Chapter 23 Land Use Moratoria

• Library: The Zoning and Land Use Handbook (ABA) (2016 Ed.)

Chapter 23 Land Use Moratoria

A land use moratorium is a temporary suspension on the issuance of building and other development permits in order to allow a local government reasonable time to study and make considered decisions regarding the need to adopt or amend comprehensive land use plans, zoning ordinances, or other land-use regulation, and to avoid the pressure of applicants rushing to submit permit requests before new, and often stricter, regulations are put into place.¹

A moratorium on a development may take place for a variety of reasons. It may be necessary because of a lack of infrastructure, that is, adequate sewer and water facilities.² The cases generally find that there is an implied authority to adopt a moratorium.³ It is important to note that in adopting a moratorium it is also necessary to follow the proper notice and hearing requirements that would follow an amendment to a zoning ordinance since the moratorium is, in effect, a limitation on the applicability of the zoning code.⁴

A good definition of a land use moratorium is set forth as follows:

A land use moratorium is a local enactment which temporarily suspends a landowner's right to obtain development approvals while the community considers and potentially adopts changes to its comprehensive plan and/or its land use regulations to address new circumstances not addressed by its current laws.
A moratorium on development therefore preserves the status quo while the municipality updates its comprehensive plan [or its zoning ordinance]. A moratorium is designed to halt development temporarily, pending the completion and possible adoption of more permanent, comprehensive regulations.⁵

In Tahoe-Sierra Preservation Council, Inv. v. Tahoe Regional Planning Agency,⁶ the U.S. Supreme Court came to grips with a moratoria on development which covered a 32-month period. In that case, the Tahoe Regional Planning Agency (TRPA) imposed two moratoria, totaling 32 months on development in the Lake Tahoe basin while it formulated a comprehensive land use plan for the area. The plaintiffs, who were real estate owners affected by the moratoria, filed suit claiming that TRPA's actions constituted a taking of their property without just compensation. The district court had found that TRPA had not effected a "partial taking" under the analysis set out in Penn Central Trans. Co. v. N.Y. City.⁷ However, it concluded that the moratoria did constitute a taking under the rule announced in Lucas v. South Carolina Coastal Council,⁸ because TRPA temporarily deprived petitioners of all economically viable use of their land. The Ninth Circuit Court of Appeals reversed, holding that Lucas did not apply because this is a "temporary" deprivation of the use of the land and not a permanent denial of all productive use of the entire parcel.

The court in Tahoe-Sierra Preservation Council stated the following:

In rejecting petitioners' per se rule, we do not hold that the temporary nature of a land-use restriction precludes finding that it effects a taking; we simply recognize that it should not be given exclusive significance one way or the other.
A narrower rule that excluded the normal delays associated with processing permits, or that covered only delays of more than a year, would certainly have a less severe impact on prevailing practices, but it would still impose serious financial constraints on the planning process. Unlike the "extraordinary circumstance" in which the government deprives a property owner of all economic use, Lucas, 505 U.S., at 1017, 112 S. Ct. 2886, moratoria like Ordinance 81-5 and Resolution 83-21 are used widely among land-use planners to preserve the status quo while formulating a more permanent development strategy. In fact, the consensus in the planning community appears to be that moratoria, or "interim development controls" as they are often called, are an essential tool of successful development.⁹

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It may well be true that any moratorium that lasts for more than one year should be viewed with special skepticism. But given the fact that the District Court found that the 32 months required by TRPA to formulate the 1984 Regional Plan was not unreasonable, we could not possibly conclude that every delay of over one year is constitutionally unacceptable.¹⁰

The U.S. Supreme Court, therefore, has rejected any "bright line" rule in measuring the duration of a moratorium and has, instead, adopted the Penn Central approach of determining what is fair and reasonable within the context of the property owner's reasonable investment backed expectations and the need for the moratorium in light of sufficient time needed for sensible planning decisions.¹¹

A number of state courts have held that the authority to impose a moratorium on development "is embraced within the more general police power delegated by a zoning enabling statute or home rule municipal charter."¹²

In addition, express statutory authority for moratoria exists in several states.¹³ Such statutes "may specify the type of ordinance permitted, the grounds therefor, the period of time for effectiveness, and procedures for enactment."¹⁴

A. Valid Circumstances for Moratoria

Generally, courts will uphold moratoria on development that have a valid public purpose.¹⁵ For example, courts typically find moratoria valid when they are used to support a municipality in preparing or amending a comprehensive plan or zoning ordinance.¹⁶

Another common purpose for moratoria is to address problems related to public services, such as water, sewer, or other public infrastructure improvement.¹⁷

On the other hand, courts will not uphold a moratorium that is not reasonably formulated to advance its otherwise valid public purpose.¹⁸

Likewise, moratoria that are instituted in bad faith or for discriminatory purposes will be deemed invalid.¹⁹

Notably, statutes enabling the imposition of moratoria may limit the circumstances under which they can be used. For example, in New Jersey, "[t]he prohibition of development in order to prepare a master plan and development regulations is prohibited."²⁰

B. Duration

In general, courts apply a reasonableness standard when determining whether the duration of a particular moratorium is permissible.²¹ Accordingly, there is no specific threshold for when a court will find a moratorium unreasonably long.²² Furthermore, even in the context of an unconstitutional "taking" of property claim, there is no bright-line rule.²³

In accordance with the reasonableness standard, courts have upheld a range of durations for moratoria.²⁴

Notably, courts may hold the length of a moratorium to be unreasonable where "it appears that the municipality is not actually carrying out its planning process and attempting in good faith to address the cause of the moratorium."²⁵ In addition, unnecessarily long or repeatedly extended moratoria are likely to fail.²⁶ In addition, unnecessarily long or repeatedly extended moratoria are likely to fail. Finally, where there is statutory authority for moratoria, the statutes may expressly limit the permissible duration. For example, in Washington State, moratoria are limited to six months with the possibility of extension and renewal under certain circumstances.²⁷

C. Procedural Requirements

Procedures for instituting a moratorium on development can vary considerably...