Tuesday, February 7, 2012

Tuesday Zoning/Takings Litigation Update

The amount of zoning and takings litigation winding its way through the American judicial system at any given moment is immense, but the first few weeks of the year have yielded some interesting decisions:
  • Usurping Legislative Power in Virginia. In Virginia, the state Supreme Court has struck down a longstanding arrangement in Albemarle County in which the planning commission, rather than the Board of Zoning Appeals, had been awarding waivers from the zoning code.  In the case, brought by an aggrieved landowner who also happens to be a University of Virginia law professor, former magistrate judge and current court reporter for the Virginia Supreme Court, the court applied Dillon's rule in concluding that the state had never expressly authorized local planning boards to override zoning ordinances.  Based on the county's reaction, the decision seems to highlight the extent to which local governments are dependent on waivers, variances, zoning modifications and special use permits in administering highly restrictive and inflexible zoning codes (Sinclair v. Cingular).

  • Anti-student Zoning in Philadelphia.  The Yorktown neighborhood of Philadelphia, immediately adjacent to Temple University, prevailed upon the city to create a special Yorktown Overlay in which "student housing" would no longer be permitted in its single-family zones, notwithstanding that these zones generally permit at least at least three unrelated persons to live together in a single residence.  Local property owners challenged the overlay after requests to lease to students were denied by the city, alleging that the law deprived them of their property rights under the 5th and 14th amendments. The Zoning Board upheld the overlay on the ground that students "tend to create traffic, parking and noise problems which derogate from the quality of life of families in the neighborhood," and here, the commonwealth court affirms.  This is the first time that I am aware of that a city has taken the bold step of barring a certain class of persons, by name, from a neighborhood (at least since the era of racial zoning).  In the past, towns and neighborhoods, more circumspect about their motives, have generally tinkered with unrelated persons limits to achieve similar ends with respect to student renters.  The owners apparently intend to appeal. (SFH Properties v. Zoning Board of Adjustment of Philadelphia).

  • Challenging Findings of "Blight."  Citing property rights principles, the Texas Supreme Court held that an administrative board's finding that a property was a public nuisance did not entitle the city of Dallas to automatically prevail in a takings action brought by the owner of a home demolished by the city. Sadly, it has not been since 1921's Spann v. City of Dallas, a true property rights encomium, that these same principles have appeared in a zoning context. (Dallas v. Stewart). 

Related posts:
Spann v. City of Dallas is not available for a direct link, unfortunately, but I have excerpted portions of it in Ever Since Euclid.


  1. I read Stewart to apply a bit more broadly than just to nuisance determinations. I read it to hold that a city board's determination of "constitutional facts" relevant to a takings inquiry does not preclude de novo review by a district court of a takings claim.

    This could arise in variance appeals. Let's say the board of adjustment denies the variance. You appeal to the district court. The board's ruling is reviewed under the deferential substantial evidence standard. But . . . you may also bring a claim that the denial of the variance was a regulatory taking. That claim, under Stewart, would get a de novo hearing and the Board's finding no weight.

    This won't come up much because few variance denials are a colorable taking. Still, in the marginal case, it could be interesting.

  2. Thanks, Chris, after reading it through again that's a much better summary than I managed. I do wonder, though, whether the dissent's position that this will greatly undermine nuisance abatement is well founded. Is it likely that most nuisance cases involve enforcement that more clearly implicates the police power -- noise complaints, parking, dangerous conditions, etc, rather than demolishing entire houses?

    On the other hand, if a house really is in such dire condition that rehabilitation is not economical and demolition is warranted, it could be that the demolition actually increases the value of the property (saving the landowner the teardown costs). If an appraiser's finding on this point, and a board's acceptance of it, is not dispositive of the constitutional takings issue, it might perhaps dissuade an owner from bringing a complaint in the first place.

  3. This whole zoning-by-waiver thing just seems so wrong. The zoning laws in some places get so restrictive that pretty much any reasonable project requires a waiver, which requires bureaucracy, which favors the politically well-connected and increases the cost and number of middlemen. It also gives whomever it is that dispenses these waivers a considerable amount of power. In some places, you end up with the zoning board, rather than any zoning law, effectively deciding who can and can't build what. And that kind of goes against that whole "rule of law" thing we like to talk about so much in this country.

    1. Politicians and officials only have power when they can prevent or permit people to do things. Consequently clear, broad, unambiguous rules are the last thing they want because it removes any leverage they can provide. Politicans and officials want people to curry their favor (and bribe them, either under the table or via "campaign contributions"), so they want laws which are utterly impossible to follow.

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