OUT OF THE CHAOS: TOWARDS A NATIONAL SYSTEM OF
LAND USE PROCEDURES
by
Edward J. Sullivan* and Carrie Richter**
I. INTRODUCTION
At times, the procedures governing
land use decisions can be equal to the impacts of the substance of land use
laws. Often completely unique to a
local land use forum, identifying and pursuing the most appropriate procedure
may be outcome-determinative. At any
rate, those choices are full of potential hazards and pitfalls. The procedures limiting today's land use
forum are amalgamations taken from more than 85 years of experience regulating
land in the United States. Since the
New York legislature permitted the City of New York to regulate the use of land
in 1916,[1]
all states, except Texas,[2]
authorize, though not necessarily require, their municipalities and political
subdivisions to undertake land use regulations. However, prior planning to
support such land use regulations is not universally required of local
governments. Further, there is no
national system of land use planning or regulation. Instead, these functions are left to the states, which have
planned and regulated land with varying degrees of competency and success.
Despite the lack of a comprehensive
national system of planning, there have been three major efforts to organize
and systematize the procedures connected with land use planning and
regulation. The authors believe these
efforts are worthy and should continue.
In this article, we describe these efforts, particularly the most recent
one undertaken by the American Planning Association, and set forth the
characteristics of each of those efforts.
Next, we set forth those limitations on land use decision-making that
are imposed by the nature of administrative decision-making itself, by the
federal Constitution,[3]
and by the nature of the judicial process.
Finally, we suggest methods in which local land use decision-making, as
well as judicial review thereof, may be improved. Such reform is consistent with other efforts in administrative
law and judicial administration to provide for a fair process where differing
interests may appear and be heard, where the process is speedy, efficient and
not costly, takes advantage of expertise and minimizes discretion in
administrative and judicial forums.
In summary, the purposes of this
article are:
1.
to understand past efforts to bring order to the
procedures by which land use decisions are made in the United States;
2.
to suggest the parameters in which future
efforts should operate; and
3.
to set forth some basic reforms in
decision-making and judicial review that appear desirable and necessary in the
light of that background and those parameters.
We believe that the complete
atomization of the substance and procedures for planning and land use
regulation in the United States has caused reform efforts to be concentrated on
individual states, rather than coordinated nationally. Moreover, because of the lack of legislative
guidance, nationwide reforms have been rare and often ham-handed.[4] At this point in our national political
life, it is unlikely that Congress will undertake either nationwide planning or
land use regulation. Nevertheless, we
believe some reform may be achieved by examining the current Balkanized systems
of planning, finding some common difficulties, and suggesting reforms for those
common problems. In this article, we
focus on some common procedures that may be used to deal with those common
problems.
We frequently allude to one of the
principal reforms we find desirable, i.e., the requirement of a separate and
binding comprehensive plan as a means of limiting the scope of land use
decision-making. However in this
article we focus on a review of past procedural reform proposals and recommend
new ones. We suggest these reforms,
along with the requirement of a separate and binding comprehensive plan, are
necessary to reform American land use law.
Let us begin with a review of past efforts at procedural reform.
Early
in the history of land use regulation, rapid industrialization necessitated a
need for clear analysis to justify how and why a substantive regulation fits
underneath the state's legislative or "police" power to protect for
the health, safety and welfare of its citizens. In 1926, in the landmark case, Village of Euclid v. Ambler
Realty, the Supreme Court recognized local government's right to regulate
land use through zoning as a valid exercise of a state's police power.[5] Two years later, in Nectow v. Cambridge,
the Court struck down an action under a zoning ordinance, stating there was no
justification for imposing different zoning designations on two adjacent and
similar properties.[6] At this point, it became increasingly clear
that ad hoc regulation would not work; local governments needed model
enabling legislation upon which land use regulations and hearing procedures
could be created and withstand judicial challenge. Today, we understand this system as land use planning. We understand that comprehensive planning
and uniform land use procedures are solutions that overcome allegations of
arbitrary and capricious decision-making in favor of a rational decision-making
process. However, this understanding
did not occur overnight. Over the past
century, three waves of model legislation have been proposed to guide the land
use decision-making process.
A. The Standard Zoning Enabling Act
The first wave of procedure
governing land use decisions was the Standard Zoning Enabling Act (SZEA).[7] Adopted in 1926, the SZEA was prepared by a
special advisory committee, under the direction of the Secretary of the
Department of Commerce, Herbert Hoover.
The SZEA authorized a municipal legislature to divide the municipality
into zoning districts as "may be deemed best suited to carry out the
purposes of the act."[8] It was assumed that once these districts or
zones were established they would remain static and a harmony of uses would
automatically result. The essential
purpose of planning legislation was not to encourage desirable development but
rather to restrict undesirable development.[9] The SZEA espouses total localism and
complete delegation to the local government of all power to plan for and
regulate land uses.[10] As such, each individual locality was
charged with making its own regulatory determinations in regulating to protect
for the health, safety and welfare.
The SZEA creates a zoning commission to prepare a zoning plan and related ordinances;[11] however, it also creates a Board of Zoning or Adjustment (BZA), which may freely make zoning changes to accommodate individual uses. The SZEA does not explain the details by which a zoning map may be changed, nor does it establish any criteria for determining when exceptions to the regulations should be granted.[12] Rezoning, as opposed to variances and special uses, was seen as "legislative" in nature, even if it only affected a few properties. The only "release valve" for varying the established zoning scheme was granted from the BZA. The BZA was characterized as an independently appointed agency. Delegation over zoning exceptions and variances to the BZA was thought necessary to remove the influence of political agendas on local government decision-making. Further, unlike the New York City Board of Appeals upon which it was modeled, the SZEA had no BZA membership requirements.[13]
Procedural hearing requirements emerge from the SZEA in reference to the BZA.[14] The SZEA requires notice of proposed land use decision by publication in a newspaper only.[15] Rather than a simple majority vote, a four-out-of-five member majority was required for the BZA to reverse an administrative land use decision or permit a variance.[16] Although it does require a public hearing and minutes kept on the record, the SZEA does not require any written decision supported by findings or rationale based on the record.[17] Finally, the SZEA does not set out any standards for judicial review.
Perhaps the most famous legacy
remaining from the SZEA is the requirement that zoning must be "in
accordance with a comprehensive plan."[18] Interestingly, the term "comprehensive
plan" was not defined and a lack of definition has caused continual
confusion for local planners and the courts.
The confusion emerged as a result of footnote 22 to the SZEA, which
states that planning in accordance with a comprehensive plan "will prevent
haphazard or piecemeal zoning. No
zoning should be done without such a comprehensive study."[19] Contemporary land use systems have for many
years embraced a system where a comprehensive plan exists. However, even today, few states
"plan" by means of a document labeled the "comprehensive
plan."
One
of the earliest scholars to enter into a dialogue considering the role
comprehensive planning must play in the zoning process was Charles Haar. In his 1955 article, In Accordance With a
Comprehensive Plan, Professor Haar examined the judicial treatment
of the comprehensive plan requirement to see what legal significance the master
plan maintains in guiding land use decisions.[20] Haar explains that the easiest way to
successfully attack a zoning scheme is to assert that it is not
"comprehensive" in its consideration of geographic coverage. As noted
below, the term "comprehensive" has three meanings: (1) comprehensive
in terms of addressing an entire geographic area; (2) comprehensive in terms of
having an "all-encompassing" scope; and (3) comprehensive as in a
separate long-term planning document.
For example, zoning only a portion of a municipality when the local
government has the authority to zone the entire city is viewed as arbitrary and
discriminatory, violating both due process and equal protection.[21] Courts commonly stated: "A zoning
ordinance, whatever the source of its authorization, in order to be valid must
apply to the city as a whole and not alone to particular streets."[22] Interim zoning ordinances often were struck
down on procedural grounds, as they often failed to meet the public hearing or
notice requirements of the SZEA. [23] The term "comprehensive" was also
used to mean "all-encompassing" regulations that addressed a number
of factors, such as use, height and area.[24] The common thread amid all of these
"comprehensive" qualities was that zoning must seem on the whole to
be reasonable. In our view, these types of zoning regulations also shared a
common defect because they failed to ask whether the ordinance is in
"accordance with" the comprehensive plan.
In
one of the most often-cited cases, Kozesnik v. Township of Montgomery ,
a zoning amendment was challenged because the municipality had failed to adopt
a comprehensive plan. Although the
court held that the "in accordance with" language did not require a
separate comprehensive plan per se, the court held that it did impose a
fairness and reasonableness test to prevent the "capricious exercise"
of the government's zoning powers.[25]
Interestingly,
nearly all states require that zoning take place in accordance with the
comprehensive plan and about three-quarters of the states have adopted the SZEA
approach to comprehensive planning.[26] The majority interpretation is that
comprehensive planning requires some form of forethought and reasoned
consideration, as opposed to a separate plan document that becomes an
overarching constitution guiding development.
B.
