Expansion Of Private Property Rights The United States Supreme Court in June announced two decisions which may have a significant impact on the nature and extent of municipal land use regulation of private property. One decision was by a unanimous Supreme Court, while the other was a sharply divided 5-4 decision with multiple dissents. City of Ladue v. Gilleo involved the issue of the constitutional propriety of an ordinance which banned virtually all signs in residential areas. Ladue, Missouri, a suburb of St. Louis, with a population of approximately 9,000 had enacted an ordinance prohibiting virtually all signs in residential areas, with the following exceptions: municipal signs, subdivision and residence identification signs, road signs and driveway signs for danger, direction or identification; health inspection signs, signs for churches, religious institutions, and schools (subject to regulations set forth in 35-5), identification signs for other not-for-profit organizations; signs identifying the location of public transportation stops, ground signs advertising the sale or rental of real property, subject to the conditions set forth in 35-5, that such signs may not be attached to any tree, fence, or utility pole and may contain only the fact of proposed sale or rental and the seller or agent's name and address or telephone number; commercial signs in commercially zoned or industrially zoned districts, subject to restrictions set out elsewhere in the ordinance, and signs that identify safety hazards. The respondent, Margaret Gilleo, placed on her front lawn a 24 by 36 inch sign printed with the words "Say No to the Persian Gulf. Call Congress Now." She sought the variance for such a sign and was denied. She thereafter filed the present action, alleging that the ordinance violated her First Amendment right to free speech. After the district court issued a preliminary injunction against enforcement of the ordinance, 774 F. Supp. 1559 (1991), she placed an 81/2 x 11 inch sign in the second story window of her home saying "For Peace in the Gulf," The Ladue City Council repealed its existing ordinance and enacted the replacement ordinance broadly defining signs and removing the provision allowing for variances. The finding by the district court that the ordinance was unconstitutional was affirmed by the court of appeals, 986 F. 2d 1180 (1993). The court of appeals based its holding on Meiroinedia, Inc v. San Diego, 453 U.S. 490 (1981), in that the ordinance was a content-based regulation of speech and treated commercial speech more favorably than noncommercial speech. A unanimous Supreme Court affirmed the lower courts based largely on its conclusion as to inadequacy of substitute means to express the type of speech involved in Ms. Gilleo's signs. In this case, we are not persuaded that adequate substitutes exist for the important medium of speech that Ladue has closed off . . . Precisely because of their location, such signs provide information about the identity of the speaker . . . Residential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute. 62 USLW 4481. The Court previously in Linmark Associates v. Willingboro, 431 U.S. 85 (1977), invalidated a local ordinance prohibiting homeowners from placing for sale or sold signs on their residential properties, Ladue, conversely, prohibited virtually all signs except for sale signs, which were exempted from an otherwise virtually total ban. The rationale behind both decisions is similar. We recognized that even such a narrow sign prohibition (Linmark) would have a deleterious effect on residents' ability to convey important information because alternatives were "far from satisfactory" . . . Moreover, whereas the ordinance in Linmark applied only to a form of commercial speech, Ladue's ordinance covers even such absolutely pivotal speech as a sign protesting an imminent governmental decision to go to war. The impact on free communication of Ladue's broad sign prohibition, moreover, is manifestly greater than in Linmark, 62 USLW 4480. The Court also utilized the reasoning in City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984), which upheld prohibitions against the posting of signs on public property. The Court noted that the residential property involved in Ladue was quite different than the public property regulated in Vincent since "the category of speech in question - signs placed on public property — was not a uniquely valuable or important means of communication." 62 USLW 4480. Although invalidating Ladue's ordinance, the Court left open the door for the permissibility of alternative regulations, Nor do we hold that every sign must be permitted in residential areas. Different considerations might well apply, for example, in the case of signs (whether political or otherwise) displayed by residents for a fee, or in the case of off site commercial advertisements on residential property. We also are not confronted here with mere regulations short of ban. 62 USLW 4481. The Court also intimated that a community ethos may prove as strong a deterrent on residential signs as February 1995 / Illinois Municipal Review / Page 9 governmental regulations since "residents" self-interest diminishes the danger of the unlimited proliferation of residential signs." 