Estimación de Consecuencias

North Carolina‟s provision that all State and political subdivision follow local zoning is relatively unique in this area of the law because “it is a general rule that in their use of land a state government and its agencies are immune from operation of local zoning regulations.”105 The rationale for this stance is that “while operating a governmental use in noncompliance with local zoning may result in harm to the residents of the city or at least to the immediate neighbors, the carrying out of an essential state function benefits the public at large. If local controls were permitted to exclude these uses, they might have nowhere to go.”106

A Georgia Supreme Court opinion explains that this rule is supported by four traditional tests: The Superior Sovereign Test, the Governmental Propriety Test, the Power of Eminent Domain Test, and the Statutory Guidance Test. Per the court107

:

The Superior Sovereign Test holds that since the state and its units and agencies occupy a superior position to municipalities in the governmental hierarchy, their exemption from municipal zoning regulation is a matter of preemption.108 The Governmental-Propriety

105

Macon Asso. for Retarded Citizens v. Macon-Bibb County Planning & Zoning Com., 252 Ga. 484, 488-489 (Ga. 1984)

106

JULIAN C.JURGENSMEYER &THOMAS E.ROBERTS,LAND USE PLANNING AND DEVELOPMENT REGULATION LAW 105 (2003)

107

Macon Asso. for Retarded Citizens at 488-489

108 _{See Edelen v. Nelson County, Ky. App., 723 S.W.2d 887, 889 (1987) (holding “[a] city or county is an}

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Test holds that property of a state governmental unit is exempt from local zoning when a governmental function is being performed but not when a proprietary function is being performed.109 Cases applying the Power of Eminent Domain Test take the position that when a political unit is authorized to condemn, it is automatically immune from local zoning regulation when it acts in furtherance of its designated public function.110 Under the Statutory Guidance Test, the courts simply look to the legislative statutes in order to glean some expression of legislative intent on the immunity question. (footnotes added)

With its McKinney test, North Carolina was once a governmental-proprietary test jurisdiction. Today, it is a statutory guidance test jurisdiction as courts look to the statutes to determine immunity.

A fifth test, a Balancing of Interests Test, has also emerged several states and may place a heavier burden on government to claim a degree of immunity from local zoning regulations.111 In this test, a court weighs many factors to determine if zoning law will apply to a State or political subdivision actor. Per the New York‟s highest appellate court, among the factors to be weighed in the test are:

[t]he nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests… the applicant's legislative grant of authority, alternative locations for the facility in less restrictive zoning areas, and alternative methods of providing the needed improvement … intergovernmental participation in the project development process and an opportunity to be heard.

109_{See Town of Bourne v. Plante, 429 Mass. 329, 332 (Mass. 1999) (holding "An entity or agency created by the}

Massachusetts Legislature is immune from municipal zoning regulations (absent statutory provision to the contrary) at least in so far as that entity or agency is performing an essential governmental function.")

110

See Missouri Pac. R.R. v. 55 Acres of Land, 947 F. Supp. 1301 (E.D. Ark. 1996) (finding, under Arkansas law, the grant of eminent domain to the railroad by the state legislature effectively exempted it from zoning, because of the superiority of the condemnation power over the zoning authority.

111 _J

ULIAN C.JURGENSMEYER &THOMAS E.ROBERTS,LAND USE PLANNING AND DEVELOPMENT REGULATION LAW 108 (2003)

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Per the court, “one factor in the calculus could be more influential than another or may be so significant as to completely overshadow all others, but no element should be thought of as ritualistically required or controlling."112 The court that initially adopted this test, the New Jersey Supreme Court “noted importance of the flexibility of this test, and emphasized that even where the balance tips in favor of immunity, „it must not . . . be exercised in an unreasonable fashion so as to arbitrarily override all important legitimate local interests.‟”113

The results of these tests fall into three major categories, absolute immunity, limited immunity, and no immunity, based on the facts of a case and the substance of State statutory and constitutional provisions. Full examinations of these tests and trends in the law would fill volumes, and indeed, they do.114 A cursory review of cases and statutes, though, reveals an interesting sister jurisdiction worth further study and comparison with North Carolina: Wisconsin, another statutory guidance jurisdiction.

Similar to North Carolina‟s statutes, per Wisconsin statute, all state buildings, structures, and facilities must be in compliance with local zoning laws. The statute reads in part:

(a) Except as provided…every building, structure or facility that is constructed for the benefit of or use of the state, any state agency, board, commission or department, the University of Wisconsin Hospitals and Clinics Authority, … , shall be in compliance with all applicable state laws, rules, codes and regulations but the construction is not subject to the ordinances or regulations of the municipality in which the construction takes place

112 _{In re County of Monroe's Compliance with Certain Zoning & Permit Requirements, etc., 72 N.Y.2d 338, 343}

(N.Y. 1988)

113 _{Native Village of Eklutna v. Alaska R.R. Corp., 87 P.3d 41 (Alaska 2004)} 114

Elaine M. Tomko-DeLuca, Applicability of zoning regulations to governmental projects or activities, 53 A.L.R.5th 1 (2004) ; ZONING AND LAND USE CONTROLS, Ch. 40, Regulation of Public and Quasi-Public Use §35.01 et seq. (LexisNexis Matthew Bender)

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except zoning, including without limitation because of enumeration ordinances or regulations relating to materials used, permits, supervision of construction or installation, payment of permit fees, or other restrictions.115 (emphasis added)

Interestingly, this relatively similar provision of state law and its university-town environment have led some to hold up Madison, Wisconsin, home to the University of Wisconsin as a model of town-gown relations for Chapel Hill. Bill Strom, a then-Chapel Hill Town Council Member, visited Madison in 2006 and reported on city and university zoning relations.116 On the legal issue of whether the university had every sought to have zoning authority stripped from the city, he reported:

No discussion of UW seeking relief from the zoning authority of Madison has taken place, and UW does not consider making such a plea a viable option. When questioned in public session whether the conditional-use process they work through with Madison hurts efforts to meet their responsibility to their broad constituents and their statewide economic development mission, the answer was "not at all."

This difference is tactics might be a function of particular personalities, politics, and policies, but it may also be a function of the states‟ constitutions. Any university plea to strip Madison of its zoning authority might not be seen as a viable option because it might very well be practically impossible. Wisconsin, unlike North Carolina, has a “home rule” provision in its constitution. Per Article XI, Section 3 of the Wisconsin Constitution:

Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village. The method of such determination shall be prescribed by the legislature.

Zoning would seem to be the quintessential “local affair.” Even if the University of Wisconsin and Wisconsin legislature wanted to strip Madison of its state-enabled zoning ability to zone university property, it would seem to be a more involved and therefore doubtful proposition. In

115 _{Wis. Stat. § 13.48 (13) (2010)} 116

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short, without looking here at particular political, policy, or personality conflicts, it could be the case that the University of Wisconsin plays “nicer” because, constitutionally, it must.