Growing Smart Legislative Guidebook

Chapter 10 (part 2): Administrative and Judicial Review of Land-Use Decisions

10-208 Consolidated Permit Review Process

(1) As part of the ordinance establishing the unified development permit review process, the legislative body of each local government [shall or may] establish a consolidated permit review process in which an applicant for a development permit may apply at one time for all development permits or zoning map amendments needed for a development.

(2) If an applicant for a development permit applies for a master permit, the local government shall determine what procedures apply to the review of the development, and shall designate a permit coordinator who shall coordinate the consolidated permit review process. A consolidated permit review process may provide different procedures for different categories of development permits. If a development requires permits from more than one category of development permit as well as zoning map amendments, the local government [shall or may] provide for a consolidated permit review process with [1] record hearing and no more than one record appeal.

• Paragraph (2) gives the local government the flexibility to decide on the procedures that apply in a consolidated permit review process, which may include administrative reviews and record hearings. If the development requires permits from a number of permit categories as well as a zoning map amendment, the statute can either mandate or authorize a simplified review process by having one record hearing and one record appeal. This option is intended for states in which the zoning amendment is quasi-judicial.

(3) The local government may authorize the permit coordinator to issue a master permit. The permit coordinator shall issue a master permit if all required development permits have been granted.

• Paragraph (3) allows the local government to authorize the permit coordinator to issue a master permit. The issuance of a master permit is intended to be a ministerial act that does not require the exercise of discretion. The permit coordinator is to issue a master permit once he or she determines from local government records that all development permits have been granted. However, a court may still decide that the master permit is discretionary, and states that have a state environmental policy act may require an environmental review of the master permit under that act. In addition, a master permit is an appealable land-use decision under this Chapter.

10-209 Appeals

(1) An appeal of a land-use decision may be taken to an appeals board within [30] days after the decision is issued[, or within [30] days after the date the decision is deemed approved under Section [10-210]]:

(a) by the applicant for the development permit or land-use decision, and by any party to the record hearing, if there has been a record hearing; or

(b) if there has been an administrative review:

1. by the applicant for the development permit; or

2. by any person, neighborhood planning council, neighborhood or community organization, or governmental unit, if he, she, or it is aggrieved by the land-use decision.

(2) (a) The party appealing must file a notice of appeal specifying the grounds for the appeal with the officer or body from whom the appeal is taken, and with the appeals board. The officer or body from whom the appeal is taken shall transmit to the appeals board the record upon which the land-use decision appealed from was taken.

(b) The appeals board may dismiss an appeal if it determines that the notice of appeal is legally insufficient on its face.

• If a record hearing has been held on the development permit application, any person who could be aggrieved has had the opportunity to become a party to the hearing, so this section limits appeals to persons who became parties. If there has been an administrative review without a hearing there has been no opportunity to establish party status, so appeals may be taken by the applicant and by any person aggrieved.

(3) An appeal that is not dismissed shall stay any and all proceedings to enforce, execute, or implement the land-use decision being appealed, and any development authorized by said land-use decision, unless the officer or body from whom the appeal is taken certifies in writing to the appeals board that a stay in the decision or development thereunder would cause immediate and irreparable harm to the appellant with no comparable immediate and irreparable harm to the applicant or imminent peril to life or property. If such a certification is filed, there shall be no stay other than by a restraining order, which may be granted by the [name of court] on due cause shown and with notice to the officer or body from whom the appeal is taken.

• A stay of proceedings to carry out a land-use decision pending an appeal maintains the status quo while a land-use decision is appealed, but also creates delays for a permit applicant if the decision stayed is a favorable decision on the permit. This paragraph authorizes a procedure that prohibits a stay order only if it would cause harm or a peril to life or property. The officer or body must present a certification that these circumstances exist, and it is then up to a court to decide whether it should grant a stay. The assumption is that a court can consider the probability of success on the merits or the appeal when it decides whether to grant a stay, and so may refuse a stay if it believes the appeal is wholly without merit. In addition, if it has the authority, a court can also order the posting of a bond as a condition to a stay order.

(4) The appeals board shall set the time and place at which it will consider the appeal, which shall be no more than [20] days from the time the appeal was filed. The appeals board shall give at least [10] days notice of the appeal hearing to the officer or body from which the appeal was taken and to the parties to the appeal.

(5) (a) The appeals board shall hold a hearing on the record in a record appeal. As part of its unified development permit review process, the legislative body shall adopt rules under which the appeals board may hear arguments on the record by the parties to the record appeal.

• This paragraph is based on R.I. Gen Laws 45-24-64 and 45-24-66, and Wash. Rev. Code 36.70.830. They authorize an appeal on the record to the appeals board designated by the legislative body and give the board the authority to adopt rules under which it will hear argument.

[(b) Supplementary evidence.

1. The appeals board may take supplementary evidence in record appeals only in those limited cases in which it makes a written finding that evidence proffered by any party was improperly excluded from the record hearing.

2. A finding that additional evidence will be taken is an interlocutory order that is not appealable. If the appeals board decides to take supplementary evidence, it shall provide mailed notice of this decision to all parties to the record hearing that was appealed, and shall hold a record hearing as required by the local government's unified development review process.]

• This paragraph is optional, and the authority to take additional evidence is narrowly drawn. Whether additional evidence should be taken by the appeals board is debatable, since every opportunity is provided at the record hearing to introduce necessary evidence. An argument can also be made that record supplementation should be reserved for judicial appeals, where opportunities to supplement a record can be broader.

The appeals board must give notice to the parties to the record hearing so that they can participate in a new hearing in which supplementary evidence is taken. The paragraph states that the hearing must comply with the record hearing requirements contained in the local government's unified development review process, which must comply with the record hearing requirements contained in this Section. See Section 10-207(4).

(c) 1. An appeals board shall issue a written decision after the record hearing in which it may reverse or affirm, wholly or in part, or may modify a land-use decision from which an appeal is taken, and shall have the authority in making such decision to exercise all the powers of the officer or body from which the appeal is taken, insofar as they concern the issues on appeal. A tie vote is an affirmation of the decision from which the appeal was taken.

2. The appeals board shall not make findings of fact[, unless the board has taken evidence supplementing the record on appeal, in which case it shall make findings of fact based on this evidence and shall make a decision based on such findings as required by Section [10-207(9)]].

• This paragraph is standard. See, e.g., Rhode Island Gen. Laws 45-24-67. The second part of paragraph (b) is optional, and requires a decision based on findings of fact only if the board allowed the introduction of evidence to supplement the record.

(6) In an appeal from an administrative review, the appeals board shall hold a record hearing and make a decision as provided in Section [10-207].

(7) The appeals board shall mail a notice of any decision to the parties to the appeal and to the [local planning agency or code enforcement officer] of the local government within [30] days of the commencement of the hearing.

(8) The appeals board shall keep written minutes of its proceedings, showing the vote of each member upon each appeal or, if absent or failing to vote, indicating that fact, and shall keep records of its official actions in its office.

• These provisions are standard. See R.I. Gen. Laws 45-24-61.


Commentary: Time Limits and Their Effect

It is one of the fundamental elements of due process that a decision maker must come to a final decision within a reasonable period of time. Certainty is one of the goals of the land-use decision making process established in this Chapter, and a failure by a local government to decide either way on a development permit application destroys certainty. Therefore, this Section establishes an overall time limit for the development permit review process, and alternatively requires local governments to fix time limits under Section 10-201. The applicant and the local government may mutually consent to an extension of that time limit. It should be noted that a local government cannot demand a waiver of time limits in an application for a development permit. See Section 10-202(4). The Section provides that the time limits do not apply when the local government identifies a specific land development regulation that prohibits the development and with which the application does not comply. This exception, which is based on N.H. Rev. Stat. 676:4, is intended to cover nondiscretionary requirements not considered in the decision making process, such as a restriction on development in floodplains. There is also an exception to the time limit for periods when the local government cannot process permit applications due to circumstances beyond its control. This is meant to cover disasters and similar events that disrupt normal operations of the local government.

