Agenda - Planning Commission - 04/04/1995

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up with a more focused and empirically based justification for legislation than is required by the reasonably debatable rule" in the Euclid case. The shift "means the court is less willing to accept the outcome of the political process when it is challenged in court." The Basis for Shifting the Burden Presumption-shifting occurs in three categories of cases, according to the authors. In the first type, the presumption customarily shifts when a land-use regulation implicates a constitutional right, such as freedom of speech or religion, or ' the right to privacy. The second type is when a court discerns racial or similar motivations behind a restrictive land-use measure or finds discrimination against a "quasi-suspect" group like the mentally retarded. In such cases, a court will apply a more rigorous level of judicial review. The third instance is when "capture" or control of the legislative body occurs through "political malfunction." This may happen because of improper pressure upon the legislative body by developers, or because of domination of the local legislature by minority interest groups "who have a high stake in the political outcome" of planning issues, such as growth manage-' ment or redevelopment, tn other cases, interest group coalitions or homogeneous political groups consistently disregard broader, regional interests. In these communities, such coalitions or groups "ignor[e] the external social effects of their land-use decisions." This "malfunction" results in exclusionary zoning, quixotic spot zoning, poorly justified departures from a commu- nity comprehensive plan, or other unsavory land-use practices. Tarlock calls many cases in this category ~greased decisions where something slips through and discussion is choked off" at the planning board or legislative level. Mandelker includes as well the practice of "ward courtesy," in which the council member from a ward where a zone change is propBsed dictates how the city council is going to vote and other council members defer submissively without any debate. "For decades, the planning profession has defined the ideal zoning decision as one based on technical criteria and accepted by open and informed debate," the authors say. "Theoretical considerations aside, in reality zoning decisions are too often ad hoc, sloppy, and self-serving decisions with well-defined adverse consequences without off-setting benefits." In the formative years of zoning law, courts deferred to local legislative judgment out of a Jeffersonian faith in local control and progressive belief in scientific rationality, say the authors. But after years of cheering on local government or being indifferent, courts began to question that faith. Beginning in the 1960s, courts "became increasingly aware that many local decisions were highly arbitrary to two major stakeholders in the process, landowners and neighborhoods, as well as those whose potentially legitimate claims were excluded from the process." In the 1970s, "the progressive and Jeffersonian images were replaced by those of racially, culturally, and economically discriminatory parochial actions. Still, courts adhere to the fiction that units of local government are the contemporary embodiment of the Greek polls." One of the earliest decisions to reverse the presumption of constitutionality, Mandelker says, was a 1969 Oregon Supreme Stuart Meck, AICP, is Principal Investigator for ARA's GROWING SMARTm project, which is intended to develop the next generation of model state planning and zoning enabling statutes for the U.S. Court case, Roseta v. County of Washington, 458 P.2d 405. There, the court overturned the spot zoning of a single-family residential lot to an apartment classification. In its opinion, the court recognized the neighbors' interest in ensuring land-use stability. The court'viewed this as an interest substantial enough to shift the burden of justification for the zone change to the county board, which had approved it over the negative recommendation of the planning commission. When land-use decisions deviate wildly from plans or established land-use patterns in a community, there is the basis for a reversal of the presumption, Mandelker and Tarlock say. Their article mentions a well-known New York Court of Appeals (highest court) case, Uddl v. Haas, 235 N.E.2d 897 (1968). A suburban community on Long Island had a zoning policy that allowed commercial uses on a major thoroughfare. In response to neighborhood opposition to commercial development, the legislative body quickly downzoned a tract of land from commercial to residential in an area that the community's zoning policy had long identified for commercial use. The court invalidated the downzoning and held that a. rezoning should not conflict with the fundamental land-use polices and development plans that a community has adopted. Ellis, Harold A. ;'Neighborhood 'Oi~position and the · Permissible Purposes of Zoning,' 7Journal of Land Use and Environmental Law 275 (I992)i Mandelker, Daniel R. "Reversing the Presumption Of ~ Constitutionality in Land Use Litigation: Is Legislative Action Necessary?" 30 Washington Universi~y Journal of Urban and Contemporary Law 5 (1986). ' Mandelker, Daniel R. "The Shifting Presumption of Constitutionality in Land-Use Law," 4 Journal of Planning Literature 383 (1989). Mandelker, Daniel R. and Tarlock, A. Dan. "Shifting the Presumption of Constitutionality in Land-Use Law/' 25 The Urban Lawyer I (1992). ~ · Pelham, Thomas G. "Quasi-Judicial Rezonings: A Commentary on the Snyder Decision ar/d the Consistency Requirement," 9 journal of Land Use and Envirbnmental Law 243 (1994):~' - · . L . Taflock, A. Dan. "Detecting and Challenging Bias in Zoning Board Decisions,' 1987 Zoning and Planning Zaw Handbook 83 (Noah J. Gordon, Ed.).. - ' . Applying the Theory The Florida Supreme Court case that refers approvingly to the · Mandelker/Tarlock article is Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469. The Court, interpreting the state's growth management statutes, held that when a landowner demonstrates that a proposed rezoning is consistent with a comprehensive plan, the burden shifts to the local government to demonstrate by "substantial, competent evidence" that maintaining the existing zoning serves a legitimate public purpose. The Snyder opinion is important because "it confers status on the comprehensive plan," says Tallahassee Attorney Thomas G. Pelham, who filed an amicus curiae brief in the case· The decision means that "ifa local government wants to deny an application that is consistent with the plan, they should have a burden to demonstrate why it was denied," says Pelham· Under