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

Date01 April 2010
4-2010 NEWS & ANALYSIS 40 ELR 10419
Planning and Law:
Shaping the Legal
Environment of
Land Development
and Preservation
by Charles M. Haar and
Michael Allan Wolf
Charles M. Haar is Professor of Law at Harvard
Law School. Michael Allan Wolf is the Richard
E. Nelson Chair in Local Government Law at the
University of Florida Levin College of Law.
Editors’ Summary
It has been more than a centur y since the City Beauti-
ful movement captured the imagination and attention
of public ocials throughout America. Today, many
states a nd loca lities continue to wrestle with the need
for, and legal and social signicance of, comprehen-
sive planning. In most of the country, zoning preceded
planning, a fact that is often evident when one stud-
ies current land use patterns. In the last few decades,
planning law has reached a new level of sophistica-
tion, as courts, commentators, and public ocials have
explored the ways in which environmental protection
and land use controls intersect, at times in a comple-
mentary fashion and at other times in conict. To be
successful in this new legal milieu, the modern land
use attorney needs to have a healthy respect for plan-
ners and planning theory, keeping in mind the needs
and desires of their clients and the ways in which poor
planning and zoning decisions and the footprint of the
modern public-private partnership often have a lasting,
negative eect on the unbuilt environment within and
beyond our articial political boundaries.
I. Figures and Lies: Appreciating the
Demographic Landscape of Our
Increasingly Urbanized Society
Although quantitative analysis is an essential part of the cur-
riculum and practice for professional planners, this is not the
case for many members of the bar. In order to serve their cli-
ents successfully, land use attorneys who represent clients on
the public and private side should be at ease with people and
with statistics. W hile ad mittedly these skills do not always
go hand-in-hand, experience shows that the measure of suc-
cess in the eld of land use law is in the outcome of the many
meetings lawyers hold with concerned parties, not a won-loss
record in the courtroom. Indeed, when a la nd use d ispute
ends up in court, that is often the surest sign of failure.
Land use planning law practitioners should feel comfort-
able working with a wide ra nge of people whose interests
often appear to be directly in opposition—for example, rep-
resentatives of neighborhoods whose residents are concerned
about the impact of commercial growth and shopping ma ll
developers that have purchased at great cost options on land
in the vicinity, landowners who a re frustrated by regulatory
requirements that stand in the way of plans for enhancing
the use and value of their property and professional plan-
ners who are employed by local and state governments and
charged with overseeing the implementation of the master
plan, grassroots environmental and conservation groups who
are concerned about the pace of growth, and government
transportation ocials who provide the corridors for residen-
tial, commercial, and residential expansion. Often the major
challenges faced by the la nd use attorney are enabling these
potential foes to appreciate the common ground t hat 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 th is kind of statistical information on her own.
Rather, not unlike the medical malpractice attorney who
works closely with skilled professionals in the health care
         
Michael Allan Wolf, Land Use Planning and the Environment: A
Casebook 
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,, 1-800-433-5120.

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