Saturday, February 29, 2020

As population density increases, local governments have become increasingly motivated to temporarily halt developmental progression by the use of building moratoria. One common use of moratoria ordinances in our area is to preserve the status quo by stopping construction for a defined period of time while municipalities rework their comprehensive plans to cope with increased urbanization by properly regulating land development. A moratorium provides a municipality with time to rework and to update its comprehensive plan, which includes zoning and which incorporates the government’s police powers—that is, policies regarding the health, welfare and safety of the larger community. An example of this type of moratorium is a halt to all building activity in a municipality while planners analyze and develop a community-wide plan based upon factors such as increased demands for water and sewer usage, air quality, infrastructure, transportation and zoning. Municipalities in Westchester and Orange County increasingly use moratoria for these purposes. For example, the Orange County towns of Monroe and Blooming Grove, and the Village of South Blooming Grove, are presently using moratoria to cope with perceived threats to the environment and to public facilities posed by an extraordinary influx of a single exponentially growing population group. Of immediate concern are annexation proposals to be used to significantly increase population density for the exclusive benefit of this group, water and sewage availability and treatment, increased traffic congestion, air quality, zoning and other considerations that threaten to deplete scarce resources and to change the character of these rural areas.

Land use moratoria ordinances have been used as planning tools for many years but constitutional challenges have arisen. (See, for example, Tahoe-Sierra Preservation Council, Inc. et al. v. Tahoe Regional Planning Agency et al., 535 U.S. 302 [2002]). Challenges are often based on the moratorium’s purpose, which is to preserve the status quo while a perceived developmental threat is addressed by changes in the zoning law. The moratorium therefore acts to temporarily deprive a property owner of the full use and development of his/her property in deference to the needs of the greater community. The U.S. Supreme Court and lower courts have not issued definitive ground rules for moratoria, instead deferring to legislative actions and making rulings on a case-by-case basis, although Tahoe did shift the balance away from prior Supreme Court decisions that elevated the rights of individual property owners over planning and community needs.

In deference to the fifth and fourteenth amendments to the U.S. Constitution, there appears to be agreement that a reasonable moratorium should advance a legitimate government interest, that it should apply equally and fairly to the entire community, that advantages to the municipality must outweigh potential hardships to landowners, that government should act diligently and in good faith and strictly adhere to procedures for enactment of local laws and ordinances, that the community should be actively engaged in formulating a comprehensive plan or land use regulations and that the moratorium should not deprive the property owner of all reasonable use and return on his/her investment in his/her property for an unreasonable length of time.

A moratorium that exists for too long a time might be construed as a “taking,” according to the Fifth Amendment, which states that no person shall be deprived of life, liberty or property without due process of law and without receiving just compensation, as is done in eminent domain. But what is a “reasonable” amount of time? Courts answer this question on a case-by-case basis. Deferring to the law-making bodies, the courts allow them to deem a moratorium law as “temporary” even if the local government extends the term of the moratorium. In essence, this can allow local government to achieve by regulation what it cannot do via eminent domain: That is, it has prevented the owner of private property from using his/her property without compensation. At the end of the moratorium, however, if the owner is lucky, the property might actually increase in value under the new regulations!

Frequent types of moratoria ordinances that give rise to litigation and community opposition are the issuance of building permits for multi-family residential developments, billboard signs, fast-food restaurants, cell towers, adult bookstores, wind farms, nursing homes and mobile home parks.

Moratoria may emanate not only from local governments but also from other sources. Moratoria ordinances halting developments can result from a perceived crisis involving insufficient utility services facilities such as sewage treatment plants; here, environmental agencies have authority to enact sewer hookup moratoria. So does the federal Clean Water Act give the federal government the ability to impose moratoria. A moratorium may involve a general ban on all development or it may be specific to a particular zoning district or to a particular land use. But when a moratorium is established it may exempt projects that have already received approval. And, a moratorium law can contain provisions that allow landholders to apply for relief during the duration of the moratorium.

There are also practical and political matters. The larger community has a legitimate interest in controlling land use development because its ramifications affect everyone in the community. Comprehensive municipal planning is a complex business so a suitable plan incorporates many factors and takes time to develop; professional planners are employed to research and develop the plan. Comprehensive plans that met the community’s past needs must be reworked in light of changing local situations such as increased population pressure and when new uses—such as wind farms—appear. Politicians like to stop building activity when a developer proposes a distasteful plan that produces significant community opposition. Therefore, a moratorium ordinance allows for citizen input. It satisfies the larger community’s need to feel that a revised comprehensive plan is not being imposed upon the community, that the community’s ideas are incorporated into the plan and that the plan is not imposed upon the community in deference to the needs of special interests. While revision of the comprehensive plan is ongoing, developers cannot be permitted to benefit by continuing projects that may not be in accord with the new plan. Thus, the moratorium, which preserves the status quo during its time period, prevents development and rezoning that might undermine the provisions of the new plan that is being developed.

It is difficult and expensive for a plaintiff to successfully challenge a moratorium ordinance. A plaintiff must have standing—a personal stake, or a demonstration that he/she has been or will be injured, economically or otherwise. Plaintiffs may allege substantive or procedural due process violations but the case must be ripe for review: The plaintiff must have exhausted all administrative remedies before the court will review the case. Courts will usually defer to the legislature’s determination that the government’s purpose in enacting the moratorium does indeed bear a substantial relation to the government’s exercise of the police powers and that the legislature had valid, non-arbitrary reasons for enactment of the moratorium. But if declared invalid, the court could invalidate the moratorium, for example on the grounds of unreasonable use of the police power.

Population growth in our area appears to be inevitable; therefore, moratoria will continue to be an increasingly used tool for regulating land use to benefit the entire community.

By Vivian J. Oleen

Vivian J. Oleen is an associate broker at Sopher Realty.

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