LEGAL ISSUES IN LOCAL PLANNING IN
COASTAL SOUTH CAROLINA
By
Douglas T. Kendall
INTRODUCTION
This Article
discusses the important responsibilities and unique powers
of local governments in regulating land use in coastal South
Carolina. Although
federal and state actors each play a role in coastal zone
land use regulation, the state and federal roles consists
largely of evaluating requested permits to build in sensitive
environmental areas such as wetlands and dunes.
Local governments retain exclusive authority to implement
comprehensive land use plans through zoning, subdivision and
other land use regulations.
The Article
also illustrates how federal, state, and local roles in regulating
land use can complement one another.
Local governments rely on federal and state actors
to identify critical ecological, cultural, geological and
scenic resources and protect these resources when necessary
by withholding a federal or state permit.
State and federal actors, in turn, rely on local governments
to plan and zone in a way that prevents a permit denial from
unnecessarily causing a wipeout of any individual landowner’s
property value. Thus,
federal, state, and local governments can best meet their
joint objective of protecting critical resources without unduly
interfering with property values by working in concert, rather
than at cross purposes.
This Article
proceeds in three sections.
Section one discusses the overlapping but distinct
roles played by the
federal, state and local governments in coastal South Carolina.
Section two turns to the legal objections to land use regulation
and explains that suits challenging local land use planning
succeed only where the regulation wipes out an individual
landowner’s entire holdings or violates another notion of
fundamental fairness.
Section three highlights several specific planning
tools, including amortization provisions, density bonuses
and transferable development credits, and illustrates the
unique ability of local governments to protect critical areas
without causing a wipeout of any landowner’s property value.
I. Federal,
State and Local Authority to Regulate Coastal Land Use in
South Carolina
A.
The Federal Role
The federal role in coastal land use control derives
primarily from the authority of the Army Corps of Engineers
to regulate the dredging and filling of wetlands under Section
404 of the Clean Water Act.
Federal regulations broadly define dredged material
"as any material that is excavated or dredged from"
a wetland.
Equally broadly defined, fill material refers to any
material used to replace a wetland with dry land.
These broad definitions have allowed the Corps to assume
permitting authority over almost all development of wetlands.
The Corps issues
both general and individual permits.
General permits
are used to allow classes of activities that the Corps views
as having minimal adverse environmental impact, both individually
and cumulatively.
Some of these general permits are quite important.
For example, Nationwide Permit 29 allows the filling
of up to a quarter of an acre of wetlands for construction
of a single-family residence.
Individual
permits are required for any dredging and filling that is
neither exempted by the statute nor covered by a general permit.
The Corps cannot issue a permit if the proposed activity
would cause or contribute to “significant degradation” of
the wetland area.
Filling of wetlands also will not be permitted where
there is an alternative with less adverse impacts.
The Corps often requires mitigation to offset or reduce
the adverse impacts of a project.
Mitigation can involve creating new wetlands, rehabilitating
degraded wetlands or the conservation of existing functional
wetlands.
A developer
seeking a federal permit under Section 404 must also provide
the Corps with a Section 401 water qualification certification
from the state of South Carolina.
This certification process is designed to ensure that
the proposed dredging or filling activity will not violate
any federal or state water quality standards.
B.
The State
Role
The state’s
role in coastal land use planning derives primarily from the
South Carolina Coastal Zone Management Act,
(“the Coastal Zone Act”).
The Coastal Zone Act gives the Office of Ocean and
Coastal Resource Management (OCRM) of the Department of Health
and Environmental Control (DHEC) permitting authority over
any proposed development that will alter any critical area
in the coastal zones.
The Beachfront Management Act, passed in 1988 as an
amendment to the Coastal Zone Act, grants the state additional
powers to protect the South Carolina beach/dune ecosystem.
Under the Coastal
Zone Act, the OCRM approves or denies requested permits to
alter critical areas after evaluating “biological and economic
considerations” and soliciting the views of other agencies,
local governments and interested parties.
OCRM may condition a permit on any measures the State
finds necessary to protect the public interest.
OCRM also requires
that a landowner seeking any type of federal or state permit
for development in the coastal zone obtain certification from
OCRM that the project is consistent with the goals of the
Coastal Zone Act.
Through this consistency certification, OCRM provides
some measure of protection for what it designates Geographical
Areas of Particular Concern (GAPC).
