CHAPTER 4 LOCAL LAND USE REGULATION OF EXTRACTIVE INDUSTRIES: EVOLVING JUDICIAL AND REGULATORY APPROACHES
| Jurisdiction | United States |
(May 1995)
LOCAL LAND USE REGULATION OF EXTRACTIVE INDUSTRIES: EVOLVING JUDICIAL AND REGULATORY APPROACHES
Texas Tech University School of Law
Lubbock, Texas
I — Introduction
A — The Basic Terminology
The modern land use regulatory system was ushered in by the adoption of the New York City zoning ordinance in 1916. Land use regulation antedated the New York City ordinance from the onset of the colonies in the early 18th century. There were two major factors that led to the nearly universal use of zoning and other land use regulatory measures within two decades of New York's experiment. The first was the upholding of the validity of a comprehensive zoning law by the Supreme Court of the United States in Village of Euclid v. Ambler Realty Co.1 in 1926. The second was the widespread adoption of the Standard Zoning Enabling Act and Standard Planning Enabling Act by the states after they were drafted by the U.S. Department of Commerce under Herbert Hoover's direction.
The typical governmental entities that deal with land use matters under the SZEA and SPEA models are the legislative body, a planning commission and a board of adjustment or board of appeals. The planning commission and the board of adjustment are made up of appointed citizens. In larger cities a planning department, staffed with planning professionals, will provide technical support to both of these citizen agencies, as well as to the local government.
Only the local legislative body can enact a land use ordinance or amend it. The SZEA envisioned that the planning commission would prepare the original comprehensive plan and the zoning ordinance which would then be approved by the local legislature. Planning commissions also regularly deal with review of subdivision plats. Boards of adjustment, on the other hand, were given final administrative power to grant or deny discretionary permits,2 and deal with appeals of decisions made by governmental employees. Their principal power lay in their review of discretionary permits authorized by the zoning ordinance and by their power to grant a variance when a
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literal enforcement of the ordinance would result in unnecessary hardship. In the early days of zoning, local legislative bodies did not review decisions of boards of adjustment. Today, many legislative bodies reserve to themselves the power to grant discretionary permits.
The basic structure of zoning relates to the regulation of use, bulk and height by the governmental authority.3 Traditional zoning was known as "Euclidean" zoning after the Euclid case. It is often called cumulative zoning because the zoning districts not only allow the uses specifically described for that district but also all uses allowed in less intensive use zones. Thus in a multi-family residential district, single family residences would be allowed. The more modern view is for zoning districts to be exclusively limited to the uses specified for that district. Each district would specify the use, bulk and height restrictions that would apply within its boundaries. As for the uses listed there would normally be two categories of such uses. Those which are permitted as "of right" and those which require additional approval through some form of discretionary permit. A New Jersey court provided an accurate definition of a conditional use permit when it stated:
[C]ertain uses, considered by the local legislative body to be essential or desirable for the welfare of the community ..., are entirely appropriate and not essentially incompatible with the basic uses in any zone..., but not at every or any location... or without conditions being imposed by reason of special problems the use ... presents from a zoning standpoint.4
These discretionary permits are to be distinguished from a variance which is to allow a use or allow a structure which violates the bulk or area standards for that zoning district. A number of jurisdictions do not allow use variances, because that in effect is a de facto rezoning of the ordinance which can only be accomplished by the local legislative body, not the board of adjustment. Variances typically require a finding that without the variance unnecessary hardship would be imposed on the owner. Discretionary permits, on the other hand, are authorized by the ordinance and normally contain factors or findings that must be considered by the board before it can approve an application for such a permit.
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Judicial review of local land use decisions can be broadly characterized into several categories. Starting with Euclid, most courts followed its lead by taking a very deferential scope of judicial review of any challenge to a zoning ordinance, be it the original zoning ordinance or a later change or amendment. Even if the justification for the zoning ordinance is "fairly debatable" the courts will not substitute their judgment for that of the legislative body.5 There is of course a presumption of validity and the party attacking the local decision shoulders a heavy burden of proof.
Decisions of the board of adjustment which are not reviewed by the legislative body are directly reviewed by the courts, typically under a substantial evidence test, limiting review to the record generated during the administrative hearing.6
In the 1970's there was a bit of a judicial change of attitude towards reviewing the vastly increased number of individualized zoning decisions that were being made by legislative bodies. Starting with Fasano v. Board of County Commissioners,7 a number of courts stopped asking the question of what body made the decision in order to determine the scope of judicial review, and instead asked whether the decision was legislative or quasi-adjudicatory in nature. In Fasano, the Oregon Supreme Court determined that a legislative rezoning of an individual tract was quasi-adjudicatory and required the legislature to make findings of fact so that the substantial evidence test could be employed. A majority of jurisdictions, however, still apply the traditional approach as reflected in Euclid which give substantial deference to any decision made by a legislative body.8
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Courts, of course, review zoning ordinances for compliance with constitutional and statutory mandates. Other speakers will directly address the principal constitutional impediment to zoning, the takings clause, although the First Amendment and the equal protection clause likewise provide constraints against regulatory excesses. In addition, for a variety of reasons, challengers to land use decisions can assert that the ordinance or administrative action is ultra vires.9 Another speaker will directly address the preemption issue which is one type of ultra vires action. In addition, non-home rule units get their power to zone from enabling acts which may or may not authorize a particular type of regulation. Finally, a local land use decision must be made following the procedural requirements set up by either a statute or an ordinance. Failure to comply with notice requirements, not allowing an appropriate public hearing, or similar matters can all lead to judicial invalidation of a zoning ordinance or land use decision.
B — The Early Cases
Two cases from California reflect the schizophrenic approach taken in dealing with ordinances which attempted to limit quarrying activities in a newly developing urban area. These ordinances also antedated the modern comprehensive zoning ordinances so common today and were therefore geared solely at the mining or extractive industry. Specialized ordinances such as those are still used today, but have been mostly replaced with the more comprehensive zoning and land use regulatory program that followed the Euclid decision and
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the rapid enactment of the Standard Zoning Enabling Act by the states after it was developed by the United States Department of Commerce in 1926.
The earliest of these two cases, Ex parte Kelso, 10 was a challenge to a San Francisco ordinance which directly prohibited the operation of a rock or stone quarry within a large portion of the city.11 In a rather straightforward and short opinion the court determined that the ordinance "deprive[s] the owners of real property within such limits of a valuable right incident to their ownership, viz., the right to extract therefrom such rock and stone as they may find it to their advantage to dispose of."12 While admitting that all property interests are held subject to the valid exercise of the police power, the court found this regulation to be a taking of private property without due process of law.13 It did so not using modern day regulatory takings analysis but using substantive due process analysis. The court uses a less onerous alternatives type approach suggesting that regulation of quarrying could be validly accomplished if the regulation was more narrowly drawn to deal with the impact of quarrying on neighbor's rights. But the total prohibition went too far. In response to the public safety claim made by the City because of the blasting involved in quarrying, the court again resorted to a less onerous alternatives approach by recognizing the City's right to regulate blasting, but not its right to protect the public safety through a total ban on quarrying activities.14 Lawful uses may not be prohibited unless they become nuisances. The blanket prohibition was overbroad and invalid. Because this was not a modern regulatory taking case, the court did not discuss the diminution in value of
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the owner's land and whether or not it could be used for other purposes. To date, Kelso had not been overruled by the California Supreme Court.15
Less than 10 years after Kelso was decided the California Supreme Court and the Supreme Court of the United States reached what can only be described as a contrary or opposite ruling in the landmark case, Hadachek...
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