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Three Constitutional Protections Relevant to Local Zoning

Written by Alex Reuter on November 29, 2020 Category: Firm News

When navigating through the nuances of a local zoning code or enforcement action the first thing to come mind is probably not the protections of the federal constitution. In reality, however, almost every zoning provision and action involves, to some extent, a variety of constitutional considerations.

Of the numerous constitutional rights, there are three that are especially relevant to local zoning. The first is the First Amendment’s prohibition against any law that abridges the freedom of speech. The protection that flows from the free speech clause manifests in various ways. For example, if there is an ordinance that, either intentionally or unintentionally, regulates content or viewpoints, they will likely be struck down because the government will need to establish that the content-based restriction “promotes a compelling interest” and uses “the least restrictive means to further the articulated interest.”  This standard is known as “strict scrutiny.” For zoning regulations that are content-neutral on the other hand, a municipality will have to establish that the zoning furthers a governmental interest that is substantial or significant (which is less than one that is ‘compelling’) and narrowly tailored (which is less than the ‘least restrictive means’) to advance the asserted interest. These content-neutral regulations have been routinely upheld under this “intermediate scrutiny,” and often involve time, place, or manner regulations on expression. The classic example of the First Amendment’s involvement in the zoning context is in sign ordinances. Signs, as a form of expression, usually inhabit their own chapters in zoning codes across the State of Michigan.

The second constitutional protection comes from the Fifth Amendment, which prohibits the taking of private property through inverse condemnation, or what is known as a regulatory taking. A regulatory taking generally occurs when governmental action or regulation (such as a zoning provision) substantially interferes with an owner’s use and enjoyment of property, or when the action or regulation fails to advance a significant state interest. Under either theory, the taking is compensable under both federal and state law. Some jurisdictions, including Michigan, recognize what is known as an “inverse condemnation” claim, which is predicated on a regulatory taking theory. Traditionally, both the U.S. and Michigan Supreme Courts held that a regulatory taking could occur when the land use regulation imposed by the government failed to substantially advance a legitimate governmental or public interest or the regulation deprived the owner of all economically beneficial or productive use of the property. In addition, a taking can be established when, after analysis of (1) the degree to which a regulation disrupts the “reasonable investment-backed expectations,” (2) the “economic effect” of the regulation on the landowner, and (3) the “character of the government action,” it is demonstrated that the government is “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

The third constitutional consideration that may be involved in a local zoning code, enforcement, or decision is the Fourteenth Amendment’s due process clause. Due process comes in two forms: (1) procedural and (2) substantive. In the zoning context, procedural due process typically involves a claim that a municipality took some zoning action in way that lacked procedural safeguards and should therefore be deemed unconstitutional. This usually involves an allegation that the plaintiff was not given adequate notice or an opportunity to be heard. Individuals also have a substantive due process right not to be subjected to arbitrary or irrational zoning decisions. Principally, “substantive due process…serves the goal of preventing governmental power from being used for purposes of oppression.” In order to prevail on a substantive due process claim in the land use and zoning context, a plaintiff must show: “(1) a constitutionally protected property or liberty interest exists, and (2) the constitutionally protected interest has been deprived through arbitrary and capricious action.” Generally, a court will not “interfere with local zoning decisions unless the locality’s action has no foundation in reason and is a mere arbitrary or irrational exercise of power.”

These are certainly not the only constitutional provisions at play in local zoning matters. An equally important consideration is the Fourteenth Amendment’s Equal Protection clause, which will be covered in a separate blog. Regardless of the situation, if you are facing a zoning decision or action that impacts your constitutional rights the attorneys at Dalton & Tomich are here to help. Call us today for a consultation, we would be happy to speak with you.

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