These GAPC’s include Heritage Trust Program sites,
habitat for threatened and endangered species, ports and navigational
channels and areas of historical, archeological or cultural
significance.
The Beachfront
Management Act prohibits development on the active beach and
on primary oceanfront sand dunes.
Until 1993, the Act also banned most development seaward
of the “baseline” and the “setback line.”
A 1993 Amendment to the statute, passed in the wake
of the Supreme Court’s opinion in Lucas
v. South Carolina Coastal Council,
allows OCRM to issue special permits to build or rebuild structures
seaward of the baseline as long as the landowner agrees to
remove the structure if the beach erodes sufficiently so that
the structure becomes situated on the active beach.
Both the Coastal
Zone Act and the Beachfront Management Act require state planning
for the coastal zone.
The Coastal Zone Act requires OCRM to implement and
administer a comprehensive management program for the orderly
and beneficial use of “all lands and waters in the coastal
zone.”
In developing this program, OCRM was required to identify
present land uses, present and potential conflicts in land
uses and areas of critical state concern.
The program was to be developed and implemented in
“complete cooperation with affected local governments in the
coastal zone.”
This cooperation includes a review by OCRM of any zoning
ordinance, subdivision regulation or building code that applies
to critical areas to ensure they are consistent with the goals
of the state’s management program.
Under the Beachfront
Management Act, OCRM is responsible for developing and implementing
“a comprehensive, long-range beach management plan . . . for
the protection, preservation, restoration and enhancement
of the beach/dune system."<
This plan must include strategies for (1) beach/dune
restoration and nourishment, (2) preserving and enhancing
public access to beaches, (3) protection of endangered species,
threatened species and important habitat.
The plan’s objective must be to “promote wise use of
the state’s beachfront to include a gradual retreat from the
system over a forty-year period.”
C.
The Local Role
Although
state and federal actors each play an important role in coastal
land use, local governments retain their traditional, dominant
role in land use planning and zoning.
Even the state, which exercises authority throughout
the coastal zone, oversees only some uses in certain areas
of coastal counties.
Local governments must plan and zone for all uses throughout
their jurisdiction.
1.
The Planning Act
The 1994 South
Carolina Local Government Comprehensive Planning Enabling
Act,
(“Planning Act”), gives local governments express planning
and zoning authority.
The Planning Act consolidated existing planning and
zoning law, previously scattered throughout South Carolina
Code, into one location and specifically recognized important
new planning and zoning powers.
Local governments were required to bring their planning
programs and regulatory ordinances into conformity with the
provisions of the Planning Act by May 3, 1999 (subsequently
extended to December 31, 1999).
a. The Comprehensive
Plan
The Planning
Act gives local planning commissions the primary responsibility
of regulating land use.
The planning commission has the “function and duty”
to “develop and maintain a planning process which will result
in the systematic preparation and continual re-evaluation
and updating of those elements considered critical, necessary
and desirable to the development and redevelopment of its
area of jurisdiction.”
A local comprehensive plan must include seven elements:
(1) population, (2) economic development, (3) natural resources,
(4) cultural resources, (5) community facilities, (6) housing
and (7) land use.
For each element, the planning commission must prepare
an inventory of existing conditions, establish a statement
of needs and goals, and develop implementation strategies
and time frames.
b.
The Zoning Ordinance and Official
Map
Once
completed, the comprehensive plan becomes the blueprint that
guides the planning commission in its other functions under
the Planning Act.
Upon completion of the plan (or at least the land use
element of the plan), the planning commission must “prepare
and recommend for adoption” revisions to the local zoning
ordinance that are necessary to achieve the goals of the plan.
Proposed revisions to the zoning ordinance must be
made after consideration of eight enumerated criteria including
(1) the preservation of light, air and open space, (2) the
prevention of overcrowding of land and congestion, (3) the
creation of a convenient, attractive and harmonious community,
and (4) the protection of scenic, historic or ecologically
sensitive areas.
The local government must revise the zoning laws so
that they are in accordance with the comprehensive plan and
the official map.
The Planning
Act specifically authorizes certain zoning techniques such
as cluster development, floating zones, performance zoning
and planned development districts, but makes clear that the
local government may use “any other zoning and planning techniques.”
The plan also
becomes the basis for a recommendation by the planning commission
for an amendment of the local official map.
The map will typically specify private property needed
for public use as streets, highways, public building sites
and public open space.
Permits cannot be issued to construct, improve, repair
or move any building or structure on property reserved for
the government on the official map.
c.
