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Justice Antonin Scalia passed away last week after almost 30 years as a justice of the U.S. Supreme Court. Although his impact was felt throughout the country, it is worth pausing to look at how he affected the land use system more broadly and, in particular, Oregon’s system.

iStock_000008821292_LargeWalker, Chairman, Texas Department of Motor Vehicles Board v. Texas Division, Sons of Confederate Veterans, United States Supreme Court Case No. 14-144 (June 18, 2015), was a First Amendment case involving the use of "specialty license plates" in Texas. Under a statutory scheme administered by Defendant Texas Department of Motor Vehicles Board, (“TDMV”) the State may approve or deny specialty license plate designs proposed by nonprofit organizations. The design may include a logo, a graphic, or both. TDMV may deny a design if it is "offensive to any member of the public" or by rule. Plaintiff Sons of Confederate Veterans (“SCV”), a nonprofit organization, sought approval of a design that included its name and a Confederate battle flag.

iStock_000070594267_LargeHorne v. Department of Agriculture, No. 14-275 (June 22, 2015) was an "as applied" takings challenge to an almost 80-year old law that was enacted by Congress as part of President Franklin Roosevelt's New Deal. The Agricultural Marketing Agreement Act of 1937 established a marketing system for certain products. Under the Act, Defendant U.S. Department of Agriculture required raisin growers to set aside a percentage of their crop, as determined by the Raisin Administrative Committee (RAC), whose members consist of growers and others in the raisin business and are appointed by the Secretary of Agriculture. The required “set aside” has the effect of raising raisin prices and allowing the RAC to market and otherwise dispose of the set aside raisins. There are, at times, sufficient receipts from the set aside raisins to exceed their market value; however, there are also at other times insufficient revenues to equal their market value, including the year at issue.

iStock_000009179828_LargeIn a long-awaited decision, the California Supreme Court upheld an “inclusionary zoning” ordinance by the City of San Jose that provided for construction of low and moderate-income housing by requiring a developer of 20 or more units to set aside 15% of the units for the private purchase by those with low- or moderate-incomes. The California legislature had authorized, but did not require, any particular method to provide such housing.

iStock_000040764222_LargeThe Department of Housing and Urban Development (HUD) wasted no time in finalizing the new affirmatively furthering fair housing rules the day after the U.S. Supreme Court upheld disparate impact claims under the Fair Housing Act in Texas Department of Housing Affairs v. Inclusive Communities Project, Inc. (see last week’s post for a summary of that case). Disparate impact results from governmental policies that may not have been intended to create segregation, but do in fact result in segregation. The Supreme Court’s ruling upholds the Fair Housing Act’s prohibition on discrimination caused by policies or practices that have an unjustified disparate impact because of race, color, religion, sex, familial status, national origin, or disability.

The new rule requires certain public entities (“entitlement jurisdictions” that receive federal funding for housing) that have, under previous HUD rules, been required to prepare an Analysis of Impediments to Fair Housing (AI) to prepare an Assessment of Fair Housing Report (AFH). The AFH meets standardized reporting requirements, and is drafted to assist program participants in reducing disparities in housing choice, and to provide access to housing opportunities, particularly for those with protected status.  The overall goal of the new reporting requirement is to expand economic opportunity and enhance quality of life.

These rules are a game changer for land use planning. HUD is proactively getting involved in the business of zoning for fair housing, not just financing units. HUD recognizes that fair housing issues may arise from factors such as zoning and land use, including the proposed location, design, and construction of housing; public services that may be offered in connection with housing (e.g., water, sanitation); and related issues. According to HUD, the AFH approach focuses primarily on assisting program participants in being better informed, and better able to set goals and priorities.  In particular HUD wants to ensure that the following conditions will be taken into consideration when making funding decisions in a particular jurisdiction - patterns of integration and segregation; racially or ethnically concentrated areas of poverty; disproportionate housing needs; and housing-related barriers in access to education, employment, and transportation, among others.

While local jurisdictions will remain in local control of land use decisions and adoption of zoning regulations under the new rules, entitlement jurisdictions are called on to provide a specific analysis of land use programs that may inhibit affirmatively further fair housing. In addition to HUD’s final rule, HUD’s Assessment Tool, adopted in 2014, and guidance to be issued in the near future, will assist recipients of federal funding to use that funding and, if necessary, adjust their land use and zoning laws in accordance with their existing legal obligation to affirmatively further fair housing.

