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Land Use Planning
University of South Carolina School of Law
Hubbard, F. Patrick

Land Use outline
Patrick Hubbard
Spring 2014
Land use regulated at many different levels
Federal-constitution and statutory
State-constitution and statutory
                                                               i.      State passes enabling act which sets parameters for how lgu can create zoning ordinance
                                                              ii.      Enabling act generally does three things
1.       Mandates creation of a comprehensive plan
2.       Allows enactment of a zoning ordinance
3.       Allows the lgu to delegate administrative authority to appointed boards
a.       Must delegate authority with specific guidelines to make sure there is no arbitrary abuse of discretion
                                                               i.      Zoning is not mandatory
                                                              ii.      Judge will not take judicial notice of local ordinances so must get them in as evidence or a stipulation
Responsibilities of groups at local level
City council
                                                               i.      Create zoning ordinance and map
Planning commission
                                                               i.      Make recommendations to council about ordinance and maps
Board of Zoning Appeals
                                                               i.      Appeals from zoning administrator decisions
                                                              ii.      Variances
                                                            iii.      Special exceptions
Design Development Review Committee
                                                               i.      Must approve site plans for particular districts
How the deck is stacked in favor of the local government
Judicial deference to legislative decisions
                                                               i.      Courts generally don’t require legislative decision makers to give reasons for their decisions so this allows post-hoc reasons to be developed and if any one reason is sensible then it probably will pass muster
1.       Rare to find that there is no reason other than a bad reason for a decision
a.       Bad reasons-outright discrimination, manipulating property value prior to a condemnation or to increase tax revenues, limiting competition
                                                              ii.      However, bureaucrats are not entitled to same deference, no post-hoc reasoning allowed for them-generally they must provide reasons for their decisions
1. When council votes on matter, do they have to provide reasons for adopting/not adopting?
                                                               i.      Pullman
1.       complaint touches a sensitive area of social policy upon which the federal courts should not enter unless there is no alternative
2.       determination of constitutional issue is not needed because the state issue can be settled determinatively
                                                              ii.      Burford
1.       courts can abstain out of proper regard for the rightful independence of state governments in carrying out their domestic policy
2.       applies to land use policies whe the plaintiff’s federal claims stem solely from construction of state or local land use laws and do not involve the constitutional validity of those laws unless there is some exceptional circumstance
                                                            iii.      Younger
1.       have to exhaust state court remedies before you get to federal court
                                                            iv.      Rooker-Feldman doctrine
Presumption-zoning ordinances have a presumption of validity
Dylan’s rule v. home rule
                                                               i.      Dylan’s rule-if the state does no expressly authorize lgu to do something then lgu can’t do it without exceeding power
1.       Fewer of these
                                                              ii.      Home rule-construe statutes and constitution liberally to allow lgu to act
1.       SC is ostensibly a home rule state now
                                                               i.      Must have exhausted all administrative and state court remedies before you are allowed into federal court
Burden of proof is on plaintiff and often is a high standard of proof
                                                               i.      Some states it is clear and convincing
                                                              ii.      In sc may be beyond a reasonable doubt but not sure
Nature of action
                                                               i.      If court classifies the action as legislative then there is greater deference than if it classifies action as adjudicative or quasi-judicial
Court might refuse to hear a case about a denial of discretionary permit (such as rezoning or a special exception) because the land owner has no property interest in receiving the permit unless there was a strong likelihood that the application would have been granted
                                                               i.      But this is a rare approach because there is an ownership interest in the land itself and not just the requested permit
Types of land use restrictions
Private restrictive covenants
Action for nuisance
Right to use your own land can be limited by the government
Must balance your right to do anything with your own land with your neighbor not wanting you to do something with your land
Your rights can conflict with your neighbor’s rights, therefore rights are limited
It is within government’s police powers to regulate the “orthodox quartet”
                                                               i.      Public safety, health, morals, welfare
                                                              ii.      One of these must provide the basis for the government limiting your right to use your property as you wish
                                                            iii.      Welfare is sort of a catchall where we now have aesthetic regulation
First type of zoning was Euclidean
Distinct districts each with a particular type of zoning
No mixture of districts except where zoning was cumulative
Fairly rigid plan
Zoning and social issues
In Euclid, apartments were seen as parasites to be kept separate from single family housing
Race and poverty overlap so when your zoning system is set up to segregate poor people then it is also segregating by race to a great extent
Zoning innovations since Euclid that provide more flexibility
Now that zoning has been in place for a long time, people want to change the zoning
                                                               i.      Countryside-large tracts of undeveloped land
                                                              ii.      City-small parcels that developers want to do something different with
Overlay zoning
Planned Unit Developments
                                                               i.      Gives govt more discretion
                                                              ii.      Make up guidelines for development as you go along