Land Development Regulations and
Consistency
The planning
commission’s role extends to drafting regulations for recommendation
to local governing bodies, administering land development
regulations, and ensuring the consistency of zoning decisions
with the comprehensive plan.
After
completing the community facilities element of the comprehensive
plan, the planning commission may prepare and recommend to
the governing body land development regulations (commonly
known as subdivision regulations).
These regulations are designed to (1) coordinate streets
within subdivisions with existing or planned streets, (2)
regulate the size of blocks and lots, (3) assure dedication
or reservation of land for streets, school sites, and other
public facilities, and (4) distribute population and traffic
and (5) assure the wise and timely development of new areas
and redevelopment of previously developed areas in harmony
with the comprehensive plan.
In addition, these regulations must limit development
to sites that “can be used safely for building purposes, without
danger from flood or other inundation or from other menaces
to health safety, or public welfare.”
Land
development regulations must also include a specific procedure
for submission and approval or disapproval of land development
plans by the planning commission or designated staff.
After land development regulations are adopted, it
becomes a criminal misdemeanor to submit a land development
plan for filing with the deed's office without the proper
approval of the planning commission.
Upon
adoption of the comprehensive plan by the governing body,
the planning commission must also review all proposed public
development projects for consistency with the plan.
This authority extends quite broadly to any “new street,
structure, utility, square, park, or other public way, grounds,
open space or public building for any use, whether publicly
or privately owned . . ..”
If the planning commission finds the proposal in conflict
with the comprehensive plan, the entity proposing the public
project must publicly state its intention to proceed and its
reason for proceeding despite the conflict with the plan.
2.
Local Planning and Zoning Under The Beachfront Management
Act
In addition
to the planning and zoning authorized under the Planning Act,
the Beachfront Management Act mandated that local governments
with jurisdiction over Atlantic Ocean beaches prepare local
comprehensive beach management plans by July of 1991.
In constructing these plans, local governments were
required to inventory the land seaward of the setback line
and consider erosion rates, beach access, existing structures,
and important habitat for turtle nesting and other species.
After completing these inventories, local governments
were required to submit to the state: (1) zoning and land
use plans consistent with the purposes of the Beachfront Management
Act, (2) a detailed strategy for preserving beach access,
(3) an analysis of beach erosion control alternatives, and
(4) a plan for achieving the goal of retreat from the beach/dune
system within forty years.
3.
Home Rule
Authority
Home rule authority
supplements local governments’ express authority under the
Planning Act and the Beachfront Management Act.
Home rule authority derives from a 1973 amendment to
the South Carolina Constitution that provides:
The provisions of this Constitution
and all laws concerning local government shall be liberally
construed in their favor.
Powers, duties, and responsibilities granted local
government subdivisions by this Constitution and by law
shall include those fairly implied and not prohibited by
this Constitution.
The legislature
codified home rule authority in legislation passed in 1976.
This Amendment
and legislation abolished Dillon's Rule: the presumption that
a local ordinance is invalid in the absence of express or
implied enabling statutory authority.
Under home rule, local governments may enact regulations
deemed necessary and proper for the general welfare unless
such regulations are actually inconsistent with the Constitution
or general law of the state.
4.
Impact Fees and Real Estate Transfer Fees
The one area
in which local governments in South Carolina lack powers granted
to municipalities elsewhere in the country is in revenue options.
In two laws passed over the last 5 years, the South
Carolina General Assembly has limited the ability of local
governments to raise funds to purchase land or development
rights for public use.
The Development
Impact Fee Act, signed into law June 30, 1999, makes it burdensome
for local governments to charge impact fees.
Communities around the country rely on impact fees
to pass on to developers and new residents the infrastructure
costs and community needs associated with development.
Most local governments are given flexibility to use
the funds collected through impact fees to address a host
of development-related problems.
The Development Impact Fee Act places significant restrictions
on the costs that can be imposed upon developers and on the
problems that the impact fees can be used to address.
The General
Assembly, by enacting S.C. Code
§ 6-1-70 (1998), also quashed an innovative attempt
by the Town of Hilton Head to use a modest real estate transfer
fee to fund acquisition of land for public recreation and
open space uses. In Williams v. Town of Hilton Head Island,
This real estate transfer fee was upheld as “necessary and
proper for the general welfare of the citizens of Hilton Head”
by the South Carolina Supreme Court in 1993.
