Main Body

Preface

This text explores the laws governing the use of land. Sometimes narrowly focused, often intensely local, land use regulation may give the impression of a highly specialized field with small stakes. City councils and zoning officials wrestling over municipal code to govern second stories, lot size, or sewage connections fails in the abstract to arouse the passions of the legal battles over gay rights, abortion, or even the milder controversies of the law of torts.

First impressions can be misleading. No matter how strongly people may say they feel about the white hot issues of the day, nothing can pack a government building full of angry citizens like a dispute over zoning. From fighting the arrival of a Wal-Mart to the regulation of density in residential neighborhoods to the protection of wetlands and endangered species, it is the use of land that evokes many of our most deeply felt convictions about the line between private rights and public needs.

To appreciate the issues raised by disputes over land use and the administrative and legal choices embedded in our legal system, this casebook is organized in three major parts. A possible fourth part is left for the classroom.

First, we will survey the ordinary, local administrative scheme of land use regulation. The cases in this section are intended to establish what that system is and what it’s standards are. We begin with zoning and its blessing by the Supreme Court in Euclid. The main idea is this: that local communities will establish a heterogenous array of zones, that the map of the community will then be painted with these different zones, and that regulations will be uniform within zones and disparate among them. Nearly all else in the ordinary scheme is a series of footnotes to this structure. And the rest of the section provides many of these: variances, special use permits, and comprehensive planning.

The casebook does not cover directly a number of regulations that typically fall within this scheme. We will see some of them in cases that follow, and your instructor may, as I do, lecture on several of them, including the regulation of subdivisions, historic preservation, and aesthetic regulation more generally. Once you understand the administrative scheme, none of these is difficult to pick up, and the judicial review implications are hardly different.

In the second part of the course, we will turn our attention to cases illustrating litigation attacks on the ordinary administrative scheme. The purpose here is not, as it was in the first part, to understand better the standards the administrators should apply, but to understand the constraints imposed on the contents of local laws, the procedures of enactment and permitting, and the composition of local lawmaking bodies. In other words, we move from administrative description to various kinds of state and federal Constitutional Law (recognizing that some constraints are not described by courts applying them as emanating from a written constitution – the point here is a more general one).

These attacks come in a number of flavors, and our problem with respect to each is to discover the proper deference, if any, a court should show the local bodies and what standard might best ole rationalize that. First, a litigant may attack a local regulation or its application for its substance, essentially asserting its stupidity, wickedness, or, less dramatically, its inefficiency. A regulation that barred shoe stores but allowed other clothing stores in a zone, where there was no explanation of what purpose this might serve, could be an example of such a regulation.

Second, a litigant may attack the distributional unfairness of a law. Even if a law serves the public interest, it may do so by placing too much burden on a small number of landowners. That poorly allocated burden is an independent reason to consider setting such a law aside.

Third, a law may be efficient and its burdens relatively equally spread, and yet the law might be judged to impact too greatly important aspects of individual autonomy. Regulations of signs, religious uses, adult businesses, and the like tend to raise this sort of concern.

In addition to these three concerns – efficiency, distribution, and autonomy – we must recognize that deference to land use regulators ought to be affected by a number of variables. First is the ordinary impetus to deference to legislative policy judgments that any court should have. But, when the court is federal, we must consider both what deference a court owes a legislator and how much the federal government should interfere in state and local affairs. This doubly layered deference explains why federal courts generally have very high bars to litigation that could be characterized as turning them into boards of zoning appeals.

As if these two dimensions of consideration are not enough, we must also understand that local bodies perform different kinds of functions. They legislate. They make permit decisions, a bit like adjudication. They also tend to be composed of nonprofessional community members, members who have jobs and relationships that are very likely to be affected, at least indirectly, by the matters the local government considers.

Keep these three axes of problems in mind as we work through the second Part, covering litigation raising substantive limits, procedural requirements, and principles of delegation.

In the third part of the course, we focus on the distributive concerns raised by land use regulation. The regulatory takings doctrine has gone from, literally, nothing, to wrestling to disentangle distributive concerns from substantive ones, to trying to craft either rules or standards to identify regulations that go “too far” and should be considered “takings” within the meaning of the Fifth Amendment. We will consider what the doctrine’s purposes are, how it should be governed, and how it should be invoked as a procedural matter.

Finally, in a three-credit, one-semester course, I add three weeks of “special topics.” Each week features a different topic, and I use the opportunity to apply the general framework for regulation and litigation to a particular set of disputes, in greater depth. What topics I choose vary with the interests of the class. But in the past, I have spent a week covering religious land uses and the application of the Religious Land Use and Institutionalized Persons Act. For that topic, the readings comprised a DOJ report,1 excerpts from Greater Bible Way Temple v. City of Jackson, 478 Mich. 373 (2007), Sts. Constantine and Helen Greek Orthodox Church v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005), various news articles on disputes involving mosques, the brief of the United States in Estes v. Rutherford County Regional Planning Comm’n,2 and the complaint in another mosque case.3 I have also spent a special topics week on environmental law, focusing both on federal and state environmental protection acts and the environmental impact statement and on the Endangered Species Act. For the latter, I have enjoyed using Stanford Law School’s case study on the Delhi Sands Flower-Loving Fly.4

 


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