CHAPTER 1 OVERVIEW OF LAND USE REGULATION
| Jurisdiction | United States |
(May 1995)
OVERVIEW OF LAND USE REGULATION
University of Denver College of Law Rocky Mountain Land Use Institute
Denver, Colorado
Table of Contents
I. Overview of Changes In Nature of Local Land Use Regulation
II. Overview of Legal Issues Involved In Local Land Use Regulation
III. Overview of Early Land Use Regulation
IV. Overview of Traditional Euclidean Zoning
V. Overview of Modern Regulatory Techniques
VI. Glossary of Regulatory Terms and Phrases
I. OVERVIEW OF CHANGES IN NATURE OF LOCAL LAND USE REGULATION
A. Increasing Recognition By Local Governments Of Potential Benefits Of Land Use Regulation
B. Expanded Scope Of Public Purposes Embraced By Local Land Use Regulation
C. Increasing Regulatory Focus On Site-Specific Nature And Impact Of Particular Development Applications
D. Increasing Utilization Of Discretionary Review Process For Development Applications Using Subarea Plans, Performance Standards, Impact Review Studies, And Site-Specific Conditions
E. Increasing Citizen Participation And Politicization Of Development Review Process
F. Increase In Intensity, Complexity, Cost Impact, And Uncertainty Of Regulatory Process
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II. OVERVIEW OF LEGAL ISSUES INVOLVED IN LOCAL LAND USE REGULATION
A. State Law Issues
a. Procedural Regularity: Whether the local authority exercised was pursuant to procedures required by statute or ordinance.1
b. Substantive Authority: Whether the local government possesses the statutory or home rule authority to engage in the particular regulatory action involved.2
b. Vested Rights and Estoppel: Whether a development application may be subject to newly adopted changes in regulatory restrictions or conditions.3
c. Preemption of Local Authority: Whether local regulation in a particular context is preempted by state or federal law.4
d. Legal Validity and Reasonableness of Regulatory Decisions: Whether applicable legal standards were correctly applied and substantial evidence in the hearing record supports a decision's findings.5
B. Constitutional Issues
a. Due Process as Applied: The requirement of substantive due process is that there must be some reasonable basis to believe that a regulation will promote the general welfare (some legitimate public purpose). A regulation may be arbitrary and unreasonable "as applied" under the facts and circumstances of a particular case. When analyzing the due process "reasonableness" of zoning restrictions and decisions, courts increasingly consider whether the zoning action in question is supported by the municipality's comprehensive land use plan or other planning studies and data. While courts continue to hold that a city council generally need not follow the recommendations of planning professionals, courts consider such advice and consistency with the city's comprehensive land use plan important factors in determining the reasonableness of zoning action. Zoning restrictions may be held invalid due to poor planning and insufficient supporting data. Numerous state court
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decisions each year hold land use classifications, restrictions and conditions "unreasonable as applied."6
b. Equal Protection: The requirement of equal protection of the laws "generally" is held to prohibit only "invidious discrimination" — legislative classifications or different regulatory treatment lacking any supporting rational basis in fact or logic. Laws may accord different treatment of different persons under the same or identical circumstances so long as there is some reasonable basis for such differing treatment in view of the purposes to be furthered by regulation. Each year numerous state court decisions hold that regulation violates equal protection due to the different regulatory treatment of similar lands or uses.7
C. Taking Claims
a. A regulation of land use may go "too far" and constitute a regulatory taking of private property requiring the payment of just compensation to the affected private owner.8 However, since all property is owned subject to the exercise of the police power by the state to protect and promote the public welfare, a police power restriction on the use of land, will not ordinarily be held unconstitutional simply because it reduces or destroys a part of the use value or development potential of the land.
1. It is not a "taking" simply because a regulation has substantially reduced the market value of land.
2. It is not a "taking" simply because regulation does not allow an owner to put land to its highest and best (most profitable) use.