ALI Model Land Development Code
The second wave of land use planning is most often characterized by a regional or statewide approach. In 1976, the American Law Institute drafted the Model Land Development Code ("Model Code").[27] The purpose of the Model Code was to fashion a more modern and flexible form that would still address zoning, land subdivision, city planning and urban redevelopment.[28] Although primary planning responsibility could remain with the local governments, the Model Code called for the creation of a regional or state Land Planning Agency. Similar to the base environmental regulations adopted by the federal government, such as the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA), the State Land Planning Agency's purpose was to establish statewide or regional land use standards. Broad oversight was called for to address larger area impacts or issues involving more than one municipality, e.g., critical environmental areas, airports, public utility lines or major highways.[29]
The Model Code permitted, but did not require, that each municipality adopt a "Land Development Plan" (LDP) constituting the official land development policy of the municipality.[30] Unlike the SZEA attempt to preserve existing uses, the Model Code envisioned a more pro-active approach to directing development based on the community's unique features and needs. Creation of the LDP required what, at the time, must have been seen as an exhaustive study of the local cultural, social and economic landscape that must be incorporated into the plan. The study would include such factors as: population distribution by age, education level, income, employment and race; location of commerce and industry; available housing; transportation and utility availability; land use patterns; natural resources; historical and cultural resources; blighted and deteriorated areas; and other factors relevant to the community.[31] The study was the basis for adoption of a series of short-term implementation strategies that were to be achieved within one to five years of the adoption of the plan.[32]
Even after all of this forethought and planning, the Model Code still did not require the adoption of a comprehensive plan. Although the Model Code provided many incentives for local governments to adopt a comprehensive plan, adoption of an LDP was entirely optional.[33] The comments to §3 explain that the drafters were accommodating critics of long-range planning who believed that planning should focus on short-term programs to realize specific objectives. These critics believed that a "comprehensive plan" would stifle free-flowing priorities and continuously changing values.[34] They were also concerned that if a state decided to create a State Land Planning Agency, the state would be more likely to mandate adoption of comprehensive plans, or intervene in local development regulation.[35]
The Model Code envisioned a more streamlined hearing procedure, providing joint hearings for developments that required more than one permit.[36] Even though nothing required that all decision-making be consistent with a separate master or comprehensive plan, the Model Code required that land use decisions balance "detriments and benefits including economic need, transportation and infrastructure impacts as well as consistency with the State or Local Land Development Plan.[37] For the first time, the Model Code required that all decisions set forth the "findings on which the decision was based."[38]
The Model Code also provided standards for judicial review of "orders, rules or ordinances," including review by equity proceedings, such as mandamus, certiorari, injunction, or other declaratory relief.[39] The Model Code set out who may initiate review, including not only the applicant and the local government, but also those who participated in the hearing at the local level, owners of land within 500 feet of the proposed development, neighborhood organizations whose boundaries are within 500 feet of the proposed development, and those who were denied the opportunity to participate in the local hearing.[40]
The Model Code required the creation of a record of the proceedings below and review based on that record.[41] The Model Code sets out "Bases for Judicial Relief," which include: unconstitutionality, excess of statutory authority, failure to follow statutorily proscribed procedures, arbitrary and capricious decision-making, error of law, and decision not based on findings of fact or substantial evidence. Interestingly, in reviewing decisions by the State Land Adjudicatory Board, which is charged with the benefit/detriment balancing, the court must give due weight to the "discretionary and policy-making authority conferred upon the Board." Finally, the court must "give due weight" to whether the challenged action was consistent with the Local or State Land Development Plan.[42] Even though the Model Code explicitly sets out procedures and relevant factors for inclusion in the comprehensive plan, the Model Code did not provide for any uniform judicial or administrative review for compliance with those procedures.
Very few states adopted the Model
Code. Minnesota, Colorado, Nevada, and
Wyoming have adopted a portion of the Model Code, providing for jurisdiction to
designate and regulate development in "areas of critical concern." Florida's land use system most resembles the
ALI Model Code approach. Three statutes
establish Florida's land use, forming a "planning pyramid." They are the State Comprehensive Plan
adopted in 1985, the Florida Environmental Land and Water Management Act
(FLWMA) adopted in 1973, and the Local Government Comprehensive Planning Act of
1975. It is the second element, the
FLWMA, that reflects the provisions of the Model Code and provides for state
involvement in setting and enforcing planning parameters. The broad and ambitious scope of the Model
Code prevented most states from adopting it.
The Model Code sought to uniformly manage and control (1)
environmentally sensitive lands; (2) major development sites; (3) areas that
would most impact the state or municipality; and (4) the siting of all
development. Many states had separate
bodies already in place to handle these areas of concern, and they were not
willing to abandon their existing system to adopt such a comprehensive series
of statutes. As a result, portions of
the Model Code were adapted to fit individual state needs. Finally, the Model Code did not require
regional or statewide coordination of plans.
This was especially problematic in light of the 1970s' realization of
the problems caused by continued multi-jurisdictional suburban sprawl.
C.
APA Growing Smart Legislative Guidebook
The
third and final wave of land use procedures is set forth in the American
Planning Association's Growing Smart Legislative Guidebook (Guidebook). Although yet to be published, the APA is
hopeful that the Guidebook will lead state and local government land use
regulations into the twenty-first century.
Chapter 10 sets out procedures for local government permit issuance and
permit review and creates a Land Use Review Board, authorized to make variance
decisions and perform judicial review.[43] Learning from the deficiencies with the SZEA
and Model Code, as well as 85 years of perspective on the judicial review of
procedural limitations, the Guidebook envisions either complete adoption
of Chapter 10 or piecemeal selection of alternatives for insertion into
pre-existing land use legislation.[44]
The
APA's goals in drafting the Guidebook were to streamline the procedure,
increase efficiency and reduce costs to local governments, while still ensuring
fairness and reliability to the citizens utilizing the process.[45] At the outset, the Guidebook sets
forth the reasons why the land use permitting process should be reformed. These reasons are set forth here, not only
because they work to justify most of the Guidebook proposals, but
because they are also important tenets to keep in mind for any municipality
when revising its land use procedures.
o
To assure fairness and due process to protect
the rights of all participants.
o
To make citizen participation more constructive,
responsive, and timely.
o
To make the regulatory system accountable and
reduce opportunities for backroom agreements or corruption.
o
To establish better working relationships
between permit applicants and reviewers.
o
To enable public officials to use their time
more efficiently.
o
To contain rising administrative costs.
o
To control one of the factors that increase the
cost of new housing.
o
To encourage the kind of development the
community wants by giving the community a competitive edge.[46]
Rather
than setting out the appropriate boards to create or review permit decisions,
the Guidebook adopts a flexible allocation of responsibility to various
boards or commissions within the local government. Based on the complexity of the authorization needed, the local
government may decide whether the type of permit needed requires simple
ministerial review or if a planning commission or other specialized zoning
board is necessary. Further, the local
government is free to use an administrative process, where the record is created
only upon appeal, or a hearing on the record, where the record works to limit
the scope of judicial review.[47]
Time
limits are another crucial element for maintaining an efficient and reliable
permit procedure. All permit process
ordinances must provide time limits for application completion and for judicial
review. Adequate time for completion is
based on reasonable good-faith determinations as required by due process.[48] These limits not only ensure timely local
government action, they provide the applicant with assurances about when a
final and definitive ruling will eventually occur.
An
efficient land use process is similarly well served by retaining an
administrative review process for particular types of decisions. The Guidebook retains the administrative
review process for uncomplicated land use determinations. Although administrative review does not
require a hearing on the record, notice of the decision is necessary, and
opponents must be given an opportunity to submit additional evidence concerning
the application.[49] To avoid confusion about what has been
decided, the administrative decision must be written and based on the ordinance
criteria or regulations.[50] The Guidebook also provides a formal
request for clarification for any party who needs clarification on any issue
raised by the local government.[51] Finally, all subsequent appeals are heard on
the record.[52]
Like
the SZEA and the Model Code, the Guidebook provides for the creation of
a Land Use Review Board, also known as the Zoning Board of Adjustment or Zoning
Board of Appeals. The difference
between the earlier model acts and the Guidebook are that the Guidebook
does not mandate a fixed and inflexible structure for the Board in its review
of non-conforming uses, variances or other land use decisions. Rather, it allows the local government to
decide the officer or body that shall make such decisions and the criteria that
governs such decisions.[53] The suggested standards for variance
approval retain the "uniqueness" requirements, which means variances
should be granted infrequently.[54] Further, the Guidebook does not
permit "use" variances because such variances improperly permit an
administrative body to amend a zoning ordinance.[55]
Another
"release valve" for land development applications is the mediation
process. A relatively new remedy in the
land use arena, mediation is a non-binding process where a neutral third party
assists the parties by negotiating a solution that will satisfy all parties.[56] Mediation is often a very helpful solution
because continued "bad blood" between neighbors often breeds further
litigation. The good faith that is
necessary for successful mediation can often "mend fences" so that
parties may live together amicably.[57]
Rather
than a single avenue of judicial review, such as certiorari or mandamus, the Guidebook
provides alternatives for review. The
options include: state-established remedies similar to the federal section 1983
remedy applied to land use decisions, expanded statutory basis for review,
standards for writs for certiorari, and revised state administrative procedures
act mechanisms to permit review of local government decisions.[58] Because the methods of both direct attack
upon, and judicial review of, local government decision-making vary widely
among the states, the Guidebook did not seek to provide a uniform system
to deal with challenges to land use regulations and actions.
