Planning & Environmental Law News — June 2008 Model Statute on Local Land Use Process(to be Presented to the American Bar Association's House of Delegates in August) Editor's Note: The first half of the model statute was reprinted in the May issue. We present the second half below. This Model Statute on Land Use Process was prepared by a Joint Task Force of the State and Local Government and Administrative Law and Regulatory Practice Sections of the American Bar Association. The model statute and commentary are based on Chapter 10 of the American Planning Association, Growing Smart Legislative Guidebook: Model Statutes for Planning and Management of Change (S. Meck ed. 2002). TABLE OF CONTENTS I. GENERAL PROVISIONS II. DEVELOPMENT PERMIT REVIEW PROCESS FOR LAND-USE DECISIONS III. HEARING EXAMINERS (contained in Appendix to the model statute) IV. LAND-USE REVIEW BOARD V. ADMINISTRATIVE ACTIONS AND REMEDIES VI. JUDICIAL REVIEW OF LAND-USE DECISIONS LAND-USE REVIEW BOARD 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 401 et seq. are based in part on R.I. Gen. Laws §45-24-56. 401 Land-Use Review Board Authorized 402 Organization and Procedures (1) specify the number of members who shall serve on the Board, including alternate members; 403 Compensation, Expenses and Assistance 404 Training 405 Powers ADMINISTRATIVE ACTIONS AND REMEDIES 501 Authority to Approve 502 Conditional Uses 503 Variances 504 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. 505 Procedures 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 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. (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.
(2) The application procedure required by paragraph (1) shall:
JUDICIAL REVIEW OF LAND-USE DECISIONS 601 Purposes 602 Method of Judicial Review Exclusive 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 202, 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. Section 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. This Section is based on Wash. Rev. Code Ann. §36.70C.030. (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.
(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. 603 Judicial Review of Final Land-Use Decisions The 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 604, a final decision is not appealable if administrative remedies have not been exhausted, unless seeking those remedies would be futile; nor is an application for a zoning map amendment necessary. (1) Any person with standing pursuant to Section 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].
(3) The issuance or denial of a certificate of nonconforming use is a final land-use decision. 604 Exhaustion of Remedies A land-use decision is appealable under Section 603. However, since land development regulations must include an appeal to a local officer or body under Section 209, it will be necessary to first make such an appeal, with limited exceptions. State courts have adopted a futility exception to exhaustion, and exhaustion is not required if remedies are inadequate. This section is intended to include these exceptions in paragraph (2) by making case law interpretation of terms applicable. (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 209 and any other applicable remedies available by law. 605 Federal Claims Comment: 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. 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 has served the petition by registered or certified mail within [21] days of filing the petition [or has timely served the petition by summons] on the following persons, who shall be parties to the review of the land-use petition:
(2) The petition is timely filed 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. 607 Standing and Intervention [(1) the applicant or the owner of property to which the land-use decision is directed, if the applicant is not the owner; Comment: 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 definition of aggrieved is located in section 101.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 204. A state may decide not to define when a party seeking standing is aggrieved. That decision will then be left to the courts. A state may have a clear statutory standing rule that it wishes to use in place of the model provided. 608 Required Elements in Land-Use Petition (1) the name and mailing address of the petitioner; Comment: 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. 610 Expedited Judicial Review Comment: 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. 611 Stay of Action Pending Judicial Review (1) A party may submit to the presiding officer a petition for stay of effectiveness of an initial or final order within [7] days after its rendition unless otherwise provided by statute or stated in the initial or final order. The presiding officer may take action on the petition for stay, either before or after the effective date of the initial or final order. Comment: 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 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 [the stay] 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," 39 Vill. L. Rev. 904-06 (1994). 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 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. 612 Submittal of Record for Judicial Review (1) Within [21] days after the filing of the petition for review, or within such further time as the court allows or as the parties agree, the local government shall submit to the court a certified copy of the record of the land-use decision for judicial review, except that the petitioner may prepare at the petitioner's expense and submit a verbatim transcript of any hearings held on the matter. In the absence of a transcript, the minutes of the proceedings may be used and, in any event, a audiotape or videotape of the proceedings shall be made part of the record. Comment: This Section authorizes the transmittal of the record of the land-use decision to the court. It is based on Wash. Rev. Code §36.70C.110. There is no direct sanction to compel agreement on shortening or summarizing the record, but there is an indirect sanction in the court's authority to make allocation of record preparation costs depend on the willingness of a party to make such an agreement. 613 Review and Supplementation of Record (1) When the [name of court] is reviewing a land-use decision by an officer or body that made findings of fact in a record to support its decision, the court shall base its review on the record. The record shall include any evidence proffered by any party below, whether or not accepted as part of the record. The [name of court] may remand the land-use decision for further proceedings only if that additional evidence relates to:
Comment: This Section makes it clear that judicial review of factual issues is based on the record made before the body or official that made the decision. It provides limited opportunity to introduce evidence to supplement the record. It is typical of authority found in other statutes allowing the review of land-use decisions. See Utah Code Ann. §10-9-708(5)(a)(i). This narrow authority to allow supplementary evidence is intended to allow additional evidence only when exclusion of the evidence would be patently unfair. Except in such limited circumstances, the remedy for an inadequate record should be a remand to the local government for further proceedings. The section reflects the belief that the taking of evidence should occur at the local government level in the local hearing process, where it can form the basis for the local government's decision. Parties would not be allowed, under this view, to retry a case on the facts once it gets into court. 614 Standards for Granting Relief (1) The court shall reverse or remand the land-use decision under review if the court finds the local government:
(2) If a petitioner has reserved a federal claim in a petition filed under Section 605, the court shall note in its decision that these claims are reserved. 615 Decision of the Court
(1) The court may dismiss the action for judicial review, in whole or in part, or it may do one or a combination of the following: affirm, modify, or reverse the land-use decision under review or remand it for modification or further proceedings. 616 Definitive Relief Comment: Definitive relief is essential, in appropriate cases, to allow a petitioner to proceed with her development without going back to the local government for additional proceedings. Some courts, if they reverse a land-use decision, will order the issuance of a development permit to the petitioner rather than remand if issuance of the permit is justified on the record. A typical case is the denial of a zoning variance. This paragraph codifies this authority, but the decision on whether to issue a development permit is in the court's discretion. Note that the court must find that definitive relief is "appropriate," and it is the intent that this determination should be based on the court's decision reversing the denial or conditional approval. Presumably, a court would not order definitive relief by compelling the issuance of a development permit unless it found, in its decision, that the applicant had complied with all the requirements on which the issuance of a development permit would be based, whether or not they were considered in the court hearing. It is intended that the court would call for a hearing on definitive relief, in which it would consider arguments on whether definitive relief is appropriate under the circumstances. For example, there may be issues not considered in the court hearing which would require consideration after a remand. See Section 616. This Section is based on 53 Pa. Stat. §11006-A(c)(e). 617 Compensation and Damages Disclaimer | ||
