Discretion and Certainty: Land Use Regulations and the Vagueness Doctrine
By Jesse DeNike
Jesse DeNike is an associate attorney at McCullough Hill, PS, in Seattle, Washington. McCullough Hill emphasizes zoning, land use, environmental, and real estate development law. G. Richard Hill, a founding principal of McCullough Hill, provided helpful assistance in preparing this article.
I. Introduction
The life of the law has not been logic; it has been experience. . . . [I]t cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him . . . or [is] unintelligible.
The law often balances competing interests. As Justice Holmes argued, one interest is creating laws that reflect and accommodate a society’s shared experiences, rather than requiring rigid, precise rules. But as Professor Fuller urged, another is drafting laws with sufficient clarity to make them intelligible to the average citizen. If the former interest helps explain the prevalence of “reasonableness” standards in the law,3 the vagueness doctrine protects the latter.
This article will review recent cases involving vagueness challenges to state and local land use regulations, illustrating the approaches courts have taken to harmonize these conflicting interests.
II. The Vagueness Doctrine
Described as “the first essential of due process of law”4 and inherent in the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution, the vagueness doctrine invalidates laws that are insufficiently clear.5 “A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.”6
The vagueness doctrine protects several important values. Echoing Professor Fuller, the Supreme Court has explained, “because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.” Yet courts also seek to integrate Justice Holmes’ view that the law is based on experience, not rigid, precise rules. Thus, the vagueness doctrine does not require mathematical certainty but permits flexibility and breadth when it is clear what a law prohibits as a whole.7
Courts recognize several factors that may influence the outcome of a vagueness challenge. First, legislation may be upheld when the challenged terms have previously been construed by a court or administrative agency in such a manner as to remove the alleged vagueness.8 Second, otherwise vague terms may be clarified by turning to the surrounding context and regulations providing additional detail. Third, the presence of procedural safeguards can militate against a vagueness finding by protecting against unlawful delegation.9
III. Land Use Applications
A. Zoning Ordinances
Zoning regulations are one of the few areas in the land use arena where the U.S. Supreme Court has reviewed vagueness challenges. In Young v. American Mini Theatres, Inc. , the operators of two adult movie theaters challenged a city ordinance that provided that, absent a waiver, an “adult theater” may not be located in certain areas.10 The ordinance defined “adult theater” as one that presents “material distinguished or characterized by an emphasis on matter depicting, describing or relating to ‘Specified Sexual Activities’ or ‘Specified Anatomical Areas.’”11 The theater operators argued this ordinance was vague because they could not determine when material is “characterized by an emphasis” on the listed activities, and the ordinance did not provide sufficient guidelines for obtaining a waiver. The Court rejected this challenge, holding “even if there may be some uncertainty about the effect of the ordinances on other litigants, they are unquestionably applicable to these respondents.”12 Because both theaters proposed adult fare on a regular basis and neither offered any ground for claiming an exception, “any element of vagueness in these ordinances has not affected these respondents.”13
In contrast, a property owner was able to show a zoning ordinance was unconstitutionally vague as applied to the use of its property in Burien Bark Supply v. King County.14 Here, county officials ordered the owner to cease use of a bark sorter, stating this use violated the county’s zoning ordinance allowing only “manufacturing and processing in limited degree.”15 The Washington State Supreme Court held the “in limited degree” language vague because the ordinance did not explain how an operation is considered “limited.” Nor did “common practice and understanding” help the ordinance “provide fair notice of what it prohibits.”16 Rather, it “subjected [the owner] to ad hoc interpretations of the law by county officials.”17 In addition, the court noted that the owner purchased the property in reliance on assurances by county officials that its intended use was allowed in the zone, and previous inspections by county officials resulted in conclusions of no zoning violations.18
B. Landmark and Historic Preservation Ordinances
Landmark and historic preservation ordinances have proven especially susceptible targets for vagueness challenges. Many courts have upheld these ordinances against such attacks, while others have found them impermissibly vague.
