How Sausage Is Made—land Use Judges and What They Do*

• Library: Municipal Law Deskbook (ABA) (2015 Ed.)

HOW SAUSAGE IS MADE—LAND USE JUDGES AND WHAT THEY DO^* Peter A. Buchsbaum

The old saw contends that there are two things whose creation people should never see—law and sausage. So, fair warning: as they say on TV, the following material may be disturbing to some viewers. I will try to provide some insight as to how a trial judge addresses testimony, especially planning testimony.

The first point is obvious but perhaps is sometimes overlooked. Land use cases are, after all, lawsuits. The techniques used for deciding all cases, therefore, provide the first frame of reference for review of land use actions. On page 1 of The Common Law (1881), Justice Oliver Wendell Holmes gave perhaps the most famous analysis of judicial decision making in the entire course of American jurisprudence. To paraphrase, he declared that the life of the law has not been logic, it has been experience. The felt necessities of the times and considerations of public convenience have far outweighed logic in determining the course of legal doctrine. Ever the skeptic, in a later Harvard Law Review article titled "The Path of the Law," ¹ Holmes cautioned that right-thinking lawyers tended to equate their social and economic interests with eternal legal verities and to mask their policy preferences through the use of seemingly objective doctrinal propositions. In other words, something as advanced as the Mount Laurel affordable housing doctrine, or even as basic as the presumption of validity, springs from an underlying conception of the public good—the regional or the public welfare—and not because it is the inevitable result of case law. Holmes's comment reflects the same view that truth in judging requires a frank acknowledgement of the policy sources underlying the doctrinal conclusions.

Forty years later, Holmes's most famous kindred spirit, Justice Benjamin Cardozo, gave a typology for judicial decision making that has remained standard ever since. In The Nature of the Judicial Process, delivered as a series of lectures at Yale in 1921 (then as Judge Cardozo), he agreed with Holmes that judges do make law, since the answers in hard cases are not predetermined. He even remarked on his surprise and despair when he became a judge as to how much was open to discretion, that is, how much free will he and his colleagues actually exercised in deciding cases. Ultimately, he assuaged his despair by concluding that mistakes can be rectified over time.²

Cardozo posited four decision-making techniques to deal with hard cases. To this day, these approaches actually capture the approaches used by judges where simple application of precedent will not do. They are syllogism, history, custom, and social utility.

Syllogism frequently will not work in evaluating planning testimony. It is not logic that is at issue. In defending a decision on an application for site plan or subdivision approval, the government will cite cases that emphatically tell judges they are not board members and should defer to local decision making. Landowners or objectors will cite equally valid cases holding that a board cannot act arbitrarily or capriciously, and that its decisions on development applications must be based on substantial evidence in the record. Logic does not reconcile these competing lines of cases; only a review of the record will suffice.

It might be objected that the law provides the ground rules for regulation of the dispute. That is true. But the stuff of the decision comes from the working out of these principles in the particular setting, and that is not a task for a philosophy major or logician.

Cardozo's next two decision techniques, history and custom, can also be important in certain contexts. History dictates that the judge cannot hand off a land use case to a jury. The judge must decide. But does history tell what to decide? It may provide insights. For example, the history of the development of regional land use planning in Oregon should be an abiding presence in any difficult case in that state. Likewise, New Jersey's experience with decentralized growth patterns and its more recent efforts to channel and/or restrict growth cannot be ignored in cases involving large lot zoning and variances to facilitate cluster development. But these considerations provide a context, not an answer. History may provide procedural direction and even substantive guidelines, just as the formal rules do regarding deference to local decisions. History will rarely divulge the answer to a particular lawsuit.

As to custom, it represents what contemporaries actually do. It clearly has some role in land use decisions. For example, in a case involving whether a home occupation is a customary—there is the word—accessory use, actual practice will be significant.

Custom may even vary within a state. For example, pigeon raising was determined to be customary in semirural, horsey Colts Neck, New Jersey, but not on a 50-by-140-foot lot in urbanized Union Township, near New-ark.³ Planners can give advice on the actual scene in a community, but this approach rarely suffices as grounds for a decision in a land use case.

While logic, custom, and history take you only so far, social utility is highly relevant to land use law. As Chief Justice Vanderbilt of the New Jersey Supreme Court said in the 1950s, in sustaining an ordinance setting minimum square-foot requirements for houses, a "zoning ordinance is not like the law of the Medes and the Persians . . . and if the ordinance proves unreasonable in operation it may be set aside at any time."⁴ The then "advanced" and controversial notion that a town could dictate minimum house size not just for health, but to serve the public welfare, was itself based on considerations of public advantage, namely neighborhood character, affecting the newly developing post-war suburbs. The countervailing thought that the courts could change when times change equally responded to the idea that the basic ground of decision was the public interest as redefined over time.

Considerations of public advantage actually have revolutionized land use law. Courts no longer strike down exercise of local authority as ultra vires unless there is a pretty clear conflict with a statute. In general, local authority is presumed. Essentially, the quiet revolution in land use noted by Bosselman and Collies in the 1970s derives its existence from the broadened and flexible definition of the public interest that has occurred since the 1970s. Just as in tort cases, formal definitional boundaries, like trespasser, are likely to be supplemented or even supplanted by an analysis of the functional relationship between the plaintiff and the landowner, so today courts are much more open in permitting local action as long as it functionally addresses some colorable conception of the public good.

So where does all this lead? Having lost their suspicion of local governments (Dillon's Rule, anyone?), courts now agree that the public advantage is generally served by letting local authorities decide what is best for the community. The value of local self-government is now prized.⁵ The doctrine recognizes that courts are not the fount of all wisdom, that people sitting around a council or board table know what works in their community, and that too much judicial intervention can destroy our country's unique reliance on local participation in public affairs. In other words, local governments have the right to be wrong.

Most judges, this one not excepted, are quite comfortable with this state of affairs. Most of us have at some point or other had experience with local government, as counsel or as elected or appointed local officials. We know that local processes are sloppy, and sometimes ugly, but so is democracy. We recognize, moreover, that the right to make bad decisions is critical to autonomy. We recognize our own infallibility and generally are content to leave the decisions to others.

Yet, the development of practical legal flexibility, along the lines suggested in 1952 by Chief Justice Vanderbilt of New Jersey in Lionshead Lake, makes judging more difficult. In spite of deference, courts have recognized that local decisions can be parochial or biased. Thus, considerations of public advantage now have to account for local acts of selfishness or randomness. There are no easy answers. The difference between stupidity or sheer cussedness and arbitrariness does not appear like a bright light on a spectrograph. It has to be...