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

• Date: 01 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 



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