Planning and Law: Shaping the Legal Environment of Land Development and Preservation

AuthorCharles M. Haar/Michael Allan Wolf
Page 1
Chapter One
Planning and Law: Shaping the Legal Environment of
Land D evelopment and Preservation
I. Figures and Lies: Appreciating the Demographic Landscape of Our
Increasingly Urbanized Society
Although quantitative analysis is an essential part of the curriculum and practice for professional
planners, this is not the case for many members of the bar. In order to serve their clients success-
fully, land use attorneys who represent clients on the public and private side should be at ease with
people and with statistics. While admittedly these skills do not always go hand in hand, experience
shows that the measure of success in the eld of land use law is in the outcome of the many meet-
ings lawyers hold with concerned parties, not a won-loss record in the courtroom. Indeed, when a
land use dispute ends up in court that is often the surest sign of failure.
Land use planning law practitioners should feel comfortable working with a wide range of peo-
ple whose interests often appear to be directly in opposition—for example, representatives of neigh-
borhoods whose residents are concerned about the impact of commercial growth and shopping
mall developers that have purchased at great cost options on land in the vicinity, landowners who
are frustrated by regulatory requirements that stand in the way of plans for enhancing the use and
value of their property and professional planners who are employed by local and state governments
and charged with overseeing the implementation of the master plan, grass-roots environmental and
conservation groups who are concerned about the pace of growth and government transportation
ocials who provide the corridors for residential, commercial, and residential expansion. Often the
major challenges faced by the land use attorney are enabling these potential foes to appreciate the
common ground that they occupy and in the process to minimize the friction and delay that mark
the most acrimonious examples of process failure. is is what the “people” side entails.
On the “statistics” side, the most skillful land use law practitioners are well aware that as the
old chestnut states, “gures lie and liars gure.” Nevertheless, often the most compelling evidence
at a planning commission hearing or the most convincing argument at a gathering of disgruntled
neighbors is expressed in cold, hard, numbers—numbers that appear in oor area ratios, vehicle
miles traveled, school body size, densities per acre, or parts per million of pollutants. We are not
suggesting that the land use attorney should be able to generate this kind of statistical information
on her own. Rather, not unlike the medical malpractice attorney who works closely with skilled
professionals in the health care elds, the top practitioners in land use planning law benet from
active and mutually respectful partnerships with planners, transportation engineers, architects, and
others whose work helps shape, and in turn is shaped by, planning, zoning, and environmental law.
Time, technology, and the changing needs and aspirations of human beings produce stresses
upon existing legal institutions and doctrines. anks to the Internet, we have nearly instant access
to valuable quantitative displays that suggest many salient facts about the conditions of land inter-
Page 2 Land Use Planning and the Environment: A Casebook
dependence in the United States that have intensied ancient conicts or spawned new problems.
Many of these data collections teach the central lesson of change in the scale and pattern of growth
found in America’s urban, suburban, and rural communities. ese numbers, charts, and tables
convey some startling transformations in our social composition, in our settlement and work pat-
terns, and in the state of our unbuilt environment over the past several decades. It is the impact
of these and related forces that underlies and sometimes frustrates those eorts to arrive at a new
synthesis of framework and function commonly subsumed under the title of planning law.
A major challenge for the lawyer is gathering the data necessary for an eective presentation of
the client’s side in discussions and disputes over the use or conservation of land. In Dolan v. City
of Tigard (discussed in Chapter Five), the U.S. Supreme Court, in articulating a “rough-propor-
tionality” standard for exaction cases, criticized local ocials for their failure to link their regula-
tory activities closely enough to specic, local oodplain, and trac realities. While allowing that
“[n]o precise mathematical calculation is required,” the Court instructed that “the city must make
some eort to quantify its ndings in support of the dedication for the pedestrian/bicycle path-
way beyond the conclusory statement that it could oset some of the trac demand generated.”1
Compare the way in which attorneys for local homebuilders and organizations representing senior
citizens and tenants mounted a successful attack on minimum oor area requirements imposed
by Berlin Township, New Jersey,2 with the failed attempt by a similarly situated developer chal-
lenging Wayne Township’s ordinance 27 years before.3 Or consider a Florida county’s reliance on
the report of a nationally recognized consultant in devising a school impact fee ordinance that
gained the approval of the state supreme court.4 And of equal importance is an acquaintance with
the limitations of such information: some gures require as much reading between the lines as
down the columns. It is on these same raw statistics— although with a dierent orientation and
purpose—that the judge, legislator, administrator, planner, real estate speculator, builder, and all
others concerned with land development often base their decisions.
