Standing in land use litigation

• Pages: 237-299
• Date: 01 October 2021
• Author: Daniel R. Mandelker
• Subject Matter: Derecho Público y Administrativo

STANDING IN LAND USE LITIGATION

Daniel R. Mandelker∗

Author’s Synopsis: Third party standing to sue is essential in land use

litigation. Questionable land use decisions will not be taken to court

unless a third party can sue, but third party standing is limited. Standing

law is fragmented, obstinate, excessively restrictive, and split between

judicial and statutory requirements. Reform is necessary so that third

parties can have access to court to protect public values. This Article

explains why third party standing should be expanded, and it includes a

conceptual model that can guide reform. It discusses conflicting third

party standing rules in the Supreme Court, including the dominant

restrictive rule that requires injury, and similar rules in the states.

Nuisance-driven and statutory rules for third party standing in zoning

cases are also discussed. I recommend reform that gives standing in

court in land use cases to all participants in public hearings, and a

gatekeeper function that blocks standing when it is bias-based.

I. INTRODUCTION .......................................................................... 238

II. THE BASIS FOR THIRD PARTY STANDING IN LAND USE

LITIGATION ................................................................................ 242

A. The Beneficiary Distinction .................................................. 242

B. The Different Constitutional Foundation for Standing

Against State and Local Government ................................... 245

C. A Conceptual Model For Standing ....................................... 252

III. FEDERAL RULES FOR THIRD PARTY STANDING ...................... 252

IV. THIRD PARTY STANDING IN THE STATE COURTS ................... 257

V. THIRD PARTY STANDING FOR ZONING LITIGATION IN THE

COURTS ...................................................................................... 262

A. The Standard Rules ............................................................... 262

B. Proximity .............................................................................. 266

C. Harm ..................................................................................... 268

D. What the Standing Rules for Zoning Litigation Mean ......... 272

VI. STATUTORY STANDING ............................................................. 273

∗ Daniel R. Mandelker, Stamper Professor of Law, Washington University in Saint

Louis. I would like to thank Chelsea Rothschild for her extensive and excellent research,

Rachel Mance for her editorial assistance, and all of my colleagues who helped find

resources. I would also like to thank the law school for its financial support. Sara C. Bronin,

Peter Buchsbaum, Bob Kuehn, Ronald Levin, Ed Sullivan, Dan Tarlock, and Christian

Turner read earlier drafts of the Article and offered helpful suggestions. Statutes and

ordinances cited in this Article were current at the time this Article was written.

238 56 REAL PROPERTY, TRUST AND ESTATE LAW JOURNAL

A. State Administrative Procedure Acts .................................... 274

B. Other Statutes That Apply to Land Use Decisions and

Agencies ............................................................................... 277

C. What These Statutes Mean ................................................... 285

VII. REFORMING THIRD PARTY STANDING IN LAND USE

LITIGATION ................................................................................ 286

A. Reform Alternatives ............................................................. 286

B. Participation in Public Hearings as a Standing Rule ............ 291

VIII. CONCLUSION .............................................................................. 299

I. INTRODUCTION

Your city approves a special land use permit for two 96–foot tall

buildings in downtown that includes apartments and commercial space.1

A trial court describes the approval as absurd.2 The historic preservation

commission approves a renovation of an important historic residence.

Objectors claim it compromises historic integrity.3 A city significantly

rezones more sites for industrial and heavy commercial development in

1 See N. Mich. Env’t Action Council v. City of Traverse City, No. 332590, 2017 WL

4798638, at *1 (Mich. Ct. App. Oct. 24, 2017) (standing granted for individual but deferred

for organization); see also Duddles v. City Council of W. Linn, 535 P.2d 583, 588–93 (Or.

App. 1975) (rezoning for shopping center held to violate comprehensive plan; standing

issue not decided).

2 See N. Mich., 2017 WL 47986 38, at *1.

3 See Hist. Alexandria Found. v. City of Alexandria, 858 S.E.2d 199, 203 (Va. 2021)

(standing denied); see also Tenth St. Residential Ass’n v. City of Dallas, 968 F.3d 492, 500

(5th Cir. 2020) (denying organization standing to challenge demolition of dilapidated

historic buildings; diversion of resources to attend landmark commission meetings to

oppose demolition policy and to intervene in pending demolition cases held not injury in

fact). Decisions on compliance with historic preservation requ irements are subject to

judicial review. See, e.g., Parker v. Beacon Hill Architectural Comm’n, 536 N.E.2d 1108 ,

1114 (Mass. 1989) (upholding denial of additional floor on row house as it would be

inimical to historic appearance of building and diminish picturesque silhouette of row

houses in historic district); Rocky Hill Citizens for Responsible Growth v. Plan. Bd. o f

