Chapter 10
ZONING AND OTHER PUBLIC LAND-USE CONTROLS
I. THE "TAKING" CLAUSE, AND LAND-USE CONTROLS AS IMPLICIT TAKINGS
A. The "Taking" Clause generally: State and federal governments may take private property for public use — this is the power of "eminent domain." However, the Fifth Amendment to the U.S. Constitution provides that "private property [shall not] be taken for public use, without just compensation." This is the so-called "Taking" Clause, made binding on the states by means of the Fourteenth Amendment.
1. Land-use control as taking: Normally, land-use controls will not constitute a taking for which the government must pay compensation. But very occasionally, a regulation may so drastically interfere with the private owner’s use of his property, or with the value of that property, that the court will conclude that there has been an implicit "taking."
2. Damages vs. injunction: If the court does find an implicit "taking," it will award one or both of the following remedies: (1) it will strike down the regulation, i.e., enjoin the government from enforcing it any more; or (2) it will award damages to the owner for his lost use or value.
B. Taking/regulation distinction: If the state merely regulates property use in a manner consistent with the state’s "police power," then no compensation needs to be paid, even though the owner’s use of his property or even its value has been substantially diminished. Thus zoning regulations, environmental protection rules, landmark preservation schemes, etc., will usually not constitute a compensable "taking." But if the regulation goes too far, it will become a "taking" even though the state calls it a regulation. Here are some of the principles the courts look to to decide whether a regulation has become a compensable "taking":
1. Substantial advancement of legitimate state interests: The land regulation
will be a taking unless it "substantially advances legitimate state interests."
a. Broad range of legitimate interests: A broad range of governmental purposes constitute "legitimate state interests." These include maintaining residential uses (often done by zoning), preserving landmarks, protecting the environment, etc.
b. Tight means-end fit: There must be a fairly tight fit between the state interest being promoted and the regulation chosen (more than a mere "rational relation" between means and end).
2. Deprivation of all use: If a regulation is found to deny the landowner of all economically viable use of his land, this will make the regulation a "taking." (Example: Regulations prevent a particular owner of vacant land from building any structure on the property. This will probably deprive him of all economically viable use, and will thus be a compensable taking unless necessary to serve some overriding governmental interest, such as prevention of flooding or erosion.)
3. Physical use: If the government makes or authorizes a permanent physical occupation of the property, this will automatically be found to constitute a taking. (Example: The state orders O to give the public a permanent easement across his property so that the public can get to a beach — this would be a permanent physical occupation, automatically amounting to a compensable taking.)
4. Diminution in value: The more drastic the reduction in value of the owner’s property, the more likely a taking is to be found. This "diminution in value" standard is probably the single most important factor. (Example: Particular land is valuable mostly for the coal to be found under it. The state bars the owner of the mineral rights from doing any coal mining under the land. Held, the value of the mining rights was so completely impaired as to amount to a taking.)
5. Prevention of harm: A taking will probably not be found where the property use being prevented is one that is harmful or "noxious" to others. (Example: A zoning ordinance may properly prevent the operation of a steel mill in the middle of a residential neighborhood.)
C. Damages for temporary taking: If a land-use regulation is so broad that it constitutes a taking, the owner may bring an "inverse condemnation" suit. Under such a suit, he may receive damages for the temporary taking (temporary because the regulation is struck down by the court). See First English Evangelical Lutheran Church v. L.A. County.
II. ZONING
A. Generally: The main type of public land-use regulation is zoning. Zoning is generally done on the local, municipal, level. The municipality’s power to zone comes from the state "police power," or power to act for the general welfare, which is delegated by state statute to the municipality.
1. Use zoning: Most zoning is "use zoning," by which the municipality is divided into districts, in each of which only certain uses of land are permitted (e.g., a residential-only district, a commercial district, etc.)
2. Density controls: Other zoning laws govern the density of population or construction. Thus a town might establish a minimum lot size for single-family homes, minimum set-back requirements (requiring a certain amount of unbuilt land on some or all sides of the structure), minimum square footage for residences, and height limits.
