peterson
Fall 2010
Euclid (1926 p.76) – challenge to use restrictions within zoning scheme (no dispute as to
height or area/set-back regulations), specifically, to cumulative use districts, i.e. each
zone adds more possible uses, e.g. U-1: single family residence only; U-2: U-1 uses
+…;; decided during the Lochner era, less deference legislative decisions; court quite willing to
put substantive restraints on the legislature’s power to create laws that may be in conflict with common law or may violate due process; This was a test case to make a facial challenge to
zoning;
Arguments – 1) Substantive Due Process – Not a furtherance of a legitimate goal of gov’t. 2) Equal Protection – Illegitimate reason for differential treatment. Court focuses on
substantive due process. (Remember this is before rational basis test.)
Holding - SC reversed trial court’s finding of a taking, holding that use restrictions (and
implicitly, zoning) are a constitutional exercise of police power unless "clearly arbitrary
& unreasonable, having no substantial relation to the public health, safety, morals or general
welfare"; ~ justified segregation of uses (industrial, commercial, multi-family) on nuisance
analogy: "a nuisance may be merely a right thing in a wrong place like a pig in the parlor" &
reasonable over-breadth acceptable, i.e. "the inclusion of a reasonable margin, to insure
effective enforcement"
Other Issues the court did not address—
o Takings—P argued that the zoning restriction entitled him to just compensation. This
didn’t come to SCOTUS, but for years they would cite Euclid for takings claims and
talk about diminution in value of the parcel (which wasn’t even discussed in the case!) Euclid leaves this open.
o STATE Constitutional claim, should have discussed separately because states can be
more liberal/conservative even with same legislation.
o Is there a justification for separating houses and duplexes?
Dicta Expressly leaves open possibility of case where municipality is protecting its own
self interest over the general public interests and that municipality would not be allowed to
stay in the way. (affordable housing, climate change, etc).
o Also leaves open possibility of successful “as applied” challenges. 12 years later Carolene Products (1938) overturn of the Lochner era—if economic facts
real or inferable provide a rational basis for their legislation, courts will defer to it.
Substantial deference to legislation as long as fact known or reasonably assumed
o *** any conceivable rational basis test.***
B. Zoning BASICS
- zoning ordinance – generally includes:
(a) text: spells out uses permitted in each zone (permitted "as of right"; details restrictions on lot
size, building placement, height, etc.)
(b) map: classifies land into zoning districts; generally conforms to existing uses & assigns
undeveloped land to "holding zones"
- modern zoning generally non-cumulative, i.e. distinct zones for distinct uses
~ changes via:
(1) variances – waive application of specific zone to particular plot
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(2) conditional use permits (CUP) – designated uses allowed upon successful permit
application
(3) rezonings – revisions of ordinance text or map by regular legislative process (also
called zoning or map amendments)
- modern innovations:
- planned-unit development (PUD) – authorize large-scale developers to ignore specific
use, bulk, and lot-area regulation if meet general density & use for zone
- transferable development rights (TDR) – allows landowners in area 1 to buy certain
zoning rights (e.g. permitted building bulk) from landowners in area 2 (usually area to
preserve, e.g. historic district)
C. CONSTITUTIONAL Limits of Zoning
(1) Substantive Due Process (subDP) ~ "irrationality"
Nectow (1928 p.96) – As applied subDP challenge to a specific parcel of land (same judge wrote
this as Euclid); Cambridge, Mass. comprehensive zoning ordinance; π sought to enjoin enforcement of
ord. as "taking" b/c cut-off 100' strip of lot as residential from rest of light industrial zoned lot, and street
widening reduced that to 65 ft; SC affirmed order of special master – "no practical use can be made of
land in question for residential purposes"
Nectow antiquated ~ allowed special master to 2nd guess the legislative decision to draw zone
lines – now would be decided other way. Inclusion of P’s property is not indispensable to the general plan, it’s not necessary to divide in this fashion – instead of – if there is a rational basis
for this decision then it’s okay
o Nectow most likely didn’t win the injunction for the building permit because the city is given the opportunity to rezone with a new ordinance.
o This case also incorrectly cited as a takings test for years until 2006.
but with Euclid set-up fairly wide variation in treatment by state cts.
o Ex. Cormier (CA standard) Broad deference to legislature (vis Euclid)
vs. Twigg (IL standard) narrow/no deference (vis Nectow)
Test for SubDP
(a) is a fundamental right implicated? (i.e. life, liberty, property or voting, education, travel)
(b) if YES ~ EP analysis; level of scrutiny varies:
presumptively unconstitutional; Defendant’s burden
- race: strict scrutiny (compelling govt. interest + narrowly tailored means)
- gender: intermediate scrutiny (important govt. interest + fair & substantial relation)
presumptively constitutional; Plaintiff’s burden
- other: rational basis review
(c) if No = rational basis review
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- generally: facially-neutral land-use controls enjoy presumption of constitutionality (esp.
mere line-drawing) subject to a high Plaintiff burden:
Rational basis review: unless facially discriminatory against suspect class (race, religion, gender) –
actual or "any conceivable" rational relation to a "legitimate governmental interest" (In Fritz,
court held that even post hoc justifications are fine as long as it’s rational.) Try to look for something that will invoke heightened scrutiny, fundamental Constitutional right
(freedom of religion, speech, right of privacy, etc.)
