| Preface: Edition I Most fields of human endeavor involve some degree of
judgment, or the exercise of discretion in making decisions. The field of land use and
real estate development is no exception, particularly in the 1990s. We are at a time in
this country when many local governments are attempting to address increasingly complex,
sometimes subjective issues---preservation of "community character," urban
design, "cumulative impacts" of land uses, growth control, environmental
protection, affordable housing and infrastructure needs---through regulation.
Unfortunately, these regulatory decisions
often reflect judgment gone awry---the exercise of judgment outside the legal bounds of
the authority that was given to the decision maker. Why? Certainly this circumstance can
be explained in many instances by poorly drafted, overly broad regulations whose purpose,
standards and procedures fail to give proper guidance to the decision maker. Sadly, it may
also result from the timid actions of some government officials when faced with a roomful
of opposition to a development proposal that complies with the regulations. In other
cases, such overreaching decisions may be explained by the unabashed arrogance of staff
and officials who may feel emboldened by a strict regulatory scheme or who believe that
their view of the public interest should override established land use policies relied
upon by the applicant. Whatever the reasons, and certainly others may offer more, abuse of
discretion abounds in the implementation of land use and development regulations.
Over the years, as a practitioner in land use
and development law matters around the country, I have been frustrated, yet also
fascinated, by the behavior of planning and zoning officials and government bodies when
presented with opportunities to abuse the discretion given them under their particular
regulatory schemes. This book is about that experience, written from the perspective of
the landowner and developer who may have little recourse, even through litigation, in the
face of such abuses of discretion.
Of course, landowners and developers are not
without fault when the land use decision making system goes awry. When they are overtly
self-interested, or inconsiderate of public objectives, their behavior may induce the very
abuses of discretion of which they complain. But it is the local government, in the first
instance, that sets the regulatory stage upon which all the players must perform. It
therefore has the first opportunity and responsibility to construct a stage on which,
ideally, all the players are able to perform to the best of their abilities so as to
produce discretionary decisions that balance public objectives with the practical
constraints and uncertainties of land development in a market economy.
The typical regulatory stage is constructed
from two basic building blocks: rules and standards. Supporters of the current movement in
this country to roll back the layers of government regulation, to literally "reinvent
government," lambast the use of detailed rules. They see reliance upon rules as a
misguided attempt to make regulation certain, uniform, complete, self-executing and
dispassionate, a naive attempt to eliminate the potential for arbitrariness and abuse. In
fact, they argue, rules create loopholes by opening up a world of angles and advantages
which can be exploited. Because a rule cannot be written to cover every possible
situation, it has a tendency to be under inclusive, opening up the opportunities for
exploitation.
Unlike rules, which dictate a result no
matter what, standards, it is argued, allow the decision maker to take into account all
relevant factors, permitting the exercise of judgment to fit the particular circumstances
or facts. They allow us to think, to be pragmatic. In other words, standards allow for a
balancing of factors or considerations in light of the policies or objectives at stake.
Standards and procedures are the principal components of discretionary decision making
systems for land use and development in this country. From the developer's perspective, a
discretionary decision making system may be preferable when pragmatic judgment is needed
in the review of a development project that is subject to a complex array of land use,
growth control and environmental regulations. But when that judgment is exercised
arbitrarily, the developer's traditional preference for predictability surfaces, and the
straightforwardness of rules becomes more attractive. This tension between developers'
preference in the regulatory scheme for certainty, but equal need for flexibility, emerges
as a theme throughout pages of this book.
Although I take pains to explain what the
current law is as applied to discretionary land use controls, I have chosen to write this
book in more subjective prose, giving vent, where appropriate, to the personal experience
that necessarily underlies the law. I have endeavored to do so with a measure of humor,
explaining not only what the law is, but what I think it should be if we are to be
successful in limiting the invitations to abuse discretion that currently exist at the
local government level in the implementation of land use and development regulations in
this country. I leave it to the reader to judge whether I have been successful in that
endeavor.
Brian W. Blaesser
Boston, Massachusetts
January 2, 1997
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Preface: Edition II
In the Preface to the first edition, I
explained the essential purpose of the book---to address judgment gone awry in the
exercise of discretionary land use controls. Less than two years later, my ongoing
experience and those of other practitioners confirm that there remains ample subject
matter for this book and the need to identify abuses of discretion and to suggest ways in
which local government can improve the exercise of discretion in deciding land use
matters.
One of the salutary developments in the law
that has give local governments pause is the courts' increasing willingness to shift the
burden of justifying discretionary decisions to the local government. Traditionally,
courts handled local land use decisions gingerly, giving them great deference unless there
was clear evidence of a taking or a violation of a landowner's constitutional right to
equal protection. This deference stemmed from the Jeffersonian faith in local institutions
and the view that planners could supply the rigor necessary to curb arbitrary thinking by
local legislators. Alas, as commentators have long observed, the politics of zoning and
development controls often override factual findings and sensible solutions to land use
issues. Particularly in the area of discretionary exactions, as explained in the following
pages, the U.S. Supreme Court has imposed the two-prong standard of requiring an
"essential nexus" between the exaction imposed and the public purpose identified
as being served, and "rough proportionality" between the exaction and the
projected impact of the proposed development. Most importantly, the Supreme Court
instructed local governments that when the discretionary exaction is imposed by an
administrative body, the burden of justification shifts to the local government to justify
its decision. These new developments in the law will certainly give local governments the
incentive to improve discretionary decision making.
The increasing judicial skepticism toward ad
hoc discretionary exactions and their refusal to apply the traditional presumption of
validity, while encouraging more rigor and exactitude in discretionary decisions, may also
put a halt to what has been described in other arenas as "mission creep" - that
is, the gradual, unauthorized broadening of a decision making body's original jurisdiction
or mission. One of the best examples of this "mission creep" is the way in which
planning commissions use site plan review to address "off site" impacts that
should have been decided at the initial zoning stage. Another example which involves
"legislative" abuse of discretion is the practice that I have recently
discovered. It is known as "call up" authority and is exercised by the local
legislative bodies of some jurisdictions. This authority allows the local legislative body
to "call up" for further review and decision an already final decision made by
an administrative body. Whether a particular project ends up on the "call up"
list may be a function of mere curiosity by a particular local legislator or of
constituent pressure that was not successful at the administrative level. When that
happens, the important objectives of providing certainty and predictability in the
development process are lost. This type of mission creep allows local decision makers to
introduce new requirements and considerations that go beyond the original purpose and
scope of the particular type of discretionary decision.
As before, I again leave it to the reader to
judge whether in this edition I have been successful in both explaining what the law is
regarding discretionary land use controls and what I think the law should be if we are to
be successful in enabling all the players on the regulatory stage to perform to the best
of their abilities so as to produce discretionary decisions that balance public objectives
with the practical constraints and uncertainties of land development in a market economy.
Brian W. Blaesser
Boston, Massachusetts
July 1, 1998
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