The major issue that follows from establishing a time limit is the effect of that time limit. In this regard, the Section also has two alternatives. The first is based on Cal. Gov't Code 65950 and provides that a development application is deemed approved after the time limits expire. Time limit provisions including "deemed approval" clauses are common in state enabling statutes for subdivision review,[37] going back to the Standard City Planning Enabling Act in the 1920s. Paragraph (3) requires mailed notice that a decision has been made on an application and that the application is deemed approved.[38]

The second alternative requires the local government to refund the development permit application fee and gives the applicant a cause of action to compel the local government to make a decision on the development permit application. This is the approach taken in the Oregon land development statutes.[39] The application fee refund is an incentive to the local government to make a decision on the application without a court order. If the only consequence of not making a decision on a development permit application were a court order to make a decision, a dilatory local government would have a strong incentive to do nothing with a controversial permit application. If it held out until a writ of mandamus were issued, the applicant may give up or the local government may prevail in court. If they are eventually ordered to issue a development permit, they can plausibly deflect criticism of the permit approval by pointing to the court order compelling them to act.


10-210 Time Limits on Land-Use Decisions (Two Alternatives)

(1) If a local government fails to approve, conditionally approve, or disapprove a development permit application within [Option A: [90, 120, or 180] days from the time it makes a written determination that a development permit application is complete, or from the time a development application is deemed complete] [Option B: the time period specified for that development permit under Section [10-201(2)(g)]; then

Alternative 1

the failure to act shall be deemed an approval,

Alternative 2

(a) the local government shall refund to the applicant any development permit application fee paid to the local government pursuant to Section [10-211]; and

(b) the applicant shall have a cause of action, in the nature of mandamus, in the [name of court] in order to compel the local government to approve, approve with conditions, or disapprove the development permit application;

unless within that period the local government has identified in writing some specific land development regulation provision with which the application does not comply, and that prohibits the development of the property.

(2) The local government, and the applicant for a development permit, may mutually agree to an extension of the time limits for a decision specified in paragraph (1) for a period not in excess of [90] days.

[(3) If an application for a development permit is deemed approved under this Section, the officer or body shall send by mail written notice that the permit has been deemed approved to all:

(a) parties to the record hearing, or

(b) persons, neighborhood planning councils, neighborhood and community organizations, and governmental units that submitted documents and materials to the administrative review. ]

(4) The time limits for decision specified in this Section do not run during any period:

(a) not to exceed [30] days, in which a local government requests additional studies or information concerning a development permit application; or

• This paragraph is based on Wash. Rev. Code 36.70B.080 and provides more flexibility to the time limits provision.

(b) in which the local government is unable to act upon development permit applications due to circumstances beyond the local government's control, including a reasonable period for resubmission of development permit applications and related materials destroyed, damaged, or otherwise rendered unusable.

10-211 Fees

A local government may charge such fees as are necessary to carry out the responsibilities imposed by Sections [10-201] through [10-210] and [15-201]. It shall base such fees on the actual costs of typical or average review and processing of development permit applications and appeals from decisions on development permit applications, and may adopt different schedules of fees for different categories of development reviews and appeals.

• Section 15-201 deals with the recording of development permits and related documents.

Hearing Examiners


Commentary: Hearing Examiner System

This Section authorizes the creation of a hearing examiner system and the appointment of a hearing examiner. It also specifies the categories of land-use matters the hearing examiner can hear. These matters include all of the issues likely to arise under a land development regulation, including development applications. Development applications include applications for administrative remedies, such as variance. The legislative body may also specify additional responsibilities for hearing examiner review. A hearing examiner need not be an official or employee of the local government.

Paragraph (2) authorizes the legislative body to assign all or some of the functions of designated boards and officials to the hearing examiner. Smaller communities that may not wish to staff all of these boards and officials can then delegate their functions to the hearing examiner.

Paragraph (4), which is optional, authorizes contracts for the use of state administrative law judges, and is a useful alternative for smaller communities that may not need hearing examiners on a regular basis. This Section is based partly on Ariz. Rev. Stat. 9-462.08; Ind. Code Ann. 36-7-4-923; Tenn. Code Ann. 7-101-105(a); and Wash. Rev. Code Ann. 35A.63.170.


10-301 Hearing Examiner System

(1) The legislative body of each local government may adopt an ordinance, as part of its land development regulations, which establishes a hearing examiner system. The ordinance shall specify those matters on which a hearing examiner may hear and make decisions and recommendations including, but not limited to, the following;

(a) development permit applications;

(b) proposals for the adoption or amendment of a local comprehensive plan or subplan, or the text or map amendment of a land development regulation;

(c) the administration, interpretation, and enforcement of land development regulations;

(d) such other matters as the legislative body believes should be heard and decided by a hearing examiner.

(2) The ordinance establishing a hearing examiner system may also authorize the hearing examiner to exercise some or all of the powers and duties delegated to [insert names of officials and boards]. Sections [10-301] to [10-307] apply to hearing examiners when they exercise the powers and duties of the [insert names of officials and boards].

(3) The ordinance establishing a hearing examiner system shall specify the qualifications for hearing examiners and the terms and conditions under which they shall serve. Hearing examiners shall have such training and experience as will qualify them to conduct hearings and make decisions and recommendations as authorized by this Chapter.

[(4) A local government may also contract with [insert name of state official] for the use of administrative law judges appointed under [cite to state administrative procedure act] to hear any matter a hearing examiner may hear.]

10-302 Hearing Examiner's Jurisdiction

The ordinance establishing a hearing examiner system shall specify the procedures for initiating hearings before a hearing examiner, which may include, but shall not be limited to, procedures that authorize:

(1) an applicant for a development permit to file an application with a hearing examiner when a record hearing is required, after the local government has determined that the application is complete, or after it is deemed complete under this Chapter;

(2) a permit coordinator appointed under Section [10-208] to refer applications for development permits submitted in a consolidated review process to a hearing examiner;

(3) an appeal, within [30] days after a land-use decision is issued[, or within [30] days after the date a land-use decision is deemed approved under Section [10-210]]:

(a) if there has been a record hearing, by the applicant for the development permit, and by any party to the record hearing; and

(b) if there has been an administrative review:

1. by the applicant for the development permit; and

2. by any person, neighborhood planning council, neighborhood or community organization, or governmental unit, if it is aggrieved by the land-use decision.

(4) the legislative body, the local planning commission, the [Land-Use Review Board], and any other body or official to refer any matter delegated to them to a hearing examiner.

• The local government has the option under this Section of deciding when, and under what circumstances, a hearing examiner may take jurisdiction of a land-use matter. For example, a local government ordinance could authorize applicants to file an application with the hearing examiner only when the development permit will require a quasi-judicial hearing. An application must be complete, as required by this Chapter, before an applicant can use this option. Paragraph (3) authorizes appeals of land-use decisions to hearing examiners by persons and organizations authorized to take appeals under Section 10-209(1). The ordinance can also provide that local boards and officials can refer matters to a hearing examiner. This Section is based on statutes such as Alaska Stat. 29.40.050; Idaho Code 67-6520; Md. Ann. Code Art. 66B, 2.06; Nev. Rev. Stat. 278.262; and Wash. Rev. Code 35A.63.170.

10-303 Decision to Recuse

The ordinance establishing a hearing examiner system shall authorize the hearing examiner to recuse himself or herself in any matter submitted, referred, or appealed to the examiner, and to refer the matter back so that the appointment of another hearing examiner can be considered.

• Because the hearing examiner has the expertise to determine when a hearing under his or her authority is advisable, the examiner is given the authority by this Section to recuse himself or herself from a particular case. It is intended that the decision to recuse oneself is an interlocutory decision that is not appealable.

10-304 Decisions Based on Record Hearings

(1) The hearing examiner shall hold a record hearing on an application for a development permit. If a record hearing has not been held on any other matter submitted, referred, or appealed to him or her, the hearing examiner shall hold a record hearing within [15] days of receiving an a referral from an officer or body of the local government, or an appeal.

(2) The hearing examiner shall:

(a) give notice of the record hearing as required by Section [10-205], through the methods specified in the local government's unified development permit review process ordinance;

(b) conduct the record hearing as required by the local government's unified development permit review process; and

(c) make findings, make a decision or recommendations, and give notice of that decision or recommendations as required by Section [10-207(9)];

• If a record hearing has not been held on a matter referred to the hearing examiner, this Section authorizes the hearing examiner to hold a record hearing under procedures required by the unified development review permit ordinance. The Section does not authorize the hearing examiner to make a decision or recommendation without a hearing. For a provision authorizing hearing examiners to make decisions without hearings, see e.g., Ore. Rev. Stat. 215.416(11)(a) and 227.175(10).

10-305 Decisions Based on Record Appeals

If a record hearing has been held on any matter submitted, referred or appealed to the hearing examiner, the examiner shall conduct a record appeal within [15] days of receiving an application for a development permit, a referral from a board or official of the local government, or an appeal. Section [10-209] shall govern record appeals held by the hearing examiner.


