Growing Smart Legislative Guidebook

Chapter 10: Administrative and Judicial Review of Land-Use Decisions Endnotes

[1 ] The model statutes and supporting commentary in this Chapter were written by Daniel R. Mandelker, AICP, Stamper Professor of Law, Washington University School of Law, with additional drafting and material by John Bredin, Esq., Research Fellow for the Growing Smart project, and Stuart Meck, FAICP, Principal Investigator for the Growing Smart project. Mr. Meck wrote the introductory commentary to the Chapter on administration of land development regulations.

[2 ] Advisory Commission on Zoning, U.S. Department of Commerce, A Standard State Zoning Enabling Act (Washington, D.C.: U.S. GPO, 1926), 7.

[3 ] Id.

[4 ] Id.

[5 ] This discussion is adapted in part from John Vranicar, Welford Sanders, and David Mosena, Streamlining Land Use Regulation: A Guidebook for Local Governments, prepared for the Office of Policy Development and Research, U.S. Department of Housing and Urban Development by the American Planning Association (Washington, D.C.: U.S. GPO, November 1980), 4-5.

[6 ] See, e.g., the City of Cleveland, Ohio zoning ordinance, adopted in 1929, appearing in James Metzenbaum, The Law of Zoning (New York: Baker, Voorhis, 1930), 392-418. Section 1281-19 of the ordinance provided: "The construction, alteration or relocation of any building or any part thereof shall not be commenced or proceeded with except after the issuance of a written permit for same by the Commissioner of Buildings in accordance with this and other city regulations." Section 1281-20 required a "certificate of compliance to change the use classification or enlarge the use in any building or premises." Id., at 408-418. See also Edward M. Bassett, Zoning: The Laws, Administration, and Court Decisions During the First 20 Years (New York: Russell Sage Foundation, 1940), 109-110 (describing building permits and occupancy permits, which are issued before buildings can be used).

[7 ] SZEA, n. 43.

[8 ] Id.

[9 ] Id.

[10 ] Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). The Village of Euclid ordinance appears in James Metzenbaum, The Law of Zoning (New York: Baker, Voorhis, 1930), 335-352. Cleveland Attorney James Metzenbaum represented the Village in the litigation.

[11 ] Donald G. Hagman, Urban Planning and Land Development Control Law (St. Paul: West 1971), 71.

[12 ] For a discussion of these techniques, and others, from the vantage point of the 1970s, see Michael J. Meshenberg, The Administration of Flexible Zoning Techniques, Planning Advisory Service Report No. 318 (Chicago: American Society of Planning Officials (now the American Planning Association), June 1976).

[13 ] The emergence of specialized review boards in the development process has resulted, some have contended, in the narrowing of the traditional purview of the local planning commission, as its function is appropriated by other body for a select area of development policy. As a result, the planning commission's review may be less comprehensive and less central than it was originally envisioned when the commission was first instituted. Moreover, in built-up communities, with little vacant land, bodies such as a board of zoning appeals or a historic preservation commission may, as a practical matter, have a greater say in what gets built because each project will require a variance or involve a structure that is historic. See John Vranicar, et al., Streamlining Land Use Regulation, 29.

[14 ] John Vranicar et al., Streamlining Land Use Regulation, 5, 16-17.

[15 ] Robert M. Anderson, "The Board of Zoning Appeals — Villain or Victim?" Syracuse Law Review 13 (Spring, 1962): 353; Frederick H. Bair, Jr. "Boards of Adjustment and How They Got That Way," in Planning Cities: Selected Writings on Principles and Practice," Virginia Curtis, ed. (Chicago: American Society of Planning Officials, 1970), 486-49; Jesse Dukeminier and Clyde L Stapleton, "The Zoning Board of Adjustment: A Case Study in Misrule," Kentucky Law Journal 50 (1962): 273; R.M Shapiro, "The Zoning Variance Power — Constructive in Theory, Destructive in Practice," Maryland Law Review 29 (1969): 3.

[16 ] Frederick H. Bair, Jr., The Zoning Board Manual (Chicago: APA Planners Press, 1984), ch. 1 (discussion of the historic development of the board of zoning appeals and the impact of New York City on the SZEA).