                                                            iii.      Does not have to adhere to underlying zoning because zoning is changed to PUD
Zoning enforcement          
Hard to do-usually on an as-reported by the neighbors basis
Can regulate through building permits to make sure zoning is correct for what someone wants to build, but not everyone follows the rules and gets a building permit
Challenging zoning decisions
Constitutional challenges
How to challenge a zoning plan
Substantive due process
A zoning ordinance is unconstitutional only its provisions are clearly arbitrary or unreasonable with no substantial relation to public safety, health, morals, or welfare
Claim that you get all the procedural protections that you needed but were still treated unfairly
“Claim most likely not to succeed”
Rational basis scrutiny
                                                               i.      Govt must have legitimate goal
                                                              ii.      look to quartet to see if it is a legitimate gov goal
                                                            iii.      Rule to achieve the goal must have a rationally relationship to the goal
Procedural due process
Govt didn’t follow proper procedure
                                                               i.      Usually notice and opportunity to be heard
                                                              ii.      Have different levels of process for legislative v. adjudicative decisions so must know the nature of the decision to determine how much process you should get
How much due process you get depends on the nature of the decisions
                                                               i.      Adjudicative gets more than legislative
                                                              ii.      Importance of interest gets more than lesser importance
Procedural due process is a bundle of rights
                                                               i.      Procedure is good but it costs time and money to add more sticksto the bundle
                                                              ii.      Bare minimum rights are notice and ability to attend a meeting
                                                            iii.      At hearings for legislative decisions
1.       Generally you are also be allowed to speak but time limits are often allowed
2.       Also allowed to present evidence before the board in the form of sworn witnesses and documents
3.       Decision must be on the record
a.       If board member uses outside knowledge he must state on the record that he is using that
4.       The fact finder (board) must be neutral (not conflicted) and qualified (minimal requirements)
5.       Must have written findings
6.       Have right to appeal
a.       Standard of review on appeal for legislative decision is more limited than for adjudicative
b.       Complainant has burden of proof
                                                            iv.      Beyond this the procedure becomes more adjudicative
1.       Generally do not have right to cross examine witness but you usually can reply to an oppos

at regulation had a discriminatory effect
                                                               i.      These are hard to show
Rational basis
                                                               i.      Issue does not deal with a suspect class or fundamental right
                                                              ii.      Some rational relationship between legitimate goal and regulation
                                                            iii.      Ex. Layne-discrimination against a class, court upheld prohibition on rooming houses but not boarding houses because town had a rational basis for drawing the distinction between the two.  That reason was to protect health by excluding rooming houses that served food
                                                            iv.      Ex. Olech-discrimination against a “class of one,” if the reason for treating one person differently falls within police power it is OK so long as it furthers a legitimate goal
Heightened scrutiny
                                                               i.      Suspect class (race) or fundamental right (a basic liberty like speech)
                                                              ii.      Race, religion, speech
                                                            iii.      Compelling interest and narrowly tailored regulation
                                                            iv.      Compelling interest is broader than regular police powers
Facial v. as applied challenges-analysis applies to due process and equal protection claims
a.       Facial
                                                               i.      On the face of the ordinance there is no application that could be lawful
                                                              ii.      Don’t need a specific application to attack
                                                            iii.      More difficult to show than as applied
b.       As applied
                                                            iv.      might be some instances where it is lawful but as applied in a particular situation is unlawful
                                                             v.      specific facts matter because only a particular application is unconstitutional
                                                            vi.      Not as hard to win as a facial attack but still tough
Level of scrutiny
Generally level of scrutiny for zoning regulations is rational basis
When it won’t be rational basis:
                                                               i.      Suspect category
                                                              ii.      Fundamental right
Standard of review
Generally there is  very deferential standard of review
Burden of proof
There is a presumption of validity for zoning ordinances and decisions
Plaintiff in SC must meet the  beyond a reasonable doubt burden of proof (is this right?  Seems really high for a civil case)
Nature of the decision-legislative v. adjudicative
Zoning administrator, city council-purely legislative
                                                               i.      Some courts say that local rezoning is quasi-adjudicative (Fasano)
                                                              ii.      Test to determine nature-legislative if decision affects a broad class of people, interests, or situations.  Quasi-adjudicative if decision only affects particular people, interests, or situations
                                                            iii.      Result is that courts may consider small rezonings to be quasi-judicial therefore have a higher due process requirement and less deference
Standing-who can challenge
In SC, must be an adjacent landowner to challenge zoning decision, but only need a substantial interest to challenge a BOZA decision.
                                                               i.      Seems awfully restrictive but there have been no cases on this
If contending that govt is acting ultra vires then standing is expanded
Statute of limitations
In SC, can’t challenge after 60 days from enactment if there has been substantial compliance with procedural safeguards