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.

II. Land Use Procedure Generally - The Three Waves of Model Land Use Legislation

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.

IV. Reforming Local Procedures

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.