TWENTY-FIRST CENTURY PLANNING AND THE CONSTITUTION
74 U. Colo. L. Rev. 651 (2003)
Michael Lewyn*
BIO: * Associate Professor, John Marshall Law School. B.A., Wesleyan University; J.D., University of Pennsylvania Law School. I would like to thank John Bredin, Robert Manley, Daniel Mandelker, and Stuart Meck for their helpful comments. However, any errors of fact, logic or law are mine alone.
SUMMARY:
... The American Planning Association (APA), a nationwide organization of land use planners, recently published the "Growing Smart Legislative Guidebook"(hereinafter "Guidebook") containing over 1,450 pages of model laws governing zoning and other land use-related issues. ... To date, the most ambitious and successful attempts to standardize land use regulation consist of two model planning and zoning statutes drafted in the 1920s, the Standard State Zoning Enabling Act (SZEA) and the Standard City Planning Enabling Act (SPEA). ... In Corrigan, a property owner challenged a zoning ordinance that prohibited new development within his land but awarded TDRs allowing development in adjacent land owned by the plaintiff. ... " The Guidebook concedes that amortization is "a controversial land use regulation technique, as owners of nonconforming uses can claim that the removal of a nonconforming use at the end of an amortization period, without compensation, is unconstitutional. ... So if the Guidebook is unconstitutional because of its federal support, the SZEA, and thus every state zoning enabling statute enacted pursuant to the SZEA, is unconstitutional. ... SZEA is so broadly written that it could allow any number of unconstitutional decisions: it allows local governments to regulate buildings in a wide variety of ways, but does not explicitly limit the extent to which local governments may reduce a landowner's property values. ...
TEXT:
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Introduction
The American Planning Association (APA), a nationwide organization of land use planners, n1 recently published the "Growing Smart n2 Legislative Guidebook"(hereinafter [*652] "Guidebook") n3 containing over 1,450 pages n4 of model laws governing zoning and other land use-related issues. "Property rights" activists and some business groups n5 vigorously attack the Guidebook because of its pro-regulatory positions on a variety of issues. n6 For example, the libertarian Heartland Institute n7 describes the Guidebook as a "refutation of the American tradition of individual property rights." n8 Similarly, [*653] twenty-one members of Congress wrote Housing and Urban Development (HUD) Secretary Mel Martinez urging him to attack the Guidebook on the grounds that it "would trample the rights of private property owners by seizing their land without the just compensation that our Constitution requires." n9 The most detailed criticisms of the Guidebook come from a group known as Defenders of Property Rights (DPR), n10 a conservative public interest legal foundation that represents landowners in disputes with government agencies. n11 DPR suggests that the Guidebook violates the First, Fourth, Fifth, [*654] Tenth, and Fourteenth Amendments n12 and its executive director recently called the Guidebook a "federal zoning code." n13
This Article focuses on the question of whether the Guidebook's model statutes, if enacted by a state legislature, would violate the federal Constitution under existing case law. n14 Part I of this Article discusses the history of the Guidebook, explaining why and how it was drafted. Part II analyzes the Guidebook's constitutionality under the First, Fourth, Fifth, Tenth, and Fourteenth Amendments and concludes that no part of the Guidebook is unconstitutional on its face under existing case law. The Article concludes that as a general matter, the Guidebook's most controversial provisions (and thus state laws patterned on those provisions) are constitutional on their face if correctly interpreted.
I. Background: The History of Model Land Use Laws
The Guidebook is not the first attempt to standardize state zoning laws. To date, the most ambitious and successful attempts n15 to standardize land use regulation consist of two [*655] model planning and zoning statutes drafted in the 1920s, the Standard State Zoning Enabling Act (SZEA) n16 and the Standard City Planning Enabling Act (SPEA). n17 These statutes continue to dominate most states' land use laws n18 and the Guidebook seeks to cure their defects. n19
A. In the Beginning: SZEA and SPEA
Model zoning statutes are almost as old as zoning itself. Los Angeles enacted the first American zoning ordinance in 1909. n20 Just a dozen years later, the federal Commerce Department created an advisory committee on zoning and drafted the first version of the SZEA. n21 In 1926, the Commerce Department drafted a revised version of the SZEA. n22 Adopted in some form by all fifty states, n23 this revised SZEA, in modified [*656] form, is still in effect in forty-seven states. n24 The Commerce Department's interest in zoning arose from Secretary of Commerce Herbert Hoover's concerns that without zoning, cities would lack adequate public infrastructure to serve their growing populations and that property values in residential neighborhoods would be threatened by the growth of incompatible uses. n25
The SZEA included provisions granting local governments power to enact zoning ordinances dividing cities into districts, as well as language setting forth procedures for establishing, enforcing, and amending zoning laws, and for granting variances from those laws. n26 After states enacted SZEA-type laws authorizing municipal zoning, local governments began to enact SZEA-inspired zoning ordinances that courts generally upheld. n27 Today, Houston is the only large city without zoning. n28
In 1928, the Department of Commerce drafted SPEA, a statute intended to complement the SZEA. n29 This model statute authorized local governments to appoint a planning commission n30 and required the commission to create a master plan that includes, among other things, the recommended locations and character of public improvements such as streets, playgrounds, and open spaces. n31 SPEA proved to be far less [*657] influential than SZEA, n32 however, because the SPEA did not give planning commissions the power to ensure that zoning laws conformed to the master plan. n33 In fact, the SPEA limits municipal power over private land use by implying that a master plan is to be taken into account by the municipality only to the extent that it governs the construction of public facilities. n34
B. History of the Guidebook
The call for a new model land use code originated from two sources at about the same time. n35 In 1991, a HUD advisory commission on barriers to affordable housing recommended that HUD "work with government and private-industry groups, such as the American Bar Association, the American Planning Association ... and others to develop consensus-based model codes and statutes for use by State and local governments." n36 Specifically, the commission recommended, inter alia, a new model state zoning enabling act. n37 Also in 1991, the APA decided to create a task force to draft new model planning and zoning enabling legislation based on the group's "concern[] about the number of bills to [reform] planning and land development control being introduced in state legislatures without an overall body of evaluative research to offer [*658] guidance." n38 The task force decided to draft a model code setting forth alternative approaches to land use regulation rather than mandating a one-size-fits-all code for all states. n39 The APA sought funding from HUD and the Henry Jackson Foundation n40 in 1992 and 1993, n41 finally receiving funding in 1994. n42
At the request of HUD, the APA created an advisory board, known as the "directorate", comprised primarily of representatives of APA and of numerous national associations representing state and local government officials. n43 The directorate also included three private sector members-at-large: the executive director of the International Municipal Lawyers Association, n44 an attorney for the Environmental Law Institute designated as a representative of environmentalists, n45 and a home builder n46 designated as representative of the "Built Environment" n47 - t hat is, "home builders, office and industrial developers, real estate agents, general contractors, road builders, engineers, architects, and others who are generally [*659] classed as the built environment." n48 The directorate met twice a year during the duration of the project and succeeded in reaching a consensus on most issues. n49 In addition, the APA began an outreach program, mailing a semi-annual project newsletter to numerous interest groups and maintaining a project website. As a result, the APA received hundreds of pages of comments and recommendations n50 from environmental groups, organizations representing builders and developers, organizations representing the sign industry, historic preservation groups, and numerous other organizations. n51 The APA later adopted eighty-five percent of those suggestions in some form. n52
The APA released an interim edition of the Guidebook in 1996. This first edition focused on state and regional planning, as well as affordable housing. n53 A second edition replaced the first in 1998 n54 and was more extensive, containing model legislation on local land use planning, state review and approval of local land use plans, and integration of local land use plans with state environmental law. n55 Finally, the APA published the final edition of the Guidebook in 2002. n56
C. The Guidebook: Why It Exists, What It Does
The final edition of the Guidebook explains in its preface that SZEA and the SPEA "are incapable of meeting the challenges of the twenty-first century." n57 Specifically, the Guidebook asserts that these 1920s model statutes:
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1. Fail to discuss the states' role in land use regulation because at that time land use planning was generally a local, rather than a state, activity. n58 By contrast, state legislatures now take an active role in land use regulation in order to ensure uniformity and to address issues spilling across jurisdictional boundaries; n59
2. Do not address environmental issues such as the value of preserving vacant, developable land or the environmental consequences of the form and relative compactness of metropolitan areas; n60
3. Provide inadequate opportunities for citizen participation in the zoning process; n61 and
4. Fail to consider the courts' increased scrutiny of land use regulation in recent decades. n62
The Guidebook contains fifteen chapters, covering the topics addressed in the earlier editions and adding detailed discussion of zoning, subdivision regulation, smart growth legislation, state biodiversity conservation plans, environmental protection, procedures for siting controversial state facilities, development oriented towards public transit, development moratoria, judicial review, public records of plans and regulations, and a wide variety of other issues. n63 Accompanying the Guidebook is a User Manual that, by means of checklists and case studies, seeks to help government officials use the Guidebook and in particular, "to tailor a program of statutory reform that will meet the unique needs of their state." n64 The User Manual also instructs readers that each chapter in the Guidebook follows the following format: first a chapter outline identifying the major topics in the [*661] chapter, then an introduction setting forth a general discussion of the subject matter covering and summarizing its contents, then commentary to individual model statutes, and finally draft statutory language and alternatives. n65
What the Guidebook does not do is directly address the federal role in land use regulation; that issue is left to Congress. n66 Instead, the Guidebook seeks to guide state and local land use law.
II. Analysis: The Guidebook and the Constitution
Guidebook critics allege the following constitutional infirmities in the Guidebook's model statutes:
1. The Guidebook's model sign regulation law violates the First Amendment by restricting businesses' right to advertise; n67
2. Guidebook provisions regarding zoning-related searches violate the Fourth Amendment; n68
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3. A wide variety of Guidebook proposals violate the Fifth Amendment, n69 especially the "Takings Clause" of that Amendment; n70
4. The Guidebook's model statutes violate the Tenth Amendment by increasing federal power over land use; n71 and
5. The Guidebook's model statute governing design districts violates the Equal Protection Clause n72 of the Fourteenth Amendment. n73
Each of these issues will be addressed in turn.
A. The Guidebook and the First Amendment
Section 8-201(2)(h) of the Guidebook states that local zoning laws may regulate "location, period of display, size, height, spacing, movement and aesthetic features of signs, including the locations at which signs may and may not be placed." n74 This statute closely resembles Hawaii's statute allowing counties to "adopt ordinances regulating billboards [*663] and outdoor advertising devices not prohibited by [state law]" n75 and in particular to "regulate the size, manner of construction, color, illumination, location, and appearance of any class of billboard or outdoor advertising device." n76
Other states' laws give local governments even more leeway to regulate outdoor advertising. n77 For example, Maine law not only limits the number, n78 location, n79 and height n80 of on-premise signs, n81 but also provides that state law "shall not supersede the provisions of any other statute, regulation, ordinance or resolution, the requirements of which are more strict than those of this chapter and not inconsistent therewith." n82 Vermont and Rhode Island likewise allow local governments to enact sign regulations stricter than those implemented by state government, without limiting local discretion as to the nature of such regulations. n83 While the Guidebook limits municipal sign regulation to "location, period [*664] of display, size, height, spacing, movement and aesthetic features of signs," n84 the laws of Maine, Rhode Island, and Vermont do not include even this bit of protection for landowners. Rather, all three states apparently give local governments unlimited power to regulate billboards.
Nevertheless, DPR argues that the Guidebook's model statute violates the First Amendment, n85 primarily because it "allows local governments virtually unlimited control over the ability of a businessperson to advertise in his or her place of business." n86 In other words, DPR asserts that by giving local governments power to regulate on-premise signs, Section 8-201(2)(h) violates landowners' First Amendment right to advertise their businesses. n87 This argument is unlikely to prevail in court because the most relevant state and federal district court decisions generally uphold the government's right to regulate on-premise signs. In Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, n88 and more recently in Lorillard Tobacco Co. v. Reilly, n89 the Supreme Court held that under the First Amendment, even truthful advertising concerning lawful activity may nevertheless be regulated if (1) a "substantial" government interest justifies regulation, n90 (2) the regulation at issue "directly advances the [*665] governmental interest asserted," n91 and (3) the regulation is "not more extensive than is necessary to serve that interest." n92 Later decisions make clear that traffic safety and aesthetic rationales for on-premise sign regulation n93 are "substantial" within the meaning of Central Hudson. n94 Thus, only the last two prongs of Central Hudson create controversy in cases involving regulation of on-premise signs.
As a rule, "reasonable restrictions governing size, setbacks, lighting, color, placement, orientation, design, number, height, spacing, or otherwise regulating the manner of advertising devices, will be upheld." n95 Although local governments generally regulate on-premise commercial signs less strictly than off-premise commercial signs, n96 courts usually uphold zoning ordinances regulating on-premise signs under the Central Hudson test. For example, in Brewster v. City of Dallas, n97 the plaintiff asserted that a zoning ordinance restricting "the location of signs ... [and] the size, luminance and movement of signs; their projection from building walls; the size and number of words they may contain, and the number of signs at a given location" n98 violated the First Amendment as it pertained to on-premise commercial signs. n99 The court rejected the plaintiff's First Amendment claim, [*666] holding that, as required by Central Hudson, n100 the city's ordinance (1) directly advanced the city's legitimate interests n101 and (2) reached no further than necessary to satisfy those interests. n102 As to the former issue, the court held that the ordinance directly advanced the city's substantial interests in "promoting traffic safety, communications efficiency, and landscape quality and preservation." n103 The court based that conclusion on the city's finding that "the restrictions promoted efficiency by ensuring that persons exposed to signs are not so overwhelmed by the number of messages presented that they cannot find the information they seek," n104 and on the absence of evidence contradicting the city's finding that its ordinance promoted traffic safety n105 and created "some positive aesthetic effect." n106 As to the latter issue, the court found that the city's zoning ordinance "reached no further than necessary to accomplish its objectives" n107 because it "merely regulates, without prohibiting, on-site advertising" n108 and was "content neutral." n109 The ordinance was thus probably constitutional n110 [*667] because "[it] does not select the messages the public can see; it merely regulates the non-communicative aspects of signs. Sign owners can still display their messages; the only change is in the way they can display them." n111
In some respects, Brewster is directly on point. Just as the Guidebook allows regulation of signs' location, size, height, and other non-communicative aspects, n112 the ordinance upheld in Brewster regulated signs' location, size, and similar aesthetic features. n113 It follows that if Brewster is still good law, Section 8-201(2)(h) of the Guidebook is clearly constitutional. It could be argued, however, that the Brewster court erred in one important respect. The Brewster court deferred to the city's judgment that its zoning laws directly advanced its goals of safety, aesthetic values, and efficiency, n114 based on that court's assumption that "as plaintiff, Brewster bears the burden of proof." n115 But Supreme Court precedent holds that "the party seeking to uphold a restriction on commercial speech carries the burden of justifying it." n116 Thus, Brewster does not answer the question of whether, given that the government has the burden of proof, Section 8-201(2)(h) and similar regulations are constitutional.
To meet its burden of justifying a restriction on commercial speech, a state or local government need not supply the court with "a surfeit of background information." n117 Instead, the Supreme Court "[permits] litigants to justify speech restrictions by references to studies and anecdotes pertaining to different locales altogether or even ... to justify restrictions based solely on history, consensus, and simple common sense." n118 In other words, a state or municipality can [*668] constitutionally regulate commercial speech, such as signs, as long as it gives the court some reason to believe that the sign restrictions at issue do in fact advance aesthetics, traffic safety, or some other public goal.
Two California cases suggest that where government seeks to regulate on-premise signs, its burden of proof is easily met. In Rodriguez v. Solis, n119 a city denied an auto dealer's request for a permit to erect on-premise signs within fifty feet of a freeway "on the ground that the signs would not be compatible with the landscaped environment of Freeway 41 [the freeway in question]." n120 Thus, the question presented was "whether a municipality can constitutionally restrict a property owner from erecting an onsite business sign oriented towards a landscaped freeway." n121 The plaintiff argued that the city "failed to establish that the ordinance advances aesthetic interests." n122 Put another way, the plaintiff asserted that the city failed to meet its burden of proving that the city's regulation directly advanced a substantial government interest (as required by Central Hudson). n123 The court did not deny that the city had the burden of proof, but nevertheless found that "by characterizing signs along Freeway 41 as visual blight and then taking measures to limit or prohibit such signs, the city council took steps to advance the governmental interest of controlling that visual blight." n124 In other words, the Rodriguez court held that because the city characterized plaintiff's on-premise signs as "visual blight," any regulation of those signs directly advanced the city's substantial n125 interest in controlling visual blight. So even if the city had the burden of showing that its regulations directly advanced its aesthetic interest, the city met this burden. The Rodriguez court went on to hold that the city satisfied the Central Hudson n126 Court's requirement that "the ordinance reaches no further than necessary to accomplish the city's objective." n127 In support of this conclusion, [*669] the court pointed out that the city "has not banned all onsite billboards ... . The only type of sign advertising disallowed is that which can be reasonably construed as contributing to visual blight." n128 Thus, Rodriguez suggests that as long as a city's restrictions on on-premise signs merely regulate "visual blight" rather than outlawing all onsite signs, such regulations are not overbroad under Central Hudson. It logically follows that the Guidebook's model statute (which also seeks to regulate rather than to eliminate on-premise signs) is also constitutional under Central Hudson.