In Texas Antiquities Comm. v. Dallas County Cmty. College Dist.,19 the Texas Antiquities Committee denied a permit to demolish three buildings owned by a community college, relying on a statute authorizing the Committee to deny permits for the damage or destruction of “buildings . . . of historical . . . interest.”20 The Texas Supreme Court held this statute violated both elements of the vagueness doctrine: it delegated unlawful authority to the Committee to determine which “buildings” were of “historical interest” and it was unconstitutional as applied to the college’s application. The court held the statute provided insufficient guidance because “[a]ll unrestorable structures ordinarily hold some nostalgic tug upon someone and may all qualify as ‘buildings . . . of historical . . . interest.’”21
Similarly, the court in South of Second Assocs. v. Georgetown22 held void for vagueness a town’s historic preservation ordinance that required approval from the local historic preservation commission before the construction or alteration of any structure within the historic district. Here, the commission denied a plaintiff’s application to construct fifty-seven townhouses, stating it adversely affected the “general historical and/or architectural character of the structure or area.”23 The trial court found the “historical and/or architectural character” language unconstitutionally vague, but the Colorado Supreme Court disagreed, holding additional criteria in the ordinance gave “substance” to this language.24 The court, however, did hold the ordinance impermissibly vague in defining the “area” in which an owner’s property is situated because “nowhere in the ordinance is a delineation of the relevant areas to be found.”25 Indeed, evidence showed that even commission members had differing views on the number of “areas” and their boundaries within the district.26
Recently, the Appellate Court of Illinois in Hanna v. City of Chicago27 reversed a trial court decision granting the City of Chicago’s motion to dismiss several counts in a challenge to the Chicago Landmark Ordinance. The appellants, owners of property in two areas designated as landmark districts, alleged the ordinance was vague and delegated legislative authority to the Commission on Chicago Landmarks. On appeal, the court stopped short of declaring the ordinance unconstitutional, merely concluding the allegations in the plaintiffs’ complaints were sufficient to establish a cause of action. But it did use strong language indicating various terms of the ordinance were vague: “We believe that the terms ‘value,’ ‘important,’ ‘significant,’ and ‘unique’ are vague, ambiguous, and overly broad. . . . The City has offered no criteria by which a person of common intelligence may determine from the face of the Ordinance whether a building or district will be deemed to have value or importance . . . .”28
On the other hand, courts have upheld historic preservation ordinances when more specific criteria are contained in the ordinance or are otherwise adopted in the local code. In Metropolitan Dade County v. P.J. Birds, Inc.29 a preservation board designated a tourist attraction as a historic site based on its “exceptional importance.” The owners sought to overturn the designation, arguing “exceptional importance” was impermissibly vague. The court agreed this term was imprecise, but upheld the designation because it was patterned on federal guidelines and the board adopted a definition of “exceptional importance,” which was included in the designating resolution.30
In Kalorama Heights Ltd. P’ship v. District of Columbia Dep’t of Consumer and Reg. Aff., the court upheld a historic preservation ordinance prohibiting the demolition of historic structures unless necessary for a project of “special merit.”31 The court held “special merit,” defined in part as “social or other benefits having a high priority for community services,” was sufficiently definite in light of the overall purpose of the preservation ordinance, and when previous interpretations required such project with “special merit” to have particular benefits to the greater community.32
In several other cases, courts have upheld historic preservation ordinances requiring projects within historic districts to be compatible, congruent, harmonious, and not detrimental to the surrounding historic district, when specific guidelines or other ascertainable standards are provided for making this determination.33
C. Other Land Use Regulations
