Land use litigation broadly describes both the local appeal of zoning decisions or permit denials within the municipal or county government and the review of such local decisions in state and federal courts. Such decisions affect everything from the extension of a carport into a side yard setback to the zoning approval of a $100 million commercial development.
In many states, administrative permit decisions and zoning ordinance interpretations by local officials are appealed to the Board of Adjustment, which also determines whether variances from local ordinance requirements should be granted. Depending on the state and local government, other types of decisions are appealed from a lower administrative or board level to the Board of Adjustment or the elected body (Board of Aldermen, City Council, County Commission, etc.) such as denials of subdivision plans, special use permits, building permits, local environmental permits, variances, and zoning aesthetic standards. Historic District Commissions (or similarly named boards dealing with neighborhoods covered by one or more types of historic statuses) typically hear appeals from property owners whose request to make certain structural alterations has been denied.
Some local government decisions are administrative in nature and involve an objective determination of whether an application complies with regulations. The elected body typically makes legislative decisions using broadly granted powers to consider matters within their discretion. Quasi-judicial decisions, more common among Boards of Adjustment but also employed at the elected body level in some states, involve the application of courtroom procedures to control the types of evidence considered so that the board appropriately makes findings of fact and conclusions of law.
As a general rule, all local government decisions can be and are appealed to state courts once local appeals are exhausted. Federal courts rarely hear land use decisions unless a constitutional issue is involved.
Thomas E. Terrell Jr.
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