 National Association of Counties * Washington, D.C. Vol. 31, No. 15 * August 9, 1999 Previous story | Table of Contents | Next story Protecting local land use authority a hot topic Recent religion exemption bill brings By Mary Ann Barton
Legislation that recently passed the House – the Religious Facilities Exemption bill – made a workshop on protecting local land use authority especially timely at the Annual Conference. The proposed law would preempt county ordinances on zoning, land use, environmental protection, child welfare and animal protection when they apply to people or religious institutions exercising their "religious liberties." Doug Kendall, executive director of the Community Rights Counsel, told delegates Sunday, July 18, that there are three rules for avoiding takings challenges:
Kendall says that property rights groups go out of their way to seek out "poster children" – sympathetic plaintiffs who allege unfair treatment by local officials along with reduction or destruction of property use and value. To win against a challenge to a land use regulation, your county will have to convince a court that what your county has done is fair, Kendall pointed out. "Telling a fairness story is part setting the record straight, part substance." The setting the record straight part involves recasting in a more favorable light the sometimes "biased and often inaccurate unfairness story" told by developers’ attorney, he said. The substance part is avoiding decisions and procedures that you cannot later objectively defend as fair and reasonable. Another way to ensure that you don’t create a poster child is to police any of your county regulations that may unfairly single out individual landowners for harsh treatment, Kendall advised. "In Justice Holmes’ famous words, takings law is about ensuring an ‘average reciprocity of advantage’." The second rule for avoiding takings challenges is:
Local governments should, where possible, try to avoid regulations that render property useless or valueless, Kendall said. To preserve wetlands, open space and historic structures, it is often necessary for local governments to take actions that dramatically impact the use and value of the property, he noted. In such instances, Kendall said there are a few options a county can consider to reduce the burden on individual landowners.
The third rule of avoiding takings challenges is:
If you quantify the very real costs that development – particularly sprawling suburban development – imposes on your community, and you use these costs to justify zoning decisions, you will almost always prevail in a challenge to that regulation, Kendall said. If you can show that development is not economically viable on a parcel of property, you should prevail in a challenge to a permit denial, he said, even if you can’t show that other economically viable uses remain. Kendall pointed out that courts frequently demand that local governments support impact fees with evidence of costs attributable to development. "Luckily, there are increasingly sophisticated studies and models that estimate the costs imposed by developments," he said. Studies cited by Kendall include:
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