Zoning and land use laws that are barriers to fair housing choice and access to opportunity can be quite varied and the determination of whether a barrier exists often depends on the factual circumstances in specific cases.  One example is zoning and land use laws that were intended to limit affordable housing in certain areas in order to restrict access by low-income minorities or persons with disabilities. The City of Black Jack took egregious zoning actions in the 1970s that prevented construction of low-income multifamily housing that had a racially discriminating effect and was found to violate the Fair Housing Act.  U.S. v. City of Black Jack, 508 F.2d 1179 (1974).  An example of a positive zoning action that would further fair housing would be the removal of such an ordinance. HUD intends to include additional examples in its guidance for its affirmatively furthering fair housing regulations.

Closer to home, Oregon’s 2015 legislature had a clear path to a remove a barrier to affirmatively furthering fair housing, but the Oregon Senate would not even take a public vote on House Bill 2564 to remove the constitutional ban on mandatory inclusionary zoning. Instead, the bill died in committee after having passed the House. Inclusionary zoning is a tool that requires new developments of housing to construct a particular percentage of new units for qualifying low-income home seekers. While the Oregon Senate failed to move forward, the State’s Draft Fair Housing Report 2016-2020 contains a finding that the state’s ban on inclusionary zoning “limits housing choice for persons of color and low income persons.” The AI included in the report states:

Disallowing inclusionary zoning as part of a community’s affordable housing toolkit limits the provision of affordable housing in general. In addition, limits on the use of inclusionary zoning may disproportionately affect members of protected classes to the extent that they have a greater need for affordable housing. This situation is called discriminatory effect or disparate impact.

With the fuel from the Supreme Court’s decision, as well as the new HUD regulations, Oregon’s leaders would be wise to avoid potential challenges and pick off low-hanging fruit like overturning the ban on inclusionary zoning.  Such action is an easy first step to remove barriers for protected classes and avoid disparate impact challenges.

iStock_000015829761_LargeAlthough not garnering the rallies and applause given to the U.S. Supreme Court’s recent decisions dealing with the Affordable Care Act or same-sex marriage, the Court’s ruling considering the scope of the Fair Housing Act is likely to have just as much impact in how neighborhoods develop and in the choices protected classes of people – such as those protected by race, disability and familial status - have about where to live.

In Texas Department of Housing Affairs v. Inclusive Communities, Inc., the Inclusive Communities Project (ICP), a non-profit organization that seeks to promote racial integration in Dallas, sued a state agency charged with allocating HUD-issued low income housing tax credits to developers who build low-income housing projects. The ICP accused the Texas agency of disproportionately allocating the tax credits to properties in poor areas in violation of the Fair Housing Act of 1968 that makes it illegal to refuse to sell, rent “or otherwise make unavailable” housing to anyone because of race, sex or other protected categories. Between 1995 and 2009, the state did not award tax credits for any family units in predominantly white census tracts, and instead awarded tax credits to locations “marked by the same ghetto conditions that the FHA was passed to remedy,” ICP’s pleading states. ICP did not allege intentional discrimination, but rather whether the fact that issuance of tax credits within solely high-poverty areas that results in a disparate impact on minorities is sufficient to show a violation of the FHA.

Justice Kennedy, writing for the majority, noted that while de jure racial segregation in housing has been unlawful for over a century, de facto segregation remains. Congress passed the Civil Rights Act of 1968 and amendments to the Fair Housing Act in 1988 (the Fair Housing Amendments Act or FHAA) as well as cases applying Title VII of the Civil Rights Act of 1964, which banned many acts of housing discrimination, as antidiscrimination laws that focus not just on the “mind-set of the actors” but also on the “consequences of the actions.” By its terms, the FHA and its amendments were enacted to provide for fair housing and to prohibit unfair discriminatory housing practices. The Court added: "These unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification. Suits targeting such practices reside at the heartland of disparate-impact liability."

The Court emphasized at some length that the disparate impact test was not formulaic and must be applied flexibly and specifically expressed concern over the use of racial quotas. The test must require a “causal link” in a case such as the one before it, between the policy and discrimination so as to remove “artificial, arbitrary and unnecessary barriers” to housing. The Court concluded:

Much progress remains to be made in our Nation’s continuing struggle against racial isolation. In striving to achieve our “historic commitment to creating an integrated society,” we must remain wary of policies that reduce homeowners to nothing more than their race.

