Law Professor Finds Growing Smart Proposals Constitutional

In the first comprehensive analysis of the American Planning Association's Growing Smart Legislative Guidebook since it was published in January 2002, a law professor has concluded that APA's new generation of model planning and zoning laws is constitutional.

The analysis by Michael Lewyn, associate professor of law at the John Marshall Law School in Atlanta and now a visiting faculty member at the Rutgers University School of Law, appears in the Spring 2003 issue of the University of Colorado Law Review. The article is titled, "Twenty-First Century Planning and the Constitution."

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Lewyn set out to determine whether the Guidebook had "constitutional infirmities," as alleged by property rights advocates and others. These groups had criticized the Guidebook as violating the First, Fourth, Fifth, Tenth, and Fourteenth Amendments of the U.S. Constitution. They took their concerns to the U.S. House of Representatives Judiciary Committee's Subcommittee on the Constitution, which held a hearing on the Guidebook on March 7, 2002. Click here to read more about that hearing.

Lewyn, who examined the Guidebook language against the backdrop of federal and state court decisions, found the Guidebook posed no conflict with the Constitution.

For example, critics contended the Guidebook unlawfully prohibited a business's right to advertise under the First Amendment, but Lewyn doesn't agree. "Most relevant state and federal district court decisions," writes Lewyn, "generally uphold the government's right to regulate on-premise signs," including control of size, location, and similar aesthetic features authorized in the Guidebook.

The Guidebook's proposals for development moratoria, Lewyn states, square with the Supreme Court's 2002 decision in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, by properly authorizing temporary, rather than permanent, moratoria. The Guidebook provides state legislatures with options as to their duration; it authorizes an initial moratorium of 180 days and 180 days of two possible extensions, within the scope of the Lake Tahoe decision.

Property rights advocates also claimed that Guidebook language governing design review violated the Equal Protection Clause of the Fourteenth Amendment as being void for reasons of vagueness. But Lewyn pointed to the mandate in the Guidebook that design review ordinances contain specific standards of review to avoid this problem.

Another criticism of the Guidebook centered on its model statute on amortization of nonconforming uses, land uses or structures which were allowed under local zoning ordinances when established, but would not be permitted under current regulations. The Guidebook allows such nonconforming uses, under certain circumstances, to be phased out over time. The critics claimed that the Guidebook's amortization language automatically created a taking. Not so, says Lewyn, although he does advise that local governments employing amortization must be careful about its use in specific situations.

One of the most puzzling critiques of the Guidebook is that it entangles the federal government in local land use decision in violation of the Tenth Amendment because it was funded in part by the federal government, including the U.S. Department of Housing and Urban Development. One purpose of the Guidebook was to replace the Standard State Zoning Enabling Act (SZEA), which was drafted by an advisory committee of the U.S. Department of Commerce in the 1920s under Commerce Secretary, and later President, Herbert Hoover, and which served as the basis for most state enabling acts. The SZEA, Lewyn observes, "was not only funded by the federal government, but drafted by the federal government. So if the Guidebook is unconstitutional because of its federal support, the SZEA, and thus every state zoning enabling statute enacted pursuant to the SZEA, is unconstitutional. Given the courts' consistent endorsement of post-SZEA zoning, this is an absurd result."

While declaring that "state legislatures can enact the Guidebook into law if they please," Lewyn cautions that the use of Guidebook language does not "immunize local zoning decisions from constitutional challenges." Much of the concern over land use regulation has been over how local governments use state-delegated power through their own ordinances and their application to individual situations. Because the Guidebook raises planning issues as a set of policy choices for matters such as billboard regulation, development moratoria, and amortization, to name a few, "legislators will have the responsibility of deciding whether the Guidebook correctly addresses those issues" in balancing property rights against aesthetic and environmental concerns.

Click here to order Professor Michael Lewyn's article, "Twenty-First Century Planning and the Constitution," at the University of Colorado Law Review website. Single issues of the law review are $15. This article appeared in the Spring 2003 issue.