January 16, 2013
MacLeod on Values in Land Use Regulation
I just received in the mail yesterday a copy of the first issue of Vol. 101 of the Kentucky Law Journal. It features a great new article by former LUP guest blogger Adam MacLeod (Faulkner). Adam is a Visiting Fellow in the James Madison Program in American Ideals and Insitutions at Princeton for the current academic year. Adam's article is entited "Identifying Values in Land Use Regulation". Here's a selection from the abstract:
The rules governing the lawfulness of land use decisions are a mess. State enabling acts elide distinguishable and plural objectives of the police powers. Courts—especially state courts—generally fail to distinguish between different types of challenges and different types of land use regulatory actions. As a result, courts typically resort to the deferential position that the Supreme Court adopted in Village of Euclid, Ohio v. Ambler Realty Co., even where that standard of review is wholly inappropriate.
Meanwhile, the evidence is mounting that local governments often exercise their land use regulatory authority in arbitrary, irrational, and discriminatory ways. Without meaningful judicial oversight, parties are powerless to challenge these abuses. Meaningful judicial oversight would require some comprehensive account of the police powers, and particularly which regulatory objectives are permissible in which circumstances. No comprehensive account has emerged. Courts are understandably unwilling to scrutinize the regulatory objectives of local governments. And scholars remain trapped in zero-sum warfare between individual property rights and the collective interests served by political action.
This article offers a proposal to clarify the picture. The proposal is drawn from recent insights in perfectionist jurisprudence, and seeks to ground land use governance in rational objectives, while avoiding the false individualist-collectivist dichotomy. The proposal rests upon the perfectionist claim that there exist some basic human goods in which people participate communally, for the benefit of all, and that rights can and should be derived from these goods. States would do well to identify the connections between the police powers and these goods, and to require local governments to act rationally by preserving the conditions in which these common goods are realized by members of the community.
I am very excited about Adam's neo-Aristotelian project here. I am developing a piece on Catholic Social Teaching's insights about the parameters of a just economic order. Trying to move beyond the narrow redistribution controveries, I am interested in CST's ramifications for those aspects of immigration, education finance and land use law that create such strongly exclusive communities in supposedly free market societies.
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