02/03/87 - Laserfiche WebLink

Home

-7- ' III. NEW THEORIES OF LIABILITY In recent years, new theories of governmental liability have been developed. A. Antitrust Municipalities and other local governmental units used to be presumed to be exempt from anti-trust liability. This is no longer so. A number of cases in states other than Minnesota have held that local, governments can be held liable for treble damages arising out of actions violating anti-trust laws. The Federal Sherman and Clayton Acts prohibit attempting to monopolize or conspiring to regulate con~nerce. Creative plaintiffs are now challenging local zoning ordinances and 'other regulations under anti-trust laws. They have argued for example that the use of zoning and subdivision ordinances regulates the amount of land available for development, or can be likened to the issuance of a franchise to market homes in the city. We can expect to see more anti-trust litigation in the future. B. 42 U.S.C. Section 1983 The Federal Civil Rights Act of 1871 authorizes an individual to sue for damages if his/her constitutional rights have been denied. This section of law saw littTe use until recent federal court decisions held that a city or public office could be sued under this statute. Since zoning law has a number of. constitutional aspects (discussed earlier) it is not surprising that in the last few years there has been a great increase in Section 1983 suits against local governments. Section 1983 doesn't change the constitutional requirements under which governments act (i.e., the taking and equal protection issues discussed earlier) but it does create a new way for a landowner to seek damages from the local government. Historically, the local government could choose to rescind its unconstitutional regulation and allow the developer to proceed with his development proposal (without being forced to pay any damages). Under a Section 1983 action, the local government could be held liable for the payment of temporary delay or permit damages to the developer. This area is developing rapidly and should be kept in mind. IV. A. COF>IENTS ON PROCEDURE Legislative Decisions. The decision to adopt a zoning ordinance, the zoning ordinance standards, and amendments to zoning ordinances which have general application have ~en treated by courts as legislative decisions. This is significant b~c~use if a legislative decision of a local governmental unit is c -!longed, the courts under the doctrine of separation of powers have 'itionally given deference t~ these <e,;islcns. In other words, the r ...... a i~isi~si,,e u~,_ ?q un~ that there is no reasona21e basis for, nor reasonable 'Nay by which local governmental unit could have reached such a conclusion.