constitution & governance the power and responsibilities of land use regulation
TRANSCRIPT
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Constitution & Governance
The Power and Responsibilities of Land Use Regulation
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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
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The Constitution• It is the oldest written national constitution currently in
effect
• Essential principle:
• Government must be defined by Rule of Law
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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
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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
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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
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The Constitution• Interpretation of constitutional intent based on
• Custom (common law)
• Precedent (past decisions)
• Usage (new interpretation)
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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
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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
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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
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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
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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
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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)
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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”
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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
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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
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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
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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
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The Constitution• Constitutional Challenges
• On its face• As applied
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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
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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
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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
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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
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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”
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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
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Constitutionality of a State Law
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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
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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?