Justice Alito writing for the dissent, joined by Chief Justice Roberts, Justice Thomas and Justice Scalia, focused on the statutory language “because of race” and concluded that only intent or motive mattered. As a result, Congress intended to cover disparate treatment — not claims of disparate impact. Quoting from another case, Alito pointed out: “The Court acknowledges the risk that disparate impact may be used to ‘perpetuate race-based considerations rather than move beyond them.’”

This case highlights the equity associated with giving all individuals choices in selecting appropriate housing rather than focusing solely on their quantity. But calling HUD’s Section 8 program “Housing Choice” is entirely undermined if families really have no choice about where they are going to live. As importantly, it illustrates the link between affordable housing and land use planning. The land use choices that planners and housing advocates make that results in segregation can violate the Fair Housing Act even though it may be entirely inadvertent.

Optical fibres around earthT-Mobile South, LLC v. City of Roswell (United States Supreme Court, January 14, 2015), was a case brought by a “personal wireless service provider” under the Telecommunications Act of 1996 (TCA) which, among other things, supported rapid deployment of personal communications devices (e.g., cell phones) by requiring that land use decisions on matters relating to such things as cell towers be “in writing” and supported by substantial evidence from a written record.

In this case defendant City denied plaintiff’s cell tower application by letter, informing plaintiff that it could find the reasons for the denial in the City Council minutes.  There was a 30-day appeal period under the TCA; however, the City’s draft minutes were not approved until four days before the appeal period ran.   Nevertheless, plaintiff challenged the denial in federal court on the “in writing” requirement and also alleged the denial was not supported by substantial evidence.  The trial court found for the plaintiff but the Eleventh Circuit, following a majority of circuits, found the letter and reference to the minutes to be sufficient.  The Supreme Court granted certiorari.

Justice Sotomayor wrote for the court and interpreted the “in writing” and “substantial evidence” requirements to require reasons to be given for judicial review purposes. Not requiring reasons would make the judicial task much more difficult. The use of “substantial evidence” in the TCA was a “term of art,” describing how an administrative record was to be reviewed by a court under the TCA.  The court inferred that Congress required findings to be derived from the administrative process, rejecting the City’s contention that this requirement would deprive it of its local zoning authority, finding that Congress meant to interfere with local zoning processes to this extent, but stressing that the reasons need not be elaborate – just sufficiently clear to enable judicial review.

Moreover, the court determined that the TCA did not require that the reasons be found in the decision or be in any particular form, as the TCA stated it did not otherwise affect the authority of a local zoning authority noting that FCC rules allowed 90 or 150 days for local governments to make decisions on complete applications.  While it may be a plausible interpretation of the TCA for the reasons to be in the decision, the Act did not specifically require this to occur and the court would not infer it.  However, the court did require that the reasons be given either in the decision or essentially contemporaneous with the same.  By waiting until 26 days after its decision to issue detailed approved minutes, the City failed its statutory obligations and the decision of the Eleventh Circuit was reversed.

Justice Alito concurred, adding that it would be sufficient for the City to state simply that the proposal was “esthetically incompatible with the surrounding area,” that plaintiff was not injured by the City’s delay in providing the final version of the minutes (which he viewed as harmless error) and that this procedural error can easily be corrected.

Chief Justice Roberts authored a dissent, in which Justices Ginsburg and Thomas joined, stating that, while findings or reasons for the decision were required, they need not be issued “essentially contemporaneously” with the decision, as such a requirement was not in the TCA, noting that Congress has in other legislation, such as the Administrative Procedures Act and other sections of the TCA itself, made such a specific requirement.  Moreover, the dissent observed that the “sole issue” before the court was the “in writing” requirement and not the timing of the findings, an issue not raised below.  While agreeing that findings were implicitly required by the use of the “substantial evidence” standard, if they were not given or are inadequate, remand would be justified, rejecting the contention that plaintiff needed to see the reasons in order to decide whether to appeal:

"This concern might have force if towns routinely made these decisions in secret, closed-door proceedings, or if applicants were unsophisticated actors. But the local zoning board or town council is not the Star Chamber, and a telecommunications company is no babe in the legal woods.  Almost invariably in cases addressing [land use decisions under the TCA], the relevant local authority has held an open meeting at which the applicant was present and the issues publicly aired.  In this case and others, T-Mobile has brought its own court reporter, ensuring that it has a verbatim transcript of the meeting well before the town is likely to finalize its minutes.  I strongly doubt that a sophisticated, well-lawyered company like T-Mobile – with extensive experience in these particular types of proceedings – would have any trouble consulting its interests and deciding whether to seed review before it had received a written explanation from the town."