The Rodriguez court relied partially on dicta from City of Indio v. Arroyo. n129 In Arroyo, the city sought to remove a mural painted on the location of a small convenience store on the ground that the mural was larger than allowed by the city's sign ordinance. n130 The court implicitly acknowledged that the municipality had the burden of proof, stating that if "the city could demonstrate, for example, that the mural posed a traffic hazard ... then abatement would be proper." n131 The court further held that the city's ordinance was unconstitutionally overbroad because the mural was a noncommercial depiction of the owners' Mexican heritage rather than a commercial advertisement n132 and aesthetic judgments that might justify regulation of commercial speech could not justify suppression of such artistic speech. n133 But the court added in dicta, "the city's interest in its esthetic environment is directly advanced by the ordinance's regulation of commercial speech. We have little doubt that if, for example, the Arroyos' wall advertised "Cold Beer, Come Inside!' it could properly be regulated in the precise fashion contemplated with regard to the mural as it exists." n134 In other words, Arroyo states that the size of an on-premise sign or mural may be limited on aesthetic grounds - a proposition completely consistent with the Guidebook's position [*670] that local governments may regulate the "size, height, spacing, movement and aesthetic features of signs." n135
Both Arroyo and Rodriguez support the proposition that even if a municipality has the burden of justifying its regulations, it nevertheless may limit the size and location of on-premise commercial signs. It follows that under these cases, the Guidebook's model statute limiting the size, location, and other aesthetic features of on-premise signs does not violate the First Amendment.
It could be argued that In re Deyo n136 compels a contrary outcome. In Deyo, the owner of commercial office space challenged a city ordinance that "prohibited on-premise signs advertising the sale or lease of real estate." n137 The Vermont courts found that the ordinance was unconstitutional for two reasons. First, "by permitting other types of signs that are distracting to motorists, the traffic safety benefits of the ordinance were undermined." n138 Second, "the sign ordinance substantially limited property owners' ability to market their property because the alternatives available - listing with real estate agents or advertising in the classified section of newspapers - were less than satisfactory." n139 The law invalidated in Deyo completely prohibited on-site signs related to real estate transactions. By contrast, the Brewster and Rodriguez courts implicitly distinguished cases such as Deyo, by emphasizing that the ordinances at issue were constitutional because they "merely regulated, without prohibiting, on-site advertising." n140 In other words, Deyo held that a city government could not completely prohibit the erection of on-premise signs, whether for one type of business [*671] or for all local businesses. Brewster and Rodriguez addressed an entirely different question: whether a city government could regulate on-premise signs, without prohibiting them, by regulating the size and location of such signs.
Section 8-201(2)(h) of the Guidebook resembles the ordinance upheld in Brewster rather than the ordinance struck down in Deyo. The Guidebook statute apparently does not allow local governments to prohibit on-premise signs altogether, either for all commercial enterprises or for one particular type of business. Instead, the Guidebook authorizes regulation of the "location, period of display, size, height, spacing, movement and aesthetic features of signs" n141 - just as the ordinance upheld in Brewster regulated "the location of signs" and "the size, luminance and movement of signs; their projection from building walls; the size and number of words they may contain, and the number of signs at a given location." n142
One might argue that by allowing local governments to regulate the "location" of signs, the Guidebook in fact allows the prohibition of such signs because a zoning ordinance providing that "there shall be no advertising signs in city X" not only prohibits the erection of such signs but also regulates their location by excluding them from city X. But such an interpretation of the Guidebook is probably incorrect, for three reasons. First, if the Guidebook's authors intended to allow local governments to prohibit signs, they could have used the term "prohibit," which they did not do. Second, as noted above, the Brewster court interpreted an ordinance that regulated the "location" n143 of signs as an invitation to regulate signs rather than prohibiting them entirely. n144 It follows that the Guidebook should be similarly interpreted. Third, Supreme Court precedent holds that if "a statute is susceptible of two constructions, by one of which grave and doubtful [*672] constitutional questions arise and by the other of which such questions are avoided, [the court's] duty is to avoid the latter." n145 So if lower courts can possibly interpret Section 8-201(2)(h) to authorize mere regulation of on-premise sign location and aesthetics rather than citywide n146 prohibitions of such signs, they will do so and thus uphold that statute and similarly worded state statutes against a First Amendment challenge.
Because no federal appellate case is on point, the constitutionality of local regulation of on-premise signs is not yet clear beyond all dispute. However, relevant district court and state cases hold that statutes that regulate the size, location, and similar aesthetic features of on-premise signs are consistent with the First Amendment. It follows that if Section 8-201(2)(h) is correctly interpreted to allow such regulation, it too is probably consistent with the First Amendment under existing case law. But any statute that seeks to outlaw on-premises signs is constitutionally questionable.
B. The Guidebook and the Fourth Amendment
The Fourth Amendment provides that persons' rights "against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." n147 The Fourth Amendment applies to both the federal government and to state and local governments n148 and its purpose is "to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." n149 As a general rule, "a search of private property without proper consent is "unreasonable' unless it has been authorized by a valid search warrant." n150 Section 11-101 of the Guidebook [*673] provides that a municipality may obtain a warrant to search a landowner's property n151 after proving to a court "that there is probable cause to believe that the property is not in compliance with land development regulations." n152 DPR asserts that Section 11-101 violates the Fourth Amendment's prohibition of "unreasonable searches and seizures" n153 because, inter alia, n154 that statute (1) does not require municipal inspectors to give landowners advance notice of searches, n155 (2) allows police officers to accompany zoning inspectors on searches, n156 and (3) allows local governments to act upon communications from any person. n157 Each of these contentions will be addressed in turn.
1. Notice
Section 11-101(7) of the Guidebook provides that local government officials "may notify or warn persons that they are or may be violating land development regulations" n158 before searching their property. The Guidebook's use of the word [*674] "may" indicates that such notice is not mandatory - a proposition that, according to DPR, is contrary to the Fourth Amendment. n159 Two Supreme Court cases are highly relevant. In Camara v. Municipal Court, n160 the Supreme Court held that building inspectors must obtain search warrants in order to engage in housing-related administrative searches. n161 But under Camara, "there is no obligation on the inspector to give advance notice, or, if he is denied entry, to indicate his intention to return with a warrant, make the time of his return known in advance, or arrange a time convenient to the occupant." n162
In Marshall v. Barlow's, Inc., n163 the Court extended Camara by holding that under the Fourth Amendment, agents of the Secretary of Labor must obtain search warrants in order to inspect employment facilities for safety hazards. n164 In support of this decision, the Court pointed out that a warrant requirement would not cripple the Labor Department's ability to perform surprise inspections because "warrants may be issued ex parte and executed without delay and without prior [*675] notice, thereby preserving the element of surprise." n165 Thus, Barlow suggests that the Fourth Amendment allows government inspectors to search land "without prior notice." n166
2. Police Searches and Administrative Searches
Section 11-101(4)(d) of the Guidebook provides that zoning inspectors "may be accompanied by one or more sworn officers of the [local] police department." n167 These officers "shall not participate in the inspection, and an entry and inspection pursuant to this paragraph shall not, by the mere presence of police officers pursuant to this paragraph, be considered to be a search by police officials." n168 The commentary to this provision explains that police officers "should accompany planning agency or code enforcement personnel only when it is believed there is a possibility of violence against the personnel in performance of their duties" n169 and may not participate in searches. n170 DPR complains that even though Section 11-104(4)(d) explicitly prohibits police officers from participating in zoning inspections, their mere presence creates a risk that the police might "surreptitiously gather evidence for possible criminal charges against a property owner." n171 Thus, the question presented is whether police officers may constitutionally accompany zoning inspectors on a search.
The case of Alexander v. City and County of San Francisco n172 is nearly on point. Alexander arose out of the following facts: City health inspectors visited a homeowner's residence in order to search the premises. n173 The homeowner shot at police officers who accompanied the inspectors and was in turn fatally shot. n174 The executor of the homeowner's estate sued the city, alleging that the officers violated the homeowner's Fourth Amendment rights because they "entered [the homeowner's house] for the purpose of arresting him, but [*676] had only an administrative inspection warrant in their possession." n175 The trial court granted defendants' motion for summary judgment, but the Ninth Circuit reversed. n176 The court initially noted that "as an initial matter a forcible entry warrant provides a lawful basis for entry," n177 without making a distinction between police officers and health inspectors. Thus, Alexander suggests that a valid administrative warrant may justify entry by both administrative inspectors and police officers.
The court nevertheless went on to hold that summary judgment was inappropriate because "if in fact the officers' primary purpose in storming the house was to arrest [the homeowner] rather than to assist the health officials in executing the inspection warrant, then [the homeowner's] Fourth Amendment rights were violated." n178 It logically follows from this statement that if the officers' primary purpose was to assist the health officials rather than to make an arrest, no Fourth Amendment violation occurred. Thus, Alexander stands for the proposition that police officers may accompany zoning inspectors on searches if their goal is to protect the inspectors, but may not do so if their goal is to act as criminal investigators (i.e., to arrest landowners or perform searches that might lead to such arrests). Because the Guidebook allows police to pursue the former goal but not the latter, n179 its language accurately tracks that of Alexander and thus does not violate the Fourth Amendment.
3. Who Can Complain
Section 11-101(6) of the Guidebook provides that a municipality "may receive from any person informal communications alleging that a person or persons are or may be violating land development regulations ... [and] may act upon communications as defined in this paragraph as it deems appropriate." n180 DPR complains that under this model statute, local governments may obtain inspection warrants based on [*677] allegations "by anyone, such as neighbors, nearby businesses, or other "interested citizens.'" n181 It is well settled that even searches based on anonymous tips do not automatically violate the Fourth Amendment, both in the criminal context n182 and in the administrative context. n183 Thus, Section 11-101(6) presents no Fourth Amendment problem.
C. The Guidebook and the Fifth Amendment
The Fifth Amendment provides that no person may be "deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation." n184 Pursuant to the Due Process and Takings Clauses of that amendment, Guidebook critics attack the Guidebook's provisions regarding (1) development moratoria; n185 (2) design review districts; n186 (3) historic preservation; n187 (4) rezoning of existing land uses; n188 (5) local government approval of subdivisions; n189 (6) transferable development rights; n190 (7) criminal sanctions for violation of zoning laws; n191 (8) dedications of property in exchange for building permits; n192 and (9) amortization of nonconforming uses. n193 Each of these issues will be addressed in turn.
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1. Development Moratoria
a. The Guidebook's Rules
Eight states authorize local governments to impose development moratoria, which are temporary prohibitions on new development or on connection of newly developed property to publicly owned water and sewer lines. n194 Typically, moratoria are imposed when municipal officials are preparing an extensive amendment of land use regulations and seek to have pending requests for development considered under the new rules they wish to adopt n195 or when public facilities such as roads and sewers are not yet adequate to serve new development. n196
Rather than adopting a one-size-fits-all provision on moratoria, Section 8-604(3) of the Guidebook proposes three model state statutes. Alternative One allows moratoria (1) where development presents a "significant threat to the public health or safety or general welfare" n197 or (2) where a municipality is in the process of preparing or amending either a local comprehensive plan or land development regulations implementing a new or amended local comprehensive plan. n198 Alternative Two allows a moratorium in the situations listed in Alternative One n199 and also to prevent "a shortage or overburden of public facilities that would otherwise occur during the effective term of the moratorium or that is reasonably foreseeable as a result of any proposed or [*679] anticipated development." n200 Alternative Three allows moratoria only to prevent the shortage or overburden of public facilities referred to in Alternative Two n201 or to prevent "a significant threat to the public health or safety." n202 Moratoria are limited to 180 days unless a municipality enacts extensions. n203 The Guidebook gives legislatures the option of further restricting moratoria in already-developed areas. n204
b. Moratoria Are Constitutional ...
The Supreme Court recently upheld a development moratorium in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency. n205 In Tahoe-Sierra, the question before the Court was whether "a moratorium on development imposed during the process of devising a comprehensive land-use plan constitutes a per se taking of property requiring compensation under the Takings Clause." n206 The Supreme Court flatly refused to ban moratoria, holding that "the extreme categorical rule that any deprivation of all economic use, no matter how brief, constitutes a compensable taking surely cannot be sustained." n207 Instead, the Court held that the constitutionality of moratoria, like the constitutionality of most other land use regulations not involving a physical occupation of property, n208 or elimination of the property's economic value, n209 is governed by the balancing test generally used to decide whether a government regulation constitutes an [*680] unconstitutional taking. n210 Under this test, the courts weigh "the regulation's economic impact on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action." n211 Thus, Tahoe-Sierra bars any claim that development moratoria are always unconstitutional. n212
c. But Not If They Are Permanent
However, under Tahoe-Sierra, a moratorium may be an unconstitutional taking if it is permanent rather than temporary. n213 DPR asserts that the Guidebook in fact endorses permanent moratoria, and is thus unconstitutional under Tahoe-Sierra, because it contains "no meaningful time limit for moratoria when the local government still perceives that a need for moratoria exists." n214 Section 8-604(5) of the Guidebook states that a moratorium's term "except as otherwise provided herein, shall not be more than [180] days." n215 Section 8-604(8) states that a local government "may extend an ordinance establishing a moratorium on the issuance of development permits for [only one or up to two] additional [180]-day [*681] periods." n216 The existence of brackets in the Guidebook's language could be interpreted either to mean that local governments may adopt no more than two 180-day extensions or that legislatures may, by deleting these brackets, allow unlimited moratoria.
But the Guidebook's commentary clarifies this ambiguity, explaining that a "moratorium ordinance must state a duration for the moratoria not in excess of 180 days, but a moratorium may be extended by ordinance ... An extension may not last over 180 days, and the Section provides for either only one extension or two at the adopting legislature's option." n217 Thus, the Guidebook's authors intended to limit moratoria to 180 days for an initial moratorium and 180 for each of two possible extensions. This yields a grand total of 540 days, a length of time contemplated by the Tahoe-Sierra Court's statement that "we could not possibly conclude that every delay of over one year is constitutionally unacceptable." n218 It follows that the Guidebook, if properly interpreted, authorizes temporary rather than permanent moratoria. Because temporary moratoria are constitutional, the Guidebook's moratorium provisions are constitutional as well.
2. Design Review and Historic Preservation
Design review regulations attempt to "promote community character by insuring that a certain [*682] architectural style or styles are followed ... or, in contrast, that architectural diversity is encouraged." n219 The former type of regulation seeks to ensure that new buildings are compatible with nearby buildings, while the latter type of regulation seeks to avoid monotony. n220 Historic preservation ordinances similarly seek to protect the character of neighborhoods, but are generally limited to districts "that may be associated with an important historic event or person or are representative of a certain architectural type or period." n221 Section 9-301 of the Guidebook authorizes both forms of regulation.
a. Design Review
Section 9-301 of the Guidebook authorizes local governments to designate "areas by ordinance as design review districts" n222 - areas with structures "united aesthetically by development or that, in the determination of the local legislative body, [have] the potential to be united aesthetically by development." n223 Within such areas, property owners must obtain a "certificate of appropriateness" n224 - a written decision by a local design review board that their development conforms with the design review ordinance n225 - for "all proposed development removing, destroying, adding, or altering exterior [and interior] architectural features of properties located in a ... design review district." n226 Design review board decisions must be based on "standards of review to be applied ... in reviewing applications for the certificate of appropriateness. These criteria shall include such matters as are consistent with the desired character of the exterior [and interior] architectural features of buildings and structures and their surroundings." n227 One Guidebook critic suggests that Section 9-301 violates the Fifth Amendment by giving government veto power over "changes to the interior or exterior of [a] business - a process involving layers of bureaucracy and subject to the personal opinions of government officials." n228
[*683] Both the United States Supreme Court and the majority of state courts allow government to regulate land use to promote aesthetic values. n229 Nevertheless, the Guidebook commentary itself concedes that design review ordinances may violate due process under case law invalidating such statutes as "an improper delegation of power or because they were unconstitutionally vague and thus it was difficult for a board to make a decision based on the standards in the ordinance." n230 [*684] As a rule, a land use "ordinance is void for vagueness if it fails to give persons of ordinary intelligence fair notice that their contemplated conduct is proscribed by the ordinance" n231 and is an unconstitutional delegation of power to administrative agencies if it is not "accompanied by discernible standards, so that the delegatee's action can be measured for its fidelity to the legislative will." n232 In other words, both the "delegation doctrine" and the "vagueness doctrine" prohibit government from granting unlimited discretion to design review boards.
One might argue that Section 9-301 is unconstitutional under both doctrines because it does not establish substantive criteria to govern design review boards. But the Guidebook directs local governments to create such criteria by stating that a local "design review ordinance adopted pursuant to this Section shall include ... standards of review to be applied by the historic preservation board and/or design review board in reviewing applications for the certificate of appropriateness." n233 In other words, if State X enacts a zoning enabling statute patterned on the Guidebook and a local zoning ordinance authorized by that section fails to include "standards of review to be applied by the ... design review board," n234 the ordinance violates both Section 9-301 and the Due Process Clause. n235 [*685] Therefore, Section 9-301 is not itself unconstitutional and a landowner who wishes to challenge a design review board decision on constitutional grounds should assert that the local ordinance authorizing that decision is unconstitutionally vague, rather than challenging the vagueness of the state law authorizing that ordinance.
