Agenda - Planning Commission - 10/06/2005

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Score The 20.05 S Four for P[annin§': upreme Court By Lora Anne Lucero, AicP Decisions Not since perhaps t987-when the U.S. Supreme Court had a blockbuster year in the land-use and piannin§ arena with Keystone Bi~urninous Cea[Assn., Granite Rock Co., First English, and Noltan--have the Justices provided so much food for thought to planners and others concerned about land-use '[aw as they did this-term. Taking Justice William J. Brennan's admonition in 198~ to heart--"If a policeman must know the Constitution, then why not a planner?"- a description of the four cases decided this year follows in this issue of Zoning Practice, as does a discussion on why planners should take note of each. LINGLE On May zg, the U.S. Supreme Court said, "Today we correct course." In the Lingle v. Chevron S. Ct. 2~74 (May z3, 2.oo5)] decision, written by Justice Sandra Day O'Connor and joined by all the other Justices, the Supreme Court jettisoned the "substantially advances" test that made [ts way into regulatory takings law a quaker century ago in Ag[ns v. CiO/of 17huron [4z~7 U.S. z55 (t980)]. In the process, they provided much- needed dar[b/in takings jurisprudence. THE FACTS The controversy arose in Hawaii when that state's legislature passed Act 257 in June t997. Amd~8 other things, the statute limits the amount of rent an oil company may charge a lessee-dealer to z5 percent of the dealer's gross profits from gasoline sales. Chevron U,$.A. Inc. was the largest refiner and mar* keter of gasoline in Hawaii at the time, control- ling 6o percent of the market for gasoline pro- duced or refined in-state and 30 percent of the wholesale market on the [sland of Oahu. The legislature was concerned about the effects of -this market concentration on retail gasoline prices and thought the rent cap would help. Chevron sued the state, claiming that Act 257 effected an unconstitutional regulatory tak- lng because it did not substantially advance a legitimate governmental purpose. Hawaii responded that Chevron was using the wrong test. The "substantially advances" test is a due process test, the state argued, not a takings test, The "substantially advances" test requires the court to take a closer look at the legislation passed by local and state §overnments--a higher level of scrutiny than the more deferen- tial rational basis test the courts use when they rev[ow regulatory takings claims. After a trial with the battle of the econo- mists (one for the state and one for Chevron), the trial court and the Ninth Circuit Court of Appeals concluded that Chevron was right. Act 257 did not substantially advance any leg[ti- mate state interest, Hawaii asked the U.S. Supreme Court to review the decision. ARGUED BY APA Although it was not a typical [and-use case, the American Planning Association fi[ed an amicus brief, draReo by Professor Tom Roberts of Wake Forest Law School and Ed Sullivan of Garvey Schubert 8arer in Portland, Oregon, because of the importai]ce of the outcome on future regulatory takings Cases. APA urged the Court to jettison the "substantially advances" test in regulatory takings cases. "the adoption.of legislation, particularly at the local government level, aided by the plannin§ process, involves the participation of ail se§ments of the community working to define th~ public interest. Allowing iud§es to Second-guess legislation will undermine the public's role in the demo- cratic process. Intermediate judicial scrutiny is neither needed nor justified to protect those Who are wet[ represented in legislative halls., THI: COURI"5 DECISION lustice O'Connor acknowledged that "the lan- §uage the Court selected [in the Agins opin- ion] was re§reKably imprecise." The "substan, tially advances" test. She said, asks whether a regulation of private property fs effective in achieving some legitimate public purpose. "An inquiry of this nature has some logic in the context of a due process challenge, for a regulation that fails to serve any~e§itim,ate governmental obiective may be so arbitrary or irrational that it runs afoul of the Oue Pro~:ess Clause .... gut such a test is not a valid metho~ of discerningwhether private property has been'taken' for purposes of the Fifth Amendment .... ·Instead of. addressing a challenged reguiation's effect on private properS/, the 'substantially advances' inquiry probes the regular[oh's under(y[ngvalidity." 8y removing the "substantial[v advances" test as a valid method of identi~* lng regulatory takings, co~Jrts will not be sec- 228 ZONINGPRACT1CE 8,o~ AMERIG~N PLANNING ASSOCIATION jpoge 2