Commentary: Effect of Hearing Examiner's Decisions

Local governments may differ on the extent to which they want to make hearing examiner decisions final or simply recommendations to other decision making bodies. This Section provides the option to make hearing examiner decisions a recommendation, an appealable decision, or a final decision. Hearing examiner decisions on legislative actions, such as the adoption and amendment of a local comprehensive plan, may only be given the effect of a recommendation.
Appeals to boards and officials are governed by the appeals statutes that apply, such as Section10-209. If the examiner's decision is final, it is judicially reviewable under the judicial review provisions of this Chapter. This Section is based in part on Wash. Rev. Code 35A.63.170(2).


10-306 Effect of Hearing Examiner's Decisions

(1) A hearing examiner's decision on the adoption or amendment of a local comprehensive plan or subplan, or the textual or map amendment of a land development regulation, shall only be given the effect of a recommendation to the legislative body.

(2) The ordinance establishing a hearing examiner system shall specify the legal effect of all other decisions by a hearing examiner, and may provide that their legal effect may vary for the different categories of development permits, referrals, and appeals heard by the hearing examiner. The ordinance may include any or a combination of the following:

(a) it may give the hearing examiner's decision the effect of a recommendation to the legislative body, board or official having jurisdiction; or

(b) it may give the hearing examiner's decision the effect of a final decision, and may specify whether the decision is appealable to the legislative body or to a designated official or body, or whether the decision is a final decision subject only to judicial review as provided by this Chapter.

10-307 Review of Hearing Examiner Recommendations

(1) If the hearing examiner has held a record hearing on the recommendation, the legislative body, board, or officer shall consider the recommendation as a record appeal and shall make a decision on the recommendation as provided by Section [10-209].

[(2) If the hearing examiner has not held a record hearing on the recommendation, the legislative body, board, or officer shall hold a record hearing on the recommendation and shall make a decision on the recommendation as provided by Section [10-207]

[(3) The legislative body, board, or officer shall give [due regard or substantial weight] to the recommendation of the hearing examiner.]

• This Section provides the procedure for the legislative body's review of a hearing examiner's recommendation. The requirement that the legislative body, board or officer may not hold an additional record or limited record reflects the expectation in Section 10-201 that only one such hearing should be held. However, paragraph (2) authorizes such hearings if the hearing examiner has not held a hearing on the recommendation. Paragraph (3) contains an optional provision that requires that "due regard" be given to the hearing examiner's recommendation.

10-308 Filing and Publication of Hearing Examiner Decisions

The ordinance establishing the hearing examiner system shall require the filing of hearing examiner decisions in a manner that makes them available to the public, and may require the publication of hearing examiner decisions in print or electronic media.]

• This Section is optional. However, it is highly recommended that local governments at least require the filing of hearing examiner decisions so they can be accessible to the public.

Land-Use Review Board

Sections 10-401 et seq. provide for the creation and organization of a Land-Use Review Board. In most zoning enabling legislation, this board is called a Zoning Board of Adjustment or Zoning Board of Appeals. These Sections adopt a different name because a local government's land development regulations will probably contain more than zoning regulations. However, a state may use another name if it prefers.

These Sections differ from the traditional zoning enabling act because they do not mandate a fixed and inflexible structure for the Board. Smaller communities, especially, may need the flexibility to create smaller Boards, and the Section does not prohibit the creation of a Board with only one member. Communities may also need flexibility in setting the terms of office for board members. For example, some communities may prefer longer terms in order to reduce turnover and to keep Board members in office once they gain experience.

Moreover, a local government may decide not to create a Land-Use Review Board. This Chapter allows a local government to assign functions traditionally exercised by a zoning board of adjustment or appeals to another officer or body, such as the local planning commission or a hearing examiner. Sections 10-401 et seq. are based in part on R.I. Gen. Laws 45-24-56.

10-401 Land-Use Review Board Authorized

The legislative body of each local government [shall or may] adopt an ordinance, as part of its land development regulations, which provides for the creation of a Land-Use Review Board.

10-402 Organization and Procedures

An ordinance creating a Land-Use Review Board shall:

(1) specify the number of members who shall serve on the Board, including alternate members;

(2) provide for the appointment of Board members, including alternate members, and for the organization of the board;

(3) specify the terms of members of the Board, which may be staggered;

(4) specify the requirements for voting on matters heard by the Board, and specify the circumstances in which alternate members may vote instead of regular members; and

(5) specify procedures for filling vacancies in unexpired terms of Board members, including alternate members, and for the removal of members, including alternate members for due cause.

10-403 Compensation, Expenses and Assistance

The ordinance creating the Land-Use Review Board may provide for the compensation of board members and for reimbursement for expenses incurred in the performance of official duties, and may authorize the board to engage legal, technical, or clerical assistance to aid in the discharge of its duties.

 

10-404 Training

Within [6] months of assuming office for the first time, any member of the Land-Use Review Board, including alternate members, [shall or may] complete at least [6] hours of training in his or her duties as a member of the Board. The local planning agency shall design and provide the training.

• This Section authorizes training for new board members, and a local government can make this training mandatory. It is based on N.H. Rev. Stat. Ann. 673:3-a.

10-405 Powers

The ordinance creating a Land-Use Review Board shall specify the powers the Board may exercise. The ordinance may provide that the Board shall serve as the local government's appeals board.

• This Section gives the local government the flexibility to determine what powers the Land-Use Review Board will exercise. It authorizes the appointment of the Board as the local government's appeal board, which Section 10-101 also authorizes.


Administrative Actions and Remedies

Commentary: Authority to Approve

This Section gives the legislative body flexibility in designating the officer or body that has the authority to approve the administrative actions and remedies authorized in the following sections.


10-501 Authority to Approve

Each local government's land development regulations [shall or may] authorize the Land-Use Review Board, the planning commission, the legislative body, or such other officer or body as the land development regulations shall designate, to approve the administrative actions, remedies, and procedures authorized by Sections [10-502] and [10-503].


Commentary: Conditional Uses

Section 10-502 authorizes the Land-Use Review Board, or any other designated officer or board, to grant conditional uses, which is a traditional administrative function. The Section authorizes conditional uses in any of the land development regulations adopted by a local government, in addition to zoning regulations. The legislative body must also specify the areas or districts in which special uses are available. It is the intent of this Section that the land development regulations specify special uses by type, e.g., hotels as a special use in a commercial district. This paragraph is based on R.I. Gen Stat. 45-24-42.

This Section retains the format of the Standard State Zoning Enabling Act. It authorizes the legislative body in its land development regulations to specify the uses the Board, the planning commission, or other officer or body may consider as conditional uses and the criteria the Board is to apply.


10-502 Conditional Uses

The officer or body designated under Section [10-501] may approve conditional uses. The land development regulations shall:

(1) specify the uses, or categories of uses, requiring approval as a conditional use, and the areas or districts in which they are available; and

(2) provide criteria for approving each category of conditional use. The criteria shall include a determination of consistency with the local comprehensive plan pursuant to Section [8-104].


Commentary: Variances

This Section authorizes the traditional dimensional, or area, variance., but limits the cases in which it may be granted by limiting "uniqueness" to specified physically difficult circumstances. It uses language from Ky. Rev. Stat. 100.247 that expressly prohibits use variances.

It is the intent of this Section that the authority to grant dimensional variances be exercised infrequently. The test adopted is a "reasonableness" test as shown by the absence of a reasonable alternative to granting the variance. However, a variance cannot be granted simply because it would make a use or structure more profitable. It is also intended that the "hardship" test included in this Section should not be interpreted as a test of economic hardship similar to the test for "economically viable use" that courts apply under the takings clause. The Section is based on N.J. Stat. Ann. 40:55D-70(c) and R.I. Gen. Stat. 45-24-41. An alternative "reasonableness" test for dimensional variances can be found in R.I. Gen. Stat. 45-24-46. A similar balancing test for dimensional variances is contained in N.Y. Town Law 267-b(3).


10-503 Variances

The officer or body designated under Section [10-501] may approve variances. The land development regulations shall:

(1) provide for the approval of variances from any of the numerical dimensional requirements of the land development regulations;

(2) prohibit the granting of a variance for use, density, or intensity for land, buildings or structures which is not authorized by the land development regulations;

• Use variances are not permitted under this Section because they would constitute an amendment of the zoning ordinance adopted by an administrative body instead of the local legislative body.