Finally, the dissent suggests that impacts of this case on local governments will be “small” – they need only hold back the final decision until the minutes be transcribed or reasons given -- also suggesting that the delay in making the final version of the minutes available may be harmless error.

It appears the entire court would conclude that the TCA requires reasons for a land use decision involving cell towers; however the justices disagree on the required timing of those reasons.  This result may come as a surprise for some local governments.

T-Mobile South, LLC v. City of Roswell (United States Supreme Court, January 14, 2015).

HousingAs President of Housing Land Advocates (HLA), I am pleased to announce that HLA and the American Planning Association have filed a joint amicus brief in the latest case to challenge the Fair Housing Act’s (FHA) disparate impact standard.  The Texas Dept. of Housing and Community Affairs case questions whether state administrators of federal low income housing tax credits (LIHTC) programs must consider the location of the housing and whether the location has a disparate impact on protected classes.  Ed Sullivan, HLA Board Member and APA Amicus Committee member submitted the brief on behalf of the amici.

Here is an excerpt of the summary of the argument:

From the perspective of professional planners engaged in development efforts across the United States, the benefits of continued recognition of a disparate impact-standard under the FHA substantially outweigh the minimal costs that the standard imposes.  Decades of operation under a legal framework that has uniformly recognized disparate-impact claims has taught the institutions and professionals engaged in development to work within the standard’s requirements.  Those requirements have proven to be fully consistent with efficient project planning and execution efforts.  Reversing course at this point would be disruptive to established practices and, ultimately, would thwart just and effective planning efforts.

The benefits that flow from compliance with the FHA’s disparate-impact standard have been substantial.  The legitimacy of public institutions depends, in significant part, on transparent decision making.  In the context of urban and rural development efforts, it is inevitable that certain projects will affect some groups of persons more than others.  Responsible planners consider the unintended consequences of development projects, explain to the public why a project is necessary and beneficial notwithstanding its disadvantages, and engage in dialogue with affected community members to minimize a project’s drawbacks.  Institutions that properly explain the reasoning behind their decisions enjoy greater public support for and participation in their long-term objectives.

The FHA’s disparate-impact framework furthers transparency and legitimacy by committing planning professionals and public institutions to a dialogue with those affected by their actions.  Under the most pervasive articulation of the standard, housing plans must serve legitimate, nondiscriminatory interests through the least discriminatory means available.  This includes development efforts that are part of the federal low income housing tax credit (LIHTC) program.  Over the course of decades, that norm has become an accepted component of the planning process.  Today, responsible developers share their objectives with potentially disadvantaged persons and groups and together develop plans to minimize projects’ adverse effects.  This kind of transparency makes affected groups more apt to lend their support to projects, view such projects as fair, and regard planners and public institutions as legitimate actors in the public space.

The costs, meanwhile, of the disparate-impact framework have proven to be minimal.  Over the course of four decades, complying with the existing legal regime has not thwarted economically beneficial development efforts, including those made as part of the LIHTC program.  That is because, properly understood, the possibility of a disparate impact does not make a development project unlawful—it simply requires that institutions provide and articulate nondiscriminatory justifications for projects that adversely affect protected groups.

In sum, the FHA’s disparate-impact standard has promoted just and efficient planning and development efforts for decades.  Overturning that standard now would decrease the legitimacy of public institutions and the planning profession, disrupt practices that have advanced under the standard, and ultimately disadvantage the public interests that development projects are designed to serve.

You can read the entirety of the brief here.

state license platesTexas Division, Sons of Confederate Veterans v. Vandergriff, 2014 WL 3558001 (5th Cir.) involved the rejection of Plaintiff’s specialty license plate design application (which includes the Confederate Battle Flag) submitted to Defendants, the Chair and Motor Vehicle Board of Texas. In addition to publicly-issued license plates, Texas allows private vendors to propose plates to the Board and specifically allows nonprofit organizations to propose plate designs.  The Board may deny the design if it “may be offensive to any member of the public.”  The Sons of Confederate Veterans (SCV) had its license plate design rejected because of the association of the Confederate flag with hate and hate groups.  The Federal District Court found the Texas specialty license plate program was a non-public forum, that the denial was content-based rather than viewpoint based, and that the rejection was reasonable under the circumstances, so that a First Amendment violation did not occur.