Vagueness challenges have been brought against several other types of land use regulations. In a context similar to historic preservation, courts have struck down ordinances governing the design of buildings in relationship to the surrounding community. For example, in Anderson v. City of Issaquah , the court held a city’s design review regulations impermissibly vague when they required new buildings to be “compatible” with adjacent structures, suggesting “the use of screens and site breaks or other suitable methods and materials . . . [and] [h]armony in texture, lines, and masses . . . .”34 The court concluded this language provided insufficient guidance to owners and applicants, noting city officials had to drive through the neighborhood to determine when buildings are “compatible” or “harmonious.” As the court explained, “neither [applicants] nor the commissioners may constitutionally be required or allowed to guess at the meaning of the code’s building design requirements by driving up and down [the street] looking at ‘good and bad’ examples of what has been done with other buildings.”35
In an arena touching on First Amendment concerns, the Supreme Court in Lakewood v. Plain Dealer Pub. Co. held invalid a city ordinance granting the mayor unfettered discretion to grant or deny permit applications for installing newsracks on public property.36 The Court rejected the city’s argument that the mayor’s discretion was sufficiently limited by an implicit understanding that permits would only be denied for reasons related to the public health, safety, or welfare: “the limits the city claims are implicit in its law [must] be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice. . . . This Court will not write nonbinding limits into a silent state statute.”37
Courts have considered vagueness challenges to various other types of land use regulations, including nuisance laws,38 enforcement orders,39 noise ordinances,40 and laws restricting the removal of resources from archeological sites.41 When the subject matter of these regulations is familiar and understandable to the average citizen, courts have allowed the use of flexible language and “reasonableness” standards.42 And where technical or scientific matters are at issue, regulations have been upheld when they specifically identify and describe the prohibited conduct.43
IV. Conclusion
Vagueness challenges require courts to ensure that laws provide adequate guidance for citizens to follow, while also providing legislators leeway to draft laws short of mathematical certainty. As the discussion above demonstrates, courts readily invalidate laws that provide local officials with unfettered discretion or when the facts demonstrate officials either cannot adequately interpret the law or have differing opinions as to its meaning and application. On the other hand, courts are hesitant to strike down legislation with explicit and detailed standards, even when couched in imprecise terms.
Endnotes
1. Oliver Wendell Holmes, Jr., The Common Law (Little, Brown, and Co. 1881).
2. Lon L. Fuller, The Morality of the Law (Yale University Press 1969).
3. Louis Menand, The Metaphysical Club 339–47 (2001).
4. Connally v. General Constr. Co . , 269 U.S. 385, 391 (1926).
5. Id. ; Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
6. Hill v. Colorado, 530 U.S. 703, 732 (2000).
7. Grayned, 408 U.S. at 108.
8. See, e.g. , Minnesota ex rel . Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 273–74 (1940); LCP, Inc. v. District of Colum. Alcoholic Beverage Control Bd., 499 A.2d 897, 902 (D.C. 1985).
9. A-S-P Assocs. v. City of Raleigh, 258 S.E.2d 444, 454 (N.C. 1979); Adams v. Dep’t of N.E.R., 249 S.E.2d 402 (N.C. 1978).
10. 427 U.S. 50, 52 (1976).
11. 427 U.S. at 53.
12. Id . at 58–59.
13. Id. at. 59. See also City of Renton v. Playtime Theatres, Inc., 475 U.S 41, 55 n.4 (1986) (holding a city ordinance prohibiting buildings “used” for presenting sexually explicit films from locating within 1,000 feet of certain zones and establishments is not vague “for the same reasons that led us to reject a similar challenge in American Mini Theatres ”).
14. 725 P.2d 994 ( Wash. 1986).
15. Id . at 995.
16. Id . at 996.
17. Id.
18. Id. at 995.
19. 554 S.W.2d 924 ( Tex. 1977).
20. Id . at 927.
21. Id.
22. 580 P.2d 807 ( Colo. 1978).
23. Id. at 810.
24. Id .
25. Id. at 811.
26. Id .
27. No. 1-07-3548, 2009 WL 605361 ( Ill. App. Ct. Mar. 6, 2009).
28. Id. at *5. The City of Chicago has filed a petition for leave to appeal requesting the Illinois Supreme Court to review and reverse this decision. The Illinois Supreme Court has not taken action on this petition as of the time of this writing. Chicago has filed a petition for leave to appeal with the Illinois Supreme Court, requesting the court to review this decision. As of the date of this writing, the court has not taken action on the petition.