(3) provide that the variance requested is required by exceptional or unique hardship because of:

(a) exceptional narrowness, shallowness, or shape of a specific piece of property; or

(b) exceptional topographic conditions or physical features uniquely affecting a specific piece of property;

(4) require a showing that there are no other reasonable alternatives to enjoy a legally permitted beneficial use of the property if the variance is not granted;

(5) prohibit the granting of a variance based on a showing that a use may be more profitable or that a building or structure may be more valuable if the variance is granted; and

(6) require that the variance requested be consistent with the local comprehensive plan as determined pursuant to Section [8-104].


Commentary: Mediated Agreement

A comprehensive land-use regulation system requires some sort of remedy or procedure to address land development regulations that are unduly restrictive as applied to a particular property and to avoid claims that the regulation in question constitutes a taking. The use variance has been the traditional remedy since the Standard State Zoning Enabling Act in the 1920s. However, critics have long complained that the use variance confers too much discretion on zoning boards by allowing them to approve changes in land use that improperly amend the zoning ordinance. Therefore, this Chapter prohibits the use variance in Section 10-503.

In the absence of the use variance, the need for a "relief valve" still exists. Commentators have called for the adoption of express authority for local governments to provide some sort of remedial measure or procedure.[40] There are two important considerations that must be balanced in the creation of such a relief mechanism. Because each parcel of land is unique and is therefore uniquely affected by land development regulations, which are themselves complex and which interact in complicated ways, the available remedies must be flexible. On the other hand, the local government has not only the power but the duty to regulate the development and use of land for the benefit and advancement of the entire community. A requirement of powerful and broad remedies has the potential to subsume the community interest to that of the individual landowner. This is especially problematic when the relief authorized is so broad as to constitute policy-making or legislation but the power to grant relief is assigned to an administrative body, as is the case with the use variance.

Mediation

With this essential balance in mind, mediation appears to be the most appropriate method of providing the needed "relief valve" for land development regulations. Mediation is a non-binding process where a neutral person assists the parties to a dispute in negotiating a mutually-beneficial solution. This is in contrast to arbitration, where a neutral person or panel hears the presentations and arguments of both sides to a dispute and then makes a decision which will presumably resolve the dispute. Mediation, because it is still essentially the negotiation of two parties, does not have to conclude in an agreement. Arbitration, on the other hand, always ends in a decision, which because it is not an agreement may not satisfy either or both parties. Mediation has a long history as a method of settling disputes between parties who have to deal with each other on an ongoing basis and therefore would rather cooperate than approach the dispute adversarially. For example, mediation has an important role in the settlement of labor disputes under federal law; there has been federal mediation for railway (and now airline) labor disputes since before the New Deal.[41] Mediation is used in areas as dissimilar as financial services and child custody disputes.

Idaho[42] requires that the local land development approval process include the right to mediation. This mediation may occur at any time in the process, and is outside the process in the sense that it is not part of the record and tolls (suspends) any time limits on the approval process. Mediation may be requested by an applicant, the local government, or an "affected person." The mediator is selected by the local government and paid by the local government for the first, mandatory, session; the cost of later sessions may be apportioned between the parties by agreement.

Maine has adopted a statute[43] authorizing mediation in land-use cases. Mediation is available whenever a landowner alleges significant harm as the result of a land use regulation. However, the applicant landowner must have not only been denied a permit, variance, or the like but must have exhausted all administrative remedies; mediation is an alternative to judicial review, not to adversarial proceedings altogether. As such, mediators are assigned by the superior (trial) courts and the mediator must report upon the resolved and unresolved issues to the court if the mediation does not result in a completely dispositive agreement.

Contents of the Model Section

Under Section 10-504 below, any landowner who has been denied a development permit, or granted a permit subject to conditions, and who feels that the land development regulations, individually or cumulatively, impose an undue hardship on his or her development and use of the land may request mediation. The local government then has 30 days to decide whether or not there will be mediation. The goal of the mediation is to enter into a development agreement pursuant to Section 8-701, although other remedies and measures may be considered. However, the only duty of the landowner and the local government is to participate and negotiate in good faith. Therefore, no remedy can be imposed by the mediator, and failure to reach an agreement is not a reviewable land-use decision. Also, mediation is not a required part of exhausting administrative remedies preceding a judicial review under Part 6 of this Chapter.

The preferred method of selecting a mediator is by mutual consent of the landowner and the local government. However, such consent may not always be possible. In such cases, the state planning agency shall appoint a mediator. The state planning agency has the necessary "distance" from the dispute at hand, in that its interest is in the implementation of the state plans and in the regulation of land use and development to best serve the people of the state as a whole rather than either wholly local interests or the private interest of the landowner.

The centerpiece of the Section is the development agreement. As Section 8-701 provides, a development agreement may address any issue that local land development regulations can cover. A development agreement is considered to be, and must be approved as, a land development regulation. The development agreement must therefore be consistent with the local comprehensive plan. Regardless of who negotiates it on behalf of the local government, it must receive the approval of the local legislative body to become effective, thus avoiding the problem of policy decisions being made by administrative bodies. And approval of the development agreement must be preceded by public notice and hearings, so that the perception of secrecy and back-room dealing is reduced. To the same end of avoiding secret dealing and the perception thereof, this Section requires that the mediation sessions be open to the public.


10-504 Mediated Agreement

(1) Any owner or developer of land who:

(a) has made a development permit application, complete or deemed complete, for the land in question and the application was denied by the local government or approved subject to conditions; and

(b) believes that a land development regulation, or the land development regulations cumulatively, imposes an undue hardship upon his or her use or development of the land in question;

may petition for mediation as provided in this Section.

(2) As used in this Section,

(a) "Development Agreement" means a development agreement pursuant to Section [8-701];

(b) "Mediation" means a process of negotiation where a disinterested person assists the parties in their negotiations.

(c) "Parties" mean the owners and/or developers and the local government.

(3) Upon the filing with the local government of a written petition for mediation, the local government shall notify the petitioner in writing within [30] days of receipt of the petition whether mediation will commence.

(a) The petition for mediation shall include:

1. the name and mailing address of the petitioner;

2. the name and mailing address of the petitioner's attorney, if any;

3. the names and mailing addresses of all owners of the property in question, if the petitioner is not the sole owner of the property;

4. a description of the property in question;

5. a statement of the nature and extent of the alleged undue hardship; and

6. an identification of the land development regulation or regulations that allegedly create the undue hardship.

(b) Local governments may, by ordinance, specify the form and content of petitions for mediation.

(4) The parties shall by mutual written agreement select a mediator within [30] days of the issuance of a notice by the local government that mediation shall commence. If the parties cannot agree upon a mediator within that time, the local government shall notify the [state planning agency] in writing at the end of the [30]-day period and the [state planning agency] shall select a mediator within [10] days of its receipt of the notice. The [state planning agency] shall notify the parties in writing of the selection at the time the selection is made.

(5) Absent a written agreement to the contrary, the cost of mediation shall be divided equally between the parties.

(6) The focus of mediation pursuant to this Section shall be the negotiation of a development agreement to remedy or ameliorate undue hardship and to resolve potential takings claims, but all appropriate remedies, measures, and responses may be considered.

(a) The parties shall participate in the mediation in good faith.

(b) The mediator shall coordinate the mediation with the parties, including the date, time, and place of meetings. All meetings shall be open to the public.

(c) The mediator may invite any person, organization, or governmental unit to participate in the mediation. The parties may suggest persons, organizations, or governmental units to invite.

(d) Failure to enter into or adopt a development agreement is not a land-use decision. Mediation is not a remedy that must be exhausted pursuant to Section [10-604] as a prerequisite to judicial review pursuant to this Chapter.

10-505 Referral to Planning Commission

(1) If the land development regulations designate an officer or body other than the planning commission to hear an application for a conditional use or variance, such officer or body may request a recommendation from the local planning commission or local planning agency. It shall report its recommendations within [30] days of the receipt of the application by such officer or body.

(2) If the local planning commission or local planning agency makes a recommendation, the officer or body shall give it [due regard or substantial weight] and make it a part of the record.

• A local government may appoint its planning commission to hear applications for the administrative remedies authorized by this Chapter. If it appoints another officer or body, this Section authorizes a referral to the planning commission or the land planning agency for a recommendation. This Section is based in part on R.I. Gen. Laws 45-24-41(B).


Commentary: Imposition of Conditions

Local governments almost always condition a grant of administrative relief, usually with several conditions. This Section grants the authority to adopt conditions. A purpose of conditions is to ensure that the effect of an approved development on surrounding areas and natural resources is minimized. This requirement can form the basis for integrating development approvals with environmental reviews under state environmental policy acts, as authorized by Chapter 12. To accomplish this objective, and to allow local governments to review the details of developments, this Section also authorizes the submission of a site plan, if authorized by the land development regulations. Controls over development staging will assist the local government in coordinating development in the community with the provision of necessary public facilities. This Section is based in part on R.I. Gen. Stat. 45-24-43.