Although the motive of the legislature is technically not relevant, courts often treat a claim
differently if it is clear there is an odious intent
o Cleburne—zoning ordinance requiring a permit for a home for the mentally retarded
(while hospitals and nursing homes did not require it); court agreed that there was no
conceivable rational basis because the court knew it was motivated by prejudice;
concurring justices pointed out that this was intermediate scrutiny and not actual true
rational basis test
Over and under inclusive generalizations are fine; Euclid—all industrial uses okay
Zoning for Purely Fiscal Purposes - Cannot prevent development of parcel though eminent
domain by making obvious changes to zoning to lower fair market value of the land. (Riggs) But
if local attorney can argue another reason for the rezoning
(2) Equal Protection (EP)
- facially racial zoning: strict-scrutiny – "compelling" governmental interest AND means
"narrowly tailored" (~ necessary) to achieve goal
- facially neutral zoning: rational-basis unless Washington v. Davis intent, i.e. evidence of actual
discriminatory intent by decision-makers
- w/out facial discrimination, little success in fed. ct. ~ generally applicable regulation with
rational relation to legitimate governmental interests
but possibly:
Olech (2000 p. 129) – EP challenge to requirement for 33' (vs. standard 15') easement
to hook-up to city water; SC held for P – pleadings sufficiently stated EP claim of
discrimination against "class of one" – intentionally treated differently from similarly
situated with no rational basis for difference; no decision on merits but Breyer recognized
"ill-will" or "vindictive motive" i.e. little danger of opening door for EP zoning challenges
o To limit floodgates of this litigation (Posner fear), courts are using Breyer’s concurrence to say that you need to plead and have evidence of the ill will. “Class of one” cases will rarely involve suspect class or fundamental right, therefore not likely successful, but 35%
success, so maybe there will be a flood (Farrell 2003)
(3) Takings
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Land Use
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Fall 2010
- 5th Amendment: "…nor shall private property be taken for public use, without just
compensation." (through 14th Amend this also applies to states)
“P claims that the imposition of this condition violates the Takings Clause of the 5th Amend,
as incorporated against the State by the 14th Amend.”
(i) standing: does P have standing to bring takings claim?
Williamson County (1985 / p.234) – P developer brought suit following several denials
of plat approval; SC held takings claim not ripe – takings claims are ripe following
(a) final administrative action/decision; AND (b) P exhaustion of avenues available
for compensation
~ finality
(a) govt. action/decision: has decision-maker arrived at definitive position that inflicts
"actual, concrete injury" to P; vis Palazzolo [takings claim is ripe when agency
with final authority (or no further discretion) makes clear by denial the extent
of development/uses permitted] govt. cannot burden property with unreasonable
process/delay – fulfilled if reasonably clear that further action is "futile"
(could you have asked for a waiver?)
~ exhaustion
(b) avenues for compensation: ~ no constitutional violation occurs until there has been a
taking without compensation; thus must fully pursue compensation procedures
available before claim ripens. If state law provides an adequate procedure for seeking
just compensation, P must use try and be denied.
- Procedural Problems:
- But this is a federal Constitutional challenge, do we want the state to be setting up
remedies for federal claims?
- must P file "inverse condemnation" under state law/constitution before filing
federal takings claim?
- You cannot file a claim in state court and plead in the alternative that this is both a
federal and state claim because under the Williamson County test you DON’T HAVE
a federal takings claim until the state doesn’t give you compensation! You don’t have a final decision and you haven’t made your state remedies attempt. (This idea that
you must go to state court first has NEVER happened before. It looks like SCOTUS
didn’t want to be bothered by land use cases and thought they’d push it back into the
state courts for most problems. However, in Nolan, SCOTUS didn’t even look at the
fact that they hadn’t gone to state court yet. So they are not always following this.)
- ***Does state suit bar federal suit by "collateral estoppel"? Can you explicitly
"reserve" federal claims in state suit? You cannot reserve your federal claim in
CA, your federal claims MUST be brought in state court (because CA uses
Federal Constitutional takings precedent in their state analysis.)
San Remo Hotel (2005 p. 245)
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