Wednesday, March 10, 2010
Kenneth Stahl (Chapman) has posted The Artifice of Local Growth Politics: At-Large Elections, Ballot-Box Zoning and Judicial Review on SSRN. Here's the abstract:
Municipalities throughout the nation are plagued by a seemingly unresolvable conflict between development interests and homeowners’ groups who oppose growth near their neighborhoods. This paper uses southern California as a case study to examine the problem of local growth politics and the judicial response to it. As I argue, local politics in southern California are structured in such a way that fosters an artificial dichotomy between pro-growth and anti-growth positions, subverting the possibility of compromise and suppressing a wide range of views about growth and other issues. On one hand, the prevalence of at-large voting systems in southern California municipalities favors growth interests by facilitating citywide growth while muting neighborhood opposition. On the other hand, neighborhood groups liberally rely on the initiative and referendum to halt unwanted growth. Ironically, the apparent conflict between pro-growth and anti-growth agendas generated by this political structure conceals a fundamental continuity. Both at-large voting and the initiative process function to dilute the influence of minorities and other geographically concentrated groups, entrench the political power of the professional middle classes, prevent disparate interest groups from negotiating toward terms in the contested terrain of municipal politics, and cloak this ideologically loaded process in the rhetoric of a unitary public interest set against parochial selfishness.
This distorted political system has been the subject of many judicial challenges, most of which have focused on the local initiative process. The courts, however, have taken pains to uphold the right of the people to enact land use laws by initiative or referendum. Rejecting arguments that ballot-box zoning entails an excess of politics without necessary apolitical counterweights, the courts have expressed confidence in the judiciary’s own ability to temper the evils of unchecked politics through judicial review. I assert, however, that this faith in judicial review is misplaced, as the judiciary has proven incapable of balancing the complex array of competing interests involved in land use regulation. Thus, I argue that the judiciary should instead focus on correcting defects in the political process so that the balancing of competing interests can occur, as it should, in the legislative arena.
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