Borough of Rocky Hill, 967 A.2d 929, 944–45 (N.J. App. Div. 2009) (upholding approval

of age restrictive development as compatible wi th historic district); Sanchez v. Town of

Beaufort, 710 S.E.2d 350, 356 (N.C. App. 2011) (reversing decision to limit height of

dwelling to twenty-four feet because height not incongruous with rest of district); see also

David L. Callies, Historic Preservation Law in the United States, 32 ENV’T L. REP. NEWS

& ANALYSIS 10348 passim (2002). For a local ordinance, see SEATTLE, WA., ZONING CODE,

ch. 25.12 (1977) (landmark preservation).

FALL/WINTER 2021 Standing in Land Use Litigation 239

racial residential areas. Critics claim damaging racial impact.4 Do they

have standing to sue?

Municipalities5 overperform or underperform 6 when they consider

land use change, and change dominates land use regulation. 7 Change

4 See Andrew H. Whittemore, The Role of Racial Bias in Exclusionary Zoning: The

Case of Durham, North Carolina, 1945-2014, in ZONING: A GUIDE FOR 21ST CENTURY

PLANNING 200, 211–15 (Elliot Sclar et al. ed., 2020); see a lso Lake Lucerne Civic Ass’n,

Inc. v. Dolphin Stadium Corp., 801 F. Supp. 684, 688 (S.D. Fla. 1992) (discussing

construction of stadium and accompanying commercial d evelopment in the midst of

predominantly black middle-class residential neighborhood; association standing limited

to injunctive relief); Craig Anthony Arnold, Planning Milagros: Environmental Justice

and Land Use Regulation, 76 DENV. U. L. REV. 1, 121 (1998) (“Residents of low-income

and minority neighborhoods may find that property zoned for non-intensive uses, for

example residential, may be rezoned for industrial uses through the application of a floating

zone at the request of the landowner.”); Vicki Been, Wha t’s Fairness Got to Do with It?

Environmental Justice and the Siting of Locally Undesirable Land Uses, 78 CORNELL L.

REV. 1001, 1009–15 (1993) (discussing studies finding that noxious and unwanted land

uses are more likely to be located in racial areas).

5 In this Article, the term “municipality” refers to a city, county, town, or township.

6 The causes of underperformance are con tested. Early scholarship argued that

developer capture was an important factor in underper formance. It claimed that land

developers put irresistible pressure on local governments for zoning and other changes that

do not comply with regulations. See Harvey Molotch, The Political Economy of Growth

Machines, 15 J. URB. AFF. 29, 31–34 (1993) (arguing that growth machines control the

land use process); Harvey Molotch, The City as a Growth Machine: Toward a Political

Economy of Place, 82 AM. J. SOC. 309 passim (1977); JOHN R. LOGAN & HARVEY L.

MOLOTCH, URBAN FORTUNES: THE PO LITICAL ECONOMY OF PLACE 1 p assim (1987); see

also Greg Morrow, The Homeowner Revolution: Democracy, Land Use, and the Los

Angeles Slow-Growth Movement, 1965–1992 (2013) (Ph.D. dissertation, UCLA)

(eScholarship.org); Robert C. Ellickson, Suburban Growth Controls: An Economic and

Legal Analysis, 86 YALE L.J. 385, 404–09 (1977) (arguing that developers control urban

areas and homeowners suburban areas, and that land develo pers are the “largest investors

in municipal politics in the United States”); Arnold Fleishman & Carole Pierannunzi,

Citizens, Development Interests, and Local Land Use Regulations, 52 J. POL. 838, 841

(1990) (discussing developer influence). The Oregon Supreme Court noted “the dangers of

the almost irresistible pressures that can be asserted by pr ivate economic interests on local

government” when holding that zoning change must be consistent with a comprehensive

plan. Fasano v. Bd. of Cnty. Comm’rs of Wash. Cnty., 507 P.2d 23, 30 (Or. 1973). The

growth machine theory may no longer by valid. See Daniel P. Selmi, Reconsidering the

Use of Direct Democracy in Making Land Use Decisions, 19 UCLA J. ENV’T POL’Y 293,

331 (2001-2002) (discussing, but criticizing, growth machine theory).

7 Change will likely be even more frequent as r esidential densities are raised to meet

housing shortages and commercial buildings are repurposed for residential use. See AM.

PLANNING ASS’N, GR OWING SMART LEGISLATIVE GUIDEBOOK: MODEL STAT UTES FOR

PLANNING AND THE MANAGEMENT OF CHANGE, 10-7 to 10-9 (Stuart Meck ed., 2002)