Suburban Growth Controls: An Economic and Legal Analysis

Abstract

Suburban governments are becoming ever more adventuresome in their efforts to control housing development. Some have imposed temporary moratoria on new growth. Others have adopted quotas on residential construction or subjected developers to exotic taxes or charges. Controversy over these devices has pushed a fistful of small towns into the national spotlight: Petaluma, California; Black Jack, Missouri; Ramapo, New York; Mount Laurel, New Jersey. Because state legislatures have placed few tethers on municipal efforts to limit growth, courts have felt compelled to shoulder the burden of guarding against suburban abuses. The thousands of lawsuits brought by land developers (and on occasion civil rights groups) to challenge growth controls, however, have yet to yield a coherent set of legal doctrines for limiting the range of municipal discretion. As an initial matter, there is no consensus on how courts should deal with challenges to specific suburban strategies like large-lot zoning, the exaction of park land from subdividers, and moratoria on sewer connections. Even the most thoughtful judicial opinions and academic commentaries on these issues have placed insufficient emphasis on their interconnectedness. As a result, a complicated and confusing case law has evolved into a series of irrational pigeonholes. Current ambiguities frustrate both land developers, who are uncertain what they may do, and suburban officials, who are uncertain what they may stop. This article seeks to help remedy the current confusion. Specifically, it employs economic and legal analysis in an attempt to establish a comprehensive set of legal doctrines defining the rights of suburbs, landowners, and housing consumers. It also sets out the remedies that should be available to each group when those rights are violated.