Tuesday, October 3, 2006

The folly of "local" land use laws... and the case of a city with "too many churches" ...

  Traditional law, which views land use as a matter of only “local” concern, creates some perverse effects in our modern and mobile age.  The city of Stafford, Texas, an exurb of Houston, is becoming alarmed because it has too much of one kind of land use: churches.  There are more than 50 places of worship in the city of less than 20,000; most of the worshipers –- and there are Buddhist temples and Hindu centers as well as Christian churches –- come from outside of Stafford.  Dependent on sales taxes and business taxes, Stafford faces a budget crisis because so much of its land is used by non-revenue-raising religious establishments.      

   What’s the solution to this dilemma? A new law that tries to cut back on the number of churches?  Using eminent domain to condemn some houses of worship?  None of these legal measures makes much sense, and all of them risk conflict with the first amendment’s right to exercise religion freely.  The only long-term solution to Stafford’s problem –- or similar dilemmas of cities with too many homeless people, or not enough wealthy business taxpayers -– is for state governments to enact laws requiring revenue-sharing within metro areas, or other forms of metropolitan government.  Radical?  Perhaps, but it is even more troublesome to stick to the old-fashioned view (plainly erroneous in the case of Stafford’s religious commuters) that ones city’s land use laws affect that city only.      

http://lawprofessors.typepad.com/land_use/2006/10/the_folly_of_lo.html

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Interesting post!

The Massachusetts Legislature still doesn't understand this concept. Our court of last resort, the Massachusetts Supreme Judicial Court, is becoming more sympathetic to this idea especially in the area of rate-of-development bylaws. In Zuckerman v. Town of Hadley, the SJC held that a rate-of-development by-law was unconstitutional noting that "[i]n their intent and in their effect, rate of development bylaws reallocate population growth from one town to another, and impose on other communities the increased burdens that one community seeks to avoid." 442 Mass. 511, 519 (2004). In response to this decision, advocates for amending the state zoning act added a provision expressly allowing rate-of-development bylaws to the annual zoning act amendment bill. As in previous years, the bill was defeated.

Dominic Santos
New England School of Law

Posted by: Dominic Santos | Oct 4, 2006 10:36:28 AM

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