LAND USE MORATORIUMS

Shapiro Associates • December 10, 2015

LAND USE MORATORIUMS For a variety of reasons, municipal legislatures sometimes enact moratoria on building […] The post LAND USE MORATORIUMS appeared first on Shapiro & Associates.

LAND USE MORATORIUMS

For a variety of reasons, municipal legislatures sometimes enact moratoria on building permits, sewer hook-ups, or other permit and approvals. These are stopgap, time-buying measures. Often, moratoria are enacted in order to prevent the overloading of public facilities such as schools, sewers systems, or water supply facilities. Sometimes they are enacted to prevent a permitting rush in the face of proposed new regulations or to keep the status quo in place while decisions are made on capital budgets and improvements.

By using moratoria, municipalities are able to prevent the surge of development likely to occur when a municipality announces its intent to rezone, enact a new comprehensive land use plan, or adopt a growth management program.

Authority for enacting moratoria is often found as an implied power in a state’s zoning enabling act to exercise the police power to in the context of a municipality’s zoning and planning authority. For example, most Illinois land use moratoriums cite 65 ILCS 5/11-13-1, et seq., as its authority to enact the land use moratorium for, among other things, the protection of public health, safety, comfort, morals, and welfare.

The regulation must be enacted pursuant to lawfully delegated authority, and a presumption of validity attaches to a validly enacted regulation, placing the burden of showing the regulation’s invalidity on the challenger. The enactment of a moratorium ordinance is a legislative act, subject to rational basis review and to electoral review by referenda in many jurisdictions, but also entitled to a presumption of validity. The municipality, however, should be prepared to show the moratorium is reasonably related to a proper public purpose or the ordinance may be deemed an unconstitutional regulatory taking of property.

A major development in this area has been in the legislative arena. According to the Supreme Court’s decision in Tahoe-Sierra Preservation Council Inc. v. Tahoe Regional Planning Agency , moratoria are not per se unconstitutional. 535 U.S. 302, 338 (2002). Rather, they are often viewed as an important planning tool to ensure that problems and emergencies are not exacerbated while a plan for solving them is formulated Id. at 337-38.

An important consideration in moratoria cases is whether there is a factual basis for adoption of the regulation—that is, whether there is a public necessity to impose the moratorium. The municipality should be prepared to articulate a basis for its actions and to follow carefully the procedure for adoption in its jurisdiction.

Several states – e.g., New Jersey and New Mexico – have enacted statutes prohibiting certain types of moratoria. New Jersey prohibits them when used in order to prepare a comprehensive plan. New Mexico prohibits them when they are used to buy study time to impose fees. Arizona, Montana, and Washington also have some type of statutory restrictions on the use of moratoria, requiring specific legislative findings, limiting its duration, or imposing hearing requirements, respectively.

Municipalities sometimes experience a problem with a land use for which its land use regulations are unprepared. For example, fast food restaurants in commercial use districts, bed and breakfasts in residential use districts, or adult entertainment uses in commercial districts. An interim regulation may restrict the rezoning of sites for such purposes, or the subdivision of such sites, or the issuance of special exceptions for them.

A moratorium on applications for building permits, utility connections, or occupancy permits may then provide a bridge between the planning necessary to deal with such uses and the implementation of that planning by preserving the status quo in the affected use districts while planning takes place.

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Introduction Last summer, an attorney filed a legal brief he had written with the help of the generative AI platform, ChatGPT. The document included citations to a series of legal cases that seemingly offered precedents that supported his client’s position. There was only one problem. As the judge in the case discovered, six of those cases did not exist. Instead, they were dreamed up by the online tool. This was only one of several high-profile incidents in which new technology has sometimes embarrassed the lawyers using it. Yet many legal experts believe generative AI will also change the legal profession in ways that will aid lawyers and their clients. Lawyers must be accountable for how they use AI. Not only must they carefully assess any bias inherent in algorithms before using it, but they must also consider ethical and fairness issues. AI holds tremendous promise to free legal professionals from the most time-consuming tasks, work more efficiently than ever, and empower them to focus on strategic projects that truly matter. Still, there are many ethical considerations of AI to keep in mind. Ethical Issues Depending on your jurisdiction, there may be formal ethical opinions addressing the use of AI. Be sure to confirm the existence of these ethics’ opinions or guidelines and how they apply to the use of AI. Bias And Fairness AI uses trained algorithms to analyze vast amounts of data. These algorithms can collect biased historical information, which means that the AI system may also inadvertently produce biased results, leading to questionable outcomes. Algorithms can be difficult to interpret, and it can be challenging to understand how they arrive at their decisions or source information. Privacy AI systems often rely on sizable amounts of data, including highly sensitive and confidential information, and may store personal and conversation data. When using the technology, lawyers need to ensure that AI systems adhere to strict data privacy regulations. For example, lawyers using ChatGPT must familiarize themselves with its Privacy Policy and Terms of Use before using the service. Additionally, they must make sure that the data is only used for the specific purposes for which it was collected. Lawyers must also consider professional obligations relating to privacy and information-sharing when providing any information with AI systems to ensure they are not running afoul of confidentiality obligations (to clients or other parties) or otherwise disclosing information improperly. Responsibility And Accountability As a rule of thumb, AI should be used as a complement to work, and not a replacement. While AI can streamline time-consuming and mundane tasks, strategic decision-making, complex legal analysis, and legal counsel are all examples of responsibilities that it simply cannot take over. As a result, lawyers must be proactive in establishing clear lines of responsibility and accountability when implementing AI in their firm. Summary As the use of AI in law firms becomes increasingly widespread, it is important that legal professionals address the ethical considerations surrounding it and ensure the technology is being used responsibly. By doing so, lawyers will be able to enjoy AI’s benefits while maintaining an ethical practice at the same time. In the end, AI has its benefits but it should not be relied upon to accurately apply the law to a fact pattern in the context of giving sound legal advice. Accurate legal advice includes understanding the context in which the law exists, experience and human thoughtfulness.