Constitution & Governance

The Power and Responsibilities of Land Use Regulation

The Constitution• Defines the fundamental law of the federal government

• Sets forth three branches of government

• Outlines their respective jurisdictions

• Outlines basic rights of citizens

• Outlines basic relationship between federal government and the states

The Constitution• It is the oldest written national constitution currently in

effect

• Essential principle:

• Government must be defined by Rule of Law

The Constitution• The Constitution’s precursor:

• Articles of Confederation

• Ratified in 1781

• Guarded independence of the states

• Did not provide for a federal chief executive or a judicial system

• Concerned with limiting the powers of the federal government over the states

The Constitution• Constitution was drafted in 1787

• Started as an amendment to the Articles of Confederation

• Ended up as a complete rewrite

• By 1788 nine states had ratified the Constitution

• Ratification in most (including the remaining) states depended upon the adoption of the Bill of Rights

• Bill of Rights:• First ten amendments to the Constitution

The Constitution• A set of general principles

• Statutes and codes emerge from these principles

• These principles are

• Concise and precise• Concise and vague

• Congress, the Courts and the Executive have been able to re-adapt and interpret the vagaries over time

The Constitution• Interpretation of constitutional intent based on

• Custom (common law)

• Precedent (past decisions)

• Usage (new interpretation)

The Constitution• Organization of the Federal Government

• Laid out in Articles I – VII• Vests all law-making powers in Congress

• Raising taxes• Borrowing money• Regulating interstate commerce

• Vests executive power to president• Chief Executive Officer• Commander-in-Chief• Treaty-making Power• Power of Appointment

The Constitution• Organization of the Federal Government (cont.)

• Vests Judicial Power in the Courts• Supreme Court as final court of appeals

• Remainder of Articles defines relations between the federal government & states, among the states, and rights of citizens in states

The Constitution• Enumerated Powers

• The powers granted to the federal government that are explicitly enumerated in the constitution

• This grant of power is implicit in the structure of the constitution, but made very plain in the 10th Amendment

• Residual Powers• Those powers not granted to the feds fall to the states

The Constitution• Residual Powers (cont.)

• Limitations to states• Nothing mandated by state laws can nullify powers granted to feds by

constitution

• “Elastic Clause”• Congress has the power to make all laws necessary and proper to allow

the federal government to carry out its responsibilities mandated by the constitution

The Constitution• “Delegated” Powers

• Powers delegated by the states to localities (counties, cities, towns)• Power is delegated• Authority and responsibility remain with states

• Home Rule vs. Dillon’s Rule• Dillon’s Rule – Localities have only those powers allowed by states• Home Rule – Localities have more autonomy within guidelines

The Constitution• Constitution and Land Use Regulation

• The power to regulate land is (mostly) a residual power

• Not explicitly granted to Feds

• Falls to states

• States legislate within the limits of the constitutions of Fed and States

• Typically these powers are delegated to localities

• Feds have suggested these powers to states (SCPA, SSZEA)

The Constitution• Police Powers

• The ability of the state to act on behalf of the public

• The ultimate rationale: to protect the public’s health, safety and general welfare

• “The public control over the private use of property”

The Constitution• Eminent Domain Powers

• Expropriation (legal), not Confiscation (illegal = “Taking”)

• The ability to force the transfer of ownership from private to public possession

• The power of the sovereign (i.e., the State) to reassert original ownership of land

The Constitution• Constitutional limitations / protections of land use

regulation

• Fifth Amendment• Due process clause

• [no person shall] be deprived of life, liberty, or property, without due process of law

• Procedural vs. Substantive Due Process

• Takings clause• nor shall private property be taken for public use, without just compensation• Eminent Domain vs. Police Powers

The Constitution• Fourteenth Amendment

• Due Process• … nor shall any State deprive any person of life, liberty, or property, without

due process of law

• Equal Protection• … nor deny to any person within its jurisdiction the equal protection of the

laws

The Constitution• First Amendment

• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

• Religious Institutions/Structures• Adult-Oriented Establishments• Commercial Speech

The Constitution• Constitutional Challenges

• On its face• As applied

Federal Judiciary• Federal District Courts

• 95 in 50 States

• Federal Courts of Appeal• 13

• U.S. Supreme Court• 1

• Important for planning, because many planning disputes ultimately involve constitutional questions

Federal Judiciary• Federal District Court

• Trial court of the federal system• Where legal action originates• First legal judgment is reached here• Criminal and civil matters

Federal Judiciary• U.S. Court of Appeal

• Losing party in District Court has right of appeal• Appeal must involve a claim of legal error• Case is not retried• The decision of the lower court is reviewed to determine if error

was indeed made

Federal Judiciary• Supreme Court

• Has “original jurisdiction”• Cases affecting ambassadors, ministers, consuls• Disputes between states• Disputes between states and federal government

• Has appellate jurisdiction• Last court of appeal• Writ of error (old custom); writ of certiorari (current)• Reviews Appellate court decisions• Reviews State Supreme Court decisions

State Judiciary• Similar in process to federal system

• Trial court• Appellate courts• Supreme court

• Jurisdiction to decide on state laws, statutes and state constitutionality

• A legal process does not have to remain strictly in the federal or the state system. Can “jump tracks”

Constitutionality of a Federal Law• It must be enacted according to proper procedure• It must be authorized by either

• The explicit text of the Constitution• The powers reasonably implied by the Constitution• The residuum of inherent powers on which government can call

upon to preserve the polity

• It must not violate• And of the prohibitions explicitly called for in the Constitution• Any of the rights properly implied by the Constitution

Constitutionality of a State Law

Standard of Judicial Attitudes• Regulations are presumed to be constitutional

• Party attacking regulation has burden• Benefit of doubt given to regulators

• Presumption holds under substantive due process and economic equal protection issues

• Presumption is reversed for racially based equal protection issues

Basic Requirements for Disputes• Standing

• Are you a “damaged” party (physical, economic)?

• Ripeness• Have you exhausted all administrative remedies?• (similar to standing) Have you been hurt yet by the decision;

Has the decision been made yet?

• Mootness• Are you actually being harmed, or is the harm theoretical?• Has the issue been resolved, and you are pursuing a remedy

based on principle?