On review, the Fifth Circuit turned first to jurisdiction, and it had previously denied relief in Henderson v. Stalder, 407 F.3d 351 (5th Cir., 2005), pursuant to the Tax Injunction Act in a case in which pro-choice advocates alleged Louisiana was engaged in allowing pro-life license plates inimical to its views.  The court distinguished Henderson and like cases when the license fees imposed were not a tax, a party (other than a taxpayer) is the plaintiff and the result will be to enrich, rather then to deplete, public coffers.  Here, SCV is not a taxpayer and the result of the litigation, if successful, would raise state revenues.  The Fifth Circuit then proceeded to review the grant of summary judgment by the trial court on a de novo basis.

The court saw the issues on appeal as: whether the speech at issue was public or private and, if private, whether the denial constituted a permissible content-based regulation or impermissible viewpoint discrimination.

The First Amendment does not regulate government speech but prohibits most government regulations of private speech.  The difference between public and private speech is determined whether a reasonable spectator would believe that the government was speaking to them.  In this case, unlike a permanent monument in a park, a license plate is temporary expression and, in this case, open for diverse expressions of viewpoints by the public agency and nonprofits.  Few would classify vanity license plates or the 350 existing specialty plates in Texas as government speech.

Having found the speech to be private, the court turned to whether the action was content, regulation or viewpoint discrimination, the latter of which is “presumptively impermissible” and, in reality, an egregious form of impermissible content discrimination.  SCV argued the views of those offended by the Confederate battle flag is no different then the many number of veterans license plates available in Texas for those who have fought in our country’s wars and the only reason the subject design was rejected was because of the viewpoint it represents.  The First Amendment was designed to protect speech from coercion over its viewpoint.  The standard used in this case “might be offensive to any member of the public” lacks any limiting sideboards and gives unbridled discretion to the Board.  The First Amendment is not met when a public entity suppresses all viewpoints on a particular subject.  A public agency may not shield the public from minority views that might be offensive to some.  Accordingly, the trial court decision was reversed.

Judge Jerry E. Smith dissented, finding no “reasonable observer” standard in the United States Supreme Court case law.  The dissent agreed that SCV had standing, notwithstanding the Tax Injunction Act and that the case could be classified as viewpoint discrimination, but the dissent also thought that the design constituted government speech.  Because the reasonable observer test was not appropriate (in large part because that standard was derived from a concurring opinion of Justice Souter in Pleasant Grove City, Utah v. Summum, 555 U.S. 467 (2009), which the rest of the court did not adopt and which the dissent felt was contradicted by other Supreme Court precedent).

The dissent agreed that four or five of the other circuits had found similar licensing programs were not “government speech” but suggested that none of the decisions deals adequately with Summum (in which the United States Supreme Court found the placement of monuments was government speech, to which the First Amendment was not applicable).  Whether the monument were financed publically or privately and installed with government permission was irrelevant.  In that event, license plates (which are mandatory) could have a program under which private persons or nonprofit organizations could engage an alternative design, subject to Board approval.  The court added:

* * *The reasoning in Summum informs that if Texas license plates would constitute government speech only if Texas has designed the plates itself, they do not lose their governmental character just because Texas accepted a privately designed message, endorsed it, and then placed it on its plates.  [Footnote omitted.]

As with monuments in public places, license plates are identified with the state governments that issue them and specialty license plates cannot exist without the state’s cooperation and offer to manufacture and sell them.  Thus the law allows Texas to choose whether it wishes to be associated with the Confederacy by others.  SCV has other means to advance its message and the state is not required to have the state embrace that message.  Confederate flags may be displayed as bumper stickers or other appendages on cars, houses, etc.  The proper analogy in this case is to monuments in public parks, rather then leafleting.

The dissent rejected the binary choice of the majority that the distinction is between government and private speech and that, if the speech be private, there can be no viewpoint discrimination so that if a driver sees an offensive license plate design, she would naturally attribute that design to the driver, rather than the state.  But in Summum, the United States Supreme Court found the government had the right to speak and express its own views in monuments, regardless of how those monuments were financed.  The association that public and private persons present at events (such as sponsorships in football games) is voluntary and meant to promote that association in the public mind.  Summum says that government need not be forced to associate with all viewpoints because it has associated itself with one.  The government may not force someone to disseminate its message (so that a state could not force a driver to have a “choose life” or “support choice” license plate), and it need not accommodate all views in license plate designs.

While this case does not, strictly speaking, relate to land use it does have importance in dealing with uses and public spaces as well as with messages that are regulated under land use law.  The dissent in this case appears to have the more cogent argument.