Cases invalidating overly vague design review ordinances indirectly support this view; those cases invalidated local zoning laws, rather than attacking state zoning enabling statutes that authorized local governments to enact those laws. n236 And wisely so because if state enabling acts had to be as specific as a local ordinance must be in order to pass constitutional muster, states would have to micromanage local zoning boards by dictating what sort of building designs should be allowed and which should be forbidden. n237
[*686]
b. Historic Preservation
Section 9-301 also authorizes historic preservation ordinances that designate areas as historic preservation districts and designate individual properties as historic landmarks. n238 If a property or district is so designated, "a certificate of appropriateness [must] be obtained from a historic preservation board for development affecting the ... architectural features of all or specified proposed development therein." n239 A historic preservation board's decision as to issuance of such certificates must be governed by municipally enacted criteria dictating the "desired character of the exterior [and interior] architectural features of buildings and structures and their surroundings in a historic district ... or on properties that have been designated as historic landmarks." n240
Over time, all fifty states and over five hundred local governments enacted historic preservation legislation n241 and in 1978 the Supreme Court held that historic preservation "is an entirely permissible governmental goal." n242 Nevertheless, DPR suggests that the historic preservation portion of Section 9-301 may be unconstitutional because it authorizes not only regulation of historic buildings, but also regulation of undeveloped private land in historic districts. n243 "The courts have consistently rejected the notion that nonhistoric structures are exempt from control [under historic preservation laws]." n244 And just as local governments may regulate nonhistoric buildings within historic districts, they may regulate undeveloped land within historic districts. For [*687] example, in A-S-P Associates v. City of Raleigh, n245 the owner of a vacant lot within a historic district n246 asserted that "even if the [city's historic preservation] Ordinance is a valid exercise of the police power insofar as it applied to historic structures, it is invalid when applied to new construction on property such as [plaintiff's] vacant lot." n247 The landowner asserted that such zoning was unreasonable and thus was unconstitutional under the doctrine of "substantive due process," under which all arbitrary regulation of liberty or property constitutes a regulation without due process and thus violates the Fourteenth Amendment. n248
The North Carolina Supreme Court rejected the landowner's substantive due process claim, for two reasons. First, "preservation of the historic aspects of a district requires more than simply the preservation of those buildings of historical and architectural significance within the district... . "just as important is the preservation and protection of the setting or scene in which [structures of architectural and historical significance] are situated.'" n249 Second, the zoning law did not totally prohibit development of new structures, but merely required the plaintiff "to construct them in a manner that will not result in a structure incongruous with the historic aspects of the Historic District." n250 DPR suggests that Section 9-301 may be unconstitutional because it applies to "undeveloped private land." n251 But in A-S-P Associates, the court held that a vacant lot within a historic district could be regulated. n252 In other words, "undeveloped private land" within historic districts may be regulated. Thus, DPR's argument was [*688] rejected by the A-S-P Associates court and is unlikely to bar enforcement of Section 9-301.
3. Rezoning
Section 8-201(3) of the Guidebook contains a list of provisions that must be included in a zoning ordinance. DPR attacks this section not for any of its provisions, but for a sin of omission: that it "authorizes zoning of land uses and structures within the local jurisdiction without regard for current uses." n253 But the text of the SZEA shows that a zoning enabling act need not endorse existing land uses. Section 9 of that statute provides that "wherever the regulations made under the authority of this act ... impose other higher standards than are required in any other statute or local ordinance or regulation, the provisions of the regulations made under authority of this act shall govern." n254 By allowing local governments to create "higher standards" for land use than authorized by other statutes, Section 9 of SZEA allows municipalities to use their zoning powers to overturn existing land use statutes. And if a municipality can reject existing statutes, it is by definition ignoring "current uses" of land. It logically follows that if Section 8-201(3) is unconstitutional, SZEA is also unconstitutional. This would be an absurd result given the courts' repeated approval of the many zoning laws patterned on SZEA. n255 In other words, SZEA shows no more regard for current uses than does the Guidebook. Thus, the continued survival of SZEA-inspired zoning laws suggests that Section 8-201(3) is constitutional.
4. Subdivision Approval
[*689] A subdivision is "any land, vacant or improved, which is divided or proposed to be divided into two or more lots, parcels, or tracts for the purpose of offer, sale, lease, or development, whether immediate or future." n256 Section 8-301(4) of the Guidebook provides that no person "shall subdivide any land until the ... [map] designating the areas to be subdivided has been approved pursuant to this Section by the local government having jurisdiction over the land." n257 Subsection (b) of that model statute provides that "any purported subdivision of land or plat recordation of a minor subdivision, resubdivsion, or final plat that has not been so approved is void." n258
DPR interprets Section 8-301(4) to mean that "current subdivisions ... that have not been approved by the local government pursuant to the Guidebook's recommendations are considered void." n259 Supreme Court precedent holds that government regulation is especially likely to constitute an unconstitutional "taking" if such regulation interferes with a landowner's "reasonable investment-backed expectations." n260 If a zoning enabling statute provides that a subdivision approved long ago is "void," obviously that statute interferes with subdividers' reasonable expectations and thus may well be an unconstitutional taking.
[*690] Such an interpretation of Section 8-301(4), however, is probably incorrect. Subsection 8-301(4), as noted above, provides that no person "shall subdivide any land" without municipal approval. n261 The phrase "shall" is in the future tense. That is, it probably means that no one may subdivide land in the future without municipal approval and therefore does not mandate municipal re-approval of existing subdivisions. It logically follows that Section 8-301(4), if narrowly interpreted, is not constitutionally problematic. If Section 8-301(4) or a similarly worded state law is challenged in court, the court is likely to adopt such a narrow interpretation based on the principle that if "a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [the court's] duty is to adopt the latter." n262
5. Just Compensation and Transfers of Development Rights
A transfer of development rights (TDR) is a landowner's "yielding of some or all of the right to develop or use a parcel of land in exchange for a right to develop or use another parcel of land, or another portion of the same parcel of land, more intensively." n263 In the twenty-five states allowing TDR programs, n264 a local government may limit development of land it wishes to protect from development without paying cash compensation, as long as it compensates the landowner in-kind by allowing higher densities on other districts or parcels. n265 The Guidebook defines the land on which a TDR limits development as a "sending" district or parcel of land n266 and [*691] defines the land that may be developed more intensively due to the TDR as the "receiving" district or parcel. n267 The receiving parcel need not be owned by the burdened landowner; instead, the landowner may sell her n268 TDR to a developer who wishes to exceed density limits on the receiving parcel. n269 Thus, "burdened landowners are paid market value for the property rights they lose and developers pay market value for the additional development rights they purchase." n270
Section 9-401 of the Guidebook authorizes TDRs, providing that a "local government may adopt local land development regulations and amendments that include provisions for the transfer of development rights." n271 Section 9-401 defines a "transfer of development rights" as a procedure "whereby the owner of a parcel in the sending district may convey development rights to the owner of a parcel in the receiving district, whereby the development rights so conveyed are extinguished on the sending parcel and may be exercised on the receiving parcel." n272 The Guidebook seeks to protect landowners' finances by providing that "receiving districts" may not be "downzoned ... to the degree that owners cannot make a reasonable use of their property." n273 Thus, under the Guidebook, TDRs may not be used to render private land completely valueless.
DPR argues that TDRs violate the Takings Clause by violating the Fifth Amendment's demand "that just compensation be paid in money." n274 In other words, the group [*692] contends that TDRs are an attempt to compensate landowners for the taking of their land, but are not constitutionally acceptable because they are in-kind transfers rather than transfers of money. By contrast, the Guidebook's authors reason that by allowing landowners to make "a reasonable use of their property" n275 in the receiving district, a TDR-adopting municipality commits no taking requiring just compensation.
The Arizona Court of Appeals' decision in Corrigan v. City of Scottsdale n276 supports the former view. In Corrigan, a property owner challenged a zoning ordinance that prohibited new development within his land but awarded TDRs allowing development in adjacent land owned by the plaintiff. n277 The court found that the TDRs were a taking, reasoning: "the city claims this action is a legitimate exercise of [zoning] police power and yet it attempts a form of compensation by way of transfer of density credits. If this were a valid exercise of police power there would be no need for any form of compensation." n278 The Corrigan court went on to hold that the TDRs did not constitute "just compensation" as required by the Arizona Constitution because that constitution "requires compensation for such a taking to be made by payment of money in an amount that has been judicially determined" n279 and TDRs thus violate that constitution by compensating landowners in land rather than in money. n280 Corrigan, standing alone, suggests that Section 9-401 may violate a constitutional requirement that "just compensation be paid in money." n281
It is not clear, however, whether Corrigan is good law even in Arizona. The Arizona Supreme Court, in a decision addressing the proper measure of damages for the alleged taking, stated: "we express no opinion as to the legality or [*693] constitutionality of [the city's] scheme." n282 More importantly, Corrigan is of questionable relevance to cases interpreting the federal Constitution; the court's narrow interpretation of "just compensation" is based on the Arizona Constitution's requirement that "no private property shall be taken or damaged for public or private use without just compensation having first been made, paid into court for the owner, secured by bond as may be fixed by the court, or paid into the State treasury ... ." n283 The Arizona Constitution's references to compensation being "paid into court for the owner," "secured by bond," and "paid into the State treasury" imply that compensation may only be paid in cash. By contrast, the federal Constitution merely requires "just compensation" without adding details, thus arguably giving governments more flexibility in choosing the manner of compensation.
Finally, United States Supreme Court precedent n284 is inconsistent with Corrigan. In Penn Central Transportation Co. v. City of New York, n285 the Supreme Court rejected a Takings Clause claim by a landowner whose request to build a fifty-five-story office tower atop a historic train terminal was denied pursuant to New York City's historic landmark ordinance. n286 The landmark ordinance contained a TDR provision that allowed the owners of landmark sites to transfer development rights from a landmark parcel to other parcels owned by the same landowner. n287 The Court found that the historic landmark ordinance was not a taking, partially because of the TDR provision. The Court reasoned that even if the city outlawed all attempts to build above the terminal, n288 the TDR law precluded a finding that plaintiff had been denied all economically beneficial use of its air rights because the TDRs:
[*694]
made [plaintiff's rights] transferable to at least eight parcels in the vicinity of the Terminal, one or two of which have been found suitable for the construction of new office buildings... . While these rights may well not have constituted "just compensation' if a "taking' had occurred, the rights nevertheless undoubtedly mitigate whatever financial burdens the law has imposed on [plaintiffs] and, for that reason, are to be taken into account in considering the impact of regulation. n289
In other words, Penn Central held that because the city's historic preservation law included a TDR, plaintiff's air rights were not worthless and thus no taking occurred. n290 If the presence of TDRs precludes an otherwise unconstitutional regulation from being a taking, it logically follows that TDRs are not themselves unconstitutional under the Takings Clause and that Corrigan is not relevant to federal constitutional claims. It could be that Penn Central is no longer relevant to most cases involving TDRs, based on Justice Scalia's concurrence in Suitum v. Tahoe Regional Planning Agency. n291 In Suitum, a landowner challenged a regional planning agency's decision that her lot was ineligible for development because it was in an environmentally sensitive area. n292 The regional planning agency sought to mitigate the harshness of its development restrictions by granting affected property owners TDRs; n293 rather than seeking to use those TDRs, plaintiff filed suit alleging a Takings Clause violation. The lower courts dismissed her claim on the ground that her claim was not ripe for judicial consideration, n294 reasoning that because plaintiff had not yet applied to use those TDRs, the value of her TDRs, and thus her economic losses caused by the TDRs, were not yet known. n295 The Supreme Court disagreed, reasoning that the [*695] case was ripe for review because the parties agreed that the plaintiff did in fact have the right to sell her TDRs n296 and the valuation of plaintiff's TDR was an issue of fact, which could be resolved in federal court. n297
Justice Scalia wrote a separate concurrence, joined by Justices O'Connor and Thomas. n298 In that concurrence, Justice Scalia wrote that the case was ripe for judicial action because a takings claim is ripe for review as soon as "the government had finally determined the permissible use of the land." n299 Justice Scalia added that in his view, the landowner's TDRs were irrelevant to the question of whether a taking occurred because even if the TDRs were equal in value to plaintiff's land, she had lost the right to use her own land. She thus suffered a taking even if she received the right to develop other land in exchange. n300 Instead, "the marketable TDR, a peculiar type of chit which enables a third party not to get cash from the government but to use his land in ways the government would otherwise not permit, relates not to taking but to compensation." n301
More importantly, Justice Scalia added that he was not opposed to TDRs; rather, TDRs "may also form a proper part, or indeed the entirety, of the full compensation accorded a landowner when his property is taken." n302 By asserting that a TDR may constitute "just compensation," Justice Scalia bluntly repudiated the Corrigan court's suggestion that because a TDR is not in cash, it may not constitute "just compensation." n303 In sum, both the Penn Central Court and Justice Scalia's Suitum concurrence held that land use regulations that include TDRs do not automatically violate the Takings Clause. The Penn Central court so held because TDRs may prevent an [*696] otherwise confiscatory regulation from constituting a "taking;" Justice Scalia because TDRs may constitute "just compensation" for such a taking. Either way, Section 9-401 and other statutes authorizing TDRs are constitutional on their face.
6. Crime and Punishment Under the Guidebook
Section 11-302(1) of the Guidebook provides that it is "a criminal offense to intentionally [or knowingly] violate the land development regulations of any local government." n304 This statute does not, however, specify the appropriate penalties for such criminal violations. Nevertheless, DPR suggests that Section 11-302 is unconstitutional because it "criminalizes and allows imprisonment for anyone who intentionally or knowingly violates any land development regulation." n305
The Guidebook's criminal enforcement procedures are hardly unique; for example, the SZEA provides that a "violation of this act or of [any ordinance authorized thereby] is hereby declared to be a misdemeanor, and [a] local legislative body may provide for the punishment thereof by fine or imprisonment or both." n306 More importantly, courts usually uphold such statutes. For example, in Hadachek v. Sebastian, n307 the Supreme Court upheld a conviction of a petitioner "[who] was convicted of a misdemeanor for the violation of an ordinance of the city of Los Angeles which makes it unlawful for any person to establish or operate a brickyard or brick kiln, or any establishment, factory or place for the manufacture or burning of brick within described limits in the city." n308 The Court rejected claims that the ordinance violated the Equal Protection Clause of the Fourteenth Amendment n309 and constituted "the taking of property without compensation." n310
[*697] Because Hadachek fails to directly address the distinction between criminal and civil liability, that case is not directly on point. More recent state court decisions, however, explicitly allow criminal punishment for zoning violations. In City of North Royalton v. Vodicka, n311 police arrested the defendant for having an overly high fence, a misdemeanor offense under the city code. n312 The defendant asserted that "the classification of his [zoning code] violations ... as fourth degree misdemeanors somehow violates his constitutional rights to equal protection and due process." n313 An Ohio court disagreed, finding no "constitutional infirmity in the application of these city zoning ordinances ... [or] on the face of this legislative scheme." n314 In Calhoun v. Town Board Saugerties, n315 a New York court stated that where municipal law made violations of zoning ordinances a misdemeanor, those ordinances could be enforced as long as the state provided "minimal due process protections." n316 In sum, both common practice and case law support the conclusion that criminal punishments may be assessed for violation of zoning laws. It logically follows that the Guidebook's endorsement of such criminal penalties is constitutional.
7. Exactions
Rather than flatly granting or rejecting an application for a building permit, a government agency will sometimes grant permits on condition that "a developer provide certain improvements in a new development or, in some cases, pay a fee to cover the expense of the local government providing those improvements off-site." n317 These conditional permits are known as "exactions." n318 Local governments mandate exactions for two reasons. First, some improvements, such as streets, streetlights, and utilities, are "reasonably necessary for the public health, safety [and] welfare." n319 Second, [*698] "the development itself is creating the demand for the improvements, and the public as a whole should not bear the cost of constructing improvements for new development." n320 Exactions are hardly new; SPEA n321 allows local governments to impose exactions for streets, open spaces, and utilities. n322
Section 8-601(4) of the Guidebook provides that exactions for improvements "shall be in reasonable proportion to the demand for such improvements that can be reasonably attributed to developments subject to the ordinance." n323 Guidebook critics contend that this provision differs materially n324 from the rule set forth by the Supreme Court in Dolan v. City of Tigard. n325 In Dolan, a city allowed a landowner to double the size of her plumbing and electric supply store. n326 The municipality conditioned that approval upon flood control and traffic improvements, including the dedication of land for an easement/"greenway" n327 that recreational users could use to enter her land n328 and a pedestrian/bicycle pathway. n329 The plaintiff raised a Takings Clause claim, asserting that "the city has forced her to choose between the building permit and her right under the Fifth Amendment to just compensation for the public easements." n330
The Court held that the city's exaction was constitutional only if "the degree of the exactions demanded by the city's permit conditions bears the required relationship to the projected impact of [the] proposed development." n331 Thus, the decisive legal issue was the nature of this "required relationship." The Court rejected the view that the city need only show "the "reasonable relationship' test adopted by a majority of the state courts ... because the term "reasonable relationship' seems confusingly similar to the term "rational basis' which describes the minimal level of scrutiny under the [*699] Equal Protection Clause of the Fourteenth Amendment." n332 Instead, the appropriate test was "rough proportionality," meaning "the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." n333 Some Guidebook critics assert that Section 8-601 of the Guidebook, which authorizes exactions of various types, is inconsistent with the Dolan Court's "rough proportionality" test and instead endorses the "reasonable relationship" test rejected by the Supreme Court. n334
But a careful reading of Section 8-601(4) suggests otherwise. Under this model statute, all improvements "required by an improvements and exactions ordinance shall be in reasonable proportion to the demand for such improvements that can be reasonably attributed to developments subject to the ordinance." n335 In other words, to satisfy the requirements of Section 8-601(4), a local government must do more than show that an exaction is somehow related to a development; instead, the burden of the exaction upon a developer must be "in reasonable proportion" to the impact of the development at issue. This language apparently tracks the Dolan Court's "rough proportionality" test.