Unfortunately, the next year, the South Carolina General
Assembly revised the South Carolina law, passing §6-1-70,
so as to forbid real estate transfer fees.
Combined,
these two provisions make it difficult for local governments
to pass on to developers and new residents a fair share of
the costs needed to acquire land for public use. Thus, local governments have to rely largely on already tapped
out local government treasuries and bond initiatives to raise
funds for land acquisition.
II. Potential
Legal Objections to Land Use Planning
In recent years,
developers and other property owners have been increasingly
quick in raising legal objections to land use regulations.
Most frequently these claims allege that a land use
restriction constitutes a “taking” of property prohibited
under the Takings Clauses of Federal and State Constitutions.
Other frequently lodged claims allege spot zoning,
interference with vested rights, and denial of equal protection.
Although
claims have been filed more frequently in recent years, the
success rate of these claims has not increased markedly.
As explained below, most claims challenging local land
use fail and many are frivolous.
A taking requires a nearly complete wipeout of all
property value.
A right to develop vests only after a building permit
is issued.
Spot zoning and reverse spot zoning occur only when
there is no rational reason for treating similarly situated
lots differently.
Thus,
while local governments should take seriously their obligation
to treat landowners fairly, fairness should not be confused
with weakness. Local
governments can simultaneously act fairly and decisively in
exercising land use planning power.
After all, the essence of local planning is protecting
the property values of all the community’s residents and nothing
in the Constitution prevents local governments from exercising
that power.
A.
Takings Challenges
Developers have prevailed in four recent Supreme Court
takings challenges against state and local governments.
As a result of these cases and of press accounts, fears
have arisen that the Takings Clause has emerged as a serious
obstacle to land use planning.
The perception that the Takings Clause is a barrier
to local land use planning is largely a developer-created
myth.
The United States Supreme Court’s rulings in Lucas
and other recent cases have been extremely narrow.
Nothing the Court has done to date prevents local governments
from accomplishing their land use planning goals. There are
only three circumstances in which a local government can put
itself at serious risk of losing a takings challenge:
·
When it physically invades or occupies property.
·
When it enacts a new land use regulation that
eliminates all or virtually all of the value of an entire
parcel of property.
·
When it requires dedications of land that are
unrelated to or disproportional to the anticipated harms from
the proposed development.
These three types of takings challenges are each discussed
briefly below.
1.
Permanent Physical Occupations
In Loretto v. Teleprompter Manhattan CATV,
the Supreme Court established the rule that permanent physical
occupations of private property are “per se” takings.
In Loretto,
New York City required that landlords allow cable companies
to install cable boxes and wires on their buildings. Even though the space required was quite small, the Supreme
Court required compensation. The Court explained that it treats physical occupations differently
from regulations of property because in such a case, "the
property owner entertains a historically rooted expectation
of compensation, and the character of the invasion is more
intrusive than perhaps, any other category of property regulation."
The Loretto rule is narrow and applies only to forced, permanent, physical
occupations of private property. Courts judge other occupations and invasions by reference to
permanent occupations. Lengthy occupations or continuous invasions are often deemed
takings; short-lived occupations and infrequent invasions
are generally not.
2.
Regulatory
Takings
The
government rarely occupies or invades property.
Correspondingly, most takings claims challenge regulations
on the use of property rather than physical invasions.
Courts have struggled with these “regulatory” takings
cases because regulations do not “take” or expropriate property.
Regulatory takings are only takings by analogy.
Courts have thus been willing to find a regulatory
taking only when a regulation has a draconian impact that
can fairly be considered the practical equivalent of an expropriation
of property.
Lucas v. South Carolina Coastal Council,
for example, involved a challenge to the Beachfront Management
Act, which, prior to the 1993 Amendments, prohibited all development
seaward of the “baseline.”
This regulation prevented Mr. Lucas from developing
his property and, in the opinion of the trial court, rendered
Lucas’s property valueless.
The rule stemming from the Lucas
opinion is a simple one: if a new regulation renders property
valueless, a taking will be declared and compensation required.
Earlier cases suggest that a developer may occasionally
prevail in a takings case without showing a complete wipeout,
but only where there is a significant reduction in property
value.
Two further
rules from Lucas and
other recent regulatory takings cases are worth emphasizing
to illustrate how narrow the Lucas
holding is and to provide a road map for local government
officials to follow in avoiding takings challenges to their
revised plans and zoning ordinances.
a.