We have yet to see how the Guidebook
will influence local government and state legislatures to reform. It must be remembered that there is only so
much direction the model legislation can provide as much depends on local legal
culture and tradition. This Guidebook
contains an important caveat that is a good lesson for all land use
practitioners:
It should be
emphasized that there are limits to what state enabling legislation can
accomplish in the development review area, since the process is so susceptible
to (a) the political and administrative direction the local review agencies
receive; (b) their organizational culture (in predictability); and (c) the
capabilities and competence of the staff and boards conducting permit
reviews. Moreover, if a local (or
state) reviewing agency wishes to drag its feet to demonstrate its importance
or independence or if the local political culture rewards delay, or when sweet
reason otherwise fails, there is little else one can do short of litigation.[59]
III. CONSTITUTIONAL AND OTHER LIMITATIONS
ON LOCAL LAND USE DECISION-MAKING
A. Characterizing
the Decision
Any discussion of the parameters of local
land use decision-making must begin with an analysis of the nature and kinds of
that decision-making and the process for judicial review for each of those
kinds of decision-making.
Traditionally, American law recognizes three types of local land use
decision-making. The first occurs when
a determination must be made without the exercise of discretion or factual
judgment, in what is normally termed a "ministerial" act. Judicial review of ministerial decisions is
comparatively simple -- the decision below was either correct or not -- and
relief is normally through mandamus.
For example, most building permits result from ministerial
decisions.
At the other end of the spectrum are
legislative decisions, where there is a broad range of available outcomes, and
a great deal of discretion among those outcomes is possible. In legislative or policy decision-making,
great deference is given to the decision-maker. Such policy decisions are prospective in nature and apply
generally to a large number of persons, places or circumstances.[60] These legislative decisions are normally
tested only against those limitations inherent in a legislative setting, such
as following proper procedures and acting within applicable constitutional or
legislative limitations. Judicial
relief is ordinarily limited to extraordinary intervention, for example,
through declaratory judgments coupled with injunctive relief. Separation-of-powers considerations and the
deference given the decision-maker provide those challenging legislative or
policy actions with little prospect of success, at least in theory.
Between these two extremes is the
third category - quasi-judicial decisions, where the decision requires
discretion, but is confined to the limits of previously determined policy,
already adopted through the legislative process. In this category, previously determined policy is applied to a
particular person, place or circumstance and looks retrospectively upon the
same to determine a future outcome.[61] A frequent, but not exclusive, method of
judicial review of such decisions has been through common law certiorari or its
statutory derivatives.[62] In such cases, the court reviews the record
of the lower proceeding against the claims made in the petition for
relief.
Under the SZEA, both special (or
conditional) use and variance decisions have been treated as quasi-judicial
decisions.[63] However, the issue that has plagued land use
law in the United States is the classification of small-tract rezonings. The
SZEA required adoption of the zoning map by ordinance[64]
and assumed the change of the map would be accomplished by ordinance.[65] Because of this, changing the designation of
one or a few properties on a zoning map was labeled as a legislative act, and,
thus, judicial review was presumed to be limited.[66]
A proper characterization of
small-tract rezoning, one that is consistent with the nature of the action, is
as a quasi-judicial act in which policy, set forth in the comprehensive plan,
is applied to individual properties. If
the proposed rezoning is inconsistent with the plan, it must be denied. With this classification, we may now
approach application of constitutional law and judicial review.
B. Federal Constitutional Limitations on
Local Land Use Decision-Making
Only a few provisions of the federal
Constitution are raised in connection with local land use decision-making. Some do not ordinarily deal with procedures,
such as the First Amendment restrictions on religious, press or expressive
freedoms, and the commerce clause. Those
Constitutional provisions that affect local procedures are found in the due
process, equal protection, and privileges and immunities clauses of the
Fourteenth Amendment and the takings clause of the Fifth Amendment. We focus on these provisions.
1. Procedural
Due Process
The antecedent of procedural due
process is section 38 of the Magna Charta, which prohibited the loss of life,
liberty or property except under the law of the land.[67] As applied to land use planning and
regulation, the first issue is whether there is an adequate property interest
at issue. An abstract need or desire is
insufficient; there must be legitimate claim of entitlement in order for a
claimant to be able to raise the procedural due process issue.[68] This claim must ordinarily be recognized as
such under state law.[69] Once a property right is recognized, the
nature of the right to procedural due process varies with the circumstances, as
the federal Supreme Court has been reluctant to find a "one size fits
all" level of process that is "due."
Rather, that court has used a
three-part balancing test to make a determination of what process is
"due." That test requires the
balancing of (1) the private interest affected, (2) the risk of erroneous deprivation
of such interest, and (3) the probable value of additional procedural
safeguards, and the governmental interest, including the fiscal and
administrative burdens of the additional safeguards.[70] There are other aspects of procedural due
process that arise out of pre-Fifth and Fourteenth Amendment due process
concerns, including the requirement of a hearing before a disinterested
adjudicator.[71]
The issues that arise most often in
a procedural due process context revolve around a determination as to whether a
sufficient property interest exists and the extent and type of the process that
is "due" under the circumstances.
2. Substantive Due Process
Due process was seen solely as a
guaranty of procedural fairness in the United States until the federal Supreme
Court's decision in Mugler v. Kansas,[72]
in which the first Justice Harlan stated for the Court:
* * *The courts are not bound by
mere forms, nor are they to be misled by mere pretences. They are at liberty, indeed, are under a
solemn duty, to look at the substance of things, whenever they enter upon the
inquiry whether the legislation has transcended the limits of its
authority. If, therefore, a statute
purporting to have been enacted to protect the public health, the public
morals, or the public safety, has no real or substantial relation to those
objects, or is a palpable invasion of rights secured by the fundamental law, it
is the duty of the courts to so adjudge, and thereby give effect to the
constitution.[73]
This dicta was not necessary for the result
in that case, which involved the adoption of prohibition on alcoholic
beverages. Nevertheless, this analysis
was used as a tool to invalidate legislation the Court found improvident. As formulated in Lawton v. Steele,[74]
the test required an examination of the legislation to determine whether its
ends and chosen means were appropriate and whether or not it was "unduly
oppressive" to those regulated by it.[75]
For approximately 50 years,
substantive due process was ascendant.
During that time, the federal Supreme Court struck down a number of
state and local laws on substantive due process grounds, while upholding
others,[76]
presumably because the Court agreed with their ends and means and did not find
them "unduly oppressive."[77] Many found this analysis a mask for the
imposition of the economic, social, and political views of the members of the
Court on the nation, through the use of elastic terms that could justify any
result.[78] One of the most trenchant critics of
substantive due process was Oliver Wendell Holmes, and his most well-known
criticism is found in his dissent in Lochner v. New York.[79] Holmes found no adoption of any particular
economic or social philosophy in the Constitution, much less the prevailing
"Social Darwinism" then prevailing in a conservative laissez-faire culture. In other words, Holmes found that Congress
and the state legislatures had the power to meet new social and economic issues
through legislation, and the Constitution did not ordinarily impose an
impediment to those powers.
Substantive due process lasted until
the late 1930s, when the Court invalidated some of the principal New Deal
programs under its rubric. The National
Recovery Act, in particular, was a program in which the federal government
attempted to meet the depression by regulation of various industries and
trades.[80] When that legislation was found
unconstitutional,[81]
President Roosevelt attempted to "pack" the Supreme Court, so as to
change results such as these.[82] The plan did not work; nevertheless, over an
18-month period from the time the court-packing proposal was put forth,
Roosevelt was able to appoint seven justices.
As expected, these justices were more sympathetic to government
intervention in social and economic areas than those they replaced. As a result, substantive due process waned.[83] The final blow came in 1938 in United
States v. Carolene Products Co.,[84]
in which Chief Justice Stone set forth the new standard of review of
legislation in the oft-cited footnote 4:
There may be narrower scope for operation
of the presumption of constitutionality when legislation appears on its face to
be within a specific prohibition of the Constitution, such as those of the
first ten amendments, which are deemed equally specific when held to be
embraced within the Fourteenth. * *
*
It is unnecessary to consider now whether
legislation which restricts those political processes which can ordinarily be
expected to bring about repeal of undesirable legislation, is to be subjected
to more exacting judicial scrutiny under the general prohibitions of the
Fourteenth Amendment than are most other types of legislation. On restrictions
upon the right to vote* * ; on restraints upon the dissemination of information
* * *; on interferences with political organizations * * * ; as to prohibition of peaceable assembly * * *.
Nor need we enquire whether similar
considerations enter into the review of statutes directed at particular
religious, * * * or racial minorities,* * *
whether prejudice against discrete and insular minorities may be a
special condition, which tends seriously to curtail the operation of those
political processes ordinarily to be relied upon to protect minorities, and
which may call for a correspondingly more searching judicial inquiry. * * *[85]
Substantive due process has had a significant
role in American legal history. Aside
from its defense of the ascendant economic, political and social order, this
doctrine resonated in other areas as well, preventing exclusion of the German
language from primary schools in Nebraska, [86]
and the closure of non-public schools in Oregon.[87] Even after its supposed demise in Carolene
Products, it has resurrected itself in a case involving municipal
prohibitions on various generations of a family living together,[88]
and on abortion.[89] Most recently, the doctrine was used in a
decision regarding the imposition of liability on a company that had left the
business before the prohibition was made law.[90]
The
future of the doctrine is uncertain.
For liberals, it is the tool by which a conservative court may cloak
objections over the wisdom of legislation in constitutional terms.[91]
For some conservatives, substantive due process is a means to restrict
undesirable social engineering.[92] The paucity of the use of this doctrine
since 1938 makes it unlikely that it will be used in the future to any great
extent. Nevertheless, the doctrine, or
its derivative in recent takings decisions, introduces a "wild card"
into the predictability and fairness of land use law by allowing judicial
preferences to mask as constitutional law to achieve a result in a specific
case.