10-506 Conditions

(1) When an officer or body approves a conditional use or variance, it may adopt such conditions which, in its opinion, will promote the intent and purpose of the local comprehensive plan and land development regulations. These conditions may include, but are not limited to, conditions that:

(a) minimize the adverse effect of a development on the surrounding area and on any natural resources that will be affected by the development;

(b) require the submission and approval of a site plan, if authorized by the land development regulations, that specifies the location and nature of the development and any necessary improvements;

(c) guarantee the satisfactory completion and maintenance of any required improvements;

(d) control the sequence of development, including when it must be commenced and completed; and

(e) require detailed records, including drawings, maps, plats or specifications.

(2) The officer or body shall base any conditions it adopts on competent, credible evidence it shall incorporate into the record and its decision.

(3) A failure to comply with an approved condition is a violation of the land development regulations.


Commentary: Integration of Procedures

Section 10-507 specifies the procedures required for all of the remedies and administrative actions authorized by this Chapter. It integrates applications for development permits with applications for these remedies and actions: the application procedures for these remedies must be the same as the local government's development permit review process. As such, the decision on the requested remedy or action is also a final and appealable decision under this Chapter.

An application for one of these remedies and actions can be considered independently of an application for development. However, it must be included in a development application when one is made. Also, a local government must make a decision on the application for a remedy or action before it considers the development permit. For example, if application is made for a variance in the form of a decreased setback requirement, a decision on that application must be made before a zoning permit can be issued. This decision becomes part of the application for development, and the local government must consider the decision as it reviews the development permit application.

Paragraph (2)(a) requires the local government to specify which officers and bodies review applications for remedies and actions. It is possible that a request for an administrative remedy or action may not be heard by the same officer or body that hears the application for a development permit that accompanies the application for an administrative remedy. The consolidated review process authorized by Section 10-208 can provide for joint hearings on applications for a development permit and an administrative remedy when the same officer or body reviews both applications. Record hearings on applications for a remedy or action are mandated by paragraph (2)(b). Paragraph (2)(c) requires development permits to include any approved administrative action or remedy.


10-507 Procedures

(1) (a) Each local government shall adopt an application procedure for conditional uses and variances. This procedure must incorporate the procedures of the development permit review process, and a decision on an application for a conditional use or variance is a final appealable decision under this Chapter.

(b) Applications for conditional uses and variances must be included as part of a development permit application if a development permit application is submitted. A decision on an application for a conditional use or variance must be made before a development permit may be issued, and such a decision shall become part of the application for a development permit.

(2) The application procedure required by paragraph (1) shall:

(a) specify which officers and bodies shall review applications for conditional uses and variances;

(b) require that the review of such applications be conducted by record hearing; and

(c) require any development permit for such development to incorporate any conditional use or variance that has been approved for such development.

Judicial Review of Land-Use Decisions

The legal structure for the judicial review of land-use decisions is chaotic.[44] The Standard State Zoning Enabling Act, which state laws followed, contains limited provisions for the judicial review of administrative zoning decisions. Courts have had to find additional methods of judicial review for actions not reviewable under the statutory procedures. These procedures are incomplete and unclear, standing to sue requirements can limit opportunities for review, and remedial relief available is inadequate. Important land-use disputes often cannot get to court. Other issues complicate judicial review. These are an increasing concern about decision making procedures, a trend toward classifying land-use decisions as quasi-judicial, the requirement that compensation is payable when a taking occurs and the availability of a federal statutory remedy in state courts. This commentary discusses some of the topics related to judicial review and identifies some alternative solutions.

Methods of Judicial Review

The methods available for judicial review of local land-use decisions are confused. The Standard State Zoning Enabling Act provided only for judicial review of decisions by the board of zoning adjustment through a writ of certiorari, but was silent on other forms of judicial review.[45] In many states, judicial review of other land-use decisions, such as rezonings by the legislative body, occurs through extraordinary or "high prerogative" judicial writs. For example, a landowner who believes a land-use agency should issue a building permit can bring a writ of mandamus to compel its issuance. However, the usual remedy to test the invalidity of a zoning restriction applied to land is the injunction and declaratory judgment. The difficulty with this system is that the use of extraordinary writs to secure judicial review is cumbersome: under mandamus, relief will not be granted unless the obligation of the local government to act in a particular manner is clear, and if a mandamus action is unsuccessful, the landowner may have to try all over again with a new civil action. Decisions in several states that characterize local land-use decisions as quasi-judicial rather than legislative also complicates the choice of remedy. The writ available for judicial review varies depending on how a court characterizes a land-use decision.[46]

Additional problems occur if state agencies exercise authority over local land-use decisions. Judicial review of state agency decisions is available under state administrative procedure acts. These acts do not usually apply to local governments.

The availability of federal remedies in state courts also complicates judicial review. A plaintiff may bring a state court suit against a local government for a federal constitutional violation under Section 1983 of the Federal Civil Rights Act for a federal constitutional violation. A plaintiff may also bring an action in state court directly under the federal constitution for compensation when a land-use regulation is a taking of property.

There are several alternatives for providing judicial review: A state could (1) provide a state remedy similar to the federal 1983 remedy that would apply to all land-use decisions. This would greatly simplify existing review processes; (2) revise and expand the statutory basis for review in planning and land-use legislation; (3) rely on the extraordinary writs but specify by legislation when these writs are available to review land-use decisions; or (4) revise the state administrative procedure act to include review of land-use decisions by local governments. The model legislation below adopts a combination of the first alternative and the second alternative.

Timing of Judicial Review

The problem of timing in judicial review has become increasingly important since the U.S. Supreme Court adopted ripeness rules to decide when litigants could bring land-use cases in federal courts.[47] These federal rules make it difficult to bring land-use cases in federal courts. Some states now apply federal ripeness rules to decide when courts should take land-use cases rather than state exhaustion of remedies rules that traditionally decided this question.[48]

There is an important difference between timing rules in federal and state courts. These rules have a constitutional basis in federal courts because they decide when a constitutional "case and controversy" exists that confers jurisdiction on a federal court. State constitutions do not have similar requirements. A state court bases a decision not to hear a case on its discretionary power to define its jurisdiction. Because of these differences, states have greater opportunities through legislation to decide when land-use cases should come to court. Initial questions are whether a state wishes to make access to courts easy or difficult, and whether it wishes to codify the rules that decide whether a case is ripe for decision. Clarification is essential because the federal ripeness and state exhaustion rules have created considerable confusion. The federal rules, especially, have operated to bar access to federal courts and could have the same effect in the states if states continue to adopt them.

There are two approaches to state timing legislation. One is to have state legislation specify what types of decisions at the local level are "final" for purposes of judicial review or required to "exhaust" remedies. There is a question whether legislation of this kind can limit state court discretion to decide when to accept or refuse cases.

An alternate legislative approach would require local governments to specify by ordinance the land-use decisions that are "final" or meet the "exhaustion" rules. There is precedent for this kind of legislation in states, like Oregon, which require local governments to specify requirements for conditional uses, moratoria and other controls.[49] Timing legislation could specify the kinds of decisions that require timing rules. Courts are likely to accept local determinations of finality and exhaustion because the purpose of timing rules is to give local governments an opportunity for decision making that can avoid litigation. The model statute below defines when a decision is final for purposes of judicial review, and allows local governments to determine the administrative remedies authorized by this Chapter that are required for exhaustion.

Another issue legislation should address is the link between federal and state court jurisdiction. Considerable confusion has arisen when federal courts remand land-use cases to state courts because the federal court abstained or decided the case is not yet final. Often it is not clear whether the state court decision precludes a return to federal court because the state court has decided the issues raised in the federal litigation. Federal courts look to state courts for decisions on these issues, so state legislation should specify the role of state courts on remand. It should require a state court to make a record on the issues decided so that litigants will know whether res judicata bars them from returning to federal court.

Standing: Who Can Bring Suit?

Standing rules determine who may bring suit in court. Landowners have standing to challenge land-use decisions affecting their property. The principal standing problem arises with "third party" organizations and individuals who wish to challenge a land-use decision in court but who did not participate in the decision making process. Neighbors who wish to challenge rezonings to more intensive uses are one example. Organizations and nonresidents who wish to challenge exclusionary zoning are another. Third party standing often is essential to raise social issues in land-use cases because the parties to the case may be pleased with the decision and will not seek judicial review.