Statistics can be revealing (or misleading) on the macro (that is, national) level as well. For exam-
ple, search through the diverse set of data included in the Statistical Abstract of the United States5 for
the answers to the following inquiries, all of which are related to the important issues of urban and
suburban sprawl, the aging of America, and the disappearance of important natural resources:
1. What was the percentage of developed land in the United States in the early 1980s as
compared with the two subsequent decades?6
2. What percentage of developed land in the United States was found in “large urban and
built-up areas” in the early 1980s as compared with the two subsequent decades?7
3. By what percentage did the population of Americans aged 75 and older increase in the
25 years since 1980?8
1. Dolan v. City of Tigard, 512 U.S. 374, 391, 395-96 (1994).
2. Home Builders League of S. Jersey v. Berlin Twp., 81 N.J. 127, 405 A.2d 381 (1979).
3. Lionshead Lake, Inc. v. Wayne Twp., 10 N.J. 165, 89 A.2d 693 (1952). For one law professor’s reaction to the prob-
lematic reasoning in this case, and to the exclusionary potential of zoning, see Charles M. Haar, Zoning for Minimum
Standards: e Wayne Township Case, 66 Harv. L. Rev. 1051 (1953), Charles M. Haar, Wayne Township: Zoning for
Whom?—In Brief Reply, 67 Harv. L. Rev. 986 (1954).
4. St. Johns County v. Northeast Fla. Builders Ass’n, 583 So. 2d 635 (Fla. 1991) (the expert was Dr. James Nicholas).
5. e abstract is available on the Internet at
6. Hint: Search for a table containing information on Land Cover/Use by Type.
7. Hint: Search for a table containing information on Developed Land by Type.
8. Hint: Search for a table containing information on Resident Population by Age and Sex.
Chapter One: Planning and Law Page 3
4. What percentage of A mericans lived in the Atlantic, Gulf, and Pacic coastal regions
in 2000?9
5. How much wetlands loss has the nation experienced in the last several years?10
6. In 2006, what percentage of new American single-family homes were 2,400 square feet
and larger?11
7. According to the latest gures, workers in which state had the longest mean commute
time to work, what percentage of Americans took public transportation to work, and
what percentage of Americans worked at home?12
When you nd the numerical answers, consider how these “disembodied” gures have sig-
nicance for the practice and theor y of rea l propert y, land use, and environmental law, and for
the existing institutions of private and public ordering of development. Consider, too, what kind
of statistical and nonstatistical information would be most releva nt to t he following questions:
How can the orga nization of land uses maximize the satisfaction of “valid ” human wants? Are
there still land use patterns and problems pecu liar to the central city in a metropolitan area that
are not shared by older suburbs or “edge cities”?13 W hat are the eects of innovations in trans-
portation such as light rail or ridesharing (also known as “slugging” in the northern Virginia
suburbs of Washington, D.C.)?14 What is the signicance of the growing minority presence in sub-
urbia and of gentrication in the inner city?15 How do eorts to preserve endangered and threat-
9. Hint: Search for a table containing information on Population in Coastal Counties.
10. Hint: Search for a table containing information on Wetland Resources and Deepwater Habitats.
11. Hint: Search for a table containing information on Characteristics of New Privately Owned One-Family Houses.
12. Hint: Search for a table containing information on Commuting to Work.
13. e term was coined by Joel Garreau in E C: L   N F (1991). On page 4, he writes:
I have come to call these new urban centers Edge Cities. Cities, because they contain all the functions a city
ever has, albeit in a spread-out form that few have come to recognize for what it is. Edge, because they are a
vigorous world of pioneers and immigrants, raising far from the old downtowns, where little save villages or
farmland lay only thirty years before.
Prominent examples include Tyson’s Corner in northern Virginia, the Route 128 Corridor outside Boston, and metro-
politan Atlanta’s Perimeter Center.
14. See A Unique Commuter Solution, (last visited Apr. 2, 2009).
15. See, e.g., Center on Urban & Metropolitan Policy, Melting Pot Suburbs: A Census 2000 Study of Suburban Diversity 2
(2001) (Brookings Institution study prepared by William H. Frey), available at
is study of Census 2000 data reveals that racial and ethnic diversity is rising substantially in America’s
suburbs. Among the nation’s 102 largest metropolitan areas, with populations exceeding half a million, minori-
ties comprised more than a quarter (27.3 percent) of the suburban populations in 2000, up from 19.3 percent in
1990. Almost half (47 percent) of the minorities in the large metropolitan areas in this study lived in the suburbs
in 2000, compared to just over 40 percent a decade ago.
Of course, these overall statistics mask variations across metropolitan areas and variations in the residential
patterns of dierent racial and ethnic groups. e 1990-2000 surge in minority suburbanization at the national
level reects disproportionate gains in the suburbs of 35 metropolitan areas, which we describe below as “melting
pot metros.” ese areas have experienced large, immigrant-driven Hispanic and Asian population growth in
their cities and suburbs in recent decades. e national numbers also are inuenced, although to a lesser extent,
by metropolitan areas in the South and West that have seen increases in their black suburban populations. In
metros located in the slow-growing North, the pace of minority suburbanization lags far behind that of the na-
tion as a whole.

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