62 USLW 4482. The second case, Dolan v. City of Tigard, involved the question of the required degree of connection between exactions imposed by a municipality and the projected impacts of a proposed development in the context of a claim that the conditions imposed constituted a taking of private property without just compensation in violation of the United States Constitution. Tigard, a suburb of Portland, Oregon with 30,000 residents, adopted a comprehensive land use plan consistent with statewide planning goals which required developments to comply with 15% open space and landscaping requirements. It also adopted plans for pedestrian and bicycle pathways and drainage similar to those found in your typical subdivision and development ordinances. Plaintiff Dolan was the owner of a plumbing and electrical supply store located in the central business district. She sought permission to expand the size of her store from 9,700 sq. ft. to 17,600 sq. ft. and to pave an existing unpaved parking area. The proposed expansions were consistent with Dolan's zoning ordinance. Tigard's Community Development Code required that development within a flood plain shall require dedication of land area "for greenway adjoining and within the flood plain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway within the flood plain in accordance with the adopted pedestrian bicycle plan." The city conditioned approval of her expansion on the dedication of the portion of her property lying within the flood plain for storm drainage and dedication of an additional 15 ft. strip of land adjacent to the flood plain for a pedestrian and bicycle pathway. The cumulative required dedications encompassed 7,000 sq. ft. or approximately 10% of the property. Appeals to the Land Use Board of Appeals, Oregon Court of Appeals and Oregon Supreme Court arguing that the dedication requirements were not releated to the proposed development were unsuccessful. The Land Use Board of Appeals concluded there was a reasonable relationship between the proposed development and the dedication requirements. The Oregon Court of Appeals, 832 P. 2d 853 (1992), and Oregon Supreme Court, 854 P. 2d 437 (1993), found the conditions to be reasonably related to the impact of the expansion of the petitioner's business and that the conditions had an essential nexus to the development of the proposed site, consistent with the Supreme Court's reasoning in its prior decision in Nollan v. California Coastal Commission, 483 U.S. 825 (1987). Boiled down to its essence, Dolan involves the Court's tortured and protracted inquiry into enunciation of the proper test for determining the reasonableness of conditions which can be construed to be regulatory takings in the context of the petitioner's claim that the Nollan case abandoned the reasonably relationship test in favor of a stricter essential nexus test. The Nollan case involved a requirement that the private property owner grant an easement across its beachfront lot in order to receive a permit to demolish an existing bungalow and replace it with a three bedroom house. The easement desired was intended to connect two public beaches separated by the Nollan's property. The Supreme Court invalidated this requirement since an insufficient nexus existed between visual access to the ocean and a permit condition requiring lateral access along the Nollan's lot. The absence of nexus left the Coastal Commission in the position of simply trying to obtain an easement through gimmickry, which converted a valid regulation of land use into an out and out plan of extortion. 62 USLW 4579. After determining whether an essential nexus exists between the conditions imposed upon the permission sought, the second part of Nollan requires an analysis to determine whether the degree of exactions demanded by the permit conditions are comparable to the projected impact of the proposed development. Nollan had noted that a use restriction may constitute a taking if not reasonably necessary to the effectuation of a substantial government interest. Depending upon your reading of this case, the Court in Dolan either applies the rationale of Nollan to the facts of Dolan or it creates a new test. The Court first describes the "reasonable relationship" test utilized by a number of states in requiring a reasonable relationship or nexus between the condition and the use to which the property is being made. However, in addition to a reasonable relationship finding as part of its test, the Court noted there must be rough proportionality in that "the City must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." 62 USLW 4580. In applying this new (or is it old) test to the facts of Dolan, a bare majority of the Court found that the flood plain and bike path conditions did not meet the test of permissible regulation. The Court first noted a lack of rationale for the requirement of a public, as opposed to private, green-. way in the interest of flood control. Therefore, the findings upon which the city based its action did not Page 10 / Illinois Municipal Review / February 1995 show the required reasonable relationship between the easement and the development of the property. As to the bicycle path easement, the Court's majority conceded that although dedications for streets, sidewalks and other public ways are generally reasonable means to avoid excessive congestion, it found that the record in this case lacked quantification in support of the required bike path dedication. Justice Stevens, the author of the unanimous opinion in Ladue was the author of the dissent joined in by Justices Blackmun and Ginsburg. In reading it, you can't help but be struck by the question of whether the justices were all dealing with the same case. The majority opinion noted the presumptively correct statement that "the proposed expansion and intensified use are consistent with the City zoning scheme in the central business district." 