Texas Division, Sons of Confederate Veterans v. Vandergriff, 2014 WL 3558001 (5th Cir.)

News Update! The United States Supreme Court has granted cert in this case, now referred to as Walker v. Texas Division, Sons of Confederate Veterans. 

 

Wireless TowerLand use decision making in Oregon is highly structured; many complain that the formal structure delays increases the cost of decision-making.  State law has long mandated that the approval or denial of a land use application must be in writing.   All such written decisions must include written findings of fact, be based on consideration of the applicable standards and criteria, and be supported by substantial evidence in the record. All these requirements find their roots in typical state or federal administrative procedures act.  Failure to comply with these requirements provides a basis for remand of a decision for reconsideration.  This obligation applies to all local governments regardless of population or the number or qualification of local planning staff, from the City of Brooks to Wheeler County.  Although these requirements may make land use decision-making more expensive and time-consuming for those who seek approvals, cases arise every now and again that cause Oregon to appreciate its state land use system.  T-Mobile South, LLC v. City of Roswell, Georgia, currently pending review before the U.S. Supreme Court, is such a case.

T-mobile South, LLC (T-mobile) submitted an application to construct a 108–foot cell tower resembling a man-made tree in Roswell, Georgia. The location of the site, though planned inside a vacant lot, would be in an area zoned for single-family residences within a well-established residential neighborhood. Following an outpouring of public opposition to the tower, Roswell's Planning and Zoning Division recommended that the Mayor and city council, which ultimately approve applications after a public hearing, impose certain conditions before approving the application. Specifically, the Planning and Zoning Division recommended that T-Mobile should relocate the site to another part of the property, erect a fence around the tower, and plant pine trees to shield it from view of area residents.  After a two-hour public hearing, city council members voted to deny the application.

Two days later, Roswell sent T-Mobile a letter notifying the company that the application was denied, without further elaboration, and referred the company to the minutes of the public hearing. T-Mobile sued Roswell and claimed that the city had not provided substantial evidence that would support a denial of the application. T-Mobile also argued that, by prohibiting T-Mobile from building the structure, Roswell violated the Telecommunications Act of 1996 (TCA).   The TCA provides that a state or local government's denial of "a request to place construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.”

The district court did not rule on the substantial evidence question and instead held that Roswell had not met the “in writing” component of the TCA, which required the government to state the reason(s) for denying an application. The district court ordered Roswell to grant the permit, and Roswell appealed. The U.S. Court of Appeals for the Eleventh Circuit held that Roswell had met the “in writing” requirement by issuing a written denial and referring to the minutes of the hearing for the reasoning.  The U.S. Supreme Court granted review, briefs have been filed and oral argument is scheduled for November.

T-Mobile has argued that the “in writing” requirement requires an explanation for the decision considering the approval criteria.  It claims that by not requiring such analysis, applicants will have no other choice but to seek judicial review of decisions to determine the reasons for denial, significantly increasing the costs of providing communications services.  Roswell, along with other amici, representing state and local government groups and the American Planning Association (APA), argued that requiring a detailed analysis for the decision would impose stringent procedural requirements that (1) is not borne out in the plain language of the TCA and (2) imposes significant additional costs on and unreasonably burden the ability of local governments to carry out land use regulation.  According to the APA amicus brief, although zoning and land use personnel is not a specifically identified category, census data from 2012 reveals that 71% of municipalities do not have a single full-time paid employee to handle “other government administration,” including land use, and others in that group 33% have no more than one part-time paid employee.  Finally, the amici argue that if the City erred in not providing a more detailed explanation of its decision, the remedy was a remand and not a reversal giving approval for tower siting without any local government review.

Even though Oregon has been requiring an explanation for individualized land use decisions for years, that would be a big step for the rest of the country.  Even the APA hopes that the US Supreme Court’s analysis sticks with the more banal principles of statutory construction.  After all, other parts to the TCA specifically require a more detailed writing including decisions by the Federal Communications Commissions that must “state that basis for its approval or denial.”  Such differences in language choices are typically deemed deliberate.  The Court should not conclude that local government planners are not equipped to handle the burdens imposed by explaining a decision in writing.  Certainly, if the Court were to survey whether local government staffers make written decisions analyzing the criteria based on the facts, Oregon’s local governments, even with a skeleton crew, have been doing this for years, for which the State and its citizens may be truly grateful.

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