DDRRAAFFTT Please do not cite without consent of authors. CURRENT STATE LEGISLATIVE AND JUDICIAL PROFILES ON LAND-USE REGULATIONS IN THE U.S. David D. Foster and Anita A. Summers September 20, 2005 Zell/Lurie Real Estate Center Wharton School University of Pennsylvania Philadelphia, PA 19104-6302 INTRODUCTION This paper summarizes and calibrates the legislative and judicial environment surrounding residential land-use regulation in each of the fifty states. BACKGROUND This paper is part of a large project on residential land-use regulation currently being conducted by the Zell/Lurie Real Estate Center in the Wharton School of the University of Pennsylvania. The overall objectives of the project are (1) to develop a thorough and systematic data base on the nature of the land-use environment throughout the United States, and (2) to use these data to help better understand the underlying causes and effects of the variation in residential-use regulations across local communities. Several types of data have been, and still are being, assembled: (1) a nationwide land-use regulation survey sent to a sample of 6,897 municipalities; (2) the same survey sent to every jurisdiction (368) in the Philadelphia Metropolitan Statistical Area; (3) an extensive socioeconomic and housing activity profile from the 2000 Census (and previous Censuses); (4) data that measure community pressure in a variety of ways (ballot initiatives and membership in conservation organization, e.g.); (5) the legislative activity and judicial bent in each state – the subject of this paper. Two major types of econometric analyses are planned: (1) analysis of the effects of variations in regulatory severity among municipalities on employment and population shifts, housing costs, and the tradeoff between efficiency and public good benefits; (2) analyses of the effects of population and employment characteristics, environmental pressures and state judicial and legislative activities on regulatory severity. STATE LEGISLATIVE AND JUDICIAL PROFILES ON RESIDENTIAL LAND-USE REGULATION This paper has fifty state profiles describing the legislative and judicial climate in which land-use regulations take place in the individual jurisdictions in the state. The legislative environment is assessed on the basis of the level of activity over the last ten years in the executive and legislative branches. The judicial environment is assessed on the basis of the tendency of appellate courts to uphold or restrain four types of municipal land-use regulations – impact fees and exactions, fair share development requirements, building moratoria, and spot or exclusionary zoning. The state assessments are described in three ways: (1) The legislative activity and judicial tendencies are described in each of the state profiles. (2) A score is assigned to each for each state. The legislative score is based on the extent of recent activity – 1 for little recent activity, 2 for moderate recent activity, and 3 for a high level of recent activity. The judicial score is based on the extent of restraint imposed by the appellate courts – 3 if supportive of municipal regulation, 2 if neither highly restrictive nor highly supportive, l if restrictive, 0 if there is insufficient case law to make a determination. (3) A summary table of the material in each of the profiles is included. We are now in the process of analyzing these results – their role in the determination of the severity of land-use regulations in different states, and the characteristics of the states associated with the legislative and judicial characteristics. SCORING KEY FOR STATE LEGISLATIVE AND JUDICIAL ACTIONS ON LAND-USE REGULATION IN THE U.S. The following key explains the scoring system used in each of the state surveys. The Legislative score is based on the level of activity in the Executive and Legislative branches over the past ten years that is directed toward enacting greater statewide land use restrictions. The Judicial score reflects the tendency of appellate courts to uphold or restrain municipal land use regulations. LEGISLATIVE SCORE: Score Summary 1 Little recent activity 2 Moderate activity 3 High level of activity JUDICIAL SCORE: Score Summary 0 Insufficient case law to make a determination There are several reasons why this situation occurs, including but not limited to: a particularly directed statutory framework that makes the appeal of a trial court decision unlikely or the relative lack of municipal land use restrictions. 1 Restricts municipal land use regulation A typical example is a state in which the majority of appellate decisions have invalidated spot zoning and the imposition of impact fees, or have placed a relatively high standard for local governments to meet in implementing these land use tools. 2 Neither highly restrictive nor highly supportive of municipal regulation A typical example is a state in which the majority of appellate decisions have struck down impact fees and upheld spot zoning. 