62 USLW 4577. The Stevens dissent, however, notes: The enlargement of the Tigard unit in Dolan's claim of hardware stores will have an adverse impact on the city's legitimate and substantial interest in controlling drainage in Famo Creek and minimizing traffic congestion in Tigard's business district. That impact is sufficient to justify an outright denial of her application for approval of the expansion. 62 USLW 4582. It is difficult to conceive of one set of circumstances under which both of these statements could simultaneously be true. The dissent views the majority opinion as a departure from the essential nexus test of Nollan and the erection of "a new constitutional hurdle" in the required demonstration of rough proportionality. A major distinction between the majority and principal dissent is their focus on the burden of proof. The majority opinion found the conditions impermissible because of the city's failure to sufficiently justify or quantify those conditions. Souter's dissent notes that "Dolan has put forward no evidence that the burden of ... a dedication for the bicycle path is unrelated in kind to the anticipated increase in traffic." Steven's dissent, moreover, focuses on the petitioner's failure to offer evidence "that her burden of compliance has any impact at all on the value or profitability of her planned development." The correct inquiry should instead concentrate on whether the required nexus is present and venture beyond consideration of a condition's nature or germaneness only if the developer establishes that a concededly germane condition is so grossly disproportionate to the proposed development's adverse effects that it manifests motives other than land use regulation on the part of the city. 62 USLW 4583, 4584. In discussing the bike path condition, the dissent appears to presume the appropriateness of it even if it will have only minimal effect on relieving traffic congestion. The majority opinion invalidated the condition since the administrative findings only noted that such a path "could" offset some of the increased traffic. The dissent, however, notes that: Certainly the assumption that there would be an offsetting benefit here is entirely reasonable and should suffice whether it amounts to 100 percent, 35 percent or only 5 percent of the increase in automobile traffic that would otherwise occur. 62 USLW 4584.
The Nollan essential nexus test consists of two parts: In Dolan, the Court appears to be saying that the flood plain and bicycle path conditions satisfy the first part of the essential nexus test. The majority, however, finds that the second part of the Nollan test is not satisfied because the conditions imposed were not reasonably related to the projected impacts of the development. The Court appears to be shifing the burden of proof from a petitioner to show the unreasonableness of conditions imposed to the public body being given the burden of not only showing but quantifying the relationship between the conditions imposed and the impact of a particular development. Generalized statements of planning goals will not be sufficient to validate conditions. Instead, a specific particularized quantification of the relationship between the condition and the impact will be necessary to sustain its validity. However, none of the opinion analyzes in any critical degree the conditions imposed. Presumably, the flood plain dedication would give the city title to the flood plain area. Would a condition simply requiring the grant of an easement to the city over the flood plain meet the Nollan test? Similarly there is no discussion of the feasibility of locating the proposed bike path within the flood plain easement in lieu of requiring an additional 15 foot dedication. The conditions, in reality, seem more geared toward the elimination of existing problems rather than in response to any impacts that the proposed expansion . would have. Illinois has long considered a zoning process to be primarily a legislative function. LaGrange State Bank v.County of Cook, 75 111. 2d 301 (1979). Dolan raises the issue of whether the zoning process will now be interpreted by the courts to be an adjudicative as opposed to a legislative function. The Dolan majority noted that "here the city made an adjudicative decision to condition petitioner's application for a building permit on an individual parcel." 62 USLW 4578. The transformation of the zoning process from a legislative to an adjudicative characterization would eliminate the presumptive validity of a public body's action. Such a transformation, however, would be consistent with the majority's opinion transferring the burden of proof from a petitioner to the public body. Pending further clarification or interpretation, public bodies would be well advised in confronting conditional approvals with specific demonstrable and quantifiable proof of the reasonableness of their action. February 1995 / Illinois Municipal Review / Page 11
|Home|
|Search|
|Back to Periodicals Available|
|Table of Contents|
|Back to Illinois Municipal Review 1995|
|
|||||||||||||||