[17 ] See Michael Barrett, "The ABCs of ZBAs: The Sequel," Zoning News (Chicago: American Planning Association, March 1996): 1-5 (describing membership requirements of ZBAs from a survey of 50 communities).

[18 ] Frederick H. Bair, Jr. "Boards of Adjustment and How They Got That Way," in Planning Cities: Selected Writings on Principles and Practice," Virginia Curtis, ed (Chicago: American Society of Planning Officials, 1970), 486-491, 488-489.

[19 ] See, e.g., Stuart Meck, "Rhode Island Gets It Right," Planning 63, No. 11 (November 1997): 10-15, 10-11 (describing how zoning board variance decisions were frequently set aside by Rhode Island state courts "because there was no record and little or no rationale," which led to a reform of the state's planning and zoning statutes in the late 1980s).

[20 ] Michael Barrett, at 2. In Smithtown, N.Y., the board hears 300 cases a year and the approval rate is 95 percent.

[21 ] Id., at 5.

[22 ] Jesse Dukeminier, Jr. and Clyde L. Stapleton, "Boards of Adjustment: The Problem Re-examined," Zoning Digest 14, No. 12 (December 1962): 361-371, at 370-371 .

[23 ] See generally Annette Kolis, ed., Thirteen Perspectives on Regulatory Simplification, Urban Land Institute (ULI) Research Report No. 29, (Washington, D.C. ULI, 1979).

[24 ] This discussion is adapted from John Vrainicar et al., Streamlining Land Use Regulation, 34-38, and Daniel Lauber, The Hearing Examiner in Zoning Administration, Planning Advisory Service Report No. 312 (Chicago: American Society of Planning Officials (now the American Planning Association), 1975).

[25 ] See, e.g., Alaska Stat. 29.40.050 (1998); Idaho Code 67-6520 (1998); Md. Ann. Code Art. 66B, 2.06 and 4.06 (1998); Nev. Rev. Stat. 278.262 (1998); Or. Rev. Stat 215.406 and 227.165 (1999); Wash. Rev. Code 35A.63.170 (1998).

[26 ] American Law Institute (ALI), A Model Land Development Code: Complete Text and Commentary (Philadelphia,: ALI, 1976), 2-301, Organization of Land Development Agency, 71 (hereinafter cited as "ALI Code"). Giving the authority to make certain development decisions to entities outside the Land Development Agency, as the ALI Code permitted, and then holding the Agency accountable for those decisions seem like an odd way of ensuring accountability.

[27 ] ALI Code, 2-202 , Modification of Regulations Applicable to a Permitted or Existing Use.

[28 ] ALI Code, 2-204, Special Development Permit to Allow Economic Use.

[29 ] ALI Code, 2-401, Permit Register. The permit register concept has been incorporated, in part, in Section 10-201(2), Unified Development Permit Review Process, in the Legislative Guidebook.

[30 ] ALI Code, 2-402, Joint Hearing, and 2-403, Agency Decision.

[31 ] Or. Rev. Stat. 215.416(2) and 227.175(2) (1999).

[32 ] Rev. Code Wash. 36.70B.110(7) (1998).

[33 ] Md. Code Ann., State Government, Tit. 11, 11-501 et seq. (Consolidated Procedures for Development Permits).

[34 ] For discussions of voluntary local streamlining initiatives, see John Vranicar, et al., Streamlining Land Use Regulation; NAHB National Research Center, Affordable Residential Land Development: A Guide for Local Government and Developers, prepared for the U.S. Department of Housing and Urban Development, Office of Policy Development and Research (OPDR) (Washington, D.C.: OPDR, November 1987); National Institute of Building Sciences, Land-Use Regulations Handbook (Washington, D.C.: The Institute, 1990), 16-19.

[35 ] See Debra Bassert, "Streamlining the Development Approval Process," in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 3, Planning Advisory Service Report No. ___ (Chicago: American Planning Association, forthcoming).

