LAND USE U P D AT E Standing to Sue and a California Zoning Study Standing to Sue Getting into court in land use cases can be challenging. Property owners usually have standing to challenge a land use decision that goes against them. Third parties, like neighborhood and community organizations, may have a more difficult time getting standing to dispute land use decisions and policies that they don’t like. Assume a local government makes a land use decision that a number of its citizens oppose. An example would be the adoption of a comprehensive plan that does not include the required statutory policy for nature conservation. Attempts to change the plan fail, and the plan’s opponents ask their local conservation organization to go into court and argue that the plan does not meet statutory requirements. Does the organization have standing? Courts give conflicting answers. In Historic Alexandria Foundation v. City of Alexandria, 858 S.E.2d 199 (Va. 2021), the court denied an organization standing to challenge the renovation of an historic home in the Old and Historic District, which once was the residence of US Supreme Court Justice Hugo Black. The extent of the renovation is not clear. The Board of Architectural Review approved the renovation, the Historic Alexandria Foundation (Foundation) appealed to the city council, the council affirmed the Board after a lengthy public hearing, and the Foundation appealed the council’s decision under a provision of the city’s zoning ordinance that allowed “aggrieved” Land Use Update Editor: Daniel R. Mandelker, Stamper Professor of Law Emeritus, Washington University School of Law, St. Louis, Missouri.
parties to appeal certain decisions of the city council. An “open space” easement restricted development on the property, but the Virginia Department of Historic Resources decided that the renovation complied with the easement. Because the Foundation was a third party to the renovation approval, it needed standing under the zoning ordinance to appeal as an aggrieved party. To support its standing claim, it argued that it owned property in the Old and Historic District within approximately 1,500 feet of the historic residence, was established “to advocate for the preservation of Alexandria’s historic buildings, districts, and neighborhoods,” had encouraged the preservation of the historic residence, and had granted open space easements over some of its properties. The court rejected these arguments and held that the Foundation was not an “aggrieved party” that has standing to appeal under Virginia standing rules. Standing requires a direct, immediate, pecuniary, and substantial interest in a decision by owning or occupying property within or in close proximity to a property that was subject to the land use determination. It also requires “some personal or property right, legal or equitable, or imposition of a burden or obligation upon the petitioner different from that suffered by the public generally.” This is a common requirement for standing that allows courts to reject standing claims when they are not based on private harm. The Foundation claimed it showed harm under these rules because the renovation compromised the integrity of the historic residence and diminished protected open space on the property. The court again disagreed. Assuming these
harms would occur, they could not be the basis for standing because the Foundation failed to show that they were not shared by the public generally. “Every property owner and resident of the Old and Historic District would share the loss of the historic residence and open space,” and “every citizen of the Commonwealth” would be harmed by a decision that jeopardized the preservation of public open space. The Foundation, the court held, was founded to advocate for historic preservation, but that purpose did not give it standing. Alliance for Metropolitan Stability v. Metropolitan Council, 671 N.W.2d 905 (Minn. Ct. App. 2003), reached an opposite result. Under the Metropolitan Land Use Planning Act, Minn. Stat. §§ 473.851 to 473.871, the Metropolitan Council, which covers the Minneapolis-St. Paul metropolitan area, is responsible for providing guidelines to help cities plan their share of local and regional affordable housing need. The guidelines assist cities in assessing housing supplies, analyzing housing needs and goals, and preparing implementation plans. The Alliance and other community organizations argued that the guidelines violated the Metropolitan Land Use Planning Act by understating the statutory planning obligations. They argued that the guidelines harmed their missions of promoting more affordable housing, required diversion of staff resources to help members obtain housing and to advocate for changes in Council practices under the Act, and harmed members because an affordable housing shortage causes rent increases. The court held that the associations had standing to sue. It explained
Published in Probate & Property, Volume 36, No 6 © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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