Nevertheless, judicial review of
American planning and land use regulatory law may be seen as caught in a
"time warp" of substantive due process. The United States Supreme Court decided only four land use cases
between 1926 and 1928, at the apogee of substantive due process.[93] No other planning or land use regulatory
case came before that Court until 1978.
Two of the four cases have had a lasting impact on this area of the law.
In
the first, Euclid v. Ambler Realty Co.,[94]
the Court upheld zoning against an attack based largely on substantive due
process. But in the second, Nectow v. Town of Cambridge,[95]
the Supreme Court upheld the trial and appellate courts determination that a
particular application of zoning was unjustified under substantive due
process. Because no other planning or
land use regulatory case came before the Supreme Court, state and lower federal
courts applied the only Supreme Court precedent available, i.e., Euclid and Nectow.
But these cases came to different outcomes based on a substantive due
process analysis that had fallen out of favor with the Supreme Court since
1938. Nevertheless, the "dead
hand" of this analysis lived on through use of these two cases in numerous
later cases.
Not
only did substantive due process survive in land use through those cases, the
current Supreme Court continues to apply substantive due process under a
different name through the takings clause, as discussed below. This creates problems because process
analysis has largely been focused upon substantive due process, but a focus
upon the procedures used in planning and land use regulatory cases,
particularly on the manner of decision-making, may be more profitable than a
substantive due process analysis that looks at the determination of outcomes.
C. Takings
Until 1922, takings law had been
limited to those instances in which the federal or state government had
acquired title to, or physically occupied, land.[96] Indeed, the "takings clause" of
the Fifth Amendment had not been applied to state or local governments, by way
of incorporation through the Fourteenth Amendment's due process clause until
1897.[97] In 1922, however, Justice Holmes, writing
for the entire Supreme Court, except for Justice Brandeis, found a state
regulatory action to be a taking in Pennsylvania Coal v. Mahon.[98]
Pennsylvania Coal involved a
state legislative action to prohibit mining under houses, places of public
assembly, and roads. The need for the
legislation was based on a practice of coal companies in northeast Pennsylvania
selling off surface rights to potential mining lands but retaining the mineral
rights, which was an accepted property law practice. The result of this practice was the loss of lateral support when
the lands were mined. The Supreme Court
invalidated the law by conflating takings law with substantive due process
analyses. Justice Holmes, the author of
the opinion, never used words associated with substantive due process in his
majority opinion. Instead, he used the
takings clause and acknowledged that property could be regulated even if the
regulation lessened the property's value.
However, he added that if the regulation went "too far," it is
transmuted into a taking.
The imprecision of the test, along
with the fact that substantive due process, the real basis for the test, had
largely been abandoned, caused this case to lay dormant for over 50 years. However, it was brought back to life in Penn
Central Transp. Co. v. New York City,[99]
the first land use case to come to the federal Supreme Court in half a century.
In Penn Central, the
Court analyzed a New York State landmarks preservation ordinance in terms of
whether it went "too far" and caused a taking. While a majority of the Court found that the
ordinance did not amount to a taking, it had only Pennsylvania Coal as
precedent for the regulatory taking issue that was raised. Perhaps with future cases in mind, the Court
set out three "factors" it said it would use in evaluating a
regulatory taking. The Court said it
would consider the economic impact of the regulation, the manner in which it
would affect "investment-backed expectations," and the character of
the regulation.[100] These unweighted factors of doubtful
provenance[101] provided
little guidance for future cases.
The difficulty of predicting the
outcome of a regulatory takings case was increased by the decision of another
majority opinion two years later in Agins v. City of Tiburon.[102] In Agins, the majority, without
citing Penn Central, came up with a two-part alternative analysis for
takings, i.e., whether the regulation substantially advances a legitimate state
interest, or deprives the owner of all beneficial use of the land.[103] Thus, litigants were left with two fairly
vague tests for regulatory takings and no guide as to when to use either.
The takings clause affects
procedures principally in the area of conditions requiring the dedication or
transfer of title of land to the public in exchange for land use approval. The Supreme Court has decided two cases in
this area, Nollan v. California Coastal Commission[104]
and Dolan v. City of Tigard.[105] Both cases involve the forced dedication of
land in exchange for land use approval.
In the first, the Court found no justification in terms of the stated goal
of the agency requiring the dedication, while in the second, the Court found no
proportionality between the impacts of the proposal and the dedications
required. Both cases rely on the first
prong of Agins, i.e., that there be a substantial advancement of a
legitimate state interest. One of the
striking results from the two cases is, at least in the case of the
relinquishment of real property rights, the burden is reversed. Instead of requiring the challenger to show
unconstitutionality of the government action, the state or local government now
must justify the exaction. Moreover,
that agency must also demonstrate that the exaction is roughly proportional to
the needs created by the use approved.
D. Judicial
Review -- Form Follows Function
Judicial review of administrative
action should be consistent with the role of the courts, so that the level of
review is dependent on the nature of the underlying action. In particular, we have identified three
points on a spectrum of judicial review of state or local government
administrative actions that demonstrate this contention. Judicial review will be more, or less,
exacting of the agency, depending on the point on the spectrum on which the
challenged action is found. For the
ministerial action, the court has a fairly small scope -- the action is, or is
not, required by the applicable law. It
is with the other two points on the spectrum that controversy arises.
Fortunately, American constitutional
and administrative law has, at the beginning of the last century, considered
and disposed of the level of review, as well as the level of procedures, to be
accorded various administrative actions.[106] Two cases in particular are the foundations
for the federal and state administrative procedures acts that followed later in
that century.[107]
In Londoner v. City and County of
Denver,[108] plaintiff
challenged a local improvement district assessment undertaken under the City's
charter. The assessment was levied on
those abutting a certain street to pay for the paving of the street; however,
the City did not provide any opportunity to be heard on the matter. Plaintiffs challenged the assessment,
contending that they had a right as a matter of federal due process. The Supreme Court found that such right
existed, saying:
* * * [W]here the legislature of a
state, instead of fixing the tax itself, commits to some subordinate body the
duty of determining whether, in what amount, and upon whom it shall be levied,
and of making its assessment and apportionment, due process of law requires
that, at some stage in the proceedings, before the tax becomes irrevocably
fixed, the taxpayer shall have an opportunity to be heard, of which he must
have notice, either personal, by publication, or by law fixing the time and
place of the hearing.[109]
Notice that the action
of the City in this case revolved around an individualized determination of the
amount due under the assessment. That
individualized determination, as with the determination of the rough proportionality
of an exaction of land in Dolan, requires notice and an opportunity to
be heard.
On the other hand, a law of general
application that does not deal with individual circumstances does not require
such notice and an opportunity to be heard.
In Bi-Metallic Investment Co. v. State Board of Equalization,[110]
plaintiff landowner challenged an order of Defendant Board and the Colorado Tax
Commission that would have increased the assessed value of all property in
Denver by 40 percent. Plaintiff alleged
it had the same rights to individual notice and an opportunity to be heard as
in Londoner under the Fourteenth Amendment. Justice Holmes, a dissenter in Londoner, held that the
federal Constitution was not implicated in this case:
Where a rule of conduct applies to
more than a few people, it is impracticable that everyone should have a direct
voice in its adoption. The Constitution
does not require all public acts to be done on town meeting or an assembly as a
whole. General statutes within the
state power are passed that affect the person or property of individuals,
sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way
they can be in a complex society, by their power, immediate or remote, over
those who make the rule.[111]
Justice Holmes'
opinion in Bi-Metallic foreshadows the famous footnote 4 in Carolene
Products, i.e., that there is no relief from ordinary and generally
applicable social and economic legislation that may cause harm to property
rights, except through the ballot box.
Thus, Londoner and Bi-Metallic
are important because the level of process "due" to those affected by
general social and economic legislation and to those affected by its particular
application are facts that are important, both as to the fairness of the
proceedings, as well as to judicial review.
These cases require an enhanced level of notice and opportunity to be
heard as general legislation is applied in particular fact situations. With one important exception, noted
immediately below, the pattern provided by the foundation provides the basis
for the formulation of procedures to deal with application of comprehensive
plans and general land use legislation to individual persons, places or
situations.
E. Constitutional
Conflation -- The Holdover of Substantive Due Process
As noted above, the United States
Supreme Court has not favored substantive due process as a basis for
constitutional decision-making since 1938 and is not likely to be favored in
the future. As suggested elsewhere,[112]
the three-part test of substantive due process found in Lawton v. Steele[113]
can now be found either in the three-factor test of Penn Central or the
two-part test of Agins. Just as
the tests for substantive due process are elastic and may be used to justify any
number of outcomes, so also may the current takings tests. To be consistent with the close of the era
of substantive due process as iterated in Carolene Products, planning
and the regulation of property must be seen in the same light as other social
and economic legislation, with deference given to the legislative
judgment. To create an exception for
real property under the takings clause of the Fifth Amendment is inconsistent
with the history of that Amendment[114]
and elevates real property to the same specially protected status as speech and
religion. However, other property does
not receive these special protections; if property were treated like any other
commodity, symmetry in treatment would be accorded participants in land use
hearings with those in other types of administrative hearings where
individuated determinations were required.
The
procedural reforms proposed in this section have been taken from the APA Guidebook. The examples underlying most of these proposals
are listed from Oregon law because the authors' land use experience centers on
Oregon. Further, the basic framework of
Oregon's land use system has been in place for over 30 years, allowing a
greater perspective in judging its strengths and weaknesses that might not be
available in other jurisdictions.