[36 ] New Castle v. BC Dev. Assoc., 567 A.2d 1271 (Del. 1989); Golden v. Overland Park, 224 Kan. 591, 584 P.2d 130 (1978); Fasano v. Bd. of County Comm'rs, 264 Or. 574, 507 P.2d 23 (1973); Fleming v. Tacoma, 81 Wash.2d. 292, 502 P.2d 327 (1972); Louisville v. McDonald, 470 S.W.2d 173 (Ky. 1971).

[37 ] States with an express "deemed approved" rule: Alabama (Ala. Code 11-19-14); Arizona (Ariz. Rev. Stat. 11-809); California (Cal. Gov't Code 66452 et seq.); Colorado (Colo. Rev. Stat. 31-23-215); Connecticut (Conn. Gen'l Stat. 8-26, -26d); Delaware (Del. Code tit. 9 6811); Georgia (Ga. Code 32-6-152); Indiana (Ind. Code 36-7-4-918.6); Kansas (Kan. Stat. 12-752); Louisiana (La. Rev. Stat. 33:113); Maryland (Md. Ann. Code. art. 66B 5.04); Massachusetts (Mass. Gen'l Laws ch. 41, 81V); Michigan (Mich. Comp. Laws 125.45); Minnesota (Minn. Stat. 462.358); Missouri (Mo. Rev. Stat. 89.420); Nevada (Nev. Rev. Stat. 278.350); New Hampshire (N. H. Rev. Stat. 676:4 ); New Jersey (N.J. Stat. Ann. 40-55D-47); New Mexico (N.M. Stat. 3-20-7); New York (N.Y. Gen'l City Law 32, N.Y. Town Law 276, N.Y. Village Law 7-728); North Dakota (N.D. Cent. Code 40-48-21); Ohio (Ohio Rev. Code 711.05); Oklahoma (Okla. Stat. 863.9); Pennsylvania (53 Pa. Stat. 1-508); Rhode Island (R.I. Gen'l Laws 45-23-43); South Carolina (S.C. Code 5-23-630); Texas (Tex. Loc. Gov't Code 212.009); Vermont (Vt. Stat. tit. 24 4415); Wisconsin (Wis. Stat. 236.12).

States that enforce time limits by other means or do not state means of enforcement: Illinois (65 Ill. Comp. Stat. 5/11-12-8); Iowa (Iowa Code 354.10); Kentucky (Ky. Rev. Stat. 100.281); Maine (Me. Rev. Stat. tit. 30A 4403); Montana (Mont. Code 76-3-604); Washington (Wash. Rev. Code 58.17.140); Virginia (Va. Code 15.2-2259).

[38 ] Advisory Committee on Planning and Zoning, U.S. Department of Commerce, A Standard City Planning Enabling Act (Washington, D.C.: U.S. GPO, 1928), Sec. 15 (municipal planning commission shall approve or disapprove a subdivision plat within 30 days, after which plat "shall be deemed to have been approved").

[39 ] Or. Rev. Stat. 215.427, 215.429, 227.178, and 227.179 (1999).

[40 ] See John Delaney, "Avoiding Regulatory Wipe-Outs: Proposed Model Legislation for a Local Mechanism," Land-use Law& Zoning Digest 50, No.

[41 ] 45 U.S.C. 154, 155.

[42 ] Idaho Code 67-6510 (2001).

[43 ] 5 Me. Rev. Stat. 3341 (2000).

[44 ] Portions of this commentary appeared in different form as "Judicial Review of Land-Use Decisions," by Daniel R. Mandelker, in Modernizing State Planning Statutes: The Growing Smart Working Papers, Vol. 1, Planning Advisory Service Report No. 462/463 (Chicago: American Planning Association, March 1996): 163-165. See generally Daniel R. Mandelker, Land Use Law, 4th ed (Charlottesville, Va.: Lexis Law Publishing Co), Ch. 8, Land Use Litigation and Remedies.

[45 ] Advisory Committee on Zoning, U.S. Department of Commerce, A Standard State Zoning Enabling Act (SZEA), (Washington, D.C. U.S. GPO, 1926, rev'd ed.), 7.