[*700] To the extent that Section 8-601(4) and similar state statutes are ambiguous on this point, such statutes are likely to be upheld based on the well-settled principle of statutory construction that if "a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [the court's] duty is to adopt the latter." n336 Under this rule, the courts will uphold Section 8-601(4) because it is "susceptible" of being construed to affirm the Dolan Court's "rough proportionality" test. In other words, if Section 8-601(4) could reasonably be interpreted either to adopt the (incorrect) "reasonable relationship" test or the "rough proportionality" test endorsed by the Dolan Court, the courts will assume that that statute has the latter meaning in order to uphold its constitutionality. Because Section 8-601(4) requires that exactions "be in reasonable proportion to the demand for such improvements," that statute could reasonably be construed to adopt the "rough proportionality" test endorsed by the Dolan Court. Thus, Section 8-601(4) is constitutional.
8. Amortization of Nonconforming Uses
A "nonconforming use is a land use, or a structure, which was allowed under local land development regulations when established, but [which] would not be permitted under current development regulations." n337 States and local governments generally adopt one of two methods for dealing with nonconforming uses. The majority of states and local governments "grandfather" nonconforming uses. Thus, the locality allows a land use to continue as long as it was legal at the time it was commenced. n338 When the nonconforming use is terminated, the protection of grandfathering is lost and resumption of the nonconforming use is not allowed. n339 Some states, however, authorize "amortization" of nonconforming uses. Amortization requires "the termination of a nonconforming use after a period of time." n340 The Guidebook concedes that amortization is "a controversial land use [*701] regulation technique, as owners of nonconforming uses can claim that the removal of a nonconforming use at the end of an amortization period, without compensation, is unconstitutional." n341
Section 8-502(4) expressly authorizes amortization, providing that local governments may "state a period of time after which nonconforming land uses ... must terminate" n342 or set forth criteria that designated local officials may, on a case-by-case basis, use to establish "a period of time after which a nonconforming land use ... . must terminate." n343 Guidebook critics assert that Section 8-502(4) violates the Takings Clause by allowing local governments to terminate land uses without compensation. n344 Although the majority of courts uphold amortization in principle, n345 a few courts find amortization to [*702] be unconstitutional under state versions of the Takings Clause. n346 Thus, amortization is unconstitutional under several state constitutions.
Although the Supreme Court has not yet explicitly addressed the status of amortization under the federal Constitution, the Court's case law is highly relevant. It is well-settled that under the federal Takings Clause, a land use regulation is generally n347 a compensable taking when a [*703] landowner has suffered a total taking of her property. Such a total taking requires "[a] permanent "obliteration of the value' of a fee simple estate." n348 This occurs "when no productive or economically beneficial use of [the] land is permitted." n349 But when a land use regulation diminishes the value of a landowner's property by less than 100 percent, n350 the federal courts apply the balancing test enunciated in Penn Central n351 and endorsed in more recent cases. n352 Under this "partial takings" test, federal courts weigh the "economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations ... [as well as] the character of the governmental action." n353 The phrase "character of ... government action" means that a regulation must be "reasonably necessary to the effectuation of a substantial public purpose." n354 It follows that unless amortization of nonconforming uses always deprives a landowner of one hundred percent of her property's fair market value, it is not per se unconstitutional under the federal Constitution and is subject to the case-by-case balancing test enunciated in Penn Central.
The few amortization cases that reveal any awareness of Penn Central hold that zoning ordinances amortizing nonconforming uses are "partial takings" requiring application of the Penn Central balancing test rather than unconstitutional "total takings." For example, in Board of Zoning Appeals, Bloomington, Indiana v. Leisz, n355 two landlords (a husband and wife) challenged a zoning ordinance that "limited the occupancy of dwellings in certain neighborhoods to a maximum [*704] of three unrelated adults per unit." n356 The ordinance, enacted on June 8, 1985, provided that owners of nonconforming properties could continue to rent to more than three tenants per unit only if they registered with the city by October 1, 1985. n357 Thus, the ordinance combined (1) an amortization period of several months for landlords who failed to register and (2) grandfathering for landlords who chose to register. The plaintiffs failed to register and asserted that the ordinance was an unconstitutional taking because "any ordinance which bans an existing lawful use within a zoned area is unconstitutional as a taking of property." n358
The Leisz court rejected the plaintiffs' argument that "amortization provisions are unconstitutional per se ... [as] an issue of federal constitutional law" n359 for three reasons. First, the ordinance "involved no physical invasion of the [plaintiffs'] property." n360 Second, the ordinance "does not deny [the plaintiffs] all economically beneficial or productive use of their land ... [but merely] denies them at most 25% to 40% of the rental income that they might otherwise receive." n361 Third, "state courts that have found amortization provisions unconstitutional have done so on the basis of their state constitution," rather than the federal Constitution. n362 The court went on to reject plaintiffs' claims under the Penn Central balancing test. n363 Thus, Leisz presents a classic example of a situation where a zoning law amortizing nonconforming uses did not deprive landowners of all economically beneficial use of their land. n364
[*705] Federal courts as well as state courts apply the Penn Central test to amortization-related cases. In Georgia Outdoor Advertising, Inc. v. City of Waynesville, n365 a city sought to "effectively prohibit all off-premise outdoor signs in the city" n366 by enacting an ordinance containing a four-year amortization period. n367 The Fourth Circuit rejected claims that amortization provisions either immunized zoning laws from constitutional scrutiny or automatically invalidated such laws. Instead, the court held that courts should apply the Penn Central balancing test n368 and that amortization provisions are "only "one of the facts that the district court should consider'" n369 in deciding whether a zoning regulation constitutes an unconstitutional taking. n370
[*706] Similarly, in Naegele Outdoor Advertising, Inc. v. City of Durham, n371 a district court cited Penn Central in support of its holding that "the benefit conferred by the grant of an amortization period may be taken into account in considering the economic impact of the regulation." n372 Specifically, the court found an outdoor advertising company who challenged a city ordinance limiting off-premise signs "has not been deprived of all economically viable use of its property." n373 This was so partially because of the amortization period and partially because even after the amortization period ended, the plaintiff's revenue from signs in the relevant market would only be reduced by 29.75 percent. n374 The court went on to find that no taking occurred because the other elements of the Penn Central test also did not support the plaintiff's claim: the plaintiff's investment-backed expectations were either unreasonable or nonexistent n375 and the city's regulations were justified by a legitimate aesthetic purpose. n376 Thus, Naegele, like Georgia Outdoor, holds that amortization is not always an unconstitutional taking and that the Penn Central balancing test must be applied to amortization ordinances.
Although many opinions discuss amortization, only a few bother to consider Penn Central. Those cases suggest that zoning laws that (like Section 8-502(4)) provide for amortization of nonconforming uses are subject to the Penn Central balancing test and thus do not on their face breach the Takings Clause in every conceivable case. This does not mean, however, that such laws are always constitutional as applied. A municipal land use decision that renders a landowners' property economically useless or that otherwise goes "too far" n377 under the Penn Central test creates a compensable taking, amortization or no amortization. n378 So even though the [*707] Guidebook's authorization of amortization is not per se unconstitutional, a municipality that chooses to amortize nonconforming uses may be at risk for Takings Clause lawsuits.
D. Tenth Amendment
The Tenth Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." n379 The purpose of this amendment is to "allay lingering concerns about the extent of the national power" n380 by reserving to the states "a substantial portion of the Nation's primary sovereignty, together with the dignity and essential attributes inhering in that status." n381
DPR suggests that the Guidebook creates "uniform national standards" n382 and thus violates the Tenth Amendment. But the Guidebook is not a model federal statute, but a set of model state statutes. n383 Although the Guidebook is federally funded, the Guidebook's opening pages state that it does not "reflect the views of HUD, the U.S. government, or any other project sponsor," n384 and the Secretary of HUD said that the Guidebook "does not have an imprimatur of the federal government, it does not have any sort of guidelines and there'll be no coercion for states or localities to adopt it." n385 Indeed, some Guidebook critics complain that the Guidebook increases, rather than decreases, state power. For example, one critic complains that the Guidebook forces localities to "abide by state-dictated land controls." n386 Because the purpose of the Tenth Amendment is to protect state power rather than local power, such concerns have no significance under the federal Constitution.
[*708] The Guidebook may nevertheless constitute a federal intrusion into state prerogatives because it is funded by the federal government. Yet the SZEA was not only funded by the federal government, but drafted by the federal government. n387 So if the Guidebook is unconstitutional because of its federal support, the SZEA, and thus every state zoning enabling statute enacted pursuant to the SZEA, is unconstitutional. Given the courts' consistent endorsement of post-SZEA zoning, n388 this is an absurd result.
E. The Fourteenth Amendment
The Fourteenth Amendment provides, in relevant part, that no state shall "deny to any person within its jurisdiction the equal protection of the laws." n389 In the context of land use regulation, courts usually interpret the Equal Protection Clause to require "that classifications promote a legitimate government end in a rational way." n390 In zoning-related cases, this "restraint is more theoretical than real since [zoning] ordinances are reviewed under a highly deferential standard. Distinctions between commercial and residential use or types of commercial use, or between single-family and multi-family use are not likely to be invalidated." n391 Similarly, courts generally apply minimal scrutiny to local governments' aesthetic decisions and uphold findings by design review boards that certain structures are inharmonious with surrounding neighborhoods. n392
[*709] Nevertheless, DPR suggests that Section 9-301 of the Guidebook (which, as noted above, allows local governments to designate areas as "design review districts") n393 violates the Equal Protection Clause. DPR argues that the Guidebook allows local governments to "arbitrarily designate any area as a "Design Review Districts' [sic] and subject property owners in just those areas to mandatory standards on the design and aesthetics of ... their property." n394 According to DPR, the distinction between design review districts and other areas creates irrational "different treatment" n395 between property owners in design review areas and property owners in other areas.
If the Guidebook told local governments to randomly designate certain blocks as "design review blocks" this argument would be persuasive. But in fact, the Guidebook itself both includes criteria for designation of design review districts and orders local governments to enact such criteria. Section 9-301 of the Guidebook, which authorizes local governments to establish "design review districts," n396 limits local discretion to arbitrarily establish such districts by requiring that a design review district be a "geographically definable area possessing a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united aesthetically by development or that, in the determination of the local legislative body, has the potential to be united aesthetically by development." n397 This provision is not the only limit upon local discretion. Section 9-301 requires that local governments themselves establish "criteria to be applied ... in selecting areas to be designated by ordinance as design review districts." n398 Thus, a municipality that arbitrarily designates a [*710] block or neighborhood as a "design review district" violates not only the Fourteenth Amendment, but the Guidebook as well.
Moreover, courts generally defer to aesthetic decisions by design review boards. For example, in Breneric Associates v. City of Del Mar, n399 a city design review board denied plaintiffs' building permit application on the ground that their proposed design "was inconsistent with the residence's architectural style and was inharmonious with the surrounding neighborhood." n400 The controversy revolved around plaintiffs' proposal to use glass on a house's roof deck and their proposed siting of an addition to the house. n401 A California court rejected plaintiff's equal protection claim, reasoning that the "denial of a permit bore a rational relationship to a permissible government objective because ... the proposed development was rejected for transgressing aesthetic considerations, which are legitimate state objectives." n402 Further, "the facts cited in the resolution as the basis for [the city's] determination show that the "wisdom [of the decision] is at least fairly debatable.'" n403 Thus, Breneric Associates suggests that courts will uphold "fairly debatable" aesthetic decisions by local governments.
Sievert v. City of Mill Valley n404 also merits discussion. In that case, a city refused to allow plaintiffs to modify their home because the modification would "increase the apparent mass of the structure" n405 and thus violate a design review ordinance's requirement that a proposed structure not create "substantial disharmony with its locale and surroundings." n406 Plaintiffs raised an equal protection claim against the city, asserting that the city "arbitrarily denied plaintiffs' application while approving applications for other similarly situated applicants." n407 The court rejected that claim on two grounds. First, although the city approved building permits for nearby structures, plaintiffs failed to show that those structures were [*711] "similarly situated" n408 in any way. Second, "building restrictions based upon visual impact are well within the legitimate objectives of local government" n409 and thus generally "rationally related to a legitimate government objective" n410 absent some evidence that the city acted for an improper purpose.
Breneric and Sievert are not directly on point because they involve municipal decisions that structures within areas governed by design review were inharmonious with their surroundings, while DPR questions the constitutionality of decisions that a given block or neighborhood should be within a design review district at all. Nevertheless, these cases do suggest that design-related decisions by local governments will generally be upheld under the Equal Protection Clause. Because Section 9-301 allows local governments to make design-related decisions, Section 9-301 and similarly worded state laws will also probably be upheld under the Equal Protection Clause.
F. Enabling Statutes and Unconstitutional Applications
"Historically, states are enablers. They authorize local governments to plan and regulate land use, but do not usually tell them how to do it." n411 The Guidebook's model statutes, if enacted by the states, will not change this pattern. Even if the Guidebook provisions referenced above are not unconstitutional on their face, they give local governments so much discretion that some applications of some municipal ordinances will create constitutional problems. For example, a municipal zoning decision, enacted pursuant to an otherwise constitutional state law or municipal ordinance, will violate the Takings Clause if the city totally eviscerates an individual landowner's property values. n412 Does the city's use of its zoning code to enact an unconstitutional taking mean that the state law authorizing municipal zoning is itself unconstitutional?
Again, SZEA is on point. SZEA is so broadly written that it could allow any number of unconstitutional decisions: it [*712] allows local governments to regulate buildings in a wide variety of ways, n413 but does not explicitly limit the extent to which local governments may reduce a landowner's property values. But it does not follow that the dozens of state laws based on SZEA are unconstitutional. n414 Thus, the possible unconstitutionality of municipal zoning decisions does not render the Guidebook or similarly phrased state zoning enabling acts unconstitutional.
Conclusion
None of the Guidebook's most controversial provisions are unconstitutional on their face. Thus, state legislatures can safely enact the Guidebook into law if they please, especially if courts narrowly construe the Guidebook's more ambiguous and controversial provisions. This does not mean, however, that by doing so, states will immunize local zoning decisions from constitutional challenges. The Guidebook, like SZEA, authorizes local governments to enact zoning ordinances, but those ordinances will be subject to the same constitutional requirements that already limit government regulation of property rights.
Although the Guidebook may not raise significant constitutional concerns, its provisions implicate a variety of significant policy concerns. These issues include whether on-premise billboards create enough visual blight to justify local regulation, whether development moratoria are necessary to solve the problems occasionally created by new development, and whether amortization of nonconforming uses adequately protects landowners from the impact of zoning laws that outlaw preexisting land uses. As the Guidebook makes its way through state legislatures, legislators will have the responsibility of deciding whether the Guidebook correctly addresses these issues.
Because the Guidebook merely authorizes local governments to address these issues, rather than commanding them to do so, local governments, too, may be faced with difficult policy choices if states enact Guidebook-inspired enabling statutes - choices involving the balancing of private [*713] property rights against the aesthetic and environmental concerns justifying many of the land use regulations discussed above.
FOOTNOTES:
n1. See Matt Arado, Planning Experts to Glean Ideas from Chicago's Suburbs, Chi. Daily Herald, Feb. 24, 2002, at 1, available at 2002 WL 14803675 (The APA is "a group of planning experts from big cities and small towns all over the country."); Bob Egelko, Property Owners Lose Key Tahoe Case, S.F. Chron., Apr. 24, 2002, at A1, available at 2002 WL 4018833 (describing the APA as a "nationwide organization of planning commissioners"); Planners Urge the New Jersey Supreme Court to Defer to the State Plan, U.S. Newswire, Nov. 26, 2001, available at 2001 WL 28754625 (describing the APA as "dedicated to advancing the art and science of urban, rural and regional planning"). The APA represents thirty-three thousand practicing planners, officials and other citizens involved with urban and rural planning issues. See American Planning Association, About APA, History, at http://www.planning.org/APAHistory/ FactSht.htm (last visited Nov. 8, 2002). Sixty-five percent of APA members work for state and local government agencies. Id.
n2. Am. Planning Ass'n, Growing Smart Legislative Guidebook: Model Statutes for Planning and the Management of Change (2002), available at http://www.planning.org/guidebook/ Guidebook.htm (last updated Feb. 13, 2002) [hereinafter Guidebook]. The term "Growing Smart" apparently refers to the Guidebook's provisions encouraging "smart growth," a set of policies designed to encourage less sprawling development by guiding new development into "denser, more compact areas, where existing public services and facilities are already located." Timothy Beatley & Richard Collins, Smart Growth and Beyond: Transitioning to a Sustainable Society, 19 Va. Envtl. L.J. 287, 289 (2000). It has also been noted,
Smart growth is the label for a movement most easily defined by what it opposes: suburban sprawl and its negative effects, such as increasingly congested highways, loss of wetlands and farmland, endlessly indistinguishable commuter suburbs and the deterioration of inner cities and older suburbs. Advocates of smart or managed growth generally favor redeveloping abandoned or underused sections of older urban areas, preserving open [spaces] around cities, providing public-transportation alternatives to the automobile and, where new development does occur, creating communities where residents can work, shop and find recreation close to their homes.