A. The
Nature of Proceedings
One
of the most fundamental components to creating a clear and easily
understandable land use process is for all statutes, plans and regulations to
explicitly articulate the type of local decision being made. As explored above, the type of decision,
ministerial, quasi-judicial or legislative, should directly effect necessary
procedural safeguards and set the parameters of constitutional protections.
Determining
what types of decisions constitute "land use" decisions may also have
a great deal of impact on the type of judicial review available. In Oregon, the Land Use Board of Appeals
(LUBA) maintains exclusive jurisdiction to review all local government
"land use decisions." Appeals
from LUBA go directly to the Oregon Court of Appeals, an intermediate appellate
body. Whether or not the decision
appealed is a "land use" decision is crucial to whether LUBA retains
jurisdiction to hear the case.[115] Further, LUBA is given the authority to hear
limited land use decisions,[116]
which include land division applications and ministerial approvals, such as
site or design review.[117]
B. Assignment
of Hearing Responsibilities
As
discussed above, the traditional approach for allocating hearing responsibilities
is a "top down" approach wherein the local government legislative
body adopts the plan, zoning ordinances and amendments to that plan and
ordinances. All quasi-judicial hearings
are conducted by a planning commission, a Board of Adjustment or a Board of
Zoning Appeals. This is often not the
best approach because planning commissions are, in many cases, comprised of
local volunteers who have neither the expertise nor the time to understand
sophisticated applications and/or land use laws. Complex decisions, such as whether to grant a residential
variance or conditionally permit a large shopping center upon environmentally
sensitive property, fall on citizens who may not be adequately equipped with
the tools needed to make consistent and legally supportable decisions.
The
solution for an over-taxed and under-experienced planning commission is the
employment of hearing examiners or officers.
These are people who bring their experience in land use and planning law
with them and, in turn, are compensated by the local government for their
services. The Guidebook espouses
the retention of expertise in the land use arena by allowing hearings officers
to review particular types of permit applications, comprehensive plan
amendments, and interpret and administer regulations.[118]
Another
way local government can create a more efficient and uniform hearing procedure
is to clearly articulate the roles of sub-governing bodies. First, local regulation should explicitly
determine who conducts initial review of the application. If planning staff provides these reports,
they need to be equipped with the expertise to draft an informed staff
recommendation. Second, local
governments must identify the body that makes the initial decision and how or
when decisions become "final" for purposes of appeal.
Finally,
it is crucial that the local government adopt procedural hearing rules and that
all decision-making bodies understand these rules. Timely decision-making requires established procedures that are
consistently followed with every application.
All board members must understand what the formal hearing process
requires. This process may include: the
right to cross-examination, oaths, subpoenas, sufficiency of the evidence in an
administrative setting, official notice, procedures for creating a record of
the hearing and the availability of a staff report in advance of the hearing.
C. Conduct
of Hearings on Permits and Other Development Actions
Perhaps
the most basic element for an orderly and efficient local land use procedure is
the necessity for a clear and complete application. Local governments must identify their target audience in drafting
application forms whose requirements are easily understandable. A legitimate local land use system is one
where the applicant knows what is required and what to expect from the permit
process.
Further,
clear application requirements provide certainty to the applicant and the local
government as to when the application is deemed complete. The Guidebook requires that the local
government provide formal written notice of application completeness within 28
days of initial receipt of the application.[119]
Once the application is deemed complete, the local government is given 90, 120
or 180 days to approve or deny any development application, including record
hearings or administrative reviews. An
essential requirement to planning pursuant to the Guidebook is formal
determination on when an application is complete. A written determination of completeness is necessary because it
starts the clock for the local government to either approve or deny the
application, including the resolution of all appeals.[120]
Municipal
regulations must set forth time limits for approval and, should they be
violated, effective remedies should also be provided. Possible remedies for violating the time limits include automatic
approval or the right to seek mandamus.
Local regulations must set out any exceptions to established time limits. These exceptions may include delays that are
not within local government control or items such as comprehensive plan
amendments. In addition, the exceptions
may permit an applicant to consent or waive the time limitation. Time limit regulations may also require the
local government to reduce the fee or to issue a refund.
Another
procedural requirement should be a fee schedule, which, if clearly set out,
avoids any allegations of impropriety.
Typically, there are two ways to determine local government fee
schedules. Some municipalities
determine the fee based on a percentage of the actual cost of the proposed
development application. The second
alternative is to set fees by averaging the amount spent by that applicant in
that jurisdiction. A local government
is also well served by providing fee waivers as incentives to participate for
indigents or community planning organizations.
Ultimately, the fee must be reasonably related to the cost of processing
or reviewing the application.[121]
Local
government regulations must set out, and staff must consistently follow, all
notice requirements. Notice ordinances
should specify the required notice media (such as newspaper, posting, mailing
or electronic), the contents of the notice,[122]
as well as the remedies that are available to those who fail to receive notice.[123]
An
orderly and efficient local land use process requires clear substantive
standards that are consistently applied to all applications. States and local jurisdictions should
require adoption of a separate planning document, known as a comprehensive or
master plan, which becomes a land-use "constitution" providing
long-term guidance and consistency to interpreting ordinances and
regulations. Oregon has required that
cities and counties adopt comprehensive plans and has required independent
state agency review of those plans for the last 30 years.[124] However, more than two-thirds of the rest of
the nation operates without comprehensive plan consistency requirements or
without comprehensive plans at all. As
a result, the authors cannot emphasize enough the need for all local governments
to make land use decisions based on the standards and criteria set out in the
comprehensive plan and ordinances that are consistent with – and adequate to
carry out - the plan.[125]
Local
governing regulations and the hearing bodies applying these regulations must
understand how to condition approval.
At first blush, placing conditions upon application approval seems like
a great way to negotiate approval; meeting everyone's needs or concerns. However, conditions can be treacherous
business and those imposing conditions must understand clear regulatory
guidance on when or to what extent conditions may be statutorily or
constitutionally imposed. If conditions
are imposed in the form of exactions or dedications in exchange for conditional
use approval, Dolan v. City of Tigard places the burden on the local
government to show, not only the reasonableness of the goal pursued by the
required dedication,[126]
but also a "rough proportionality" between the impact of the
application and the dedications required.[127] Thus, a local government could spend a great
deal of time crafting elaborate conditions and then incur substantial legal
fees and headaches proving, in the face of a takings challenge, that the
dedications imposed are "roughly proportional" to the impact of the
application. In light of these
limitations, the local government should consider requiring formal acceptance
of the conditions by the applicant following issuance of the final order, or
entering into development agreements between the local government and the
applicant to ensure compliance with conditions.
Because
of the limited time period that the local government has for completing the
approval or denial of an application, a consolidated permit review process is
often the easiest way to resolve all the issues at once. When necessary, due to the complexity of the
development requested, local governments should be encouraged to consolidate
the permit process, such that the local government may review and rule on all
permits, including zoning changes, at one time.[128] For example, design review and consideration
of zoning map amendments can be simplified by one record hearing and one record
appeal.[129]
All
local ordinances or state statutes should establish procedures for dealing with
bias, conflicts or ex parte contacts of decision-makers. Local decision-makers do not live in a
bubble, shut away from the rest of society.
Rather, they are typically fairly visible members of the community who
are constantly exposed to political trends, editorials by the press and
influenced by fellow residents and businesses.
In many small communities, it is difficult to find a quorum of
decision-makers who do not have a personal or professional interest in the
outcome. Additionally, allegations of
impartiality can destroy the credibility of boards and its members. Procedures must be established so that board
members know when influences from outside become "substantial" and
what remedies will lead to a fair process for all involved.[130]
As
challenging as it may seem, local governments should try to prohibit conflicts
or bias of its decision-makers by explicitly setting out a procedure to deal
with ex parte communications. Ex parte
communications are permitted and are often necessary for making an informed
decision.[131] However, record hearings require additional
procedural safeguards to assure an unbiased decision-maker. The Guidebook proposes two
alternatives for dealing with "substantial" ex parte communications,
excluding de minimus contacts.
The first alternative is to ban ex-parte contacts altogether. The second alternative requires disclosure
of the communication into the record so that it may be used as a prejudicial
error on appeal. The drawback of the
second alternative is that the onus for disclosure rests with the
decision-maker only and the challenger must show direct prejudice to the
outcome.[132]
Once
a decision is reached, local government regulations must provide an appeal
route that is clear and efficient. The
local government has several options, including the Guidebook approach
of creating a specialized review board to hear appeals, traditional review by a
board of commissioners or city council, or skipping the local government appeal
altogether and allowing direct judicial review. Once again, appellate fees must be reasonable. Local regulations must set out whether
review of the decision will be based on the record or will be de novo,
and, if the decision will be based on the record, what situations allow for
supplementing the record.
A
statutorily mandated procedural limitation that has served Oregon well is the
requirement of "raise it or waive it."[133] Oregon law limits all appellants of local
government decisions to those issues that they brought up at the hearing
below. Parties must have raised the argument
or issue below or they are deemed to have waived the argument or issue on
appeal. This can be a double-edged
sword depending on previous participation in the decision process. The scope of issues on appeal may be very
short if one arrives late in opposition and possible avenues were not pursued
in previous proceedings. On the other
hand, during the hearing process, applications and issues often change
significantly and, even though the issues may have been raised initially, other
issues often arise later that must also be addressed in order to survive a
waiver challenge.
