What is the legal basis for a moratorium in zoning?

Asked September 10, 2014, 9:38 AM EDT

I have seen "Moratorium" referred to in regards to zoning many times. What is the legal basis for a moratorium in zoning? Can a county impose a moratorium on a particular land use (Wind turbines, Medical Marijuana ect.)? I have seen info. on time frame and other aspects of a moratorium. I am specifically interested in where the authority for a moratorium comes from.

Delta County Michigan

1 Response

Local units of government derive authority to issue valid moratoria under a US Supreme Court case known as Tahoe-Sierra (Tahoe-Sierra Preservation Council, Inc. et al. v. Tahoe Regional Planning Agency et al., 535 U.S. 302 (2002)).

Tahoe-Sierra was a situation where TRPA put a moratorium on new construction while developing zoning standards for the protection of water quality (clarity) of Lake Tahoe. The court wrote:

Indeed, the interest in protecting the decisional process is even stronger when an agency is developing a regional plan than when it is considering a permit for a single parcel. In the proceedings involving the Lake Tahoe Basin, for example, the moratoria enabled TRPA to obtain the benefit of comments and criticisms from interested parties, such as the petitioners, during its deliberations. Since a categorical rule tied to the length of deliberations would likely create added pressure on decisionmakers to reach a quick resolution of land-use questions, it would only serve to disadvantage those landowners and interest groups who are not as organized or familiar with the planning process. Moreover, with a temporary ban on development there is a lesser risk that individual landowners will be “singled out” to bear a special burden that should be shared by the public as a whole.

Based largely on this case, the questions a court will ask in reviewing the reasonableness of a moratorium are summarized as follows:

  • Does the moratorium advance a legitimate governmental interest?
  • Does the governmental action represent diligence and good faith?
  • Does the moratorium apply equally and fairly?
  • Does the moratorium deprive the property owner of all reasonable use for too long a time?
In Michigan, moratoria lasting longer than 6 months are likely to be struck down by a court and could be found to be a ‘taking’ (from the Takings Clause of the 5th Amendment to the US Constitution. For more information on takings, see http://lu.msue.msu.edu/pamphlet/Blaw/AcrobatPamphletTakings.PDF). Moratoria are supposed to be short, tied to a direct threat to the public health, safety and general welfare, given a specific start and end date, and then removed at the end of that date. Reasonable moratoria have been upheld for medical marijuana dispensaries in Michigan and if a moratorium on wind turbines has not yet been challenged in court, presumably it would be upheld if it satisfied the questions detailed above.