US Constitution 5th Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fundamental State Power: “Police Power”

U.S. Const. 10th Am.:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

• “Police Power”:  The power of the State to place restraints on the personal freedom and property rights of persons for the protection of the public safety, health, and morals or the promotion of the public convenience and general prosperity.

  • Black’s Law Dictionary, Sixth Ed.

Physical Takings – 5th Amendment

Physical Taking

• Government uses power of eminent domain

  • Power also granted to utility companies

  • E.g. powerline rights of way, gas pipeline easement (ACP)

• The power to take your property for public purpose

• US Const. 5th Am. requires …

  • That property must be put to public purpose

  • Owner must be given just compensation (fair market value) for property

• Litigation is normally over amount of Fair Market Value

Regulatory Taking

The Fifth Amendment of the United States Constitution provides that “private property [shall not] be taken for public use, without just compensation.”

• Applied to states via 14th Amendment

• Physical Taking (e.g. highway right of way)

  • clear taking of possession

  • only question is ‘how much is property worth?’

• Regulatory Taking:

  • Restricting the use of the property to such an extent that it loses majority of its value

Regulatory Taking – Fact Based Inquiry

Penn Central Co. v. New York City, 438 U.S. 124 (1978)

• Three Part Test:

  1. the economic impact of the regulation on the property owner;

  2. the property owner’s investment backed expectations; and

  3. the “character of the government action.”

• Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)

  • holding that beachfront regulations that prevented the plaintiff from building any habitable structure on his property constituted a categorical taking

• NC standard:  land owner has been “deprived of all practical use and reasonable value of the property.”

  • King v. Ward, 207 N.C. 782 (1935)

Recent Case: Ideker Farms, Inc. v US, 71 F.4th 964 (Fed. Cir. 2023)

Federal law (1944) allows construction of dams on Missouri River (to protect farmland from flooding)

• Army Corps of Engineers allows releases to protect habitat for listed species under Endangered Species Act

  • Flooding of farmlands = loss of crops

• Court provides valuation baseline of land post-flood control, factoring improvements farmers have made for production (since protected from flooding)

• Holds that dam releases are a compensable taking (sometimes called ‘inverse condemnation’)

Zoning

Police power of state and local governments to protect public health, safety, and the general welfare

• Zoning is an exercise of a state’s police power restrained by

• The Fifth Amendment

  • Applies due process

  • …“nor shall private property be taken for public purpose without just compensation”

Concept of Zoning

Goals:

• Separate incompatible uses that have traditionally resulted in nuisances and litigation

  • Eliminate public nuisances

  • Pre-emptively eliminate private nuisances (incompatible adjacent uses)

• Environmental protection

  • Preserve open space

  • Protect watershed (lower lot densities = more pervious surface)

  • Protect wetland areas

  • Protect wildlife habitat

Legal basis of zoning

Village of Euclid v. Ambler Reality Co. [272 U.S. 365 (1926)]

• Village of Euclid was a suburb of Cleveland, Ohio

• Valid exercise of police power

• Must follow a Master or Comprehensive plan

  • Zoning cannot be arbitrarily applied

  • § 153A-341 (a) Zoning regulations shall be made in accordance with a comprehensive plan.

North Carolina Zoning Definition

“regulation by a local governmental entity of the use of land within a given community, and of the buildings and structures which may be located thereon, in accordance with a general plan.” Chrismon v. Guilford County, 322 N.C. 611, 617, 379 S.E.2d 579, 583 (1988).

“Fundamentally, the primary purpose of . . . zoning ordinances is to specify the types of land use activities that are permitted, and prohibited, within particular zoning districts.” Lanvale Properties, LLC v. County of Cabarrus, 366 N.C. 142, 158, 731 S.E.2d 800, 811–812 (2012)

County Zoning – Requires Statutory Authorization

• Dillon’s Rule – counties and localities cannot act without authority from the state

• § 153A-340. Grant of power. (a) For the purpose of promoting health, safety, morals, or the general welfare, a county may adopt zoning and development regulation ordinances. These ordinances may be adopted as part of a unified development ordinance or as a separate ordinance. A zoning ordinance may regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lots that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes.
  

Example:  Chatham County Residential Zones (Chatham UDO)

R5 Residential district Primarily for very low density residential developments along the County's rivers and streams which are compatible with protecting the water quality of the rivers and streams.

• R2 Residential district: Primarily for low density residential development to protect water supply watersheds

• R1 Residential District: This district is primarily for low to moderate density residential development within the residential-agricultural areas of the jurisdiction.