Another
statutory procedural provision that has improved the efficiency and fairness of
the Oregon land use system is the "no changing the goal posts" rule.[134] That rule provides that approval or denial
of an application must be based on the standards and criteria that were
applicable at the time the application was deemed complete. This is especially important, after
considering that land use regulation in Oregon is not just local; local
regulations must be consistent with regional and state policies. As noticed earlier, planning is constantly
evolving. Twenty-year vision plans and
implementing regulations are constantly being created, reviewed and revised to
remain current and retain consistency.
Thus, it is important that an applicant knows beforehand the state of
the law to get the criteria by which their application will be judged.
V. Reforming
Judicial Review
The
timing of judicial review is often confusing as federal and state courts
maintain different rules. Federal
courts' ripeness rules require that an "actual case and controversy"
exist before jurisdiction is proper.[135] Many state courts do not require such formal
ripeness requirements, making review by state court easier. However, many states' statutes specify when
a land use decision is deemed final for purposes of appeal or provide
"exhaustion" rules such that appellate jurisdiction is proper.[136] The Guidebook suggests legislation
that links federal and state court jurisdiction by providing a procedure for a
remand to the state court, as well as resolution of res judicata issues.[137]
Standing
is another procedural limitation that must be clearly spelled out in statutes
to permit orderly appeals. The biggest
problem with standing arises in the context of "third parties." Third parties are generally organizations or
non-residents who challenge a particular decision based on political or social
concerns, even when the applicant, local government and immediate neighbors have
agreed on a decision. Some states
statutorily proscribe standing to those parties who participated in the local
government decision-making process.
Other states require that the party seeking standing must be
"aggrieved" by the land use decision.[138] If the standard is limited to those that are
"aggrieved," the Guidebook suggests that a "clear and
tailored" definition is necessary so that parties will know, at the
outset, whether they will have standing to appeal.[139] "Aggrieved" is defined in the Guidebook
to mean:
that a land use decision has caused, or is expected to cause
[special] harm or injury to a person, neighborhood planning council,
neighborhood or community organization, or governmental unit, [distinct from
any harm or injury caused to the public generally]; and that the asserted
interest of the person, council, organization, or unit are among those the
local government is required to consider when it makes the land use decision.
Like the timing requirements for
local government decision-making, statutes should proscribe time limits for
judicial review. In Oregon, a Notice of
Intent to Appeal must be filed within 21 days after the final determination of
the local government.[140] In order to further reduce the expense and
disruption to local government planning while the appeal is pending, the Guidebook
calls for expedited judicial review where the hearing must be set within 60
days after the record has been submitted.
Similarly, Oregon statutes proscribe that LUBA, the agency charged with
hearing all local government appeals, make its final decision within 77 days
after it receives the record.[141] If LUBA fails to issue its final order
within 77 days, a party may bring a mandamus action to compel issuance of that
order.[142]
Since clear time limits and timely
resolution are key determinations, statutes or administrative rules must set
forth the circumstances within which a stay of the proceeding will be
permitted.[143] Every motion for a stay should set forth the
factual basis for the motion.
Considerations for determining whether a stay should be granted include
whether the stay is necessary to prevent irreparable injury and whether the
stay will cause substantial harm to other parties. In certain cases, the court may require filing of a security or
financial undertaking before a stay may be granted.[144]
Appellate
review of factual issues must be based on the record made before the local
decision-maker.[145] The Guidebook provides for a limited
series of exceptions to introduce new evidence to supplement the record. These circumstances include: (1) for
standing or to disqualify a member of the decision-making body; (2) items that
were improperly excluded from the record hearing; and (3) to correct
ministerial errors. [146] The Guidebook includes an additional
option to admit additional evidence based on the court's own discretion.[147] Permitting an appellate court, in its own
discretion to add additional evidence to the record can sometimes be taken too
far, undermining the entire review based on the record requirement.[148]
The Guidebook calls for clear
statutory provisions that govern the court's standards for granting
relief. Unlike the first two waves of
model legislation, the Guidebook allows for remand of land use decisions
that are inconsistent with the local comprehensive plan.[149] Guidebook standards for review
include "erroneous interpretations of law" and substantial evidence
challenges based on the findings of fact and the evidence in the record.[150] Additional state and federal constitutional
causes of action are also available.
However, the Guidebook does not contemplate court-awarded
compensation as part of judicial review.
Instead, petitioners may join a claim under Section 1983 of the Federal
Civil Rights Act, 42 U.S.C. §1983 claim for compensation with its other claims
for review.[151]
In Oregon, administrative review
occurs by LUBA. Created in 1980, LUBA
is comprised of a three-person, governor-appointed administrative agency that
maintains exclusive jurisdiction to hear all land use cases in the State of Oregon.[152] "Land use decision" includes
quasi-judicial or legislative determinations by municipal, county and regional
governments and of special districts and state agencies.[153] By statutory provision, LUBA must reverse
and remand land use decisions that (a) violate the Constitution, state goals or
the applicable comprehensive plan, (b) are based on an error in law, or (c)
have an inadequate evidentiary basis.[154] Appellate review of LUBA decisions is taken
directly to the Oregon Court of Appeals.
Agency adjudication in the land use field provides for expertise, allows
for greater accuracy and consistency through a uniform body of precedent, is
more efficient, and saves cost and time to the general jurisdiction court
docket.
Rather
than creating an agency to review all "land use decisions" like LUBA,
the State of Washington established special independent agencies with authority
to review particular types of land use decisions. These land use hearings boards consist of three regional appeals
boards that are authorized to rule on inconsistent application of county or
city plans under the Growth Management Act or the Shoreline Management Act.[155]
Even
after initial judicial review is completed, statutes must provide procedural
guidance for further appeal. Like the
21-day limit for bringing the original appeal, Oregon statutes require notice
of appeal before the Oregon Court of Appeals be filed within 21 days after LUBA
issues the final decision.[156] LUBA must submit the record within seven
days after the service of petition to appeal, and review by the Court of
Appeals is limited to the record.[157] Permissible grounds for remand or reversal
of a LUBA decision include: (1) substantive or procedural error (but only if
the procedural error substantially prejudiced the rights of the petitioner);
(2) unconstitutional decision; or (3) a decision not based on substantial
evidence in the whole record.[158]
Finally,
procedures must be established to guide remand proceedings. It is here that both the Oregon land use
system and the Guidebook fall short.
Like a book that is missing its last page, Oregon statutes fail to
mandate local government remand procedures and Chapter 10 of the Guidebook
ends after judicial review. Time limits
and specific decision criteria must be in place so that remand proceedings are
timely and comport with due process requirements. For example, there is no requirement in Oregon that, in making
its subsequent decision on remand, the decision-maker address all of the errors
sustained by LUBA.
VI. Conclusion
This article attempts to trace the
history of national efforts to establish, or change, land use procedures in the
United States. It is ironic that the
earliest and weakest of those efforts, the SZEA, has been the most widely
adopted and durable set of procedures in use.
The ALI Code finally coalesced years of criticism of the SZEA. Nevertheless, the Code was largely
ineffective, hampered by the refusal of its drafters to require the adoption of
the comprehensive plan as the standard against which land use regulations and
actions may be judged. Moreover, the
Code did not address the difference between policy-making and policy
application across the broad range of municipal planning actions. Growing Smart has the twin virtues of
thought and internal consistency, both of which will be necessary to overcome
the comfort and familiarity of long-established procedures.
Reform of the mélange of different
state and local procedures is supported by the classification of land use
decisions under traditional administrative law principles. The distinctions among mandatory, or
ministerial, actions, policy-making, or legislative, actions, and
policy-applying, or quasi-judicial, actions are known to those familiar with
administrative or public law. Moreover,
each of these classifications appears to have its own associated form and level
of intrusiveness through judicial review.
What is less clear, however, is the
"fit" of these classifications with constitutional limitations on
land use controls. While a wide scope
of judicial intrusion may be justified in review of ministerial acts, where
usually the only question is one of law, a more deferential scope (in
principle, if not in practice) is appropriate in review of policy formulated by
another branch of government. The wide
range of treatment of policy application by the courts provides no uniform rule
to judicial review of local quasi-judicial land use decision-making. This article suggests that reference should
be made to the very nature of the decision under consideration, as was done
many years ago by the federal Supreme Court in Londoner and Bi-Metallic. Such an approach may overcome the fog of
diverse precedent in this area.
Quasi-judicial decision-making
should generally be reviewed on the record of the decision below in order to
avoid overly intrusive invasions of the functions of another branch of
government in applying policy.
Moreover, that review should be limited to assuring that the
administrator or agency (1) remains within constitutional and jurisdictional
bounds, (2) heard the matter consistent with statutory and procedural due
process limitations, (3) properly interprets the law, and (4) that necessary
facts for the decision are supported by substantial evidence in the whole
record.
This conceptual reform must be
undertaken against the background noise of an insufficiently developed
constitutional jurisprudence in the field of land use. While substantive due process may be dead in
other fields of public law, its ghost lives on in the land use field, due to
the time warp created by the absence of activity before the United States
Supreme Court from 1928 to 1978. This
gap allowed the caselaw to fester on an analysis that is essentially grounded
in substantive due process. The
difficulties of constitutional interpretation were compounded by the anomalous
decision of Justice Holmes in Pennsylvania Coal and the creative
jurisprudence of that Court in interpretations of the takings clause and other
constitutional provisions that mark the survival of substantive due process in
other forms.