Federal and state standing rules differ. Standing has a constitutional basis in federal court because standing to sue is part of the constitutional "case and controversy" requirement. No constitutional requirement governs standing in state courts, and the decision to take or decline cases is within a state court's discretion.

Federal courts beginning about 25 years ago developed liberal standing rules that opened the doors of federal courts to third party litigants.[50] Some state courts have adopted the federal rules, but some have not. The U.S. Supreme Court in recent years has been less willing to grant standing to third parties,[51] and state court cases may follow these recent decisions.

The issue of whether to grant standing to third parties is a complex one. On the one hand, a local government may not have considered, or even deliberately ignored, legitimate issues and interests when making its decision, and the decision has therefore infringed upon a valid interest or caused injury to some person or group. In such cases, a legal remedy should be available to an affected third party. On the other hand, a person or group that had an opportunity to participate in an open and inclusive planning process but whose position was ultimately rejected in full debate may use legal challenges to delay, obstruct, or even reverse the valid decision of that democratic process. Any standing rule for third parties must therefore be an attempt to balance the need to allow injured persons and groups to challenge bad decisions with the need to have good decisions reached by good process implemented in an efficient and timely manner.

Third-party standing is used in a variety of ways — when neighbors challenge rezonings to more intensive uses, nonresidents challenge exclusionary and other zoning actions, organizations seek to have their perspective or interest addressed specifically in a land-use decision, or businesses challenge actions that affect competitors. Generally speaking, courts grant standing to neighbors to challenge a rezoning only if it clearly has an impact on the use of their land. Courts divide on whether to grant standing to nonresidents and to organizations, although some state courts follow the federal rules that allow courts to grant standing to organizations.[52] State courts do not allow litigants to challenge zoning that benefits their competitors. Courts may also deny standing to litigants who did not participate in the land-use decision they challenge.

State legislation usually handles standing problems by granting standing to persons "aggrieved" by land-use decisions.[53] This is the usual method for defining standing, but the "aggrievement" standard is ambiguous — some states define the term "aggrieved" by statute while some others do not — and not always helpful in deciding standing disputes. State legislation should specify rules for standing in land-use cases, so that standing rules are relatively clear and are tailored to the planning and land-use statutes with which they will interact.

Scope of Judicial Review and Remedies

The basis for state court review of land-use decisions often is unspecified in state statutes. Review for lack of statutory authority or lack of authority in a local ordinance always is available. State courts may also review for "arbitrary and capricious" decisions without specifying whether this standard means review for unconstitutionality. State courts can also apply federal constitutional law because litigants can sue on the federal constitution in state courts. They usually apply federal free speech law and may apply federal decisions on equal protection and due process issues.

This overlap and confusion in the scope of judicial review may make it necessary to specify through legislation the basis for judicial review of land-use decisions. This type of provision is common in state administrative procedure acts. Another issue that requires attention is the presumption of constitutionality. Federal and state courts increasingly shift the presumption of constitutionality against government when they believe it should bear the burden of proof in land-use cases. Exclusionary zoning is an example.

Existing state legislation is unclear on the basis for review when a lower court reviews a land-use decision. Some states allow a trial de novo of the facts, while others confine trial court review to a narrow review of the record. A trial de novo is preferable when the land-use agency does not hold a hearing and does not create a formal record, as often happens with legislative land-use decisions. Review in a lower court can be on the record when a land-use agency makes a formal record following a quasi-judicial hearing.

Specific remedial relief is another important issue. A minority of courts grants specific relief based on findings included in a trial record if they find a land-use regulation is invalid. Specific relief usually requires a municipality to grant permission for a development a landowner proposed, such as the "builder's remedy" courts grant in exclusionary zoning cases.

Some Approaches to Reform

There are a number of approaches to addressing the issues of judicial review, standing, timing, and remedies discussed above.

The American Law Institute's Model Land Development Code proposed a unified system for judicial review of land-use decisions. These provisions, in Article 9 of the Code, are complex and are not easily summarized. However, a basic philosophy of the Article is that the grounds for review, such as unconstitutionality or abuse of administrative discretion, are to be made the same regardless of the form of action. The Article thus prescribed a standardized method of judicial review of the three principal actions that may be taken under the Code: legislative ordinances, administrative rulemaking, and administrative orders — the grant, denial, or issuance with conditions of a development permit — with or without an adjudicatory type of hearing.[54] This complicated attempt to transfer procedures for the judicial review of state agencies to the local level is, as a practical matter, unworkable, and no state adopted it as proposed.

In Oregon, the Land-use Board of Appeals (LUBA) is a state body of three attorneys appointed by the governor with the consent of the senate.[55] It hears appeals from all land-use decisions, whether quasi-judicial or legislative, of municipal, county, and regional governments, and of special districts and state agencies whose decisions are not directly appealable to a court of law.[56] The standing requirement for an appeal to LUBA is very liberal: any person who participated in the local land-use proceeding can appeal the decision arising from that proceeding.[57] LUBA conducts its appeals on a closed-record basis, relying on the record prepared by the government in making its decision, and the statutory time limits for filing appeals, briefing, and the production of an opinion and order mean that LUBA conducts its reviews much more expeditiously that the courts of law.[58] LUBA has the power to stay land-use decisions pending its review.[59] LUBA must reverse and remand land-use decisions that (a) violate the constitution, state goals, or the applicable comprehensive plan, (b) are based on an error in law, or (c) have an inadequate evidentiary basis.[60] However, a reversal or remand on procedural grounds may be granted only when "substantial rights" were impaired or prejudiced by the procedural error.[61]

The intent in creating LUBA was to provide an efficient means of resolving disputes over land-use decisions within a relatively short period of time. Local governments in Oregon are required by statute to make decisions, including appeals, on development applications (permits and zone changes) within 120 days after the application is deemed complete.[62] From the date of the final land-use decision from a local government, a petitioner has 21 days to file an appeal. The statute requires that the record must be submitted, the case briefed, and LUBA's opinion and order must be issued within 77 days of the transmittal of the record.[63] Extensions can be granted under limited circumstances.[64]

Washington's approach to administrative review is embodied in the Land-use Petition Act.[65] The land-use decisions of counties, cities, and incorporated towns are reviewable in the Superior Court upon petition.[66] Applicants for the land-use decision and owners of the land that is the subject of that decision have standing to appeal. Other persons aggrieved by the decision have standing only if (a) the decision prejudices them, (b) their interests were among those the local government was required to consider in making the decision, (c) a judgment in their favor would substantially redress the prejudice, and (d) they have exhausted administrative remedies.[67] The petition must be served in the manner of a civil complaint and summons upon the local government that made the land-use decision, all applicants and owners, and any person who brought an appeal.[68] The judicial appeal is to be an expedited review, and a hearing on the merits must be held within 60 days of the date when the local government record of the decision is due to be filed with the court.[69] As an expedited review, the procedure is an appeal on the record and discovery is not usually available.[70] The court may order a stay of action on the land-use decision pending its judgment, but only if the party requesting a stay will be irreparably harmed without it and is likely to win on the merits.[71] The court cannot find for the petitioner except on the grounds that the land-use decision (a) was made by an officer or body engaged in unlawful procedure (unless the error was harmless), (b) is an erroneous interpretation of the law, (c) is not supported by substantial evidence, (d) is a clearly erroneous application of the law to the facts, (e) is outside the authority or jurisdiction of the officer or body making the decision, or (f) violates the constitutional rights of the petitioner[72]. The judicial review provisions in the model statute below are modeled on the Land-use Petition Act, the only law of its kind in the country.

In Pennsylvania, when an landowner (or developer) challenges a zoning ordinance, he or she may submit a curative amendment to the ordinance that would remedy the alleged invalidity. The municipality may also prepare and consider its own curative amendment, if it finds the zoning ordinance, or portion thereof, is "substantially invalid." If the local government rejects the landowner's curative amendment[73] but a court finds that the challenge has merit, a state court may invalidate those portions of the ordinance that are contrary to the landowner's proposed curative amendment. If a court could not give a landowner specific relief, but only generally invalidates the ordinance, a municipality may still adopt a different — but still invalid — land-use regulation, and the landowner will then have to sue again.[74] This reform has not proved successful, and the model statute below does not adopt it. However, it does authorize a court to grant specific relief to a litigant when it reverses a decision by a local government and decides that specific relief is justified, rather than a remand.

