City moratorium on development

Visitor Question:Is it legal for a city to have a moratorium on development? Our medium-sized city has discussed this a little bit in an open meeting of the city council. The motivation appears to be allowing them to catch up on needed infrastructure spending to expand road widths and so forth to what they consider to be adequate. Some sewer lines might have to be extended too if our city keeps growing at the current pace.

I do understand that it is environmentally sound not to allow construction that would not be supported adequately by our infrastructure. On the other hand, I hope electric cars and autonomous vehicles are coming, and if so, it seems like that could take the pressure off of roads, gas stations, and parking.

On the other hand, my concern is that I don't want the city to do something that would be challenged successfully in court, entailing expensive attorneys and a lot of hassle and bad public relations. In your opinion are moratoriums effective and worth the risk?

Editors Reply: Like many community development questions, the answer to this really depends on the specific circumstances, as well as the state where this moratorium is proposed. Generally speaking, planners and city governments have relied on short-term and well-defined moratoria for many decades as one of the possible tools in growth management. In many states courts have seen a moratorium as simply an extension of planning and zoning law, and have upheld a reasonably well-constructed moratorium.

But then, we have to say that courts in some states, including Pennsylvania and Virginia, have rejected the idea that a moratorium is a part of zoning. This is why we say it depends on where you live.

The legal issue with moratoria is whether a court will consider this a partial "taking" of someone's property rights. To explain this, note that when the county comes along and needs 20 feet of front yard for a front yard, this is considered a "taking" and requires compensation by the government, according to the U.S. Constitution. The question with a moratorium is whether prohibiting all construction is a taking, even if it is only a temporary prohibition. Presumably if a government did pay people for their land, the moratorium would be considered legal, but then no reasonable government would pay for land and then give it back to the previous owner. So that is just a silly theoretical argument.

You are really very on target when you say you don't want your city to be challenged in court. Your first course of action should be to discuss this thoroughly with the city attorney, and if that attorney seems one bit unsure, you need to urge that attorney to talk over the issues with the foremost land use attorney in your state.

As planners, we can't get too far into the weeds on this question, but we can relay to you the factors that ae generally considered to be important in determining whether or not a particular moratorium constitutes a taking. In this we rely on this article: St. Amand, Matthew G. & Dwight H. Merriam, Defensible Moratoria: The Law Before and After the Tahoe-Sierra Decision, 43 Nat. Resources J. 703 (2003), which is available at: https://digitalrepository.unm.edu/nrj/vol43/iss3/3. Dwight Merriam is one of the nation's leading land use attorneys.

While this article deals specifically with a 2002 U.S. Supreme Court ase, Tahoe-Sierra Preservation Council v Tahoe Regional Planning Commission, Amand and Merriam provide a concise summary of the historic factors courts used in determining whether a moratorium amounts to a taking. These include whether the city had the authority to enact it, its duration, the importance of the public interest to be served, the burdens on the property owner, and whether the property owners have other economic uses of the property during the moratorium. If an individual was bringing the lawsuit challenging the moratorium, courts also looked at whether the plaintiff had exhausted administrative remedies, a common standard during land use litigation. For instance, if there was a variance procedure, did the property owner take advantage of it?

These same criteria seem to us to hold true today. So in response to your set of facts, we think you need to press your city to be much more specific than "infrastructure." What infrastructure needs to catch up to the demand, and what is their standard now or in the future for when the infrastructure will be adequate? We think the city needs to do its homework about what specific infrastructure needs or uncertainties warrant halting all real estate development, and what benchmarks would allow development to proceed. It is extremely unlikely that a ten-year catch-up program can be covered by a moratorium, but perhaps a six-month moratorium while the city gets a handle on its needs, prepares a mini-infrastructure plan, and figures out whether it needs an impact fee program will be defensible.

Moratoria often are pretty well upheld if their purpose is to allow a city to complete a comprehensive plan revision or deal with replanning an area that has been devastated by natural disaster. But when the purpose is a vague sense that our traffic is too bad or we have too many power outages, we think that would be a huge red flag.

So our advice is that the city needs to become quite specific. If it cannot do so, then it should undertake an intensive planning process to identify exactly what the needs are. The duration of this planning process should be as short as possible, and the duration should be reasonable. Asking property owners to wait six months is quite a different thing than asking them to wait until the city can get funds from the state, which has to get funds from the federal government, for some road project.

Make the moratorium as short as possible, in as narrow an area as possible. Have the city be quite detailed in delineating exactly what public purposes will be achieved by the moratorium, what public services are at risk if there is no moratorium, and how those public purposes are related to health and safety. If the public purposes don't really relate to health and safety, as planners we do not think a moratorium is the right tool. The public benefit to be achieved by the building moratorium should be proportionate to the inconvenience or possible temporary economic losses to be suffered by property owners. If the public benefit to be achieved is that now people can fly kites on two more Saturdays in March, that probably will not pass legal muster, and we as planners would not advise it. But if the public benefit is that we can stop geysers of raw sewage spouting up in people's basements unexpectedly, that is worth some months of inconvenience to developers, at least in our planners' minds. (Still one has to consider what courts think in that particular jurisdiction. Follow your attorney's advice in this, not ours.)

So, to help you use terminology of land use law just a bit in your public discourse, there must be a reasonable nexus (causal or correlational connection) between the public issue and the proposed moratorium. If the moratorium is proposed for the east side of town, but the public problem has manifested itself on the west side, you do not have a reasonable nexus.

In sum, please express your misgivings about this to your elected officials, city attorney, and city staff. Nudge them to draft any moratorium proposal as narrowly as possible, and insist that it involve a meaningful problem and the specifics of the moratorium involve a rational nexus between the problem and the solution. Also they should tie the moratorium just as closely as possible to zoning, comprehensive planning, and any other type of land use regulation that is routinely upheld by courts in your area.

Incidentally, we notice that you placed this is our environmental planning section, not the zoning questions section. As you can perhaps gather from our answer, we think zoning has a longer and stronger legal history than environmental regulation, and we think tying the moratorium to a planning question is stronger than the environmental angle. Your area could be different though, so this is why a thorough consultation with the city attorney is in order.