Monday, February 29, 2016

Zoning’s Centennial, Part 8: Regionalism and ‘Wistful Hoping’: A Series by John R. Nolon

Part 8

Zoning’s Centennial

John R. Nolon

Distinguished Professor of Law, Pace Law School

Counsel, Land Use Law Center

Regionalism and ‘Wistful Hoping’

We praise the parochial nature of American land use law because it gives power to local people to cure local problems and take advantage of local opportunities that deeply affect them. This was borne out in our examination, in my previous post, of the advent of local environmental law; where local concerns over environmental degradation gave birth, arguably, to a new field of local environmental law.

In the seminal Euclid case, the owners of the property regulated by the Village–and an entire regional industry–were upset by zoning’s interruption of the natural evolution of land development. The U.S. Supreme Court wrote, “It is said that the village of Euclid is a mere suburb of the city of Cleveland; that the industrial development of that city has now reached and in some degree extended into the village, and in the obvious course of things will soon absorb the entire area for industrial enterprises…. But the village, though physically a suburb of Cleveland, is politically a separate municipality, with powers of its own and authority to govern itself as it sees fit….”

The flip side of this is that natural resources, nonpoint source pollution, and economic and housing markets transcend local boundaries. They are intermunicipal, regional, and, in some cases, interstate in nature. Critics including industry, environmental, and fair housing advocates have bemoaned local control and called for its preemption by state or federal regulation, where their particular interests are thwarted.

The case that first validated local control of regional growth recognized the irony of its position. New York’s highest court, in Golden v. Planning Board of Town of Ramapo, wrote that “Statewide or regional control of planning would insure that interests broader than that of the municipality underlie various land use policies.” The court further noted, however, that local control should not be struck down “in the wistful hope that the efforts of [regional planning] will soon bear fruit.”

The dissonance between the regional nature of land use problems and local control is best explained by former House Speaker, Thomas P. O'Neill Jr., who quipped that "all politics is local." State and Congressional lawmakers stand for election in essentially local districts where control by remote governmental agencies is anathema.

The quandary can be resolved by searching for regional processes that respect the critical role that local governments play in land use decision-making. To be politically palpable, these initiatives must not be perceived as methods of imposing a state or regional body's will on local governments. Rather, they should be viewed as means of communicating effectively about regional and local needs, balancing those interests, and arriving at mutually beneficial decisions over time.

From its inception, the U.S. land use system has encouraged voluntary, grassroots approaches to intermunicipal and regional planning. The Standard City Planning Enabling Act provided for regional planning by authorizing local planning commissions to petition the governor to establish a regional planning commission and to prepare a master plan for the region’s physical development. Provisions were included in the Act for communication between the regional and municipal planning commissions, with the objective of achieving a certain degree of consistency between local and regional plans. Regional consciousness has been with us since the early days of American zoning.

Many localities have adopted sustainable development strategies because of encouragement, information, or funding provided by the state or federal government. This observation aligns with research results published in Urban Affairs Review, where the authors demonstrate that “more policy making occurs in states with a multilevel governance framework supportive of local sustainability action.”

Localities will align their land use plans with common sense state policies if they receive information and support via state assistance offered in the right way, without a heavy top-down emphasis or requirements that seem like mandates. Correcting the deficiencies in the hundred-year old zoning system is not about taking away local power, but rather should focus on working with localities to build a better system. This suggests that we need to discover and implement methods of using federal and state policies and resources to support, guide, and sustain local initiatives to coordinate land use policy across municipal and state borders.   

Regionalism is not at odds with our land use planning tradition. It need not be “wistful hoping” if approached in the right way. We have not, however, developed a consensus on the proper strategy of weaving local control into the broader fabric of society. It takes a clear understanding by federal and state lawmakers and agencies that parochialism has its place.  We are still waiting for this insight to seriously shape their efforts to solve regional land use problems.

For more information, see John R. Nolon, Grassroots Regionalism Through Intermunicipal Land Use Compacts, 73 St. John’s L. Rev. 1011 (1999).

Links to previous posts in the Zoning Centennial’s Series:

Part 1: The Need for Public Regulation of Land Use – The First Comprehensive Zoning Law

Part 2:  The Delegation of Legal Authority To Adopt Zoning

Part 3: Zoning Was Contagious, But Was It Constitutional?

Part 4: The Unintended Consequences of Euclidean Zoning

Part 5: The Most Appropriate Use of the Land

Part 6: The Surprising Origins of Smart Growth

Part 7: The Advent of Local Environmental Law

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