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Take Action to Reduce Planning Litigation Risks

Planning and zoning work can be some of the most exciting activity happening in municipal government, since new developments can transform the character of a community and the opportunities available to residents and businesses.

Even so, many people have strong feelings about what kind of new developments appear near their homes, their children's schools and along the roads they use. Resolving disputes on land usage can be difficult, and it's usually front-page news, so planning and zoning can be as challenging as it is exciting. Land use planning and zoning bring into sharp focus the delicate balance between preserving individual rights and protecting the community's rights as a whole. As a result, the decisions made about the community's future can make a municipality vulnerable to a lawsuit.

Liability for local governments
Municipalities have three roles in land use matters:

  • Legislative role – State law requires those cities and towns with planning commissions to adopt local comprehensive plans containing several required elements, as described in SC Code Section 6-29-510. Councilmembers also plan for development through the passage of zoning ordinances.
  • Quasi-judicial role – Municipal staff review project proposals for consistency with relevant comprehensive plans as well as ordinances. Staff then make recommendations to planning and zoning boards and commissions.
  • Enforcement role – Both staff and board or commission members implement the city's development vision by making sure that approved projects comply with applicable laws and conditions imposed.

A local government is not liable for loss resulting from legislative, judicial or quasi-judicial action or inaction or for loss from discretionary action or inaction (SC Code Section 15-78-60).

Liability for officials
Both zoning officials as well as members of a planning commission, board of zoning appeals or board of architectural review are considered to be government employees subject to the SC Tort Claims Act (SC Code Section 15-78-10). While the Act preserves sovereign immunity for government employees who commit a tort while acting within the scope of their official duties, the immunity is not available if the "conduct was not within the scope of his official duties or that it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude."

Reducing the risk of litigation
Mayors, councilmembers, board and commission members, and staff should follow these tips to help avoid litigation.

  • Council should make sure that it has adopted both a zoning ordinance and a comprehensive plan that encompasses state requirements.
  • Periodically, council should update the comprehensive plan and applicable ordinances to reflect any changes in state law. South Carolina Code Section 6-29-510(E) requires that the local planning commission review the comprehensive plan not less often than every five years, and to update the comprehensive plan, including all elements of it, not less often than every ten years.
  • Staff as well as commission or board members should always follow the municipality's zoning ordinance or comprehensive plan when reviewing project requests. They should deny any request which is inconsistent with the comprehensive plan and zoning ordinance.
  • Commission and board members should consider all information submitted with requests. They should note in the minutes of their meetings that material has been submitted and reviewed.
  • Hearings must not only be fair but also should be free from even the appearance of unfairness.
  • Council, staff and commission or board members should make all decisions in an objective and consistent manner.
  • Staff as well as commission and board members should document the decision-making process accurately and completely. The basis for zoning decisions should be clear in the minutes of meetings.
  • Staff should review all decisions with an attorney who is familiar with zoning issues, ordinances and public meeting requirements, and applicable state and federal laws.
  • Council, staff and commission or board members should follow all requirements for meetings found in the SC Freedom of Information Act.

Learn more about planning liability in the Municipal Association's Comprehensive Planning Guide for Local Governments.