Conventional view- municipalities are creatures of the state and thus can exercise only the regulatory authority expressly granted by the state legislature.
"Dillon's Rule"- municipalities may exercise only the authority granted to them by state legislature.
States have a constrained ability to generate revenue and borrow money.
There are federal constitutional limits on municipal discretion.
Municipalities must comply with conditions on federal and state grants-in-aid.
New view- municipalities have substantial regulatory authority, especially over land use.
Most states have abandoned Dillon's rule.
"Home rule" provisions afford some "charter cities" and in some cases all municipalities broad spending and regulatory authority.
States rarely override municipal authority unless there is a broadly felt state-wide interest.
Municipal Land Use Regulation
Zone Enabling Acts have been adopted by every state in one form or another.
Authorizes municipalities to adopt and enforce zoning ordinances that segregate land use.
Key issue: To what extent state law preempts local land use decisions. Options:
Under some state constitutions, charter cities can exercise their land use powers independently of any state statute.
A "home rule" local government has been held to have the power to enact whatever zoning ordinances it wants so long as they comport with constitutional requirements.
In some states, state laws preempt charter provisions but only if the legislative intent to preempt is clear.
In other states, municipal land use decisions are preempted if they are simply inconsistent with state statutes.
Finally, a few state courts have held that zoning power is not included in home rule grants.
Mechanisms for Land Use Regulation
Four basic mechanisms are used to regulate land use:
Zoning Ordinances- limit the size and location of structures, the size and shape of lots, and the use of land and structures.
May be amended and are subject to variances and conditional use permits.
Adoption and adjustment of zoning ordinances are at the core of municipal land use regulation.
General plans- developed by local planning commissions to specify the jurisdiction's goals for future development, including distribution of population density and infrastructure.
"Technocratic rationality" is under constant stress from the practical limits of knowledge and rationality in a complex area like land use as well as from local land use politics.
Subdivision controls- adopted by local officials for residential- especially single family- developments.
Establish specific criteria for the location and design of streets, major utility lines, and other public infrastructure.
Frequently require dedications of land or payments for off-site improvements, such as roads, parks, or schools.
In some states, subdivision controls also can prohibit subdivision (and thus development) of environmentally vulnerable lands.
Building codes- dictate building materials, structural elements, minimum habitability standards, and, in some cases, aesthetic elements of new buildings.
Can also restrict the owner's right to change designated historic buildings.
Four municipal entities are employed to adopt and implement land use regulations:
Local Elected Legislature
Usually called the city council, board of supervisors, or town committee.
Has authority to adopt and make significant amendments to the zoning ordinances.
Appointed planning commission
Frequently staffed by professional planners.
Has the responsibility to prepare general plans and plan amendments, to conduct hearings and make for recommendations on zoning amendments, and to process applications for conditional use permits.
Building Department (appointed)
Has the authority to review and grant or deny building permits.
Board of Zoning Appeals (appointed)
Rules on applications for variances and appeals from building department decisions.
Euclidian Zoning: Constrained Discretion
Popularity of zoning probably began with NYC's comprehensive zoning ordinance in 1916.
Occurred as a result of industrialization.
Coalition of business people and city planners worried that the city was being consumed by industrial development.
Standard State Zoning Enabling Act was published by the U.S. Dept. of Commerce in 1922.
Under this model act, municipalities could regulate land use to "promote health, safety, morals, or the general welfare of the community."
Had authority to:
Restrict height of structures,
Restrict population density, and
Restrict the location and use of buildings.
Barred municipalities from exercising their authority through case-by-case decision making.
Instead, required them to adopt land use regulations and establish districts, into which different classes of uses would be segregated.
Challenges to Zoning
A few state courts read the municipalities' police powers narrowly.
Provisions that barred particular uses in residential districts violated due process unless there was a demonstrated threat to public welfare, safety, or health.
Realized that this would lead to regulation of aesthetics.
A larger number of state courts, however, upheld zoning ordinances as constitutional.
Village of Euclid v. Amber Realty Co. (p.901)
Landowner claimed that his property values were reduced by 75% due to Euclid, Ohio's zoning law.
Demonstrates sharp conflict between private ownership and public authority to regulate land.
Court held that a zoning ordinance is constitutionally valid when it bears a substantial relation to the health, safety, convenience, and general welfare of the inhabitants.
Views on Zoning
Mandelker
We rely on the private market to implement the zoning ordinances. Since this is the case, why do we need the zoning ordinances in the first place?
Reason is that each individual entrepreneur does not consider the externalities that his decisions inflict on others.
Zoning is needed to prevent the visitation of externalities that the private market cannot prevent.
Regulation of land use separations based on taste, however, must necessarily carry with it the implicit acceptance of value judgments about the order of land development.
This will favor single-family homes over apartment buildings.