Parcel-as-a-Whole
Rule
When
evaluating a regulatory takings claim, a court must look at
a regulations impact on the parcel as a whole.
Under this rule, where a regulation prohibits the development
of only one portion of a landowner’s contiguous land holdings,
but permits development of other portions, the court must
look at the total impact of the regulation on the property
owner.
Courts almost never find takings where some development
of the parcel as a whole is permitted.
The parcel-as-a-whole rule protects local governments
from a flood of cases challenging set back requirements, height
limitations, wetlands regulations and similar laws and regulations
that demand that landowners leave a portion of their property
undeveloped.
The parcel-as-a-whole
rule has been applied aggressively by South Carolina courts.
As a South Carolina Appellate Court reaffirmed in December
1999, “[w]hen one views whether property was taken, the analysis
is based upon the ‘parcel as a whole.’"
b.
The Lucas
Background-Principles Defense
In Lucas v. South Carolina Coastal Council,
the Supreme Court articulated what has become an important
defense to takings liability. The Supreme Court explained
that any taking claim could be defeated by a showing that
the “proscribed use interests were not part of the title to
begin with.”
The Court described this defense as an inquiry into
the background principles of law that were in place at the
time a landowner purchased the property.
For example, the Lucas
Court explained that the government would not be liable even
for a physical occupation taking if it could show that the
landowner purchased the property subject to a navigational
servitude in favor of the government.
The
South Carolina Supreme Court has been receptive to defenses
based on background principles, finding that state and local
statutes in place at the time of purchase form background
principles.
For example, in Grant
v. South Carolina Coastal Council,
the South Carolina Supreme Court rejected a taking claim filed
by a Folly Beach resident who was denied a permit to fill
critical area tidelands in the wake of Hurricane Hugo.
Even assuming that Mr. Grant had been deprived of all
beneficial use of his property, the Supreme Court ruled that
background principles barred his claim:
Grant has never had
the right to fill critical area tidelands on his Folly Beach
property. In
1987, when Grant purchased the Folly Beach property, South
Carolina law forbade his filling critical areas without a
permit from the Coastal Council.
In Wooten v.
South Carolina Coastal Council,
the Court denied a takings challenge to a decision
by the Coastal Council to reject Ms. Wooten’s request to build
a bulkhead and place fill material on 85 percent of her lot
in Cherry Grove.
Like in Grant,
the Court found that when Ms. Wooten acquired her property
in 1988, she was required to obtain a permit before building
a bulkhead and filling critical areas.
Because of this pre-existing permit requirement, the
Court declared that “proscribed use interests were not part
of Wooten’s title when she acquired the property.”
3.
Dedications
as Permit Conditions
The third
category of cases in which local governments risk takings
liability involves dedications of land required as a condition
of receiving a permit to develop.
The U.S. Supreme Court’s rulings in Nollan
v. California Coastal Commission,
and Dolan v. City of Tigard,
establish a straightforward rule: if the government wants
to condition the receipt of a development permit on the developer’s
dedication of a portion of his land for public use, the land
demanded must be related to and roughly proportional with
the harm created by the development.
In other words, before the government may demand a
land dedication to expand a highway necessary for increased
traffic, it must first show that the increased traffic-related
costs attributable to the development are roughly proportional
with the dedication.
The rule
of Nollan and Dolan is also limited.
For example, the Supreme Court has applied the rule
only to dedications of land, not impact fees or other permit
conditions. Courts generally should only require that local governments
show that impact fees are “related” to an identified public
harm; they should not have to demonstrate additional “rough
proportionality.” In most states, therefore, it is easier for a local government
to impose an impact fee than a dedication requirement. In South Carolina, however, the Development Impact Fee Act
places strict restrictions on the use of impact fees and has
the somewhat perverse effect of making it easier for a local
government to demand land than money from developers.
B.
Vested Rights
Whereas regulatory
takings claims focus on the impact of a regulation on property
value, vested rights claims focus on the timing of a regulation.
The crux of a vested rights claim is the allegation
that the permit denial came too late in the process; after
the property owner had incurred considerable expense in reliance
on the government’s word that the project would be permitted.
South Carolina,
following a rule adopted by a majority of other states, holds
that a right to continue a project vests only where (1) the
landowner receives a legally issued building permit prior
to the zoning change and (2) the landowner has relied on that
permit in making substantial expenditures or incurring substantial
obligations.
For example, in F.B.R.
Investors v. County of Charleston,
a developer decided to construct a subdivision in two phases.
