American Bar Association
Section of State and Local Government LawState and Local Law News
Vol. 24, No. 1, Fall 2000
Recent Developments
By Peter A. Buchsbaum
In this era of smart growth and concerns about creeping suburbanization, growth management cases have become a dominant theme in the case law.
Moratoria—Temporary Takings—Per Se Test
In one very closely watched case, the Ninth Circuit reversed the federal district court’s determination that a thirty-two month moratorium, which suspended development pending formulation of a regional plan for Lake Tahoe, was a per se taking. The appellate court analogized moratoria to restrictions on the use of only a portion of a piece of land. Since such restrictions did not totally destroy a property’s beneficial value unless unduly prolonged, they did not come within the per se Lucas rule requiring compensation. Because plaintiffs had conceded that their claims did not meet the Penn Central balancing test for a partial taking and because they challenged the moratorium on its face and not as applied, they lost.
This precedent makes it difficult for landowners to win damages against zoning moratoria, when they are enacted in good faith and with some reasonable basis. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 68 U.S.L.W. 1779, 2000 WL 770512 (9th Cir. June 15, 2000). To paraphrase Abraham Lincoln, takings law now appears to be: you can take some of the sticks (in the property rights bundle) all of the time (Penn Central, Keystone), or take all of the sticks some of the time (Tahoe, above), but you can’t take all of the sticks all of the time (Lucas).
Moratoria—Limitation on Building Permits
The Home Builders Association of Maine sued the Town of Elliot, Maine, which had adopted a building permit limit of forty-eight such permits per year, alleging that the limitation constituted a development moratorium forbidden by state statute. While the court agreed with the builders that a permanent limitation on development could be a moratorium, it held that the forty-eight unit limit was not a moratorium because it did not stop all development. Critically, the court noted that the cap had been reached only five times in twenty years, and that the town had increased the cap twice to meet growth demands. Home Owners Association of Maine, Inc. v. Town of Elliot, 750 A.2d 566 (Me. 2000), digested in Land Use L. Rep. 118 (July 19, 2000).
Business Closure—Drug Nuisance Law—Unconstitutional Taking
In a contrasting type of case involving suspension of a land use, the Washington Court of Appeals recently held that the state drug nuisance law mandating a one-year business closure on premises, in this case, a bar, used for the sale of illegal drugs constituted a temporary taking for which damages would be awarded. The bar in question had cooperated with the police but then, unbeknownst to the owners, the department employed confidential informants to make drug buys on the premises. Although finding the owners had tried to address the drug dealing issue and had not permitted the nuisance, the trial court shut the bar down. On appeal, the intermediate appellate court found an as applied taking. Further, citing the Restatement of Torts as to nuisances, the court found that the city had not met the nuisance exemption to the compensation requirements of the Fifth Amendment since the owners did not have knowledge of the nuisance. City of Seattle v. McCoy, 997 P.2d 985 (Wash. Ct. App. 2000), digested in Land Use L. Rep. 99 (June 21, 2000).
The connection between religion and land use has also become an increasingly fertile field for litigation and legislation. Congress is considering H.R. 1691, the Religious Liberty Protection Act of 1999, which seeks to overcome the holding of City of Boerne v. Flores, 521 U.S. 507 (1997), where the Supreme Court held that Congress, under the guise of enforcing the First and Fourteenth Amendments, could not force local regulation of religious uses to pass a compelling state interest test.
Religious vs. Adult Uses—Sensitive Use Veto—First Amendment
Some regulatory systems are simply too cute to pass muster. Simi Valley, the home of the first Rodney King trial, adopted an ordinance that forbade all adult uses within 1,000 feet of religious uses. A procedural quirk was that applications for adult uses took time to process, while zoning permits for religious uses could be granted over the counter on the day of application. It so happened that on the very day that an applicant for an adult use had his application declared complete, an over the counter permit for a nearby adult bible class was granted to an institute headed by the president of the Simi Valley Board of Education, an avowed opponent of the adult use. In response, the Ninth Circuit held this effective veto over the issuance of a special use permit to adult businesses unconstitutional, since it delegated to private parties the power to ban protected forms of expression. Young v. City of Simi Valley, #97-56484 (9th Cir. June 20, 2000), digested in Land Use L. Rep. 117 (July 19, 2000).
Churches—Exemption from Local Land-Use Regulation
Since Congress may not have the power, as suggested above, to exempt churches from local land-use regulations, do the states have that power? In a Belmont, Massachusetts case, the neighbors of a proposed Mormon Church attacked a state law exempting religious uses from most local use regulations, alleging that the law established religion in violation of the First and Fourteenth Amendments. Had this challenge been successful, neither the federal government under the City of Boerne case, nor the states, would have been able to exempt churches from local zoning use regulations. However, the First Circuit, in a 2 to 1, ruling rejected the challenge. The majority noted the statute’s origin in 1950 as an anti-discrimination device enacted in response to a local law that sought to ban religious schools in residential neighborhoods. It found that the statute thus furthered implementation of the Free Exercise Clause of the federal Constitution. The court also found that the exemption from use requirement still left churches subject to reasonable bulk regulations designed to provide compatibility where feasible with a residential community. Boyagian v. Gatzunis, #99-1760 (1st Cir. May 2, 2000), digested in Land Use L. Rep. 91 (June 7, 2000) (petition for rehearing pending).
Another continuing favorite subject is the Telecommu-nications Act. Enhancing the significance of this statute, the Eleventh Circuit recently held that a successful communications carrier could not only win the right to build, but it also could obtain compensatory damages and attorney fees under 42 U.S.C. §§ 1983 and 1988. The court found that the rights created by the Telecommunications Act were clearly designed to benefit carriers and were quite specific. Further, nothing in that act precluded § 1983 remedies, including damages and attorney fees. Accordingly, plaintiff AT&T Wireless could get damages and counsel fees as well as a writ of mandamus ordering a permit to construct its tower. AT&T Wireless PCS, Inc. v. City of Atlanta, #99-12261 (11th Cir. April 26, 2000), digested in Land Use L. Rep. 93 (June 7, 2000).
Finally, two matters of interest to land-use afficionados. The South Carolina Supreme Court has joined the majority of eastern states in declaring that land-use decisions are not subject to referenda. As in New Jersey and Michigan, the South Carolina court held that detailed nature of zoning enabling acts precluded use of referenda to make land-use decisions. I’On, LLC v. Town of Mt. Pleasant, 526 S.E.2d 716 (S.C. 2000). Also, watch that variance. An unrecorded variance condition unknown to the property owner can be enforced without creating a taking since it is the part of the bundle of property rights acquired by the owner, even if the owner had not been aware of the condition upon purchase. Metropolitan Development Commission of Marion County v. Schroeder, 727 N.E.2d 742 (Ind. Ct. App. 2000).
Once again, I encourage all of you to send me your interesting or even bizarre cases. Thanks this month to Tom Roberts of Wake Forest Law School, who co-authored an amicus brief in the Tahoe case, for bringing that matter up.
Peter A. Buchsbaum practices law with Greenbaum, Rowe, Smith, Ravins, Davis & Himmel in Woodbridge, New Jersey.
State & Local Law News home page | Table of Contents
State and Local Government Law home page
ABA Network home page