USA – Response to Case 2007
USA response to the Polderadeel case
1. Applicable regulation
It is always difficult for an American land use lawyer to give a clear answer to a question because of our federal system, the federal government exercises a strong but inconsistent and often indirect influence on land use. The control of land use rests primarily with local governments. There is great variation among the 50 federal states on issues which range from state control to the substantive law.
2. Local control over public works and utility service providers
In the United States, the location of highways is a matter of federal or state law. The federal government has the power to determine the location of the federal interstate highway system. State highways are located by the state. The location of federal highways is specific to two mayor constraints. First, a section of the Federal Highway Act prohibits the location of highways in parks unless there is no feasible alternative. Second, almost all highway location decisions are ‘actions’ which trigger the National Environmental Policy Act. The federal agency must prepare either an Environmental Assessment or a full Environmental Impact Statement before the highway can be located. The land us decisions about the use of the highway corridor are, in general, the exclusive province of the local political jurisdiction. Although the federal or state highway agency may lack the power to control the uses adjacent to the highway corridor, the have some under federal and state environmental impact law to consider the likely growth which will be induced by the new highway. Case law is divided and incomplete on the issue of the extent of the duty to consider such growth. Basically, the more undeveloped the area, the greater the duty. Conversely. the more developed the area, the less the duty to do so.
Once the highway is sited, the local jurisdiction has the presumptive discretion to decide how land along the corridor will be used. Local power is presumptive because both the federal government and the states have the power to preempt local regulation. There is no uniform law of pre-emption. Instead, there is and ad hoc ‘web’ of judicial and statutory pre-emption. The Telecommunications Act of 1996 partially preempts the location of cellular towers. Local governments may regulate their location and design but may exclude them for a community or make it impossible of very costly for the provider to meet its public service obligations. Public utilities are regulated by the state, and most courts have held that local governments may not regulate the location or design of transmission lines. The law on the location of generating facilities is more complicated. In the 1960s and 1970s, many states enacted power plant siting acts which preempts in whole or part local land use regulations. The regulation of wind ‘farms’ is slowly evolving. In general, a wind farm is viewed as an industrial facility, although some have suggested that it should be classified as an agricultural use. In the first, local governments can use their land use control authority to allow or exclude the facility. If wind ‘farms’ are classified as agricultural activities, they would be covered by the right to farm statutes which exists in many states. These statutes immunize farming and related activities from common law nuisance suits. A few states have enacted legislation which preempts in whole or in part local land use authority. As public utilities are adding – voluntarily or as a result of state mandates – green energy to their supply portfolio, there is increasing pressure for state pre-emption. Utilities which have projects blocked by local governments are asking state public utility and siting agencies to exercise their powers to pre-empt local regulation.
3. Local government authority to shift cost of rapid development to developers
Local governments have considerable power to charge developers a variety of fees to off-set infrastructure costs by rapid development. This power is circumscribed by federal constitutional law and state legislation. Two supreme court decisions impose a nexus and rough proportionality test on all ‘exacations’. The first test requires that the government demonstrate that the activity contributes to the need for the off-setting fee. The second test requires that local government demonstrate that the amount charged is equal to but not greater than the specific ‘harm’ caused by the development. This test has increased the burden of justification on all local governments and calls many fees into question.
4. Local government power to control the management of built residential areas
Local governments have almost complete discretion to control the nature of residential areas. Local governments can control the mix of residential types, the density of development and whether commercial facilities will be integrated or allocated to separate areas. They can also control the design of new buildings and the conservation of older structures that are designed as historic landmarks. There are a few exceptions. Local governments probably cannot exclude religious activities. In some states, communities have an obligation to provide a certain percentage of low and moderate income housing. This applies primarily to newer suburban areas.
A. Dan Tarlock
Chicago-Kent College of Law