Managing the Risks of Land Use Regulations

When cities and towns adopt planning and zoning regulations, staff and officials can run into legal and political issues. Handling these concerns appropriately means paying careful attention to the law. Anytime a controversial project is moving forward where lawsuits may occur, planning and zoning staff need to work closely with legal counsel. 

Here are some of the basics for land use regulation risk management:  

Consistent decision-making, and consistent application of a municipality’s ordinances, go a long way toward preventing issues with planning and zoning. Land use lawsuits most commonly occur in situations where plaintiffs claim they are receiving unequal treatment.

A common cause of such a lawsuit is “spot zoning.” In the 1963 case Bob Jones University, Inc. v. City of Greenville, the SC Supreme Court invalidated “spot zoning,” which it defined as giving a small land parcel a classification entirely unlike the zoning for surrounding areas in a way that benefits the owners of that property and harms other property owners.  

Decisions can also be challenged in instances where they are said to be “arbitrary and capricious,” which can lead to claims under the U.S. Constitution involving equal protection, substantive due process or takings. Takings claims involve a possible violation of the Fifth Amendment and are typically not covered by insurance. 

A review of a local newspaper’s headlines and letters to the editor when a major development project is advancing will readily show that development is always a source of public interest and discussion. Often, these projects lead to controversy, which can become a problem when elected officials become significantly involved, or when they are trying to influence staff decisions and recommendations. 

Members of the city or town council, as well as other decision-makers like planning commission members or board of zoning appeals members, should avoid making public statements about how specific regulatory decisions are made. This includes public statements such as talking to reporters about specific cases outside of public meetings or social media statements. This can help demonstrate that the regulatory decisions or recommendations they make were based on an unbiased application of the relevant ordinances. 

Generally, a land use decision that ends up in litigation will not be rejected by the court unless the decision made has no rational or valid basis, or the decision is based on an incorrect interpretation or application of the municipality’s planning and zoning ordinances. Because of this, planning boards that make recommendations and councils that act on those recommendations need to be able to explain how they arrived at their decisions using only the relevant ordinances.