1. Constitutional limits: Several different federal constitutional provisions may limit a city’s ability to zone in a particular manner:
a. Taking Clause: First, the Fifth Amendment’s "Taking" Clause means that if a zoning regulation is so overreaching that it deprives the owner of all economically viable use of his land, or is not substantially related to some legitimate public purpose, the zoning will be treated as a taking for which compensation must be paid. (See the discussion of the Taking Clause above.)
b. Procedural due process: The Fourteenth Amendment’s Due Process Clause imposes certain procedural requirements on the zoning process. For a zoning action that is administrative rather than legislative (e.g., the granting of a variance or special-use permit for a particular property), an owner is entitled to a hearing, an impartial tribunal, and an explanation of the government’s decision.
c. Substantive due process: If the zoning law fails to bear a rational relation to a permissible state objective, it may violate the substantive aspect of the Due Process Clause. (Example: A zoning law that limits a district to single-family occupancy, and defines "family" so as to exclude most extended families, violates substantive due process. See Moore v. City of East Cleveland.)
d. Equal protection: A zoning law that is adopted for the purpose of excluding racial minorities will trigger strict judicial scrutiny, and will probably be found to be a violation of the Equal Protection Clause of the Fourteenth Amendment.
2. Aesthetic zoning: Most courts hold today that aesthetic considerations may constitute one factor in a municipality’s zoning decision. But aesthetics may not be the sole factor. (Example: A city provides that only Georgian Colonial-style houses may be built, because these structures are the most beautiful. A court would probably strike down this regulation on the grounds that although aesthetics may be one factor, they may not be the sole factor.)
1. Bodies involved in: Several governmental bodies generally get involved in zoning:
a. Town council: The zoning code is enacted by the municipal legislature. Usually this is the town council.
b. Board of zoning appeals: A "board of adjustment" or "board of zoning appeals" usually exists to award or deny variances, and to hear appeals from the building department’s enforcement of the zoning laws.
c. Planning or zoning commission: The town council generally appoints a planning commission or zoning commission. The commission generally advises the town council on (but does not independently determine) the contents of the zoning code.
2. Variances: Virtually all zoning ordinances have a provision for the granting of variances, i.e., relief in a particular case from the enforcement of an ordinance.
a. Requirements for: Most states impose these requirements for a variance: (1) denial would result in "unnecessary hardship" to the owner; (2) the need for the variance is caused by a problem unique to the owner’s lot (not one shared by many lots in the area); and (3) the variance would not be inconsistent with the overall purpose of the ordinance, or inconsistent with the general welfare of the area.
3. Special uses: Zoning ordinances also usually provide for "special use" permits. Typically, a special use permit must be obtained for such things as private schools, hospitals and churches. Generally, an applicant is not entitled to a special use permit "as of right," but only in the discretion of the zoning board; however, usually no showing of "special hardship" has to be made (as is the case for a variance).
4. Conditional zoning: Many ordinances provide for "conditional" zoning. Under this device, the rezoning of a particular parcel is made subject to the developer’s promise to comply with certain conditions, which will protect neighbors. (Example: O owns a parcel in an area zoned residential-only. If the ordinance allows for conditional zoning, the town might rezone O’s parcel for light industry, but only if O agrees to large set-backs, a low floor-space-to-land-area ratio, or other condition.)
5. Non-conforming uses: When a zoning ordinance is enacted or made more stringent, the pre-existing uses that are now banned by the ordinance are called "non-conforming uses." Virtually all ordinances either: (1) grant a non-conforming user a substantial period within which he may continue his use; or (2) let him continue that use indefinitely.
a. Constitutional issue: Probably it would be a violation of an owner’s due process or other constitutional rights for him not to be given at least a substantial period within which to phase out the non-conforming use.
b. Amortization: If the ordinance does give an owner a substantial period to phase out his use (called an "amortization" provision), most courts hold that no violation of the owner’s constitutional rights results from the fact that he must eventually cease the non-conforming use.