Reform of constitutional law in the land use field will take years, if not generations, because of the economic interests involved and the composition of the Court in the present and the immediate future. Reform is likely to be the result of swings in the political, economic, and jurisprudential views on the Court and its dialogue on the subject with lower federal and state courts, the academy, and popular opinion. Yet perhaps too much is ascribed to changes in federal constitutional interpretation and the psephology of the Court in achieving reform, at the expense of practical legislative reform at the state and local levels. Lasting and concrete reform is more likely to occur in the trenches of legislative action to establish achievable standards of fairness and judicial review proportional to the nature of the decision under review. Such legislative reform may well provide more meaningful and beneficial change than any Pauline conversion of the justices in formulating general rules for the conduct of land use hearings and judicial review of those proceedings.
* B.A., St.
John's University (N.Y.), 1966; J.D., Willamette University, 1969; M.A.
(History), Portland State University, 1973; Urban Studies Certificate, Portland State University, 1974; M.A.
(Political Thought), University of Durham; Diploma in Law, University College,
Oxford (1984); LL.M., University College, London, 1978.
**
B.A., Lewis & Clark College, 1992; M.S., University of Utah,
(Architecture), 1995; J.D., Northwestern School of Law of Lewis and Clark
College, 2000; Associate, Hutchison, Hammond & Walsh, West Linn, Oregon,
2001.
[1] New
York Laws, 1916, ch. 496. As a
result, the City of New York adopted the Building Zone Ordinance on July 25,
1916. That ordinance was upheld against
various challenges in Lincoln Trust Co. v. Williams Building Corp., 229
N.Y. 313, 128 N.E. 208 (1920).
[2] D.
Brooks, County and Special District Law, ch. 43 (West St. Paul 1989).
[3] The
authors concede that state constitutions, which have been traditionally silent
on matters of planning and regulation, may also impose limitations on the scope
and substance of these powers. The
authors also assume, however, that most land use planning and regulation will
continue to be a local, rather than a state, matter and recognize that the
state may impose limitations on these powers through general legislative
action.
[4] See, e.g., Dolan v. City of Tigard, 512 U.S. 374 (1994),
where the limitations on exactions of land were imposed, according to a 5-4
majority of the Supreme Court, by the Fifth Amendment to the federal
Constitution. In another article, Return
of the Platonic Guardians (forthcoming), 34 Urban Lawyer ___ (2002), one of
the authors suggests that such an expansive reading of the Fifth Amendment is
unjustified. That article also suggests the salutary results of Dolan
could have been achieved through a different alternative. That alternative consists of a more careful
attention to the nature of the decision made and the function of traditional
judicial review. Those results could
also have been achieved by legislation or more considered judicial review.
[5] 272
U.S. 365 (1926).
[6] 277
U.S. 183 (1928).
[7] (U.S.
Dept. of Commerce rev., ed. 1926).
[8] SZEA
§8.
[9] Mandelker,
Daniel, Land Use Law, 4th
Edition (Charlottesville: Lexis Law Publishing,
1997) at 108.
[10] Id.
at 109; SZEA §1.
[11] SZEA
§ 4.09.
[12] See
Stuart Meck, Gen. Editor, Growing Smart Legislative Guidebook: Model
Statutes for
Planning and the Management of Change, 2002 Edition (Chicago: American Planning Association,
forthcoming in January 2002) at 10.
[13] Id.
at 11.
[14] SZEA
§8. See also Meck, supra,
at 10-6.
[18] SZEA
§3.
[19] SZEA,
footnote 22.
[20] Charles
M. Haar, In Accordance with a Comprehensive Plan, 68 Harv. L.
Rev. 1154 (1955); see also Sullivan and Kressel, Twenty Years
After: Renewed Significance of the Comprehensive Plan Requirement, 9 Urb.
Law Annual 33 (1975).
[21] Id.
at 1159.
[22] Id.
citing Darlington v. Board of Councilmen, 282 Ky. 778, 782, 140 S.W.2d 392, 394 (1940)
and 1163 citing 1 Yokley, Zoning Law & Practice, 178-81 (2d ed.
1953). See also
Miller v. Board of Public Works, 195 Cal. 477, 496, 234 Pac. 381, 388 (1925), writ of error
dismissed, 273 U.S. 781 (1927).
[23] Id.
[24] Id.
at 1165.
[25] Kozesnik
v. Township of Montgomery, 131 A.2d 1 (N.J. 1957).
[26] To
some extent, this error was compounded by the "701" planning grants
given under the Housing Act of 1954, 40 U.S.C. §461(b), which funded local
planning efforts, but did not require those efforts to be binding.
[27] American
Law Institute ("ALI"), A Model Land Development Code: Complete
Text and Commentary (Philadelphia, American Law Institute, 1976).
[28] Meck,
supra, at 10-13.
[29] ALI
Code §8-101.
[30] ALI
Code §3-104.
[31] Id.
[32] Id.
at §3-101, 105.
[33] Id.
at 123.
[34] Id.
at 124.
[36] Id.
[39] Id.
at §9-101.
[41] Id.
at §9-109.
[42] Id.
at §9-110.
[44] Id.
[45] Id.
at 10-16; 10-20.
[46] Meck
10-14, citing John Vranicar, Welford Sanders, and David Mosena, Streamlining
Land Use Regulation: A Guidebook for Local Governments, prepared by
the American Planning Association for the U.S. Department of Housing and Urban
Development Office of Policy Development and Research (Washington, DC: U.S.
GPO, November 1980).
[47] Id.
at 10-22.
[48] Id.
at 10-43.
[49] Id.
at 10-28; 10-30.
[50] Id.
at 10-30.
[51] Id.
[52] Id.
at 10-28.
[53] Id.
at 10-52.
[54] Id.
[55] Id.
at 10-53.
[56] Id.
at 10-54.
[57] Id.
[58] Id.
at 10-61.
[59] Id.
at 10-17.
[60] See, Comment, Zoning Amendments: The Product of Judicial or Quasi-Judicial
Action, 33 Ohio St. L. J. 130, 134-135 (1972).
[61] Ibid.;
Fasano v. Board of County Commissioners, 264 Or. 574, 507 P.2d 23
(1973).
[62] See,
e.g., T. Pelham, Evaluating the Prospective Case After the
Administrative Decision, in L. Smith, ed., How to Litigate a Land Use
Case (2000), at 204-05; Mandelker, supra, at 348; and Yokley, Zoning
Law and Practice 4th Edition (1979), at § 24-9.
[63] SZEA, § 7.
[64] SZEA,
§§ 2 and 4.
[65] SZEA,
§ 5.
[66] Of
course such review was not so limited at all, as courts invented ways of
separating "good" from "bad" rezonings, through such
judicial constructs as "spot zoning," "change or mistake,"
or "appearance of fairness."
This penchant for judicial invention has the hallmarks of the evils of
substantive due process, which is discussed below.
[67] The
words are usually translated as follows:
No
freeman shall be arrested, or detained in prison, or deprived of his freehold,
or in any way molested; and we will not set forth against him, nor send against
him, unless by the lawful judgment of his peers and by the law of the land.
Bosselman, Callies and Banta, The
Takings Issue (1973), at 56.
[68] Board
of Regents v. Roth, 408 U.S. 564, 578 (1972).
[69] Pruneyard
Shopping Center v. Robbins, 447 U.S. 74 (1980).
[70] Mathews
v. Eldridge, 424 U.S. 319, 334-35 (1976).
[71] Sullivan,
The Missing Link: Fairness, British Natural Justice and American Planning
and Administrative Law, 11 Urban
Lawyer 75 (1979). See also Withrow v. Larkin, 421 U.S. 970 (1980).
[72] 123
U.S. 623 (1887).
[73] Id.
at 699.
[74] 152
U.S. 133 (1894).
[75] The
Court said in Lawton v. Steele at 137:
To
justify the state in thus interposing its authority in behalf of the public, it
must appear--first, that the interests of the public generally, as distinguished
from those of a particular class, require such interference; and, second, that
the means are reasonably necessary for the accomplishment of the purpose, and
not unduly oppressive upon individuals.
The Legislature may not, under the guise of protecting the public
interests, arbitrarily interfere with private business, or impose unusual and
unnecessary restrictions upon lawful occupations; in other words, its
determination as to what is a proper exercise of its police powers is not final
or conclusive, but is subject to the supervision of the courts. 152 U.S. at
137.
[76] Compare,
for example, cases in which state or local enactments failed the substantive
due process "tests" in Lochner v. New York, 198 U.S. 45
(1905), and Allgeyer v. Louisiana, 165 U.S. 578 (1897), with those that
passed the "test" in Muller v. Oregon, 208 U.S. 412 (1908).
[77] M. & St. P.R. Co. v. Minnesota, 134 U.S. 418 (1890); Muller v.
Oregon, note 76 supra; Nebbia v. New York, 291 U.S. 502
(1934).
[78] For
a critique of the resurrected version of substantive due process in a land use
regulatory context, see Sullivan, Emperors and Clothes: The Genealogy and Operation of the Agins Tests, 33 Urban Lawyer 343 (2001).
[79] Note
76, supra.
[80] 15
U.S.C. §§701-712 (1933).
[81] Schecter
Poultry Co. v. United States, 295 U.S. 495 (1935); Panama Refining Co.
v. Ryan, 293 U.S. 388 (1935).
[82] In
his "Fireside Chat on Reorganization of the Judiciary" on March 9,
1937, President Roosevelt said:
When the Congress has sought to
stabilize national agriculture, to improve the conditions of labor, to
safeguard business against unfair competition, to protect our national
resources, and in many other ways, to serve our clearly national needs, the
majority of the Court has been assuming the power to pass on the wisdom of
these acts of the Congress - and to approve or disapprove the public policy
written into these laws.
