Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy

Abstract

Land use control in America has always been an intensely local area of the law. Modem land use law, with its roots in the turn-of-the-century City Beautiful movement, was intended to deal especially with the growing population concentrations of urban localities. From the beginning, those localities and their governments were implicitly deemed the appropriate agencies for planning and ordering the physical development associated with their own startling growth. But during the last two decades, judges and legal scholars have shown increasing doubt that local governments make land development decisions fairly and rationally—that is, with a reasonable distribution of burdens among individuals, and with the care and deliberation commensurate with the long-term implications of land development. This doubt stems from several causes and takes different forms. Much of the criticism concentrates on the extralocal effects of local land use decisions, particularly the exclusion of low income outsiders, and the shifting of environmental problems to neighboring communities. But an older criticism has cut even deeper, and is the subject of this Article. It is that we need a new jurisprudence of local land decisions, not because of the external consequences of those decisions—serious though they may be—but because local governments cannot be trusted to deal fairly or carefully even in land decisions with only local consequences.