[46 ] Cases that consider rezoning as quasi-judicial: Board of County Comm'rs of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993); New Castle v. BC Dev. Assoc., 567 A.2d 1271 (Del. 1989); Golden v. Overland Park, 224 Kan. 591, 584 P.2d 130 (1978); Fasano v. Bd. of County Comm'rs, 264 Or. 574, 507 P.2d 23 (1973); Fleming v. Tacoma, 81 Wash.2d. 292, 502 P.2d 327 (1972); Louisville v. McDonald, 470 S.W.2d 173 (Ky. 1971). Cases that consider rezoning to be legislative: Quinlan v. Dover, 136 N.H. 226, 614 A.2d 1057 (1992); Hampton v. Richland County, 292 S.C. 500, 357 S.E.2d 463 (1987); Bell v. Elkhorn, 122 Wis.2d 558, 364 N.W.2d 144 (1985); Arnel Dev. Co. v. Costa Mesa, 28 Cal.3d 511, 620 P.2d 565 (1980); Wait v. Scottsdale, 127 Ariz. 107, 618 P.2d 601 (1980); Montgomery County v. Woodward& Lothrop, 280 Md. 686, 376 A.2d 483 (1977), cert den'd 434 U.S. 1067 (1978).

[47 ] Suitum v. Tahoe Regional Planning Agency, No. 96-243 (U.S. 1997); McDonald, Sommer,& Frates v. Yolo County, 477 U.S. 340 (1986); Williamson County Reg. Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985); Agins v. City of Tiburon, 447 U.S. 255 (1980).

[48 ] Port Clinton Assoc. v. Bd. of Selectmen, 217 Conn. 588, 587 A.2d 126 (1991); Long Beach Equities Inc. v. Ventura County, 282 Cal.Rptr. 877 (Cal. App. 1991); Drovers Bank v. Village of Hinsdale, 208 Ill.App.3d 147, 566 N.E.2d 899 (1991).

[49 ] Or. Rev. Stat. 197.015(10) (1998).

[50 ] A person has standing if he or she (1) suffered an injury in fact and (2) the interest he or she seeks to protect is arguably within the zone of interests to be protected. Warth v. Seldin, 422 U.S. 490 (1975); Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970).

[51 ] The more recent Supreme Court cases have required a "but for" causal connection between the injury and the conduct complained of, and there must be a "substantial likelihood" that the relief sought, if granted, would remedy the harm. Lujan v. Defenders of Wildlife, 497 U.S. 871 (1992); Allen v. Wright, 468 U.S. 737, 751 (1984).

[52 ] Northridge Community Ass'n v. Fulton County, 257 Ga. 722, 363 S.E.2d 251 (1988); Brandywine Pk. Condo. Council v. Wilmington Zoning Bd. of Adjustment, 534 A.2d 286 (Del. Super. 1987); Douglaston Civic Ass'n v. Galvin, 43 A.D.2d 739, 350 N.Y.S.2d 708 (1973). Basically, the federal standard is that an organization cannot in itself have standing, but may have standing to represent the common interests of the organization's members. United Transp. Union v. State Bar of Michigan, 401 U.S. 576 (1971); NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951).

[53 ] Examples from state statutes show how they address the question of who is "aggrieved": "Any person aggrieved in any manner by an action of a board of adjustment may within thirty days appeal to the superior court, and the matter shall be heard de novo as appeals from courts of justices of the peace." Ariz. Rev. Stat. 11-807(D) (this statute as originally enacted also granted standing to "any taxpayer" of the local government, but was amended to remove this language); "Any person or persons, jointly or severally aggrieved by any decision of the board of adjustment, or any taxpayer or any officer, department, board or bureau of the municipality may present to the Superior Court a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality." Del. Code. Ann. tit. 22, 328; "Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order ... which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part." Fla. Stat. 163.3215(1); "[A]ny person who is aggrieved by final agency action shall be entitled to judicial review thereof in the Superior Court...." Me. Rev. Stat. tit. 5, 11001(1); "An appeal of an enactment of or an amendment to a zoning ordinance may be taken to the superior court for the county in which the municipality is situated by filing a complaint, as set forth herein, within thirty (30) days after the enactment or amendment has become effective. The appeal may be taken by an aggrieved party or by any legal resident or landowner of the municipality or by any association of residents or landowners of the municipality." R.I. Gen. Laws 45-24-71(A).