D. Exclusionary zoning: "Exclusionary zoning" is the use of zoning laws to exclude certain types of persons and uses, particularly racial and ethnic minorities and low-income persons.
1. Examples of exclusion: A town might exclude certain types of people by putting tight restrictions on the kinds of allowable residential uses. Thus a high minimum-acreage requirement, a ban on multiple dwellings, a ban on mobile homes, or a ban on publicly-subsidized housing are all ways a town could try to keep out poor people (and, to the extent that blacks, say, are on average poorer than whites, a way to keep out black people).
2. Equal Protection law: Exclusionary zoning may be attacked as a violation of the Equal Protection Clause of the U.S. Constitution. An equal protection argument has the best chance of success when it argues that a town is discriminating on the basis race or national origin, since these are "suspect classes"; an attack based on the claim that the town is discriminating against the poor will probably not succeed (because poverty is not a suspect class).
a. Effect vs. purpose: Also, the plaintiff in an equal protection case will probably only win if the court applies "strict scrutiny" to the ordinance. This, in turn, will happen only if the court believes that the town acted with the purpose of discriminating on racial or ethnic grounds, not if the ordinance merely has the effect of making it harder for minorities to live there.
b. Standing: The standing requirements for an equal protection attack in federal court are very difficult. In most instances, P will have to prove that: (1) the zoning rules have prevented a particular project from being built on particular land; and (2) P would probably become a resident of the housing if the zoning limit were overturned and the project built.
3. Federal statutory suits: Zoning may also be attacked in federal court suits based on federal statutory law, especially the Fair Housing Act. Zoning enacted for the purpose of limiting access by racial or ethnic minorities violates the Act.
a. Effect vs. purpose: In a Fair Housing Act suit, P does not have to show a discriminatory purpose behind the zoning enactment. Instead, he merely has to show a discriminatory effect; then, the burden shifts to the defendant town to show that its enactment serves legitimate governmental interests rather than discriminatory ones.
4. State case law: A number of states, by case law, have held that zoning may not be used to exclude the poor.
a. Mt. Laurel cases: The most important such cases are the two Mt. Laurel cases, in which the New Jersey Supreme Court held that a town must allow its "fair share" of the region’s demand for low and middle-income housing See
III. REGULATION OF SUBDIVISION AND GROWTH
A. Subdivision regulation: Towns often extensively regulate the process of subdivision. This is the process of dividing a parcel into two or more smaller ones, for resale to different purchasers.
1. Sewers and water mains: For instance, towns usually have detailed requirements that the developer put in water mains, sewers, gutters, and other drainage facilities.
2. Street design: Similarly, towns regulate street design, and require the developer not only to furnish the land for streets, but to build the streets himself.
B. Growth control: Towns and regions also sometimes attempt to regulate their rate of growth (or the sequence in which the various parcels of land are developed).
1. Generally upheld: Generally, growth-control regulations are upheld so long as they are reasonable. For instance, a town would probably be entitled to prevent premature subdivision and "urban sprawl" by prohibiting residential construction unless various public facilities (e.g., schools, parks, roads, firehouses, sewers, etc.) were in place first.
a. Moratoria and limits: In fact, a town ordinance will probably be upheld if it tries to place an absolute limit on the number of new units that will be constructed during a particular time period. Even a complete moratorium on new residential or commercial construction might be upheld if this was a reasonable way of achieving an important local government goal (e.g., avoiding strain on roads or other public facilities).
IV. HISTORICAL AND ENVIRONMENTAL PRESERVATION
A. Historical preservation: Municipalities often try to protect buildings or districts of great historical or architectural interest.
1. Districts and landmarks: Sometimes, an entire historical district is protected. (For instance, the French Quarter in New Orleans is protected because of its great age, uniformity and architectural significance.) Alternatively, sometimes a particular structure will be protected because of its historical or architectural significance. In either event, historical preservation schemes generally prohibit the owner from altering or demolishing the building without a special permit.