The county downzoned the parcel while the developer
was completing construction of the first phase of the project.
The court ruled that because the landowner had neither
begun construction of the second phase of the project nor
obtained building permits, the developer did not have a vested
right to complete the second phase.
The South
Carolina Local Government Development Agreement Act of 1993,
authorizes building agreements for long-term development of
large land tracts. These
agreements, when entered by local governments, accord a developer
a vested right to proceed according to land use regulations
in existence on the date of the agreement.
Local governments are only authorized to enter into
these agreements on tracts of a 150 acres or more of highland.
C.
Spot Zoning
and Equal Protection Claims
In
a spot zoning claim, a neighbor challenges a zoning decision
that permits one landowner to use land more intensively than
the surrounding landowners.
To prevail in such a claim, the neighbor must first
show that the local government has indeed engaged in spot
zoning; where other property in the vicinity is similarly
zoned, there is no spot zoning.
Even where
spot zoning is found, courts will only strike down the zoning
classification if the developer can prove that the zoning
decision “was arbitrary and unreasonable.”
In making this decision, courts will examine two factors:
(1) the adherence of the zoning to the local governments comprehensive
plan; and (2) the extent to which the zoning promotes the
common welfare.
The flip side
of a spot zoning claim is a claim, typically brought under
State and Federal Equal Protection Clauses, alleging that
a landowner has been singled out for particularly harsh treatment.
Sometimes these claims are termed “reverse spot zoning”
claims. The crux
of an equal protection or reverse spot zoning claim is a charge
that one landowner has been treated more harshly than his
neighbors.
Even
where a landowner can demonstrate disparate treatment, “[a]
legislatively created classification will not be set aside
as in violation of the equal protection clause unless it is
plainly arbitrary and there is no reasonable hypothesis to
support the classification.”
The landowner challenging the legislation holds the
burden of proving the lack of a rational basis.
III. Planning Around Legal Obstacles
This section
combines the collective lessons of sections one and two to
illustrate the unique ability of local governments to engage
in productive land use planning while avoiding legal challenges.
The point is straightforward.
The federal and state role in coastal land use is limited
largely to granting or denying a permit to develop in a coastal
wetland or other critical area.
Denying a permit will often trigger a legal challenge,
particularly if the denial leaves the landowner with no viable
use of their property.
Local governments, on the other hand, have a diverse
array of tools to work with in regulating land use.
These tools can be employed to spread the impact of
land use regulation more equitably and to avoid the draconian
impacts that prompt opposition by landowners and legal challenges.
A.
Legal Planning Tip 1: Add A Provision to Land
Development Regulations
to Prevent Strategic
Isolation of Critical areas
1.
Problem Addressed
As discussed
in section two, the parcel-as-a-whole rule is an important
protection for governments at all levels against frivolous
takings claims brought by developers.
The Takings Clause is intended to prevent landowners
from being singled out for unduly harsh treatment.
If a corporate developer is permitted to profitably
develop portions of its property, it should not prevail in
a takings claim even if it is denied a permit to develop ecologically
fragile portions of the property.
Developers,
however, can act strategically to circumvent the parcel-as-a-whole
rule.
Consider, for example, a 250-acre parcel with 200 acres of highland
and 50 acres of tidal wetlands.
A strategic developer will develop the parcel in phases,
first subdividing, developing and selling off the highland
portion and then seeking a permit to develop the 50-acre wetland
portion.
The State has no way of guarding against this
strategic behavior and, if the local government permits it,
the state could face a dilemma: permit the development of
the critical area or deny the permit and risk a takings challenge.
2.
Potential Land Development Requirement
Planning commissions
revising land development regulations should consider ways
to prevent strategic isolation of critical areas.
One potential method to avoid this strategic behavior
is to adopt a land development requirement mandating that
any developer seeking to subdivide its property include within
the development proposal its plan, if any, for the development
of critical areas owned by the developer in the vicinity of
the land scheduled for subdivision.
Such
a requirement would force both the developer and the local
government to consider the question of whether the critical
area should be developed at the time when the planning commission
is considering approval of a permit to allow subdivision of
a portion of the developer’s property.
Hopefully, developers will respond by including in
their development proposal a plan for protecting the critical
area. Where the
developer responds by submitting a proposal to develop the
critical area, federal, state and local government officials
could consider the proposal on its merits, without much concern
that a denial of a permit to develop the critical area will
set up a successful takings claim.