29. 654 So. 2d 170 (Fla. Dist. Ct. App. 1995)
30. Id. at 176, 179. See also Kruse v. Town of Castle Rock, 192 P.3d 591 (Colo. Ct. App. 2008) (upholding the validity of an ordinance designating a house as a historic landmark against a vagueness challenge when the house was one of the oldest remaining in the town.)
31 655 A.2d 865 (D.C. 1995).
32 Id . at 873–74.
33. See, e.g. , Palin v. City of Rochester , 765 N.Y.S.2d 550 (N.Y. App. Div. 2003); Bellevue Shopping Ctr. Assocs. v. Chase, 574 A.2d 760, 763 (R.I. 1990); Salvatore v. City of Schenectady, 530 N.Y.S.2d 863, 865 (N.Y. App. Div. 1988); Second Baptist Church v. Little Rock Hist. Dist. Comm’n, 732 S.W.2d 483, 485–86 (Ark. 1987); Mayes v. City of Dallas, 747 F.2d 323, 325 (5th Cir. 1984); Figarsky v. Historic Dist. Comm’n, 368 A.2d 163, 170 (Conn. 1976); Bohannan v. City of San Diego, 106 Cal. Rptr. 333, 338 (Ct. App. 1973); City of Santa Fe v. Gamble-Skogmo, Inc., 389 P.2d 13, 19 (N.M. 1964); Town of Deering ex rel . Bittenbender v. Tibbetts, 202 A.2d 232, 234–36 (N.H. 1964).
34. 851 P.2d 744 (Wash. Ct. App. 1993) (internal citations omitted).
35. Id . at 752. See also City of Tipp City v. Peachey, No. 99-CA-27, 2000 WL 966938 (Ohio Ct. App. July 14, 2000) (ordinance prohibiting property owners in architectural district from effecting a “material change” in their buildings was unconstitutionally vague as applied); Waterfront Estates Dev., Inc. v. City of Palos Hills, 597 N.E.2d 641 (Ill. App. Ct. 1992) (design review criteria prohibiting “inappropriate” or “incompatible” development projects are unconstitutionally vague); R.S.T. Builders, Inc. v. Village of Bolingbrook, 489 N.E.2d 1151 (Ill. App. Ct. 1986) (holding the terms “harmonious conformance,” “inappropriate materials,” “durable quality,” “good proportions,” “exposed accessories,” and “monotony of design” provide insufficient guidance); Pacesetter Homes, Inc. v. Village of Olympia Fields, 244 N.E.2d 369 (Ill. App. Ct. 1968) (ordinance requiring a committee to consider “excessive similarity, dissimilarity, or inappropriateness in exterior design and appearance of property” conferred unconstitutionally broad discretion).
36. 486 U.S. 750 (1988).
37. Id. at 770 (citations omitted).
38. Commonwealth v. Can-Port Amusement Corp., 19 Mass. L. Rep. 562 (2005) (rejecting adult theater owner’s claim that “lewd” in nuisance statute was unconstitutionally vague).
39. Dykstra v. Municipality of Anchorage, 83 P.3d 7 (Alaska 2004) (holding language that allows only “accessory” parking is not impermissibly vague, but that an owner was not provided with notice of what action the city expected him to take to avoid sanctions for noncompliance with enforcement order).
40. Stevens v. Matanuska-Sustina Borough, 146 P.3d 3 (Alaska Ct. App. 2006) (noise ordinance placing time and space limits on amplified noise that “annoys or disturbs a reasonable person of normal sensitivities” is not impermissibly vague).
41. State v. Lightle, 944 P.2d 1114 (Wash. Ct. App. 1997) (state statute prohibiting the removal of archeological objects from any archeological resource or site was not unconstitutionally vague when an archeologist had identified the excavation area as an Indian Burial site).
42. See notes 36–38 above.
43. See Lightle, 944 P.2d at 1114.
