Land Use Update

Land Use Update Editor: Daniel R. Mandelker, Stamper Professor of Law Emeritus, Washington University School of Law, St. Louis, Missouri.

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” 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 Minnesota’s liberal standing rules for organizations and held that standing in this case was “supported by the well-established notion of associational or organizational standing, which recognizes that an organization may sue to redress injuries on its own behalf or on behalf of its members.”

The court then applied standing rules, similar to Virginia’s rules, that require an “injury-in-fact” that can be proved by showing that a party suffered actual, concrete injuries caused by the challenged conduct, and a direct interest in a statute different in character from the interest of citizens in general. The organizations had standing to challenge the guidelines under these rules because “Minnesota courts recognize impediments to an organization’s activities and mission as an injury sufficient for standing.”

The court also identified “two key questions” that decide whether organizational standing is more likely when an organization claims to have an interest in a statute: “(1) if these organizations were denied standing, would that mean that no potential plaintiff would have standing to challenge the regulation in question? and (2) for whose benefit was the regulation at issue enacted?”

Answers to both questions were positive. A city would not likely sue for stricter regulations, and the Metropolitan Council adopted the guidelines to benefit low-income and moderate-income homeowners. The homeowners who were affected by the guidelines were both members of the organizations that claimed standing and the people they represented. Recognizing a plaintiff willing to challenge public policy decisions opens standing opportunities when a party that has suffered traditional injury-in-fact can be difficult to find. It allows a court to create “private attorneys-general” with the right to sue.

Differences between the federal and state constitutions influence state standing rules. The federal constitution contains a case or controversy clause that requires injury-in-fact for standing. Standing in state courts is prudential because state constitutions do not have a case or controversy clause, but some states apply the federal injury-in-fact rule. Other states apply a functional standing rule to ensure that a litigant will vigorously and effectively present a case against an adverse party, will have a “stake” in the litigation, or will have an interest that is adverse, substantial, or concrete.

Virginia and Minnesota applied modified versions of the injury-in-fact rule. The Virginia court rejected organizational standing because the organizational injury was “suffered by the public.” The Minnesota court broadened standing for organizations by recognizing that injury to their mission is enough for standing.

The two cases can be distinguished. The Minnesota case considered a guideline that had region-wide effects on housing availability. The Virginia case considered only the renovation of a single historic building in one historic district. Perhaps the Virginia case was not wellpleaded. The organization could have argued that its mission and its members were harmed because the renovation affected the integrity of the historic district and that organizational resources would have to be diverted to change the city‘s historic preservation policy. For discussion see my article, Standing in Land Use Litigation, 57 Real Property, Trust and Estate Journal 237 (2021).

The California Zoning Study

A recent survey of 15 California cities confirmed the use of zoning practices that bar affordable housing. Moira O’Neill, et al., Examining Entitlement in California to Inform Policy and Process: Advancing Social Equity in Housing Development Patterns (2022), available at https://bit. ly/3R4nmmm. One of the questions the study considered was how much zoned land was available for multi-family use in the study cities, and it found that generally the cities made little land available. The study defined two base zoning categories to consider this question. “Permissive base zoning” allows multi-family residential use at a density high enough to accommodate housing affordable for all income levels. “Restrictive base zoning” is single-family zoning.

The study examined zoning maps and ordinances to determine how much land was zoned for permissive base zoning and how much land was zoned for restrictive base zoning. Nine of the 15 cities zoned less than ten percent of their total zoned land area for multi-family housing that could accommodate all income levels. San Francisco had the most permissive base zoning, with 33.54 percent of its total zoned land area zoned for all income levels. San Diego, with approximately three percent of its total zoned land area zoned for all income levels, had the most restrictive base zoning. No urban cities had permissive regulatory environments for housing, and six were likely prohibitive.

The study also considered how many cites relied on zoning that requires an exercise of discretion. This create problems for developers because a local government can use its discretion to reject or modify a proposed development project, even if it complies with local regulations. They can do this by creating unexpected, expensive challenges to project approval in the discretionary zoning process. Five of the cities did not allow any development to avoid discretionary approval. Several cities used design or architectural review to require discretionary review for developments that otherwise complied with base zoning and planning. Only four cities had a nondiscretionary process for approving development.

The report concluded that the “state and cities should invest heavily to encourage dense housing in urban and suburban areas that are less car-centered and more oriented around mass-transit and walkable.” Change is beginning to occur, as some California cities have revised their zoning regulations by opening up single family zoning districts to other types of housing.

Probate & Property, November/December 2022