Slow Sprawl to a Crawl, Planners Say, The Times-Picayune, Mar. 13, 2001, at 1, available at 2001 WL 9389613.
The Guidebook proposes a "Smart Growth Act" that funnels state funds into already-developed cities and suburbs rather than newly developed areas. See Guidebook, supra, at 4-128 to 4-132 (describing smart growth legislation in detail). Although a vigorous debate exists on the wisdom of smart growth generally, much of the debate involves policy issues (such as the effect of smart growth upon housing prices) rather than the constitutional issues discussed in this article. See, e.g., Sarah Foster, Federal Land-Use Planning in the Works? Property Rights Group Rallies Opposition to Clinton-Era Project, at http://www.worldnetdaily.com/news/article.asp?ARTICLE<uscore>ID=25381 (Nov. 19, 2001) (quoting business lobbyist's assertion that "smart growth policies drive up the cost of housing" and "destroy property rights"); Michael E. Lewyn, Suburban Sprawl: Not Just an Environmental Issue, 84 Marq. L. Rev. 301, 365-82 (2000) (asserting that anti-sprawl policies need not interfere with free market).
n3. I note that each of the Guidebook's chapters is a separate link on the Guidebook's web page. See Guidebook, supra note 2. I have chosen to cite the overall Guidebook web site once (rather than to cite each chapter as a separate web page) because I trust that readers know how to scroll down on the Guidebook web page and find the chapter they wish to read. For example, to find Chapter 4, a reader should go to the above-cited web page, scroll down to the "Chapter 4" link, and click on the link to read that chapter.
n4. See Stuart Meck, Present at the Creation: A Personal Account of the APA Growing Smart Project, Land Use L. & Zoning Dig., Mar. 2002, at 3 (Guidebook contains "more than 1,450 pages.").
n5. See infra notes 8-9.
n6. See infra notes 68-74, 142-43, 152, 159-63, 172, 191, 214-19, 230-33, 248, 261-63, 304, 323, 335-36 and accompanying text (briefly describing some of the Guidebook's more controversial model statutes).
n7. See Robert Nelson, Land of The Unfree, Financial Times, July 24, 2002, at P1, available at 2002 WL 23850512 (describing Heartland as a "libertarian think tank").
n8. James M. Taylor, Smart-Growth Group Pushes Tough New Land-Use Controls, at http://www.heartland.org/Article.cfm?artID=479 (May 1, 2002); see also Foster, supra note 2 (quoting business lobbyist's assertion that Guidebook would "replace free market-style growth with Soviet-style planning"). Business groups such as the National Association of Homebuilders (NAHB) also criticize the Guidebook, but mostly on narrower grounds related to zoning procedures. See Guidebook, supra note 2, at A-8 to A-27 (dissent authored by member of Guidebook's "Directorate" of persons who guided the project and joined by NAHB, National Association of Industrial and Office Properties, National Association of Realtors, International Council of Shopping Centers, Self Storage Association, National Multi Housing Council/National Apartment Association, and American Road and Transportation Builders Association, focusing on the Guidebook's recommendations on procedural issues such as standing and exhaustion of remedies.); id. at xxxiv (describing Directorate's role). Despite its criticisms, the NAHB-endorsed dissent stated that on balance the Guidebook is "impressive and very useful." Id. at A-26; cf. id. at A-2 to A-7 (dissent by Environmental Law Institute program director criticizing the Guidebook as insufficiently pro-regulation). Because other commentators have addressed the Guidebook's procedural provisions, I decline to do so in this article. See Edward J. Sullivan & Carrie Richter, Out of the Chaos: Towards a National System of Land-Use Procedures, 34 Urb. Law. 449, 472-83 (2002).
n9. See Press Release, House Western Caucus, Pombo, Peterson Lead Call for Secretary Martinez to Reject Clinton Era Land Use Regulations, Nov. 20, 2001, at http://www.house.gov/apps/list/press/pa05<uscore>peterson/pr011120HUDGuidelines. html [hereinafter Pombo/Peterson Letter] (press release quoting letter). Martinez declined to either endorse or criticize the Guidebook, but pointed out that the Guidebook never purported to state the opinion of HUD. See Defenders of Property Rights, Quick Facts on the HUD/APA Legislative Guidebook, at http://www.yourpropertyrights.org/ issues/guidebook/faqs.htm (last visited Nov. 8, 2002) [hereinafter DPR Quick Facts], quoting Martinez statement that the Guidebook,
does not have an imprimatur of the federal government, it does not have any sort of guidelines and there'll be no coercion for state or localities to adopt it, it doesn't even have our endorsement. It's simply a project that has been out there for a long, long time and many people urged me to kill it. Frankly, I didn't have that option. (emphasis added).
n10. See infra notes 68-74, 142-43, 152, 159-63, 172, 191, 214-19, 230-33, 248, 261-63, 304, 323, 335-36 and accompanying text (briefly describing some of Guidebook's more controversial model statutes).
n11. See Carol Dawson, Bush Announces "Intent to Nominate" Former New Mexico Attorney General Harold Stratton as CPSC Chairman, CPSC Monitor, Oct. 1, 2001, at 1, available at 2001 WL 33578341 (DPR "is a national public interest legal foundation that works with individuals whose property has been taken through regulation, legislation or other government action."); Cyrus T. Zaneski & Gia Fenoglio, Interior Department, 33 Nat'l J. 1959, 1959 (June 23, 2001), available at 2001 WL 7182328 (describing DPR as "a Washington group that represents landowners in disputes with government agencies" and noting that Interior Secretary Gale Norton has served on its board); Recruiting from Industry, 34 Nat'l J. 537, 538 (Feb. 23, 2002), available at 2002 WL 7094737 (describing DPR as a "conservative property-rights group[]").
n12. See infra notes 68-74.
n13. See David Sokol, Don't Tread on My Sprawl, Architecture, June 1, 2002, at 31, available at 2002 WL 18658051.
n14. Thus, the wisdom of the Guidebook's proposals, as opposed to their constitutionality, is by and large beyond the scope of this article. Similarly, the status of the Guidebook under various state constitutions is best left for articles focusing more closely on the laws of individual states.
n15. In addition, several other attorneys, academics, and government agencies sought to draft model zoning statutes over the past seventy-five years. However, most of these model statutes either sought to change the law of one state, addressed narrow topics (such as rural zoning, impact fees, affordable housing, or zoning procedure) or merely described state legislation favored by the authors. See Guidebook, supra note 2, at 8-5 to 8-14. In addition, numerous federal commissions have criticized state zoning legislation in the course of reports that focused on other housing-related issues. Id. at 8-14 to 8-17 (describing numerous studies); id. at 8-14 n.40, 8-15 n.43, 8-16 n.44 (specifically noting that three federal reports' zoning-related recommendations encompassed just a few pages within reports covering hundreds of pages). Finally, in 1976, the American Law Institute (ALI), an organization of lawyers, judges and law teachers, sought to modernize land use law by enacting the Model Land Use Development Code. See American Law Institute, About the American Law Institute, at http://www.ali.org/ali/thisali.htm (last visited Nov. 8, 2002) (describing the ALI); Sullivan & Richter, supra note 8, at 455-58 (describing Model Code). The primary goal of the Model Code was to give states power over land use decisions of regional significance. See Jayne E. Daly, A Glimpse of the Past - A Vision for the Future: Senator Henry M. Jackson and National Land-Use Legislation, 28 Urb. Law. 7, 20 (1996) ("The central thesis of the Model Code was that if a land use decision affected more than one municipality, the state should exercise jurisdiction over that decision."); Daniel R. Mandelker, Fred Bosselman's Legacy to Land Use Reform, 17 J. Land Use & Envtl. L. 11, 14 (2001) (At the time Model Code was prepared, land use issues that "transcend local concerns ... arguably demanded some kind of state intervention to correct local decisions that did not take the larger public interest into account."). However, the Model Code met with little support: only two states, Florida and Colorado, have "adopted and used major portions of the ALI Code." Guidebook, supra note 2, at 5-48. Five other states (Minnesota, Oregon, Georgia, Nevada, and Wyoming) and some local governments relied to a lesser extent on the ALI Code. See Sullivan & Richter, supra note 8, at 457; Guidebook, supra note 2, at 5-27 & n.44, 5-48.
n16. See Standard State Zoning Enabling Act (U.S. Dep't of Commerce 1926) [hereinafter SZEA], quoted in 5 Alan C. Weinstein, Anderson's American Law of Zoning 32.01, at 4 (4th ed. 1997).
n17. Standard City Planning Enabling Act (U.S. Dep't of Commerce 1928) [hereinafter SPEA], quoted in Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Control Law 2.8, at 24 (1998) (quoting key provisions of statute).
n18. See notes 23-24 infra and accompanying text.
n19. See notes 57-62 infra and accompanying text (describing the Guidebook authors' concerns about 1920s statutes).
n20. See Robert C. Ellickson & Vicki L. Been, Land Use Controls: Cases and Materials 87 (2d ed. 2000).
n21. See Lewyn, supra note 2, at 330. The SZEA was not the first attempt to draft a model zoning statute, but it was the first model act to be either influential or comprehensive. See Guidebook, supra note 2, at 8-4 to 8-5 (noting that in 1913, the Fifth National Conference on City Planning published model statutes establishing a city planning department, empowering cities to create from one to four zoning districts, reserving land for public use, and authorizing the establishment of building lines on street - but not mentioning any evidence that states adopted these statutes).
n22. See SZEA, quoted in Weinstein, supra note 16; Lewyn, supra note 2, at 330.
n23. See Guidebook, supra note 2, at 8-6; Juergensmeyer & Roberts, supra note 17 3.6, at 46; Daniel P. Selmi & James A. Kushner, Land Use Regulation: Cases and Materials 64 (1999) (citation omitted)..
n24. See Guidebook, supra note 2, at 8-6.
n25. Id. at 8-5.
n26. Id. at 8-6.
n27. See Douglas R. Roach, Zoning by Initiative in Arizona: A Matter of Judicial Philosophy, 32 Ariz. L. Rev. 1003, 1027 (1990) ("Courts have upheld comprehensive zoning ordinances [adopted] under Zoning Enabling Acts as constitutionally permissible ... ."). For example, in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388-95 (1926), the Supreme Court upheld a municipality's right to use zoning to separate single-family homes from industry and from apartments. See also David W. Owens, Local Government Authority to Implement Smart Growth Programs: Dillon's Rule, Legislative Reform, and the Current State of Affairs in North Carolina, 35 Wake Forest L. Rev. 671, 676 n.21 (2000) (In Euclid, the Supreme Court "upheld the basic constitutionality of the zoning concept.").
n28. See Ellickson & Been, supra note 20, at 89; Roy Appleton, Who Knows What's Best for the Land?, Dallas Morning News, June 9, 2002, at 1J, available at LEXIS, News Library, DALNWS File ("With Houston among the few exceptions, most cities of any size ... have zoning.").
n29. See Guidebook, supra note 2, at 8-6.
n30. Id.
n31. See SPEA 6, quoted in Juergensmeyer & Roberts, supra note 17, 2.8, at 24; John L. Horwich, Environmental Planning: Lessons from New South Wales, Australia in the Integration of Land-Use Planning and Environmental Protection, 17 Va. Envtl. L.J. 267, 334 (1998)..
n32. See Selmi & Kushner, supra note 23, at 215 (describing SPEA as "not nearly as influential as the model act for zoning").
n33. See James H. Wickersham, The Quiet Revolution Continues: The Emerging New Model for State Growth Management Statutes, 18 Harv. Envtl. L. Rev. 489, 501 (1994).
n34. See SPEA 6, quoted in Juergensmeyer & Roberts, supra note 17, 2.8, at 24 (Master plan shows municipal recommendations for "general location, character, and extent of streets, viaducts, subways, bridges, waterways, water fronts, boulevards, parkways, playgrounds, squares, parks, aviation fields, and other public ways."); Horwich, supra note 31, at 334.
n35. See HUD's "Legislative Guidebook' and Its Potential Impact on Property Rights and Small Businesses, Including Minority-Owned Businesses: Hearing before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 107th Cong. 86 (2002), available at 2002 WL 25099882 (statement of Robert Manley, Partner, Manley, Burke, Fischer & Lipton, on behalf of the American Planning Association).
n36. Id.; see also Guidebook, supra note 2, at 8-16 to 8-17 (describing advisory commission's report in more detail); Meck, supra note 4, at 5 (citation omitted).
n37. Manley, supra note 35, at 86.
n38. Meck, supra note 4, at 3. According to a recent APA study, about three-quarters of the states either are implementing or are considering statewide planning reforms. See Patricia E. Salkin, The Next Generation of Planning & Zoning Enabling Acts Is on the Horizon: 2002 Growing Smart Legislative Guidebook Is a Must-Read for Land Use Practitioners, 30 Real Estate L.J. 353, 360-61 (2002).
n39. See Meck, supra note 4, at 4; Salkin, supra note 38, at 356.
n40. The Henry M. Jackson Foundation is a Seattle-based nonprofit public policy foundation that makes grants in four areas: foreign affairs, environmental issues, public service, and human rights. See Jonathan Brinckman, Meeting Takes On Salmon Issues, Portland Oregonian, Oct. 15, 1998, at C1, available at 1998 WL 20379438 (describing the foundation); Henry M. Jackson Foundation, Home Page, at http://www.hmjackson.org (last visited Nov. 8, 2002).
n41. Meck, supra note 4, at 5; e-mail from Stuart Meck to Michael Lewyn, Associate Professor, John Marshall Law School (July 19, 2002) (on file with author) (APA proposal first submitted to HUD in fall of 1992).
n42. Meck, supra note 4, at 5. Eventually, five other government agencies, a second foundation, and the Siemens Corporation agreed to fund the Guidebook, as did the APA itself. See Manley, supra note 35, at 88. Ultimately, twenty-eight percent of the project's costs were paid by private sources and seventy-two percent were paid by the six federal agencies. Id. However, the Guidebook's recommendations are "the views of the authors and do not necessarily reflect the views or policies of HUD, the U.S. government, or any other project sponsor." Guidebook, supra note 2, at ii.
n43. See Meck, supra note 4, at 7.
n44. See Guidebook, supra note 2, at xxxvi.
n45. Id.
n46. See Meck, supra note 4, at 11.
n47. See Guidebook, supra note 2, at xxxvi.
n48. Id. at A-8.
n49. Id. But see supra note 8 (describing dissents by representatives of environmentalists and developers).
n50. See Manley, supra note 35, at 87 ("APA received over 320 pages of comments in just the last year of the project.").
n51. Id.; see also Meck, supra note 4, at 9. But see HUD's Legislative Guidebook Its Potential Impact on Property Rights and Small Businesses, Including Minority-Owned Businesses: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 107th Cong. 7-24 (2002), available at 2002 WL 25099884 (statement of R. James Claus, Ph.D., Principal, Claus Consulting) [hereinafter Claus Testimony] (Guidebook opponent claims that APA did not seek sufficient business input).
n52. See Manley, supra note 35, at 87.
n53. See Meck, supra note 4, at 7.
n54. Id.
n55. Id. at 8.
n56. See Guidebook, supra note 2.
n57. Id. at xxix.
n58. Id.
n59. Id.
n60. Id.
n61. Id.
n62. Id. at xxix-xxx.
n63. Id. at xlviii-l. However, the discussion below focuses only on issues raising constitutional concerns and thus does not address many of the issues discussed in the Guidebook.
n64. See Meck, supra note 4, at 8.
n65. See Salkin, supra note 38, at 358-59.
n66. See Guidebook, supra note 2, at xlviii-l (listing Guidebook's highlights without once mentioning the word "federal"). However, Representative Earl Blumenauer and Senator Lincoln Chafee sought to facilitate planning reform by introducing the Community Character Act (CCA) (H.R. 1433/S. 975). Salkin, supra note 38, at 362. This bill proposes that the federal government grant money to the states for development or revision of land use planning legislation, land-use plans, and plan elements. Id. at 363. The CCA requires states to comply with some of the Guidebook's goals (such as enhanced citizen participation and multi-jurisdictional cooperation) in order to be eligible for funds. Id. The CCA has not met with universal acclaim and thus may not pass in its present form. See, e.g., Claus Testimony, supra note 51 (attacking CCA); Evan Halper, State Plans Offensive in Sprawl War, L.A. Times, May 12, 2002, at B8, available at 2002 WL 2475142 (noting Bush Administration opposition to CCA). Accordingly, I choose not to address the wisdom or constitutionality of the CCA in this article. I note, however, statutes that (like the initial version of the CCA) require states to adhere to federally established conditions in order to receive federal funds are by no means unconstitutional per se. See South Dakota v. Dole, 483 U.S. 203, 207-08 (1987) (such conditions are constitutional under federal "spending power," as set forth in Article I of the Constitution, if (1) in pursuit of general welfare, (2) sufficiently unambiguous that states can "exercise their choice [to comply with conditions in order to receive federal funds] knowingly," (3) related to federal interest in program at issue, and (4) not otherwise unconstitutional).