[54 ] ALI Code, 366-367.

[55 ] Or. Rev. Stat. 197.810.

[56 ] Or. Rev. Stat. 197.015(10)(a).

[57 ] Or. Rev. Stat. 197.830(3)(c)(B) (1997); Jefferson Landfill Comm. v. Marion County, 297 Or. 280, 686 P.2d 310 (1984); League of Women Voters v. Coos Cty., 15 Or. LUBA 447 (1987).

[58 ] Or. Rev. Stat. 197.830(8), (13), (14).

[59 ] Or. Rev. Stat. 197.845.

[60 ] Or. Rev. Stat. 197.835(3) - (7)(a).

[61 ] Or. Rev. Stat. 197.835(7)(a).

[62 ] Or. Rev. Stat. 215.428(1) and 227.178(1).

[63 ] Or. Rev. Stat. 197.830 (1998).

[64 ] Id., 197.840.

[65 ] Wash. Rev. Code 36.70C.005 et seq. (1998).

[66 ] Wash. Rev. Code 36.70C.040.

[67 ] Wash. Rev. Code 36.70C.060.

[68 ] Wash. Rev. Code 36.70C.040.

[69 ] Wash. Rev. Code 36.70C.090.

[70 ] Wash. Rev. Code 36.70C.120.

[71 ] Wash. Rev. Code 36.70C.100.

[72 ] Wash. Rev. Code 36.70C.130.

[73 ] Pa. Stat. Ann. tit. 53, 10609.1to .2 (1999).

[74 ] Jan Krasnowiecki& L.B. Kregenow, "Zoning and Planning Litigation Procedures Under the Revised Pennsylvania Municipalities Planning Code," Vill. L. Rev. 39 (1994): 879.

[75 ] Karches v. City of Cincinnati, 38 Ohio St.3d 12, 526 N.E.2d 1350 (Sup. Ct. 1988)(city attorney states on record that variance will not be issued); Amcon Corp. v. City of Eagan, 348 N.W.2d 66 (Minn. 1984)(no need to appeal to city council when council's statements and past decisions indicated clearly that relief requested would not be granted); Van Laten v. City of Chicago, 28 Ill.2d 157, 190 N.E.2d 717 (1963)(zoning ordinance amended twice since suit but change sought not made). But see O& G Industries v. Planning& Zoning Comm'n, 655 A.2d 1121 (Conn. 1995) (mere claim of bias not sufficient).

[76 ] In re Fairchild, 616 A.2d 228 (Vt. 1992)(no adequate administrative remedy when zoning official refuses to enforce zoning ordinance); City of Rome v. Pilgrim, 246 Ga. 281, 271 S.E.2d 189 (1980)(ordinance had no authorization for requested use variance); Montgomery County v. Citizens Bldg.& Loan Ass'n, 20 Md. App. 484, 316 A.2d 322 (1974)(sign ordinance did not authorize variances; sign review board could not grant relief); Sinclair Pipe v. Village of Richton Park, 19 Ill.2d 370, 167 N.E.2d 406 (1960)(doubtful that zoning board of appeals could legally grant desired variance for light industrial use in multi-family residential zone).

[77 ] Village of Euclid v. Ambler Realty, 272 U.S. 365 (1926); Golden v. Planning Bd. of Ramapo, 30 N.Y.2d 359, 285 N.E.2d 291 (1972), appeal dismissed on other grounds 409 U.S. 1003. See Northwestern Univ. v. City of Evanston, 28 Ill.2d 157, 383 N.E.2d 964 (1978)(prohibition of commercial activities in university zone not arbitrary in the abstract; challenge to prohibition therefore not facial).

[78 ] This bibliography was prepared by Michael Collins, Esq. (J.D., Washington University, 1999).