Legal system is expected to control these externalities.
Karkkainen
Zoning is only partially about protecting against externalities.
It is also about protecting a homeowner's consumer surplus in his home and surrounding neighborhood.
Consumer surplus exists in the commons areas such as streets, sidewalks, parks, playgrounds, public schools, restaurants, groceries, churches, clubs, aesthetics, ambiance, physical environment, etc.
Different people value different things and will want to protect these collective resources differently.
This argument espouses the personhood theory of property.
Problem with it is that his justification of zoning assumes that market prices do not fully reflect the individual value that a resident places on his/her property. But, how can a uniform zoning restriction capture each individual's valuation either?
Also, the market would take these into account because the property would go to the person who valued it the most, including these external factors. If these factors changed, the person could move. There is no "right" to these types of commons that goes along with an individual's property right.
What about the right of the other property owners to do what they want with their property? What if they value different things?
Richard Epstein
Court, through its deferential examination of land use, gave birth to an expansion of public planning without considering the risks.
Nuisance law, servitude law, and the takings doctrine together are adequate in most, if not all, circumstances in which municipalities use zoning.
The entire zoning process fundamentally misunderstands the ways in which individuals wish to integrate and coordinate their activities.
Stops mixed uses from occurring, when usually most people would prefer some mixed use and mixed use would maximize efficiency.
Fischel
Zoning is much more usefully viewed as an attempt to redistribute property rights from those who own undeveloped land to other community residents.
This approach does not ask whether restrictions are efficient, but rather asks what benefits these controls give to the politically dominant group in the community.
The benefits are those perceived by existing residents who comprise the community, not by the potential occupants of additional housing.
Benefits will be reflected in the value of existing housing.
Zoning does not have to be at the maximum benefit point.
Community, Property Rights, and Civil Rights
Zoning for Aesthetics
After Euclid, balance between community's right to shape land use and individual property and civil rights shifted dramatically in favor of municipal authority.
Before Euclid, most courts held that aesthetics were beyond the scope of the police power and thus constitutionally beyond state or municipal regulatory authority.
This narrow reading was eroded to some extent by justifications that nominally met the health, safety, and morals requirement.
Post- Euclid and Lochner court shifted to greater judicial deference.
Berman is one example of this, as is Penn Central.
Following this, state courts began to hold that aesthetic zoning fell within the police power.
Upheld, e.g., "anti-monotony" ordinances requiring variety in the appearance of certain structures.
Also recognized legitimate gov't interest in maintaining property values.
Issue: Do some of these regulations violate free speech/equal protection?
Signs
There has been a lot of litigation regarding the regulation of commercial and political signs.
In Metromedia, Inc. v. City of San Diego, Court upheld an ordinance prohibiting off-premise billboards but allowing an exemption for on-premise commercial signs, but struck down the distinction between commercial (permitted) and non-commercial (not permitted) signs.
Later, the Court made it clear that aesthetics were a substantial gov't interest that could justify an ordinance prohibiting signs on public property.
City of Ladue v. Gilleo (1994) (p.922)
City ordinance prohibited homeowners from displaying any sign on their property. However, commercial residences were allowed to erect some signs.
Court held that the city ordinance infringed on residents' right to freedom of speech. It did not examine the underinclusiveness of the statute because it was already a violation of freedom of speech. EPC did not have to be examined.
Adult Theaters
Most residents don't want these theaters in or near residential neighborhoods, but theatre operators claim a first amendment right.
In Young v. American Mini Theatres, Court said that restrictions on adult theaters would be okay if they were applied to all theaters.
The fact that only some theaters were subject to the restrictions made it a more difficult question.
Content-based distinctions are allowed in first amendment doctrine, but the question was whether "the line drawn by these ordinances is justified by the city's interest in preserving the character of its neighborhoods."
Plurality said that it was because the problems of neighborhood decay were serious and the city had documented that the concentration of adult theatres contributed to that. In addition, ordinance only restricted location of the theaters and did not restrict access greatly.
In Schad v. Borough of Mt. Ephraim, the Court struck down a prohibition on live entertainment.
Court held that "when a zoning law infringes on a protected liberty, it must be narrowly drawn to further a sufficiently substantial gov't interest."
Distinguished in from American Mini Theaters because Mt. Ephraim imposed a significant burden on speech by banning all live entertainment and because Detroit had evidence that adult theaters contributed to the decay of the neighborhood, whereas Mt. Ephraim did not.
City of Renton v. Playtime Theatres, Inc. (p.932)
Constitutional challenge to a zoning ordinance enacted by Renton, WA that prohibits adult motion picture theaters from location within 1,000 feet of any residence, church, park or school.
Court said that this was a content-neutral time, place, and manner restriction and that it had left open other reasonable avenues for the speech.