[83] See,
e.g., West Coast Hotel v. Parrish, 300 U.S. 379 (1937).
[84] 304
U.S. 144 (1938).
[85] 304
U.S. 144, at 152.
[86] Meyer
v. Nebraska, 262 U.S. 390 (1923).
[87] Society
of Sisters v. Pierce, 268 U.S. 510 (1925).
[88] Moore
v. East Cleveland, 431 U.S. 494 (1976).
[89] Roe
v. Wade, 410 U.S. 113 (1973).
[90] Eastern
Enterprises v. Apfel, 524 U.S. 498 (1998).
Actually, the use of substantive due process as a basis to invalidate
the law was made only by Justice Kennedy in a 5-4 decision. The other four members of the majority used
the takings clause of the Fifth Amendment to invalidate the law. The four dissenters rejected an analysis under
the takings clause and used a substantive due process analysis to reach their
conclusions.
[91] See
Abortion Law Homepage, http://www.hometown.aol.com/abtrbng.
[92] Planned Parenthood v. Casey, 505 U.S. 833, 998 (1992) (Scalia, J.
dissenting).
[93] Nectow
v. Town of Cambridge, 277 U.S. 183 (1928); Gorieb v. Fox, 274 U.S.
603 (1927); Zahn v. Board of Public Works, 274 U.S. 325 (1927); Euclid
v. Ambler Realty Co., 272 U.S. 365 (1926).
[94] Note
75, supra.
[95] Note
76, supra.
[96] See,
e.g., Pumpelly v. Green Bay Co., 80 U.S.
166 (1872).
[97] Chicago, Burlington & Quincy R.R. v. Chicago, 166 U.S.
226, 239 (1897).
[98] 260
U.S. 393 (1922).
[99] 438
U.S. 104 (1978).
[100] Id.
at 124.
[101] John
D. Echeverria, Is the Penn Central
Three-Factor Test Ready for History's Dustbin?, 1 Land Use Law & Zoning Digest 3 (2000).
[102] 447
U.S. 255 (1980).
[103] 447
U.S. at 260. In another article, one of
the authors suggests that the Agins tests are the result of dicta and are really based on
substantive due process. Emperors and Clothes: The Genealogy and
Operation of the Agins Tests,
note 78 supra.
[104] 483
U.S. 825 (1987).
[105] 512
U.S. 374 (1994).
[106] For
a more extended discussion of the level of review and state or local
procedures, see Return
of the Platonic Guardians, note 4, supra.
[107] Land
use decision-making is, after all, a branch of administrative law, rather than
some sui generis area of the law.
[108] 210 U.S. 373 (1908).
[109] Id.
at 385.
[110] 239
U.S. 441 (1915).
[111] Id.
at 445.
[112] See
Emperors and Clothes: The Genealogy
and Operation of the Agins Tests, note 78, supra, and Return of the Platonic Guardians,
note 4, supra.
[113] Note
74, supra.
[114] See
Treanor, The Origins and Original Significance of the Just Compensation
Clause of the Fifth Amendment, 94 Yale L.J. 694 (1985).
[115] Or.
Rev. Stats. 197.825; Or. Rev. Stats. 197.015(10) defines "land use
decisions" to include:
(A)
A final decision or determination made by a local government or special
district that concerts the adoption, amendment or application of:
(i)
The goals;
(ii)
A comprehensive plan provision;
(iii)
A land use regulation;
(iv)
A new land use regulation; or
(B)
A final decision or determination of a state agency other than the commission
with respect to which the agency is required to apply the goals.
[116] Or.
Rev. Stats. 197.825; Or. Rev. Stats. 197.015(12).
[117] Id.
[118] Meck,
at 10-49.
[119] Meck,
at 10-26, Or. Rev. Stats. 215.428(1); 227.178(1).
[120] Meck,
at 10-23. Interestingly, the Guidebook
prohibits waiver of the time limits for making a completeness
determination. One rationale for this
is that if the applicant were permitted to waive this the applicant might feel
pressured by the local government to waive in an effort to appease the body
that will rule on the substance of the application.
[121] Or.
Rev. Stats. 215.422(1)(c) provides:
The governing body may prescribe, by ordinance or
regulation, fees to defray the costs incurred in acting upon an appeal from a
hearings officer, planning commission or other designated person. The amount of the fee shall be reasonable
and shall be no more than the average cost of such appeals or the actual cost
of the appeal, excluding the cost of preparation of a written transcript.
[122] Or. Rev. Stats.
197.763(3) provides that notices shall:
(a) Explain the nature of the application
and the proposed use or uses which could be authorized;
(b) List the applicable criteria from the
ordinance and the plan that apply to the application at issue;
(c) Set forth the street address or other
easily understood geographical reference to the subject property;
(d) State the date, time and location of
the hearing;
(e) State that the failure of an issue to
be raised in a hearing, in person or by letter, or failure to provide
statements or evidence sufficient to afford the decision-maker an opportunity
to respond to the issue precludes appeals to the board based on that issue;
(f) Be mailed at least; (timing
requirements)
(g) Include the name of a local government
representative to contact and the telephone number where additional information
may be obtained;
(h) State that a copy of the application,
all documents and evidence submitted by or on behalf of the applicant and
applicable criteria are available for inspection at no cost and will be
provided at reasonable cost; and
(i)
Include a general explanation of the requirements for submission of testimony
and the procedure for conduct of hearings.
[123] Or.
Rev. Stats. 215.416(6); 227.175(6).
[124] Sullivan,
"Remarks to University of Oregon Symposium Marking the Twenty-Fifth
Anniversary of S.B. 100," 77 Oregon Law Review 3
(1998).
[125] Guidebook
§ 10-201(1): "The legislative body of each local government shall adopt,
as
part
of its land development regulations, an ordinance that establishes a unified
development permit review process for applications for development
permits."
In
Oregon, Or. Rev. Stats. 227.173 provides that "approval or denial of a
discretionary
permit
application be based on standards and criteria, which shall be set forth in the
development ordinance and which shall relate approval or denial of a
discretionary permit application to the development ordinance and to the
comprehensive plan for the area in which the development would occur and to the
development ordinance and comprehensive plan for the city as a whole."
[126] Nollan
v. California Coastal Commission, 483 U.S. 845 (1987).
[127] 512
U.S. 374 (1994).
[128] Meck,
at 10-39.
[129] Id.
[130] Or.
Rev. Stats. 227.180 states, for example:
(3)
No decision or action of a planning commission or city governing body shall be
invalid due to ex parte contact or bias resulting from ex parte contact with a
member of the decision-making body, if the member of the decision-making body
receiving the contact:
(a)
Places on the record the substance of any written or oral ex parte
communications concerning the decision or action; and
(b)
Has a public announcement of the content of the communication and of the
parties' right to rebut the substance of the communication made at the first
hearing following the communication where action will be considered or taken on
the subject to which the communication is related.
(4)
A communication between city staff and the planning commission or governing
body shall not be considered an ex parte contact for the purposes of subsection
(3) of this section.
(5)
Subsection (3) of this section does not apply to ex parte contact with a
hearings officer.
[131] Meck,
at 10-28.
[132] Id.
at 10-36.
[133] Or.
Rev. Stats. 197.763(1) states:
An
issue which may be the basis for an appeal to the Land Use Board of Appeals
shall be raised not later than the close of the record at or following the
final evidentiary hearing on the proposal before the local government. Such issues shall be raised and accompanied
by statements or evidence sufficient to afford the governing body, planning
commission, hearings body or hearings officer, and the parties an adequate
opportunity to respond to each issue.
[134] Or. Rev. Stats. 227.178(3): If the application was complete when first submitted or the applicant submits the requested additional information within 180 days of the date the application was first submitted and the city has a comprehensive plan and land use regulations acknowledged under Or. Rev. Stats. 197.251, approval or denial of the application shall be based upon standards and criteria that were applicable at the time the application was first submitted.
[135] Meck,
at 10-62, 10-71, 10-73.
[136] Id.
See also Or. Rev. Stats. 197.015(10).
[137] Id.
[138] Utsey
v. Coos County, 176 Or. App. 524, ___ P.3d ___ (2001), pet. for
rev. pending.
[139] Meck,
10-64.
[140] Meck,
at 10-73; Or. Rev. Stats. 197.830(3), (4); OAR 661-10-0015.
[141] Or.
Rev. Stats. 197.830(13).
[143] Meck,
at 10-77; OAR 661-10-0068.
[144] Meck,
at 10-77; OAR 661-10-0068(4).
[145] Meck,
at 10-79.
[146] Meck,
at 10-80.
[147] Id.
[148] See,
Sullivan, Review on the Record Below, in Smith, ed., How to Litigate
a Land Use Case, supra, note 62.
[149] Meck,
at 10-81, 10-83; "Local comprehensive plan" is defined in Chapter 3
of the Guidebook.
[150] Id.
at 10-82.
[151] Id.
at 10-82; see section 602(3).
[152] Or.
Rev. Stats. 197.825.
[153] Id.
[154] Or.
Rev. Stats. 197.830(5) – (10).
[155] R.C.W.
§36.70A.280.
[156] Or.
Rev. Stats. 197.850(3)(a).
[157] Or.
Rev. Stats. 197.855(5), (8).
[158] Or.
Rev. Stats. 197.855(9).