The model statute proposed here addresses all of the issues that are likely to arise in the judicial review of land-use decisions. In some states, such as New Jersey, procedural matters concerning judicial review are covered in Supreme Court rules. In these states, procedural issues covered in the model statute could be addressed in Supreme Court rules.


10-601 Purposes

The purpose of Sections [10-601 to 10-618] is to provide for the judicial review of land-use decisions by local governments by establishing uniform, expedited appeal procedures and uniform criteria for reviewing such decisions, in order to provide consistent, predictable, and timely judicial review.

• This Section states the purpose of the judicial review provisions, which are based to a considerable extent on the Washington Land-use Petition Act, Wash. Rev. Code Ann. 36.70C.010 et seq. The judicial review provisions in this Chapter replace the limited judicial review provisions in the Standard State Zoning Enabling Act, and apply to land-use decisions by local governments on development permit applications.


Commentary: Exclusive Method of Judicial Review

The Standard State Zoning Enabling Act authorized the use of the judicial writ of certiorari to review decisions of the board of zoning adjustment. This writ is available to review decisions made on a record. The judicial review remedy provided by this Chapter replaces the writ of certiorari and is the exclusive method of judicial review for land-use decisions.

As defined by Section 10-101, a "land-use decision" is a decision made by a local government on a development permit application. A "development permit," as defined in Section 10-101, is a permit for development under the land development regulations. It incorporates, for example, the final plat approval subdivision, and a remedy, such as conditional uses and variances under this chapter. A land-use decision on an application for a development permit is often made following a hearing in which a record is created, and the judicial review authorized under this chapter takes the existence of a record into account.

A writ of mandamus, which seeks to compel an action by a local government, and a writ of prohibition, seeking to prohibit action by a local government, are exempt from judicial review under this Chapter. For example, an applicant who believes that a local government has improperly refused to find her development application complete can bring an action in mandamus to compel the local government to accept the application, on the theory that there is a duty to accept an application that complies with the legal requirements for applications. See Sections 10-202, 10-203.

Neither does the Section prohibit an application for an injunction or declaratory judgment where the claim is that a land development regulation or comprehensive plan is invalid or unconstitutional. The adoption or amendment of a comprehensive plan or land development regulation is usually considered a legislative act that does not require a development permit, so the judicial review remedy provided by this Chapter does not apply.

Section 10-602 also exempts claims for damages or compensation, which may be brought in state court under the state constitution or under the federal constitution, and claims brought in state court under Section 1983 of the Federal Civil Rights Act. While a petitioner may join these claims with a petition for judicial review under this Chapter, they do not have to do so in order to preserve the claims, and the filing of a petition for review does not bar the later filing of an action for damages or compensation. Also, the procedures unique to Chapter 10 judicial review do not apply to legal claims for damages or compensation. This Section is based on Wash. Rev. Code Ann. 36.70C.030.


10-602 Method of Judicial Review Exclusive

(1) The judicial review provided by this Chapter replaces the writ of certiorari for the review of land-use decisions and is the exclusive means for the judicial review of land-use decisions.

(2) The judicial review provided by this Chapter does not replace or apply to judicial review of applications for:

(a) a writ of mandamus or prohibition;

(b) an injunction or declaratory judgment claiming that the adoption or amendment of land development regulations or local comprehensive plan is invalid or unconstitutional; and

(c) claims for monetary damages or compensation.

(3) Any person filing a petition for judicial review under this Chapter may join with that petition any claim excluded from this Chapter by paragraph (2) above and/or a claim under Section 1983 of the Federal Civil Rights Act, 42 U.S.C. 1983.

(4) The rules for civil actions in the [name of court] govern procedural matters under this Chapter to the extent that these rules are consistent with this Chapter.


Commentary: Judicial Review

Section 10-603 makes it clear that judicial review of land-use decisions is available by filing a land-use petition, which is equivalent to a complaint or petition in a civil action. A state may want to add a provision on joinder of parties, if this problem is not covered by court rules or another statute. See Wash. Rev. Code 36.70C.050.

This Section, in paragraph (1), requires a final land-use decision before judicial review is available. Paragraph (2) defines finality. The definition of finality is written so that an appeal of a land-use decision to a court is not necessary to make a decision final. (However, under Section 10-604, a final decision is not appealable if administrative remedies have not been exhausted, unless seeking those remedies would be futile.) Neither is an application for a zoning map amendment necessary.


10-603 Judicial Review of Final Land-Use Decisions

(1) Any person with standing pursuant to Section [10-607] may obtain judicial review of a final land-use decision under this Chapter by filing a land-use petition with the [name of court].

(2) A land-use decision is a "final land-use decision" if:

(a) an application for a development permit is complete or deemed complete pursuant to Section [10-203]; and

(b) the local government has approved the application, has approved the application with conditions, or has denied the application; [or]

[(c) the application is deemed approved under Section [10-210]].

• This provision is in brackets because "deemed approval" is an option in Section 10-210. If the alternative option is chosen, there is no "deemed approval" and this subparagraph serves no purpose.

(3) The issuance or denial of a certificate of nonconforming use under Section [8-502] is a final land-use decision.

(4) A decision arising from an appeal pursuant to Section [10-209] is a final land-use decision.


Commentary: Exhaustion of Remedies

State courts require that petitioners for judicial review must exhaust administrative remedies and appeals before judicial review is available. Courts may impose this requirement in addition to or instead of the ripeness requirement. Section 10-604 below codifies this requirement. It clarifies its meaning by only requiring exhaustion of administrative appeals and the conditional use and variance remedies available in this Chapter.

A land-use decision is appealable under Section 10-603. However, since land development regulations must include an appeal to a local officer or body under Section 10-209, it will be necessary to first make such an appeal, with limited exceptions. State courts have adopted a futility exception to exhaustion,[75] which this Section codifies in paragraph (2)(a). The definition of futility is left to judicial decision. See also Minn. Stat. Ann. 462.361 (need not exhaust remedies if court finds "that the use of such remedies would serve no useful purpose under the circumstances of the case"). Paragraph (2)(b) codifies the judicial rule[76] that exhaustion is not required if the administrative remedy is inadequate. Paragraph (2)(c) codifies the judicial rule[77] that exhaustion is not required if a petitioner for judicial review claims a comprehensive plan or land development regulation under which a land-use decision was made is facially invalid. A state may decide not to codify or to modify the codification of the exhaustion of administrative remedies rule.


10-604 Exhaustion of Remedies

(1) The [name of court] shall have jurisdiction over a land-use petition if and when the petitioner has exhausted the appeal procedures provided under Section [10-209] and the applicable remedies available under Sections [10-502 and 10-503] of this Chapter.

• For example, if there is no conditional use provision applicable to the property in question as zoned, an applicant does not have to seek a conditional use before commencing judicial review.

[(2) Exhaustion of administrative remedies under paragraph (1) is not required:

(a) if an appeal or an application to obtain an administrative remedy would be futile;

(b) if an administrative remedy is inadequate; or

(c) for a claim that the local comprehensive plan or land development regulations on which the local government relied for its land-use decision are facially invalid.]

• It should be noted that different exceptions may have arisen in individual states, and such states may wish to substitute those exceptions for those provided in paragraph (2).

(3) The terms and provisions of this Section shall be given the meanings assigned to them by [the common law or case law or precedent].

• The intent of this provision is to adopt the body of case law interpreting the specified terms and provisions of this Section. In some states, "common law" signifies case law or judge-made law in general. In other states, "common law" has the specific meaning of the rules of case law and certain English statutes up to a particular year, often 1776.


Commentary: Federal Claims

Federal courts require persons who bring takings claims to begin their lawsuit in state courts by seeking compensation when a state compensation remedy is available. The reservation of the federal claim in state court may determine whether a petitioner can return to federal court once the state lawsuit is terminated. This Section gives the petitioner for judicial review in state court the option to reserve a federal claim. This Section also deals with a question of jurisdiction in federal courts, and arguably is not appropriate for inclusion in a model land-use statute. However, it is only in land-use cases that the federal courts apply stringent jurisdictional rules that often bar litigants who wish to file a land-use action. The Section is therefore optional.


10-605 Federal Claims

Any person who files a land-use petition under this Chapter may include in the petition a statement reserving any federal claim arising out of the land-use decision that is the basis for the petition, and a prayer that the court reserve these claims in its decision under Section [10-615].]

10-606 Filing and Service of Land-Use Petition

(1) A land-use petition is barred, and a court may not grant review, unless the petitioner has timely filed the petition with the court and timely served, by summons, the petition on the following persons, who shall be parties to the review of the land-use petition:

(a) the local government, which for purposes of the petition is the local government's corporate entity and not an individual decision maker or officer or body;

(b) the applicant for the development permit and the owner of the property at issue, if the owner was not the applicant; and

(c) all parties to a record hearing or record appeal on the land-use decision at issue.