n67. See Defenders of Property Rights, Executive Summary of the HUD/APA Smart Growth Legislative Guidebook, at http://www.defendersproprights.org/issues/ guidebook/summary.htm (visited June 3, 2002) [hereinafter DPR Summary]; Claus Testimony, supra note 51.
n68. See DPR Summary, supra note 67.
n69. Id. See also Harry C. Alford, Testimony Before the House Judiciary Subcommittee on the Constitution, Mar. 7, 2002, available at 2002 WL 25099881 (asserting that Guidebook's amortization provisions "may indeed activate the "takings' clause and result in costly litigation"); Pombo/Peterson Letter, supra note 9 (asserting that unspecified Guidebook provisions "would trample the rights of private property owners by seizing their land without the just compensation that our Constitution requires"); Nancie G. Marzulla, Martinez Must Save Property Rights from Antigrowth Elites, Insight on the News, Dec. 31, 2001, at 45, available at 2001 WL 31036021 ("the guidebook recommends an "amortization' plan, which will give small-business owners a limited period to enjoy their ... signs before they must be removed altogether, without payment of just compensation as required by the U.S. Constitution"); Claus Testimony, supra note 51 (alleging numerous Fifth Amendment violations).
n70. See U.S. Const. amend. V (asserting that property may not be "taken for public use, without just compensation").
n71. See DPR Summary, supra note 67.
n72. See U.S. Const. amend. XIV (saying that no state shall "deny to any person within its jurisdiction the equal protection of the laws").
n73. See DPR Summary, supra note 67 (asserting that historic/design district statutes violate Amendment).
n74. Guidebook, supra note 2, 8-201(2)(h), at 8-51.
n75. Haw. Rev. Stat. 445-113 (1993).
n76. Id. at 445-113(2).
n77. See Guidebook, supra note 2, at 8-45 to 8-50.
n78. See Me. Rev. Stat. Ann. tit. 23, 1914(2) (West 1992) (on-premise signs generally may not exceed ten in number); infra note 81 (defining on-premises signs).
n79. See id. 1914(4) (on-premise signs may not be within thirty-three feet of center line of highway unless the highway is over sixty-six feet in width, or within twenty feet from the outside edge of public way with over two travel lines, or within right-of-way).
n80. See id. 1914(8) (maximum height of on-premise sign is typically twenty-five feet above ground level of land upon which it is located, or ten feet above roof of building if sign affixed to building).
n81. An "on-premise" sign is one which advertises "a business, its products or its services at the point of manufacture, distribution or sale, hence on-premise." Metromedia v. City of San Diego, 453 U.S. 490, 526 n.5 (1981) (Brennan, J., concurring) (citation omitted). Government typically regulates off-premise advertisements more strictly than on-premise advertisements. See Daniel R. Mandelker, Land Use Law 111.09, at 447 (4th ed. 1997) ("Sign ordinances that prohibit off-premise billboards usually allow on-premise business signs."); cf. Metromedia, 453 U.S. at 511-13 (plurality opinion) (stating that government may constitutionally regulate off-premise signs more strictly than on-premises signs, and justifying on-premise/off-premise distinction on ground that a business "has a stronger interest in identifying its place of business ... than it has in using or leasing its available space for the purpose of advertising commercial enterprises located elsewhere") (citation omitted).
n82. See Me. Rev. Stat. Ann. tit. 23, 1922 (West 1992).
n83. See Vt. Stat. Ann. tit. 10, 505 (1998) (saying that state billboard laws "shall not supersede the provisions of any local ordinances whose requirements are more strict than those of this chapter"); R.I. Gen. Laws 24-10.1-9 (1997) (asserting that nothing in state outdoor advertising statutes "shall be construed to abrogate or affect the provisions of any lawful ordinance, regulation or resolution, which are more restrictive than the provisions of this chapter").
n84. Guidebook, supra note 2, 8-201(2)(h) at 8-51.
n85. See U.S. Const. amend. I (saying "Congress shall make no law ... abridging freedom of speech"); City of Ladue v. Gilleo, 512 U.S. 43, 45 n.1 (1994) (The Fourteenth Amendment makes this clause applicable to states and their political subdivisions.).
n86. See DPR Summary, supra note 67.
n87. Another Guidebook critic points out that the Guidebook contains no "qualifying language whatsoever [explaining] that [sign] regulation is impermissible in the absence of proof, by the government, that (1) there is a substantial government interest which justifies the regulation, (2) the regulation directly advances that interest, and (3) the regulation is narrowly tailored and no more extensive than necessary to achieve that interest." Claus Testimony, supra note 51; see Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554 (2001) (citing Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 566 (1980) (similar three-part test governs content-neutral regulations of commercial speech)). But if every statute was unconstitutional unless it quoted relevant Supreme Court case law, the SZEA and every land use statute patterned on the SZEA would be unconstitutional unless they were regularly rewritten to parrot language from the Supreme Court's most recent decisions - obviously an absurd result. See supra note 27 (courts generally uphold SZEA-type zoning laws). Thus, the Guidebook's lack of detail on this point raises no constitutional problem.
n88. 447 U.S. 557 (1980).
n89. 533 U.S. 525.
n90. Id. at 554 (quoting Central Hudson, 447 U.S. at 566).
n91. Id.
n92. Id. However, some courts hold that the Central Hudson test does not govern government regulation of noncommercial signs. See Cleveland Area Bd. of Realtors v. City of Euclid, 88 F.3d 382, 385-88 (6th Cir. 1996) (constitutionality of sign ordinance restricting both commercial and noncommercial yard signs not decided under Central Hudson test; instead, ordinance valid only if "narrowly tailored" to state interest and landowners have "ample alternative channels of communication"). But see Long Island Bd. of Realtors, Inc. v. Inc. Village of Massapequa Park, 277 F.3d 622 (2d Cir. 2002) (where city sign ordinance made no distinction between commercial and noncommercial on-premise signs, court applied Central Hudson test without mentioning absence of commercial/noncommercial distinction).
n93. See infra notes 102-05, 125-26, 130-35 and accompanying text.
n94. See Metromedia v. City of San Diego, 453 U.S. 490, 507-08 (1981) (plurality opinion) ("The twin goals that the ordinance seeks to further - traffic safety and the appearance of the city - are substantial governmental goals.").
n95. 2 Arden H. Rathkopf & Daren A. Rathkopf, Rathkopf's The Law of Zoning and Planning 14A.08, at 14A-20 to 21 (1996 ed.) [hereinafter Rathkopf & Rathkopf].
n96. See Mandelker, supra note 81, at 111.09, at 447.
n97. 703 F. Supp. 1260 (N.D. Texas 1988).
n98. Id. at 1262.
n99. Id. at 1263.
n100. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 566 (1980).
n101. See Brewster, 703 F. Supp. at 1264-65.
n102. Id. at 1265-66.
n103. Id. at 1264.
n104. Id. at 1265.
n105. Id.
n106. Id. Although the plaintiff submitted affidavits asserting that the restrictions did not promote safety and that motorists would be unable to comprehend signs conforming to the ordinance, id. at 1264-65, the court termed these affidavits "conclusory," id. at 1265 n.5, and "conjectural," id. at 1265.
n107. Id. (citing Metromedia v. City of San Diego, 453 U.S. 490, 507 (1981)).
n108. Brewster, 703 F. Supp. at 1265. By contrast, "a total ban on on-premises signs may violate the First Amendment ... [because] the right to advertise an activity conducted on-site is inherent in the ownership or lease of the property." Wheeler v. Comm'r of Highways, 822 F.2d 586, 591 (6th Cir. 1987).
n109. Brewster, 703 F. Supp. at 1265. A "content neutral" regulation is one that government "justifies without reference to the content of the regulated speech." City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (quoting Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976)). By contrast, "A regulation of speech is content based when the content conveyed determines whether the speech is subject to restriction." North Olmsted Chamber of Commerce v. City of North Olmsted, 86 F. Supp. 2d 755, 763 (N.D. Ohio 2000) (citations omitted). Because the language of Section 8-201(2)(h) of the Guidebook is virtually identical to the Brewster court's description of the statute upheld in that case, it follows that Section 8-201(2)(h) is also content-neutral. Cf. DPR Summary, supra note 67 (asserting without elaboration that the Guidebook regulates content); Guidebook, supra note 2, at 8-50 (stating that 8-201 "does not authorize regulation of content").
n110. Brewster, 703 F. Supp. at 1265 (citation omitted); see also North Olmsted Chamber of Commerce, 86 F. Supp. 2d at 764, 769-73 (holding that content-based restrictions on commercial speech subject to Central Hudson test, and that under Central Hudson, such content-based restrictions did not directly advance city's aesthetic and traffic safety interest, because signs with disfavored content unlikely to be "less safe or less aesthetically pleasing than other signs") (citations omitted).
n111. Brewster, 703 F. Supp. at 1266.
n112. Guidebook, supra note 2, 8-201(2)(h), at 8-51.
n113. Brewster, 703 F. Supp. at 1262.
n114. Id. at 1265.
n115. Id.
n116. Thompson v. W. States Med. Ctr., 122 S. Ct. 1497, 1507 (2002) (quoting Edenfield v. Fane, 507 U.S. 761, 770 (1993)).
n117. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001) (quoting Florida Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995)).
n118. Id.
n119. 2 Cal. Rptr. 2d 50, 53 (Cal. Ct. App. 1991).
n120. Id.; see also id. at 52-53 (describing underlying facts in detail).
n121. Id. at 60.
n122. Id. at 61.
n123. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 566 (1980) (holding regulation of commercial speech unconstitutional unless it "directly advances" substantial governmental interest).
n124. Rodriguez , 2 Cal. Rptr. 2d at 61.
n125. Id. (characterizing city's interest as "substantial").
n126. See Central Hudson, 447 U.S. at 566.
n127. Rodriguez, 2 Cal. Rptr. 2d at 61.
n128. Id.
n129. 191 Cal. Rptr. 565 (Cal. Ct. App. 1983).
n130. The mural was 110 square feet in area, id. at 566, but under the sign ordinance the "area of the attached sign could not exceed ninety square feet," id. at 567-68.
n131. Id. at 570 (emphasis added).
n132. Id. at 566 (describing mural).
n133. Id. at 570 (holding the ordinance "overbroad" as applied to noncommercial mural because city "cannot ... suppress the ideological expression of its residents in pursuit of a municipal interest in esthetics").
n134. Id. at 569.
n135. Guidebook, supra note 2, 8-201(2)(h), at 8-51 (emphasis added).
n136. 670 A.2d 793 (Vt. 1995).
n137. Id. at 794.
n138. Id at 795; cf. Linmark Assocs., Inc. v. Township of Willingboro, 431 U.S. 85 (1977) (ban on "For Sale" signs unconstitutional where law's goal was to suppress information about "white flight" from a city); Wheeler v. Comm'r of Highways, 822 F.2d 586, 590 (6th Cir. 1975) (suggesting that total ban on on-premise signs would be unconstitutional).
n139. Deyo, 670 A.2d at 795.
n140. Brewster v. City of Dallas, 703 F. Supp. 1260, 1265 (N.D. Texas 1988); see also Rodriguez v. Solis, 2 Cal. Rptr. 2d 50, 61 (Cal. Ct. App. 1991) (allowing regulation where city "has not banned all onsite billboards"). The regulation/prohibition distinction, however, only applies to on-premise signs. See Juergensmeyer & Roberts, supra note 17, 10.16, at 479 (bans on off-premise signs generally constitutional).
n141. Guidebook, supra note 2, 8-201(2)(h), at 8-51.
n142. Brewster, 703 F. Supp. at 1262. Courts also apply the regulation/prohibition distinction to sign regulations affecting homes rather than businesses. See Long Island Bd. of Realtors, Inc. v. Inc. Village of Massapequa Park, 277 F.3d 622, 627-28 (2d Cir. 2002) (upholding ordinance "regulating the number, size and location of signs on residential property" and prohibiting "off-site commercial advertisements on residential property" because "nothing on the face of the challenged [laws] ... prohibits [plaintiff] from displaying real estate signs").
n143. Brewster, 703 F. Supp. at 1262.
n144. Id. at 1265.
n145. Harris v. United States, 122 S. Ct. 2406, 2413 (2002) (quoting United States ex rel. Attorney Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909)).
n146. Obviously, an ordinance keeping on-premise signs out of one specific location is a "regulation" rather than a "prohibition." For example, in Rodriguez, the court allowed a city to prohibit the plaintiff from installing an on-premise sign near a freeway. Rodriguez v. Solis, 2 Cal. Rptr. 2d 50, 60 (Cal. Ct. App. 1991).
n147. U.S. Const. amend. IV.
n148. Camara v. Mun. Court, 387 U.S. 523, 528 (1967) (citation omitted).
n149. Id.
n150. Id. at 528-29 (noting the existence of certain "carefully defined" exceptions to this rule) (citations omitted).
n151. See Guidebook, supra note 2, 11-101(4), at 11-13.
n152. Id.
n153. U.S. Const. amend. IV.
n154. Two other Fourth Amendment-related arguments are more difficult to understand, but apparently relate to potential police misconduct. The DPR asserts that under Section 11-101(4), "local officials could rezone high crime residential areas enabling code enforcement officials (accompanied by the police) to search every building in the rezoned area for suspected violations." DPR Summary, supra note 67. But nothing in Section 11-101(4) authorizes rezoning of entire neighborhoods or refers to "high crime areas," and in any event it is not clear why such a rezoning would implicate the Fourth Amendment. The DPR also complains about the Guidebook's willingness to immunize persons performing searches from trespass liability. See Guidebook, supra note 2, 11-101(5), at 11-14 (zoning inspections not a violation of state criminal trespass laws, nor shall owners or occupants of property have a cause of action for trespass "except for intentional, knowing or reckless damage to the property"). Because trespass is traditionally a state claim, a state's failure to provide such a claim has no obvious relevance to the federal Constitution. Cf. Eliason Corp. v. Bureau of Safety and Regulation, 564 F. Supp. 1298 (D. Mich. 1983) (discussing federal civil rights claim arising out of allegedly unlawful search and then going on to describe trespass claim under state law). Of course, any state law that sought to foreclose federal claims arising out of unlawful searches would violate the Constitution's Supremacy Clause. See U.S. Const. art. VI (saying that federal law "shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding").
n155. DPR Summary, supra note 67.
n156. Id.
n157. Id.
n158. Guidebook, supra note 2, 11-101(7), at 11-14 (emphasis added).
n159. See DPR Summary, supra note 67 (suggesting that Amendment prohibits local governments from obtaining "inspection warrants for suspected land violations without first notifying the owner of the property that the property is the subject of an investigation").
n160. 387 U.S. 523 (1967).
n161. Id. at 534 ("We hold that administrative searches of the kind at issue are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in ... other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment's protections."). The Guidebook complies with the warrant requirement set forth in Camara. See Guidebook, supra note 2, 11-101(4), at 11-13 (saying that zoning inspectors may petition courts for search warrant, and may obtain warrant only after demonstrating probable cause to believe property not in compliance with land use regulations). I note that the warrant requirement does not apply to all administrative searches. See United States v. Biswell, 406 U.S. 311, 316 (1972) (holding that search warrant requirement does not apply to "pervasively regulated" businesses).
n162. 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 10.1(g), at 397-98 (3d ed. 1996) (criticizing the Court's failure to require such notice, but noting that "there is no great likelihood that the Court will have the occasion to provide this protection in the immediate future" because Fourth Amendment litigation arising out of administrative inspections is "infrequent").
n163. 436 U.S. 307 (1978).
n164. Id. at 309, 311.
n165. Id. at 316 (italics in original).
n166. Id.
n167. Guidebook, supra note 2, 11-101(4)(d), at 11-13.
n168. Id.
n169. Id. at 11-14.
n170. Id.
n171. DPR Summary, supra note 67.
n172. 29 F.3d 1355 (9th Cir. 1994).
n173. Id. at 1357-59.
n174. Id. at 1358.
n175. Id. at 1357.
n176. Id.
n177. Id. at 1361 n.5 (italics in original).
n178. Id. at 1360.
n179. See supra notes 161-62 and accompanying text.
n180. Guidebook, supra note 2, 11-101(6), at 11-14.
n181. DPR Summary, supra note 67.
n182. See Illinois v. Gates, 462 U.S. 213, 238 (1983) ("While a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment, a standard that leaves virtually no place for anonymous citizen informants is not.").
n183. See People v. Paulson, 265 Cal. Rptr. 479 (Cal. Ct. App. 1990) (upholding search of bar by alcoholic beverage control officer based upon tip by "anonymous informer"); McDonald v. State, 778 S.W. 2d 88 (Tex. Crim. App. 1989) (upholding "administrative" inspection of bar based on "telephone tip" from unnamed "reliable informant").
n184. U.S. Const. amend. V.
n185. See infra note 207 and accompanying text.
n186. See infra note 221 and accompanying text.
n187. See infra note 225 and accompanying text.