Changes to Zoning Classification

Zoning allows a particular use, but then area is rezoned to disallow certain uses

• Requires public hearings

• New “disallowed use” may continue, known as non-conforming use

• Owner may continue in current use indefinitely, but cannot change use

  • Cannot change to another non-conforming use

  • Cannot greatly expand existing non-conforming use

• Does not violate 5th Amendment rights

  • Public hearings afford due process

  • Changes do not deprive owner of all economic use or “investment-backed expectation”

Zoning Changes

Variances

• Example:  R5 Residential requires ‘set back’ of houses from front, side and back of lot

  • Illustration in recording

• Request to deviate from prescribed set-backs

• Conditional Use Permit

  • Legalize a non-conforming use so long as certain uses are met

  • Requires public hearing to allow input from surrounding landowners

  • Example:  area zoned for “Residential-Agricultural”

    • Landowner requests a zone to “light industrial” to permit installation of solar photovoltaic facility

Extra-territorial Jurisdiction

Extension of municipal zoning restrictions outside of city/town limits

• ETJ based on municipal population

  • ≤ 10,000 residents = 1 mile

  • 10,000 to ≤ 25,000 = 2 miles

  • 25,000 = 3 miles

• Annexation

  • Process by which a municipality expands

  • Cannot envelop a Bona Fide Farm without permission of owner (see below)

Statutory Standing to Challenge Zoning

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

• (3 part standing test) is abrogated if state standing statute applies

• North Carolina General Statute §160A-393

(d)       Standing. - A petition may be filed under this section only by a petitioner who has standing to challenge the decision being appealed. The following persons shall have standing to file a petition under this section:

(1)        Any person meeting any of the following criteria:

a.         Has an ownership interest in the property that is the subject of the decision being appealed, a leasehold interest in the property that is the subject of the decision being appealed, or an interest created by easement, restriction, or covenant in the property that is the subject of the decision being appealed.

b.         Has an option or contract to purchase the property that is the subject of the decision being appealed.

c.         Was an applicant before the decision-making board whose decision is being appealed.

(2)        Any other person who will suffer special damages as the result of the decision being appealed.

(3)        An incorporated or unincorporated association to which owners or lessees of property in a designated area belong by virtue of their owning or leasing property in that area, or an association otherwise organized to protect and foster the interest of the particular neighborhood or local area, so long as at least one of the members of the association would have standing as an individual to challenge the decision being appealed, and the association was not created in response to the particular development or issue that is the subject of the appeal.

Public Nuisance Abatement Authority

§ 153A-121.  General ordinance-making power.

• (a)        A county may by ordinance define, regulate, prohibit, or abate acts, omissions, or conditions detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the county; and may define and abate nuisances.

• § 153A-140.  Abatement of public health nuisances.

• A county shall have authority, subject to the provisions of Article 57 of Chapter 106 of the General Statutes, to remove, abate, or remedy everything that is dangerous or prejudicial to the public health or safety. Pursuant to this section, a board of commissioners may order the removal of a swimming pool and its appurtenances upon a finding that the swimming pool or its appurtenances is dangerous or prejudicial to public health or safety. The expense of the action shall be paid by the person in default, and, if not paid, shall be a lien upon the land or premises where the nuisance arose, and shall be collected as unpaid taxes. The authority granted by this section may only be exercised upon adequate notice, the right to a hearing, and the right to appeal to the General Court of Justice. Nothing in this section shall be deemed to restrict or repeal the authority of any municipality to abate or remedy health nuisances pursuant to G.S. 160A-174, 160A-193, or any other general or local law. This section shall not affect bona fide farms, but any use of farm property for nonfarm purposes is subject to this section. (1981 (Reg. Sess., 1982), c. 1314, s. 1; 2002-116, s. 2.)

Bona Fide Farm Status - Zoning

Exemption from County zoning restrictions

• Not an exemption from NC Building Code requirements

• Safe Harbors NCGS §153A-340

  • A farm sales tax exemption certificate issued by the Department of Revenue.

  • A copy of the property tax listing showing that the property is eligible for participation in the present use value program pursuant to G.S. 105-277.3.

  • A copy of the farm owner's or operator's Schedule F from the owner's or operator's most recent federal income tax return.

  • A forest management plan

• FSA Farm Numbers no longer qualify

Coastal Area Management Act

Coastal Area Management Act (NCGS §113A-100 et seq.)

• The Coastal Zone Management Act

• Requires coastal states to apply land-use controls

• Program for protection, preservation, orderly development and management of coastal NC counties

• Zoning and Building, etc.

The Coastal Zone Management Act was enacted to help protect coastal zones. Unlike many other federal environmental laws designed to regulate a particular pollutant, the Coastal Zone Management Act is designed to protect an area. States are required to adopt programs that apply land-use controls to protect shorelines. States have a great deal of discretion to define their own programs.

The Oil Pollution Act makes vessels discharging oil liable for cleanup. It imposes strict liability for marine oil spills. There is a three-year statute of limitations for claims. The Act applies to freshwater bodies of water as well as saltwater.

The Marine Protection Act authorizes establishment of National Marine Sanctuaries. There are twelve such sanctuaries. The Act prohibits ocean dumping of sewage sludge and industrial waste.

The Fish and Wildlife Coordination Act requires that other resource development programs be coordinated to protect fish and wildlife. It applies primarily to reservoirs that require a federal permit.