(2) The petition is timely if it is filed and served on all parties listed in paragraph (1) of this Section within [21] days of the issuance of the land-use decision by the local government, or within [21] days after a decision is deemed approved under Section [10-209].

• These provisions are standard, and are based on Wash. Rev. Code Ann. 36.70C.040. See also Conn. Gen. Stat. 8-8(c). A state may wish to add provisions on how service is to be made if this requirement is not covered by the rules of court or another statute.


Commentary: Standing and Intervention

State courts require petitioners for judicial review of land-use decisions to have standing to sue, and many state land-use statutes define standing. In addition to mandatory standing for the applicant or owner of property that is the subject of the land-use decision, parties to a hearing, and neighbors, this Section grants standing to persons and organizations aggrieved by the land-use decision. This is the usual basis for standing in state courts. The Section also extends standing to organizations, and uses the tests for standing to control intervention in judicial review proceedings. The Section is based on Wash. Rev. Code 36.70C.060, with the addition of mandatory standing for neighbors, as provided by Vt. Stat. Ann. tit. 23, 4464(b).

The Section adapts language from the Washington statute that defines when a person or organization is aggrieved. The purpose of this definition is to require that parties seeking standing to challenge a land-use decision have a sufficient interest to create an actual controversy. This requirement makes it unnecessary to place additional limitations on appeals by organizations, such as a requirement that a neighborhood or community organization show that it represents a certain percentage of residents in a neighborhood it purports to represent. It is the intention of this Section that aggrieved persons and organizations have standing without necessarily having participated in a hearing on the development permit application that was the subject of the land-use decision. This Section applies to administrative reviews on development permit applications as authorized by Section 10-204.

The Section, at various points, contains alternative language to define standing. These alternatives are enclosed in brackets. A state may decide not to define when a party seeking standing is aggrieved. That decision will then be left to the courts. And because a state may have a clear standing rule from case law or statute that it wishes to use in the Guidebook in place of the model provided, the entire substantive portion of the Section has been placed in brackets.


10-607 Standing and Intervention

The following persons have standing to bring a land-use petition under Section [10-603], and to intervene in a proceeding for judicial review brought under that Section:

[(1) the applicant or the owner of property to which the land-use decision is directed, if the applicant is not the owner;

(2) the local government to which the application for the land-use decision was made;

• This provision authorizes a local government to seek judicial review of an adverse decision in a Section 10-209 appeal.

(3) any person owning or occupying property abutting or confronting a property which is the subject of the land-use decision;

(4) all other persons who participated in an administrative review by right, or who were parties to a record hearing, on a development permit application that was the subject of the land-use decision; and

(5) any other person, neighborhood planning council, neighborhood or community organization, or governmental unit, if it is aggrieved by the land-use decision, or if it would be aggrieved by a reversal or modification of the land-use decision.]

10-608 Required Elements in Land-Use Petition

A land-use petition must set forth:

(1) the name and mailing address of the petitioner;

(2) the name and mailing address of the petitioner's attorney, if any;

(3) the names and mailing addresses of the applicant for the land-use decision, and of the owners of the property that is the subject of the decision, if the petitioner is not the applicant and sole owner of the property;

(4) the name and mailing address of the local government whose land-use decision is at issue, if the petitioner is not the local government;

(5) identification of the decision-making officer or body, together with a duplicate copy of the written decision;

(6) identification of each person whom the petitioner knows or reasonably should know is eligible to become a party under Section [10-606(1)];

(7) facts demonstrating that the petitioner has standing to seek judicial review under Section [10-607];

(8) a separate and concise statement of each error alleged to have been committed in an administrative review, record hearing, or record appeal.

(9) a concise statement of facts upon which the petitioner relies to sustain the statement of error; and

(10) a request for relief, specifying the type and extent of relief requested.

• This Section is based on Wash. Rev. Code 36.70C.080 and contains standard language specifying the contents of a petition.

10-609 Preliminary Hearing

(1) When appropriate, in the petition served on the parties identified in Section [10-607(1)], the petitioner shall note, according to the rules of the [name of court], a preliminary hearing on jurisdictional and preliminary matters, including standing. The court shall set the preliminary hearing no sooner than [35] days and no later than [50] days after the petition is served on the parties identified in Section [10-606(1)].

(2) The parties shall raise all motions on jurisdictional and procedural issues for resolution at the preliminary hearing, except that a motion to allow discovery may be brought sooner.

(3) The defenses of lack of standing, untimely filing or service of the petition, and failure to join persons needed for just adjudication are waived if not raised by timely motion noted to be heard at the preliminary hearing, unless the court allows discovery on such issues.

(4) The petitioner shall move the court for an order at the preliminary hearing that sets the date on which the record must be submitted, sets a briefing schedule, sets a discovery schedule if discovery is to be allowed, and sets a date for the hearing or trial on the merits.

(5) The parties may waive the preliminary hearing by scheduling with the court a date for the hearing or trial on the merits, and by filing a stipulated order that resolves the jurisdictional and procedural issues raised by the petition, including the issues identified in paragraphs (3) and (4) of this Section.

(6) A party need not file an answer to the petition.

• This Section is based on Wash. Rev. Code 36.70C.080. It authorizes a preliminary hearing at which the court can deal with motions preliminary to trial that raise standing and other jurisdictional matters. Because the petitioner may not know at the time of filing the petition whether a preliminary hearing is necessary, the Section authorizes a motion for preliminary hearing only where appropriate. A state need not adopt this Section if a preliminary hearing is authorized by court rules or another statute.

10-610 Expedited Judicial Review

The [name of court] shall provide expedited review of petitions filed under this Chapter, and must set the petition for hearing within [60] days after the date set for submitting the local government's record. The court may set a later date if it finds good cause based on a showing by a party or parties, or if all the parties stipulate to a later date.

• Expedited judicial review is essential for land-use decisions because delay is costly for all parties, and can disrupt local government planning and land development regulation efforts while an appeal is pending. This Section is based on Wash. Rev. Code 36.70C.090.


Commentary: Stays of Action

Whether, and under what circumstances, a court should stay an action by a local government or another party is an important question. For example, if a development that is permitted by a land-use decision is not stayed, a developer can moot the case by completing the development pending the appeal.

This Section authorizes a stay, and is based on Wash. Rev. Code 36.70C.100. Unlike the Washington law, this Section does not provide for an evidentiary hearing on the stay order to determine whether the party requesting the stay is likely to prevail on the merits, whether the stay is necessary to prevent irreparable injury, and whether will not substantially harm other parties and is timely. An evidentiary hearing on the need for a stay order is a mini-trial on the merits of the petition, and can create unnecessary delays before the case goes to trial. It is the intention of this Section, however, that a court should have the discretion to consider the merits of the case and the other factors noted above when setting the amount of the bond. See Jan Krasnowiecki and L.B. Kregenow, "Zoning and Planning Litigation Procedures Under the Revised Pennsylvania Municipalities Planning Code," Vill. L. Rev. 39 (1994): 879, 904-06

When a development is approved by a local government in a land-use decision, an opponent of the development may file a petition for judicial review. Because the filing of petition may delay the development for a substantial period of time, even if the petitioner does not obtain a stay order, this Section also authorizes the owner of the land that has been approved for development to request an order requiring the petition to file security. The intent again is to give the court the discretion to take the merits of the opponent's case and other factors concerning the effect of a delay on the development into account when deciding whether to require security. See Krasnowiecki& Kregenow, supra. Section 10-602(4) makes the rules for civil actions applicable to appeals under this chapter, and the rules can provide additional guidance on stay orders, including guidance on the escrow and disposition of security.


10-611 Stay of Action Pending Judicial Review

(1) A petitioner or other party may move the court to stay or suspend an action by the local government or another party to implement the decision under review. The motion must set forth a statement of grounds for the stay and the factual basis for the motion. The court may grant the motion for a stay upon such terms and conditions, including the filing of security, as it determines are necessary to prevent the stay from causing harm to other parties.

(2) When a local government has approved a development in a land-use decision, or has approved a development with conditions, and a petition has been brought for judicial review of the land-use decision, the owner of the land that is the subject of the petition may move the court to order the petitioner to post security as a condition to continuing the proceedings before the court. The question whether or not such motion should be granted and the amount of the security is within the sound discretion of the court.

 

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