n188. See infra note 243 and accompanying text.
n189. See infra notes 249 and accompanying text.
n190. See infra note 264 and accompanying text.
n191. See infra note 295 and accompanying text.
n192. See infra notes 314-15, 324 and accompanying text.
n193. See infra note 334 and accompanying text.
n194. See Guidebook, supra note 2, at 8-180 to 8-183 (The states include Arizona, California, Maine, Minnesota, New Hampshire, New Jersey, Oregon, and Washington.).
n195. Id. at 8-179 to 8-180. If local governments decline to adopt a moratorium in that situation, they may be faced with a deluge of development permit applications filed in order to avoid presumably more restrictive provisions in the new enactments. Id. at 8-179.
n196. Id. at 8-180.
n197. Guidebook, supra note 2, 8-604(3), at 8-187.
n198. Id.
n199. Id. (allowing moratorium for preparation or amendment of comprehensive plan or related regulations, if (1) municipality in process of preparing first such plan, or (2) municipality responding to "substantial change in conditions not contemplated at the time the present local comprehensive plan was adopted or most recently amended" and allowing moratorium in response to "significant threat to the public health or safety or the general welfare" presented by possible development).
n200. Id.
n201. Id. at 8-187 to 8-188.
n202. Id. at 8-188.
n203. Guidebook, supra note 2, 8-604(5)(c), at 8-188 (limiting length of moratoria); id., 8-604(8), at 8-189 (governing extensions of moratoria); infra notes 206-11 and accompanying text (describing time limit issue in more detail).
n204. See Guidebook, supra note 2, 8-604(4), at 8-188 (moratoria disallowed in "smart growth areas" unless development presents a "significant threat to the public health and safety"); id. at 4-131 to 4-132 ("smart growth areas" are central cities listed by state legislature plus other areas with central water and sewer service and over six dwelling units per acre); id. at 8-188 (containing commentary explaining that moratoria rarely appropriate in areas which already have sufficient public facilities and infrastructure).
n205. 122 S. Ct. 1465 (2002).
n206. Id. at 1470 (italics in original).
n207. Id. at 1485.
n208. Id. at 1478-79 (citations omitted).
n209. Id. at 1483 (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992)).
n210. Id. at 1489-90.
n211. Id. at 1475 n.10 (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001)).
n212. The case of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999) is not to the contrary. In Monterey, the Court found a taking where a city's repeated refusal to grant the plaintiff a development permit "was inconsistent not only with the city's general ordinances and policies but even with the shifting ad hoc instructions previously imposed by the city." Id. at 722. One Guidebook critic asserts that just as the Monterey defendant "got into trouble because it had to "continuously invent reasons not present in the code to stop development it didn't want[,] the Guidebook's moratorium statute now legitimizes delay while reasons for denial are worked out." Claus Testimony, supra note 51. This argument makes no sense, because the Guidebook's moratorium statute is precisely the kind of "general policy" that the Monterey defendant refused to follow. See Monterey, 526 U.S. at 722 (emphasizing that Monterey plaintiff "did not bring a broad challenge to the constitutionality of the city's general land-use ordinances or policies, and our holding did not extend to a challenge of that sort").
n213. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 122 S. Ct. 1465, 1484 (2002) ("[A] permanent deprivation of the owner's use of the entire area is a taking ... whereas a temporary restriction that merely causes a diminution of value is not.") (citation omitted); id. at 1486 ("The better approach to claims that a regulation has effected a temporary taking requires careful examination and weighing of all the relevant circumstances.") (citation omitted).
n214. DPR Summary, supra note 67.
n215. Guidebook, supra note 2, 8-604(5), at 8-188 (brackets in original).
n216. Id. 8-604(8), at 8-189.
n217. Id. at 8-186 (emphasis added).
n218. Tahoe-Sierra, 122 S. Ct. at 1489. In fact, the Tahoe-Sierra Court upheld a thirty-two-month moratorium, id., and noted that state statutes have authorized moratoria for as long as three years. Id. at 1489 n.37.
n219. Guidebook, supra note 2, at 9-25.
n220. Id.
n221. Id. at 9-24.
n222. Id. 9-301(1)(b) at 9-29
n223. Id. 9-301(2)(d) at 9-30.
n224. Id. 9-301(2)(a) at 9-29.
n225. Id.
n226. Id. 9-301(7) at 9-34.
n227. Id. 9-301(g) at 9-32.
n228. DPR Summary, supra note 67. I note in passing that this statute's reference to regulation of building interiors creates no constitutional problem, because "for the most part, courts have supported designation of interiors of buildings as well as exteriors where commissions have been given the authority to designate and regulate "structures' or "buildings'." 2 Rathkopf & Rathkopf, supra note 95, 15.03[4], at 15-30; see also Weinberg v. Berry, 634 F. Supp. 86, 92 (D.C. 1986) (rejecting claim that a statute "which permits designation of the interior of buildings as historic landmarks is unconstitutional on its face as a violation of the Takings Clause"); Shubert Org., Inc. v. Landmarks Preservation Comm'n, 570 N.Y.S.2d 504 (1991) (upholding designation of both exterior and interior of buildings as historic landmarks); cf. United Artists' Theater Circuit, Inc. v. City of Philadelphia, 635 A.2d 612 (Pa. 1993) (holding that a city historic commission's attempt to designate both interior and exterior of building as "historic" was not authorized by city historic preservation ordinance, but was not unconstitutional taking).
n229. See Berman v. Parker, 348 U.S. 26, 33 (1954) ("It is within the power of the legislature to determine that the community should be beautiful as well as healthy.") (dictum); City and County of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984) ("It is well settled that the state may legitimately exercise its police powers to advance esthetic values."); Juergensmeyer & Roberts, supra note 17, 12.5, at 571 ("[A] majority of states allow architectural design review regulations based solely on aesthetic considerations.").
n230. Guidebook, supra note 2, at 9-27. In fact, the case law is almost evenly split on this issue. Cases rejecting vaguely worded design ordinances include the following: Anderson v. City of Issaquah, 851 P.2d 744, 751 (Wash. App. 1993) (holding that city zoning laws providing that new structures "should bear a good relationship with the Issaquah Valley and surrounding mountains," have windows, doors, eaves and parapets of "appropriate proportions," "harmonious" colors and lighting, and be "compatible with adjacent buildings" were unconstitutionally vague because they "do not give effective or meaningful guidance to [permit] applicants, to design professionals, or to the public officials of Issaquah who are responsible for enforcing the code"); Waterfront Estates Development, Inc. v. City of Palos Hills, 597 N.E.2d 641, 648 (Ill. App.3d 1992) (holding that a city ordinance prohibiting "inappropriateness or incompatibility with the surrounding neighborhood ... unconstitutionally delegates overbroad discretion to the [local Appearance] Commission"); Morristown Road. Associates v. Mayo, 394 A.2d 157, 162 (N.J. 1978) (holding that a city ordinance providing that "proposed structures shall be related harmoniously to the terrain and to existing buildings in the vicinity ... does not adequately circumscribe the process of administrative decision"); City of West Palm Beach v. State ex rel. Duffey, 30 So. 2d 491, 492 (Fla. 1947) (invalidating city ordinance requiring that "completed appearance of every new building or structure must substantially equal that of adjacent buildings or structures in said subdivision in appearance, square foot area, and height" on the ground that law left zoning decisions "to the whim or caprice of the administrative agency"). But see State ex rel. Stoyanoff v. Berkeley, 458 S.W.2d 305, 311-12 (Mo. 1975) (holding that local requirements that proposed structures "conform to proper architectural standards in appearance and design" and be in "general conformity with the style and design of surrounding structures and conducive to the proper architectural development of the City" were not unlawful delegation of power to architectural review board because they were "sufficient in their general standards calling for a factual determination of the suitability of any proposed structure with reference to the character of the surrounding neighborhood"); State ex rel. Saveland Park Holding Corp. v. Wieland, 69 N.W.2d 217, 219 (Wis. 1955) (rejecting vagueness challenge to ordinance authorizing denial of building permits if "exterior architectural appeal and functional plan of the proposed structure will, when erected ... be so at variance with either the exterior architectural appeal and functional plan of the structures already constructed" as to "cause a substantial depreciation in the property values of said neighborhood"); Novi v. City of Pacifica, 215 Cal. Rptr. 439, 439 (Cal App. 1985) (holding that "land-use ordinances precluding uses that would be detrimental to the "general welfare' and precluding developments that would be "monotonous' in design and external appearance are not unconstitutionally vague."); Reid v. Architectural Bd. of Review, 192 N.E.2d 74, 76 (Ohio App. 1963) (upholding ordinance allowing architectural board of review to "maintain the high character of community development, and to protect real estate within this City from impairment or destruction of value, by regulating according to proper architectural principles the design, use of materials, finished grade lines and orientation of all new buildings").
n231. Marty's Adult World of Enfield v. Town of Enfield, 20 F.3d 512, 516 (2dCir. 1994) (citation omitted).
n232. City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 675 (1976) (citations omitted).
n233. Guidebook, supra note 2, 9-301, 9-301(g), at 9-32 (emphasis added).
n234. Id.
n235. Moreover, the Guidebook seeks to insulate landowners from arbitrary behavior through "catch-all" provisions governing all sections of the Guidebook. Section 8-102(5) of the Guidebook provides that all land use regulations must "contain approval standards and criteria that are clear and objective." Id. at 8-29. Thus, any vagueness challenge to 9-101 of the Guidebook, which authorizes local governments to designate environmentally sensitive areas as "critical and sensitive areas" and to prohibit "particular uses, activities and structures" in such areas, 9-101(5)(f), must also fail, because overly vague local regulation violates both the Constitution and the Guidebook. Id.at 9-8; cf. DPR Summary, supra note 67 (criticizing 9-101 for allowing local governments "to regulate and prohibit land use in [environmentally sensitive] areas without limitation"). Nor do such environmental regulations ordinarily violate the Takings or Due Process Clauses of the Fifth Amendment. See Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001) (Environmental regulation is subject to same "takings" test as other government regulation, and thus not a taking unless such regulation (1) deprives a landowner of all economically beneficial use of his or her property, or (2) is unduly intrusive based on the court's balancing of "the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action."); Gardner v. N.J. Pinelands Comm'n, 593 A.2d 251, 252 (N.J. 1991) (upholding regulation that "strictly limited residential development on such [environmentally sensitive] land"); Graham v. Estuary Props., 399 So. 2d 1374, 1381 (Fla. 1981) (holding that "protection of environmentally sensitive areas and pollution prevention are legitimate subjects within the police power").
n236. See supra note 230 (citing cases from Florida, Illinois, New Jersey and Washington invalidating overly vague city ordinances allowing city to reject development on design-related grounds). Moreover, a contrary view would yield absurd results. If zoning enabling statutes were rendered invalid by the enactment of vague local zoning ordinances, the zoning enabling laws of Florida, Illinois, New Jersey and Washington (the states in which these cases arose) would be unconstitutional - a proposition that none of these cases even support.
n237. Guidebook critics, who attack the Guidebook for reducing local zoning power, would presumably find such a result unwelcome. See DPR Summary, supra note 67 (stating that the Guidebook "replaces local control over economic and land use planning with federally crafted and state mandated standards").
n238. Guidebook, supra note 2, 9-301(1)(a). To be so designated, a property must (1) be associated with historically significant events or the lives of persons significant in those events, (2) embody the distinctive characteristics of a type, period or method of construction, be of high artistic value, represent the work of a master, or (3) be likely to yield historically important information. Id. 9-301(3)(e)(1)-(4).
n239. Id. 9-301(1)(a).
n240. Id. 9-301(3)(g).
n241. See Estate of Tippett v. City of Miami, 645 So. 2d 533, 535 (Fla. Dist. Ct. App. 1994) (Gersten, J., concurring) (observing that by the late 1970s, "all 50 states and more than 500 municipalities had enacted preservation laws. In 1992, local historic preservation ordinances numbered more than 1700.") (citations omitted).
n242. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 129 (1978).
n243. DPR Summary, supra note 67.
n244. 2 Rathkopf & Rathkopf, supra note 95, 15.03[1][a], at 15-18 to 19.
n245. 258 S.E.2d 444 (N.C. 1979).
n246. Id. at 447.
n247. Id. at 448.
n248. Id.; see also Tri-Corp Mgmt. Co. v. Praznik, 33 Fed. Appx. 742, 747 (6th Cir. 2002) ("To state a substantive due process claim in the context of zoning regulations, a plaintiff must establish that (1) a constitutionally protected property or liberty interest exists and (2) that constitutionally protected interest has been deprived through arbitrary and capricious action.").
n249. A-S-P Assocs., 258 S.E.2d at 451 (quoting Maher v. City of New Orleans, 371 F. Supp. 653, 663 (E.D. La. 1974)).
n250. Id.; see also Coscan Washington, Inc. v. Md. Nat'l Capital Park & Planning Comm'n, 590 A.2d 1080 (Md. Ct. Spec. App. 1991) (upholding county's regulation of building materials in new subdivision near historic area, based on public interest in protecting historic site).
n251. DPR Summary, supra note 67.
n252. A-S-P Assocs., 258 S.E.2d at 448-50.
n253. DPR Summary, supra note 67.
n254. SZEA 9, quoted in Weinstein, supra note 16, 32.01, at 9.
n255. See supra notes 20-21, 24-25 and accompanying text (describing general acceptance of SZEA by both state legislatures and courts), Juergensmeyer & Roberts, supra note 17, 3.4B, at 44 (saying the Supreme Court adopted "highly deferential standard of judicial review of municipal zoning"). It does not follow, however, that local governments always have the right to terminate preexisting land uses that conform to prior zoning but violate a newly enacted zoning law. See infra notes 327-68 and accompanying text (discussing dispute over this issue).
n256. Guidebook, supra note 2, 8-101.
n257. Id. 8-301(4).
n258. Id. 8-301(4)(b).
n259. DPR Summary, supra note 67. It is well settled, of course, that local governments may constitutionally have veto power over future subdivisions. See, e.g., Norton v. Village of Corrales, 103 F.3d 928, 931-33 (10th Cir. 1996) (municipal denial of subdivision application did not violate substantive due process); Orange Lake Assocs., Inc. v. Kirkpatrick, 21 F.3d 1214, 1224-25 (2d Cir.1994) (holding that where plaintiff's subdivision application was rejected due to rezoning, a Takings Clause attack upon rezoning would be meritless because "as an applicant for subdivision and site plan approval, [the plaintiff] had no cognizable vested interest in the existing zoning of its property."); L.M. Everhart Constr., Inc. v. Jefferson County Planning Comm'n, 2 F.3d 48, 49 (4th Cir. 1993) (holding that where local government conditionally approved subdivision application but then enacted zoning ordinance which barred subdivision as planned, court rejected landowner's due process claim); Marshall v. Bd. of County Comm'rs, 912 F. Supp. 1456, 1472-74 (D. Wyo. 1996) (rejecting claim that by "denying approval of the [plaintiff's] subdivision as proposed, [city officials] have destroyed his investment-backed expectations").
n260. Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001).
n261. Guidebook, supra note 2, 8-301(4).
n262. Harris v. United States, 122 S. Ct. 2406, 2413 (2002) (quoting United States ex. rel. Attorney Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909)).
n263. Guidebook, supra note 2, at 9-37.
n264. Id. at 9-43 (adding that 107 local and regional governments actually adopted such programs).
n265. Id. at 9-37 (stating that one goal of TDRs is to allow government to regulate development without paying cash to landowners).
n266. Id. 9-401(3)(d) (The "Sending District" is the district in which development rights are limited) and (e) (The "Sending Parcel" is the parcel of land in which development rights are limited.) Such districts or parcels are usually in historic or environmentally sensitive areas. See Guidebook, supra note 2, at 9-37.
n267. Id. 9-401(3)(b) (The "Receiving District" is the district in which additional development is allowed due to TDR) and (c) (The "Receiving Parcel" is the parcel of land in which additional development allowed due to TDR.).
n268. Rather than using the cumbersome "his/her," I choose to use "his" and "her" interchangeably where appropriate.
n269. Franklin G. Lee, Comment, Transferable Development Rights and the Deprivation of all Economically Beneficial Use: Can TDRs Salvage Regulations that Would Otherwise Constitute a Taking?, 34 Idaho L. Rev. 679, 686 (1998).
n270. Id.
n271. Guidebook, supra note 2, 9-401(1).
n272. Id. 9-401(3)(f).
n273. Id. at 9-61.
n274. DPR Summary, supra note 67. DPR also criticizes a related Guidebook provision, Section 9-402. This section authorizes purchase of development rights (PDR) programs, under which a government compensates a landowner for the right to develop the land rather than for the full value of the parcel (including the title and the right to possess the land). See Guidebook, supra note 2, at 9-63; DPR Summary, supra note 67 (asserting that 9-402 unconstitutionally compensates landowners for mere "use" rather than full "value" of land). Section 9-402(5) of the Guidebook sets forth the elements of a "purchase of development rights agreement." The Guidebook's use of the term "agreement" indicates that PDRs, unlike TDRs, are consensual transactions between a landowner and a government rather than results of government regulation. If this is the case, PDRs obviously implicate no constitutional questions.
n275. Guidebook, supra note 2, at 9-61.