2. Generally upheld: A historic preservation ordinance will generally be upheld so long as: (1) it gives reasonably precise standards to the board charged with enforcement, so that the board does not behave in an arbitrary or discriminatory manner; and (2) it does not constitute a "taking" without compensation, in violation of the Fifth Amendment.
a. Taking: The owner’s best chance of attacking a scheme is by arguing that it deprives him of all economically viable use of his land, without compensation, in violation of the Fifth Amendment’s Taking Clause. But even such arguments are hard to win. For instance, in the Penn Central case, the Supreme Court held that a New York City ordinance preventing major changes to Grand Central Terminal, but allowing the owners to continue their present use of the property (as a terminal with office space above it) did not amount to a taking. (But a prohibition on all development of a building beyond the current use might be found to deny the owner all economically viable use of the property, in which case the preservation scheme would be a taking for which compensation must be paid.)
b. Transferable Development Rights (TDRs): Some ordinances avoid "taking" problems by giving the owner "Transferable Development Rights" or "TDRs," by which he may transfer his development rights from the preserved building to other nearby parcels. If in the particular real estate market the TDRs have substantial economic value, this may turn what would otherwise be a "taking" (because the owner is deprived of all economically viable use of his land) into a non-taking.
B. Environmental preservation: Towns and regions also frequently attempt to protect the environment. Of special interest are regulations that attempt to maintain open areas by limiting or prohibiting certain kinds of development.
1. Urban park land: Occasionally, a city may prohibit the development of privately-owned urban park land. But prohibiting all development of otherwise-valuable vacant land in the middle of a downtown area is likely to constitute a compensable "taking," because the owner is being deprived of all economically viable use of his land. (But the problems might be eased by allowing TDRs, as discussed above.)
2. Wetlands and coastlands: More frequently, towns and regions try to limit or prohibit development on wetlands and coastland. By and large, such preservation schemes have been upheld, on the grounds that preservation of these areas is a goal of great social importance, outweighing the landowner’s interest in land development. (But a permanent ban on development might be a compensable "taking," unless the government shows that construction would be dangerous, as in the case of a coastal area subject to heavy flooding and erosion.)
A. Generally: State and federal governments have the power of eminent domain, i.e., the power to take private property for public use. Usually this is done through condemnation proceedings, in which the government brings a judicial proceeding to obtain title to land that it needs for some public use. Alternatively, the government occasionally simply makes use of a landowner’s property without bringing formal condemnation proceedings; here, the landowner may bring an "inverse condemnation" action, in which he seeks a court declaration that his property has been taken by the government and must be paid for. The two requirements for the government to use its eminent domain power are: (1) the property must be put to a "public use"; and (2) "just compensation" must be paid.
B. "Public use": The requirement of "public use" (imposed by the Taking Clause of the Fifth Amendment) is very loosely interpreted. So long as the state’s use of its eminent domain power is "rationally related" to a "conceivable public purpose," the public-use requirement is satisfied. (Example: Hawaii condemns lots owned by large landowners, and transfers them to the tenants living on them. Held, because there was tremendous inequality in land ownership in Hawaii, this scheme was a rational attempt to remedy a social and economic evil, and therefore satisfied the "public use" requirement. Hawaii Housing Authority v. Midkiff.)
1. Urban renewal: Thus as part of an urban renewal project, a city may condemn private land, then turn it back to a private developer for private use. (The renewal program meets the "public use" requirement even if the particular parcel condemned is not a slum.)
C. "Just compensation": In general, the requirement of "just compensation" means that the government must pay the fair market value of the property at the time of the taking.
1. Highest and best use: This fair market value is usually based on the "highest and best use" that may be made of the property (at least under current zoning regulations). Thus if a vacant parcel is zoned for subdivision, the value that must be paid is the value the land would have to a subdivider, not the value based on the current rental value of vacant land.