Judicial Consideration of Moral Doctrine in Government Land Use Control Litigation

Abstract

Urban land use in the United States is extensively controlled by government. The trend is toward an increase in this control even though resistance to it is common and frequently effective. Whether or not government control over urban land use should be imposed and what is the most desirable form of control are questions that involve difficult moral problems. This article considers the nature of these moral problems particularly as disclosed by the widely varied goals of those participating in efforts to affect government control of urban land use. It is also concerned with the extent to which courts admit to being influenced by principles because those principles are morally good instead of merely authoritative and binding as legal precedent. Judicial opinions are primarily devoted to discussions of cases, statutes, ordinances and regulations. But do courts admit to making decisions in reliance only on this authority or do they in their opinions also admit to taking other standards into consideration?