n276. 720 P.2d 528 (Ariz. Ct. App. 1985), aff'd in part, rev'd in part on other grounds, 720 P.2d 513 (Ariz. 1986), cert. denied sub. nom. City of Scottsdale v. Corrigan, 479 U.S. 986 (1986).
n277. Id. at 530-32.
n278. Id. at 538. The term "density credits" is synonymous with TDRs.
n279. Id. at 540.
n280. Id.
n281. DPR Summary, supra note 67.
n282. Corrigan, 720 P.2d at 514 n.1.
n283. Ariz. Const. art. II, 17 (cited in Corrigan, 720 P.2d at 540).
n284. As is most state court precedent. See Guidebook, supra note 2, at 9-40 to 9-43 (showing that a majority of relevant state court decisions uphold TDRs against constitutional challenges).
n285. 438 U.S. 104 (1978).
n286. Id. at 116-18 (describing underlying facts in detail).
n287. Id. at 114.
n288. In fact, the city had not done so. Although the city made it clear that it opposed building any structure with over fifty stories above the terminal, "nothing the [city] has said or done suggests an intention to prohibit any construction above the Terminal." Id. at 137.
n289. Id.
n290. Cf. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 122 S. Ct. 1465, 1483 (2002) (where landowner deprived of all economically beneficial use of property, an unconstitutional "taking" occurs).
n291. 520 U.S. 725, 745-50 (1997).
n292. Id. at 729-31.
n293. Id. at 732-33.
n294. Id. at 733-34. Under the ripeness doctrine, a landowner may not file a Takings Clause lawsuit in federal court until she has (a) received a final decision from government officials regarding her property and (b) sought compensation from those officials for the alleged taking. Id. at 734.
n295. Id. at 733.
n296. Id. at 739-40.
n297. Id. at 741-42.
n298. Id. at 745 (Scalia, J., concurring).
n299. Id. at 746.
n300. Id. at 747.
n301. Id. Justice Scalia distinguished Penn Central on the ground that in that case, the same landowner owned both the sending parcel and the receiving parcel, a scenario not the case in Suitum. Id. at 749.
n302. Id. at 750.
n303. In any event, the most relevant post-Suitum federal decision reaffirmed Penn Central and rejected Justice Scalia's concurrence by holding that under Penn Central, "the value of TDRs is to be considered to answer the threshold question of whether a taking has occurred." Good v. United States, 39 Fed. Cl. 81, 108 (Fed. Cl. 1997).
n304. Guidebook, supra note 2, 11-302(1).
n305. DPR Summary, supra note 67.
n306. SZEA, 8, quoted in Weinstein, supra note 16, 32.01, at 8; see also Juergensmeyer & Roberts, supra note 17, 5.40, at 264 (saying "many zoning ordinances provide for criminal penalties").
n307. 239 U.S. 394 (1915).
n308. Id. at 404.
n309. Id. at 407, 412-13.
n310. Id. at 407.
n311. No. 53209, 1988 WL 5187 (Ohio Ct. App. 8 Dist. 1988).
n312. Id. at 1.
n313. Id. at 4.
n314. Id.
n315. 406 N.Y.S.2d 661 (N.Y. Sup. Ct. 1978).
n316. Id. at 663.
n317. Guidebook, supra note 2, at 8-129.
n318. Id.
n319. Id.
n320. Id.
n321. See supra notes 29-34 and accompanying text.
n322. SPEA, 14, quoted in Guidebook, supra note 2, at 8-130.
n323. Id. 8-601(4).
n324. See infra notes 333-34 (explaining argument).
n325. 512 U.S. 374 (1994).
n326. Id. at 379.
n327. Id. at 393-94.
n328. Id. at 379.
n329. Id. at 379-80.
n330. Id. at 385-86.
n331. Id. at 388.
n332. Id. at 391.
n333. Id. The Dolan Court went on to find that no such "proportionality" existed between the exaction and the difficulties caused by plaintiff's plan to expand her store. Specifically, the Court found that the greenway, by giving recreational visitors the right to cross through plaintiff's land, would eliminate plaintiff's right to exclude the public from her property, and thus was totally disproportionate to the city's legitimate interest in preventing flooding. Id. at 393. Similarly, the Court found that the city had not shown "rough proportionality" between the pedestrian/bicycle pathway and the city's interest in reducing traffic congestion because the city's finding that:
the bicycle pathway system "could offset some of the traffic demand' is a far cry from a finding that the bicycle pathway system will, or is likely to, offset some of the traffic demand ... the city must make some effort to quantify its findings in support of the dedication for the pedestrian/bicycle pathway beyond the conclusory statement that it could offset some of the traffic demand generated.
Id. at 395-96 (citation omitted).
n334. See Claus Testimony, supra note 51, at 16 ("According to the Guidebook, it is still acceptable for a local government to demand dedications or fee exactions on little more than a "reasonable relationship' to the proposed development."); DPR Summary, supra note 67 (asserting that the Guidebook endorses "reasonable relationship test").
n335. Guidebook, supra note 2, 8-601(4) (emphasis added).
n336. Harris v. United States, 122 S. Ct. 2406, 2413 (2002).
n337. Guidebook, supra note 2, at 8-111.
n338. Id. at 8-112 (noting that grandfathering is the "usual approach").
n339. Id.
n340. Id.
n341. Id.
n342. Guidebook, supra note 2, 8-502(4)(a).
n343. Id. 8-502(4)(b); see also id. at 8-125 (explaining that the provision gives officials discretion to establish relevant time periods on a case-by-case basis).
n344. See Marzulla, supra note 69, noting that,
after prescribing uniform size, shape and color standards by which every [business's commercial] sign is required to look alike, the guidebook recommends an "amortization' plan, which will give small-business owners a limited period to enjoy their identical signs before they must be removed altogether, without payment of just compensation as required by the U.S. Constitution.
See also Alford, supra note 69, at 6 (asserting that the Guidebook's amortization provisions "may indeed activate the "takings' clause"); DPR Summary, supra note 67 (Amortization "allows local governments to get rid of unwanted uses and/or property owners without having to provide any compensation."); Claus Testimony, supra note 51, at 12 (describing amortization as "simply a compensation-avoidance scheme").
n345. See Juergensmeyer & Roberts, supra note 17, 4.39, at 160 ("Most courts have upheld amortization in principle and have examined the reasonableness of specific applications on a case by case basis."); Jay M. Zitter, Annotation, Validity of Provisions for Amortization of Nonconforming Uses, 8 A.L.R. 5th 391 (1992) (citing cases from three federal circuits and twenty-five states holding that amortization "valid if reasonable," and cases from only four states taking contrary view). A few of the cases upholding amortization are: Georgia Outdoor Adver., Inc. v. City of Waynesville, 900 F.2d 783, 786-87 (4th Cir. 1990) (holding that amortization provisions not always constitutional or unconstitutional, but instead are "only one of the facts that the district court should consider") (citation omitted); Art Neon Co. v. City and County of Denver, 488 F.2d 118, 122 (10th Cir. 1973) ("The "amortization' method has been established ... as a proper method to terminate nonconforming uses."); Naegele Outdoor Adver., Inc. v. City of Durham, 803 F. Supp. 1068 (M.D.N.C. 1992), aff'd, 19 F.3d 11 (4th Cir. 1994), cert. denied, 513 U.S. 928 (1994) (rejecting Takings Clause claim against ordinance containing amortization provision); SDJ, Inc. v. City of Houston, 636 F. Supp. 1359, 1371 (S.D. Tex. 1986) ("Amortization is a valid method of eliminating existing nonconforming uses of land" and no taking occurred because plaintiffs "have six months to minimize their losses and to recoup their investments."); Board of Zoning Appeals v. Leisz, 702 N.E.2d 1026, 1032 (Ind. 1998) (noting that "most other courts that have considered the issue have held that amortization provisions are not unconstitutional per se" and agreeing with majority rule); Naegele Outdoor Adver. Co. v. Village. of Minnetonka, 162 N.W.2d 206, 213 (Minn. 1968) (holding that amortization period in zoning ordinance constitutional on its face because "several conceivable applications of the ordinance are reasonable"); Village of Oak Park v. Gordon, 205 N.E.2d 464, 465-66 (Ill. 1965) (where plaintiff challenged ordinance limiting number of tenants in rooming houses, court holds that amortization ordinances "entitled to a presumption of validity" though invalid as applied due to absence of evidence "that the public interest would be subserved in any way by requiring defendant to alter his property to accommodate two roomers instead of four"); Wolf v. City of Omaha, 129 N.W.2d 501 (Neb. 1964) (upholding ordinance with amortization provision and citing numerous relevant cases); cf. Eller Media Co. v. City of Houston, No. 01-00-00588-CV, 2001 WL 1298901, at 10-11 (Tex. App. 2001) (holding without explanation that law "requiring the removal of certain signs is a taking," but adding that because "amortization periods allowed more than enough time for the [sign] owners to recoup their investment," amortization provision of ordinance provided just compensation for taking).
n346. See, e.g., Pa. N.W. Distribs., Inc. v. Zoning Hearing Bd., 584 A.2d 1372, 1376 (Pa. 1991) ("The amortization and discontinuance of a lawful pre-existing nonconforming use is per se confiscatory and violative of the Pennsylvania Constitution" because "if municipalities were free to amortize nonconforming uses out of existence, future economic development could be seriously compromised" because destruction of businesses might "deter ... investors" and cause "economic waste."); Loundsbury v. City of Keene, 453 A.2d 1278, 1281 (N.H. 1982) (Even if amortization supported by "reasonable public purpose ... the proposed action would result in a "taking' and the City would have to provide just compensation to the plaintiff."); Hoffman v. Kinealy, 389 S.W.2d 745, 754-55 (Mo. 1965) (Despite amortization provision in local zoning ordinance, "termination of [landowners'] lawful pre-existing nonconforming use ... would constitute the taking of private property for public use without just compensation" in violation of state constitution.). But cf. Univ. City v. Dively Auto Body Co., 417 S.W.2d 107, 110-11 (Mo. 1967) (distinguishing Hoffman and upholding amortization where zoning ordinances limited height and number of landowner's signs rather than seeking to compel removal of signs).
n347. Even if government action deprives a landowner of all economically beneficial use of her land, the landowner's right to compensation is limited by "restrictions that background principles of the State's law of property and nuisance already place upon land ownership." Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029 (1992).
n348. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 122 S. Ct. 1465, 1483 (2002).
n349. Id. (citing Lucas, 505 U.S. at 1017).
n350. Tahoe-Sierra, 122 S. Ct. at 1483 (citing Lucas, 505 U.S. at 1019 n.8 (noting that balancing test applies even if landowner's property values diminished by ninety-five percent)).
n351. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978) (citation omitted).
n352. Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001) (reaffirming Court's endorsement of Penn Central's balancing test).
n353. Penn Central, 438 U.S. at 124.
n354. Palazzolo, 533 U.S. at 632, 634 (O'Connor, J., concurring). Justice O'Connor supplied the crucial fifth vote in favor of the Court's Palazzolo decision; thus, her opinion is likely to be followed by future courts.
n355. 702 N.E.2d 1026 (Ind. 1998).
n356. Id. at 1027.
n357. Id.
n358. Id. at 1028 (quoting Brief of Appellee at 4).
n359. Id. at 1032.
n360. Id. at 1029.
n361. Id.
n362. Id. at 1032. The only exception to this rule, according to the court, was an earlier Indiana decision that the court overruled. Id. The court explicitly declined to address the constitutionality of amortization under state law, because neither party had addressed state constitutional issues. Id.
n363. The court's rejection of the plaintiffs' claim was based upon the public interest favoring the registration requirement, id. at 1030, the fact that the plaintiffs' property "continued to have an economically viable use, even if it is somewhat diminished," id., and on the absence of any evidence that the ordinance caused "interference with [the plaintiffs'] reasonable investment-based expectations." Id.
n364. Indeed, it could be argued that even in the absence of amortization, zoning laws that terminate nonconforming uses are not per se unconstitutional under Penn Central. The traditional argument against such termination is that by eliminating a landowner's "vested right" in his existing land use, a government deprives the landowner of all economically beneficial use of that "right." See Hoffman v. Kinealy, 389 S.W.2d 745, 753 (Mo. 1965) (describing "right to continue a lawful conforming use ... as a vested right" and holding that enforcement of zoning law would "terminate and take" the right despite law's amortization provision). But the Supreme Court has held that in Takings Clause cases, courts must focus on "the parcel as a whole." Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 122 S. Ct. 1465, 1481 (2002). Arguably, the landowner's right to continue an existing use is only part of the parcel rather than "the parcel as a whole", and thus a law prohibiting that use is not a "total taking" automatically requiring compensation. For example, in Leisz the court held that an amortization ordinance created only a "partial taking" because the plaintiffs had lost only twenty-five to forty percent of rental value, Leisz, 702 N.E.2d at 1029, even though they lost one hundred percent of their alleged right to continue renting to an unlimited number of tenants. Because the Leisz plaintiffs lost only twenty-five to forty percent of rental value, the court might have upheld the city's zoning ordinance even if the city had chosen to terminate their "right" immediately rather than creating an amortization period.
n365. 900 F.2d 783 (4th Cir. 1990).
n366. Id. at 784.
n367. Id. at 785.
n368. Id. at 786-87.
n369. Id. (quoting Naegele Outdoor Adver., Inc. v. City of Durham, 844 F.2d 172, 177 (4th Cir. 1988)).
n370. The court accordingly reversed a district court decision entering judgment for the plaintiff and added that on remand, "the crucial inquiry centers on the second prong of the [Penn Central] test: whether the ordinance denies [the plaintiff] economically viable use of its property." Id. at 787. Specifically, the Fourth Circuit ordered the district court to consider whether the plaintiff (a company that leased the land on which its signs stood) could sublease or assign that land to others, whether the plaintiff would be obligated to honor its leases after being forced to remove signs, the cost of sign removal, and whether the signs could retain some value (either as salvage value or by being erected in other cities) after being removed from the city at issue. Id. at 787-89.
n371. 803 F. Supp. 1068 (M.D.N.C. 1992), aff'd, 19 F.3d 11 (4th Cir. 1994), cert. denied, 513 U.S. 928 (1994).
n372. Id. at 1078 (citing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 137 (1978)).
n373. Id. at 1080.
n374. Id. at 1078.
n375. Id. at 1079.
n376. Id. at 1080.
n377. See Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001) (regulation creates an unconstitutional taking if it "goes too far").
n378. A regulation that deprives a landowner of all economically beneficial use of her property may also violate Section 8-201(4)(a) of the Guidebook, which requires that zoning ordinances "provide a reasonable use as of right for every lot or parcel."
n379. U.S. Const. amend. X.
n380. Alden v. Maine, 527 U.S. 706, 713-14 (1999).
n381. Id. at 714.
n382. DPR Summary, supra note 67.
n383. See Manley, supra note 35 (The Guidebook "offers a diversified menu of approaches that state and local governments can apply.").
n384. Guidebook, supra note 2, at ii.
n385. DPR Quick Facts, supra note 9.
n386. Taylor, supra note 8; see also Claus Testimony, supra note 51 (the Guidebook increases "state control of local environments").
n387. See supra notes 16-17 and accompanying text.
n388. See supra note 27 (citing cases). Moreover, several federal court decisions uphold far more severe restraints on state government, such as laws requiring the states to comply with federal mandates in order to receive federal funds. See, e.g., South Dakota v. Dole, 483 U.S. 203, 207-08 (1987) (holding that the federal government could order states to raise drinking age in order to receive federal highway funds).
n389. U.S. Const. amend. XIV, 1.
n390. Juergensmeyer & Roberts, supra note 17, 10.14, at 468. The only exceptions to this rule are where regulation affects a suspect class (that is, discriminates on a generally impermissible basis such as race or gender) or a fundamental right (such as the right to practice one's religion). Such regulations are far less likely to pass constitutional muster than other land use regulations. Id.
n391. Id.
n392. See infra notes 399-410 and accompanying text (discussing cases in which courts deferred to design review boards).
n393. See Guidebook, supra note 2, 9-301(1)(b); supra note 222 and accompanying text.
n394. DPR Summary, supra note 67.
n395. Id.
n396. Guidebook, supra note 2, 9-301(1)(b).
n397. Id. 9-301(2)(d).
n398. Id. 9-301(3)(f). In addition, the Guidebook imposes procedural constraints upon local design review agencies. Id. 9-301(3)(j) (if design review ordinance creates new board, at least one board member must have expertise in history, architecture, architectural history, archaeology, or land-use planning); id. 9-301(5)(b) (design review district may be adopted only if municipality has adopted comprehensive plan first); id. 9-301(6) (design review district's boundaries must be listed in ordinance).
n399. 81 Cal. Rptr. 2d 324 (Cal. Ct. App. 1998).
n400. Id. at 328.
n401. Id. at 329.
n402. Id. at 338 (citations omitted).
n403. Id. (second alteration in original) (citation omitted).
n404. 1992 WL 500514 (N.D. Cal. 1992).
n405. Id. at 2.
n406. Id. at 1.
n407. Id. at 7-8.
n408. Id. at 8.
n409. Id.
n410. Id.
n411. Mandelker, supra note 15, at 11.
n412. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992).
n413. See SZEA, 1, quoted in Weinstein, supra note 16, 32.01, at 4.
n414. See supra notes 20-22, 27 and accompanying text (describing judicial acceptance of statutes patterned on SZEA).