3. Possible successful regulatory taking claims discussed below include: (a) denial of any "economically viable use" taking analysis; (b) "physical occupation" taking analysis; and (c) "benefit-extraction" taking analysis.
a. Economically Viable Use Analysis
Courts generally hold that regulation of the use and development of land that furthers some legitimate public purpose will not constitute a taking so long as the regulation, as applied, does not deny the owner some "economically viable" use of the property. As a standard for validity, this
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analysis focuses on the nature and extent of an owner's economic loss in view of an owners' legitimate investment-backed expectations. It also reflects the rationale that, as a matter of fairness and justice, regulation which denies an owner all beneficial and economically viable use of the land has gone "too far" since, in such a case, the owner's share in the common benefit secured to all as a result of regulation is insufficient consideration and compensation to the owner in view of the extent of the owner's loss. Presumably, so long as regulation does not interfere with an economically viable presently existing use of the land, it is unlikely to be held confiscatory.9
Nuisance/Noxious Use Defense: The U.S. Supreme Court in 1992 held that once an owner demonstrates denial of all economically viable use the burden shifts to the state to demonstrate that the regulation is justified under state law "property and nuisance principles" as necessary to prevent substantial harm to the public welfare.10
— cannot rely on simply "legislative findings"
— regulation cannot be unduly restrictive (citing Restatement 2d of Torts)
b. Physical Occupation Analysis
In recent years the U.S. Supreme Court has developed a per se taking doctrine applicable to attempts by the government, through regulation, to interfere with an owner's possessory interest in excluding others from his property. Under this line of analysis, a taking may be found when regulation results in a permanent physical invasion of private property or an interference with an owner's right to exclude others from his property which disturbs his reasonable investment backed expectations.11
c. Benefit Extraction Analysis
Court decisions involving land use regulation also reflect a further line of taking analysis which may fairly be said to embody the principle that a taking occurs when a landowner is uniquely burdened with a loss resulting from regulation which is clearly designed to secure some public benefit that, as a matter a fundamental fairness and justice, should be paid
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for by the public as whole. This line of analysis is, in effect, "pure taking" analysis based on the principles of fairness and justice embodied in the taking clause and reflects the idea that owners of land may not be singled out by regulation as simply convenient targets of opportunity for dealing with community problems. This line of analysis is reflected in many state court decisions and at least in the language, if not always in the results, of U.S. Supreme Court decisions.12
— reverse spot zoning ("pure taking" analysis applied in a variety of land use regulatory contexts)13
— development conditions (Nollan and Dolan nexus tests)14
III. OVERVIEW OF EARLY LAND USE REGULATION
As an inherent attribute of governing authority, the police power antedates the federal constitution. Even during early colonial times, the police power was exercised to control the development and use of land. While early development largely mirrored a landschaft agricultural and spatial order, local management of small towns in New England often adjusted private land use and enterprise to community ends.15 Building and farming sites were restricted by land committees, and local ordinances banned wooden chimneys and thatch roofs as fire hazards.16 There were even town ordinances, resembling today's zoning restrictions on occupancy of single-family dwellings, prohibiting the sheltering of strangers without the permission of town officials.17 However, this close-knit early colonial ordering of small town life, was, by the eighteenth century, overtaken by the chaos of an increasingly individualistic, market-oriented agriculture and by the rise in importance and size of mercantile cities.
In colonial cities such as Boston, Salem and Charleston, laws enacted by the end of the seventeenth century controlled the location of slaughterhouses and distilleries, and the business premises of chandlers and couriers, and potters' kilns were added to the list by 1741.18 However, city planning, when it did exist, during the colonial period and thereafter, largely focused on serving mercantile capitalism and generally involved no more than the laying out of a rectangular grid of streets with occasional setback requirements near waterways and major streets.19 There was little or no attempt to regulate land uses by districts nor to control the private subdivision of land and the laying out of new private streets. In the absence of limitations imposed by covenants between landowners or by sanctions against common law nuisances, the use of land and the bulk, type, and design of buildings thereon were dictated solely by the economics of the marketplace.
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By the 1840s, American...
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