As discussed above, a court should never find a taking
where a landowner is allowed to develop a significant portion
of his parcel.
B.
Legal Planning Tip # 2: Use Non-Conforming
Use Zoning and an Amortization Provision to Retreat
From the Beach/Dune system within Forty Years
1.
Problem Addressed
The
Beachfront Management Act sets the goal of achieving a “forty-year
policy of retreat from the shoreline.”
Both state and local governments are tasked with creating
comprehensive plans for achieving this goal.
Local governments in particular are required to have
“a conventional zoning and land use plan consistent with the
purposes of this chapter for the area seaward of the setback
line” and to have “a detailed strategy for achieving the goals
of this chapter by the end of the forty-year retreat period.”
Unfortunately,
the State suffered a serious setback in its implementation
of the Beachfront Management Act when the Supreme Court declared
that its decision to deny David Lucas a permit to build on
his already subdivided lots could constitute a taking.
After Lucas,
the State has been understandably hesitant to deny outright
any development seaward of the setback line.
2.
Potential
Zoning Solution
As
discussed above, local governments are responsible for ensuring
that their zoning seaward of the setback line is consistent
with the Beachfront Management Act.
One potential technique local governments could employ
to meet this obligation is to deem development seaward of
the setback line a non-conforming use.
The South Carolina legislature has already made findings
sufficient to justify such a classification, finding that
“development unwisely has been sited too close to the [beach/dune]
system” and that this development “has jeopardized the stability
of the beach/dune system, accelerated erosion, and endangered
adjacent property.”
To reduce the
impact of a non-conforming use designation on beach/dune property
owners, the local government could provide an extended amortization
period of 25 or 30 years before requiring removal of the non-conforming
uses.
A local government should also consider authorizing
construction of a new residence on vacant parcels by special
exception or variance, subject, of course, to the non-conforming
use designation and amortization provision. This will prevent
any landowner from suffering a complete wipeout as a result
of the nonconforming use designation.
C. Legal Planning Tip #3: Employ Density Bonuses
or Transferable Development Credits
to Create Incentives
that further the goals of the Comprehensive Plan
1.
Problem Addressed
Lucas
v. South Carolina Coastal Council,
has made state officials less likely to deny permits to develop
coastal wetlands and other critical areas.
The Development Impact Fee and the Real Estate Transfer
Fee Acts have limited the ability of local governments to
raise funds for purchase of land or development rights.
Combined, these two developments make it difficult
for local governments to achieve the Planning Act's mandates
that local governments protect open space and critical natural
and cultural resources in their jurisdictions.
As a result,
local governments need to seriously consider innovative zoning
techniques that create incentives for property owners to act
in ways that further the goals of their comprehensive plans.
Voluntary actions by landowners, triggered by appropriate
local government incentives, can help local government achieve
their planning goals in a way that is often both politically
palatable and legally fireproof.
2.
Planning Hypothetical
To illustrate
the potential utility of density bonuses and transferable
development credits (TDC), it is helpful to consider the following
hypothetical:
A coastal barrier
island that is currently lightly developed is being targeted
for intensive residential development.
The island is 1,000 acres with approximately 500 acres
coastal wetlands and 500 acres of highland.
The planning commission with jurisdiction over the
island has concluded that the island’s ecosystem can bear
a population of no more than 3,000 (roughly 1,000 single-family
homes) and that to prevent sprawl, protect open space and
minimize the increase in demand for local government services,
these homes should be clustered on 250 of the highland acres.
3.
Potential Zoning Solution I: Density Bonuses
One option
our hypothetical planning commission could consider is to
couple low density zoning
with density bonuses. For example, the planning commission could recommend that the
island be zoned to require four acre lots for each residence.
The local government could then offer a single unit
density bonus for each acre a property owner agrees to protect
with a conservation easement.
Thus, an owner of a four-acre parcel could build up
to four houses on a single acre by putting the three remaining
acres in a conservation easement.
These density
bonuses would encourage landowners to place conservation easements
on portions of their land.
Critical areas such as coastal wetlands would be most
attractive for conservation in exchange for density because
of the difficulty in getting state and federal permits to
develop these areas.
The free market, with proper incentives crafted by
the local government, could thus result in development that
is closely aligned with the ideal island development envisioned
in the hypothetical comprehensive plan. Developer’s would protect considerable portions of the island’s
critical areas and open space in order to obtain permission
to build additional units on the buildable highlands.
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