3 Supportive of municipal regulation A typical example is a state in which the majority of appellate decisions uphold impact fees, spot zoning and the use of building moratoria. These states may also have judicially imposed fair share housing or development requirements. Last printed 10/4/2005 11:16 AM ALABAMA Summary: Alabama has largely placed land use planning powers in the hands of municipal governments, and there has been little activity in the legislature aimed at imposing state-wide development restrictions. Similarly, there has been relatively little litigation related to land use regulations. In those areas that have been litigated—sewer hookup moratoria and spot zoning— the courts have consistently deferred to the regulatory authority of the municipalities. LEGISLATIVE SUMMARY In 2000, then-Governor Don Siegelman created the Alabama Commission on Environmental Initiatives through Executive Order 26.1 Despite the recommendations of the Commission, however,2 the Alabama Legislature has done very little to change the State’s existing land use planning system. As a consequence, land use planning remains largely the responsibility of local governments, and there is no evidence that the state legislature is likely to impose meaningful restrictions on these powers in the near future. As one study suggests, “[T]he challenge facing planners may be more of one preventing bills from being adopted that erode the ability of local government to plan for, and regulate, land use and development.”3 • Legislative Rating: 1 (Little recent activity) JUDICIAL SUMMARY Given the limited implementation of land use restrictions in Alabama, the state’s judiciary has had only a few opportunities to shape its jurisprudence in this area. Regarding building moratoria and spot zoning, the courts have largely supported municipal regulation. In the area of building moratoria, this municipal regulation is limited to the imposition of sewer hook up moratoria. In the area of exclusionary zoning, the courts have adopted the less prevalent position that grants broad power to the municipality to make changes to the comprehensive plan. • Judicial Rating: 3 (Generally supportive of municipal regulation) 1. Impact Fees / Exactions: There are no Alabama cases that directly address the issue of impact or development fees. Regarding municipal fees in general, Alabama courts have largely upheld a broadly defined power for municipalities to impose such fees. As an example, the court in Densmore v. Jefferson County upheld a municipal storm-water management fee based on the principle that, “for a fee to be sustained as valid, the benefit 4 conferred on property owners need not relate directly to the exact amount paid.” 1 Executive Order No. 26 (2000) available at http://www.jsu.edu/depart/epic/executiveorder26.html. 2 The full text of the report is available at http://www.jsu.edu/depart/epic/ACEIreport.htm. 3 APA 2002 State of the States p 32 4 813 So. 2d 844, 854 (Ala. 2001) (citing Board of Water & Sewer Commissioners of the City of Mobile v. Yarbrough, 662 So. 2d 251 (Ala. 1995)). Last printed 10/4/2005 11:16 AM 2. Fair Share Development Requirements: The Alabama judiciary has not imposed any fair- share development requirements on municipalities. 3. Building Moratoria: Alabama jurisprudence on the issue of building moratoria has exclusively addressed the issue of sewer hook up moratoria. On this issue, the courts have clearly upheld the power of a municipality to enforce such a restriction. Specifically, one court has held that moratoria on new connections to an existing sewer system are “manifestations of the sovereign's paramount police power which has long been held to ‘embrace the protection of the lives, health, and the property of the citizens . .’ and to which private contractual obligations must yield.”5 Arbitrary, case-by-case restrictions in the absence of a universal moratorium, however, have not survived judicial scrutiny.6 Taken together, these decisions may be viewed as upholding municipal restrictions within an established regulatory scheme. More telling, however, is the absence of litigation challenging general building moratoria. The absence of litigation on this issue suggests that such moratoria are not widely imposed by municipalities in Alabama. 4. Spot Zoning / Exclusionary Zoning: The Alabama Courts have adopted the less common position on the issue of spot zoning that holds valid any change in zoning where there is a comprehensive plan in effect. As one court has stated, “where an existing comprehensive plan is in effect, no amendment thereto can be attacked as being 'spot' zoning.”7 This rule and the subsequent decisions that apply it are not necessarily restrictive or non- restrictive, since spot zoning may be used to either promote or discourage a particular development project. The rule does grant a high degree of deference to the local government in the areas of planning and zoning. In fact, since 1950, no Alabama court has invalidated a change in the zoning classification of a property on the grounds that it resulted in spot zoning. 5 See Peterson v.