This text explores the laws governing the use of land. Sometimes
narrowly focused, often intensely local, land use regulation may
give the impression of a highly specialized field with small stakes.
City councils and zoning officials wrestling over municipal code to
govern second stories, lot size, or sewage connections fails in the
abstract to arouse the passions of the legal battles over gay rights,
abortion, or even the milder controversies of the law of torts.
First impressions can be misleading. No matter how strongly
people may say they feel about the white hot issues of the day,
nothing can pack a government building full of angry citizens like a
dispute over zoning. From fighting the arrival of a Wal-Mart to the
regulation of density in residential neighborhoods to the protection
of wetlands and endangered species, it is the use of land that
evokes many of our most deeply felt convictions about the line
between private rights and public needs.
To appreciate the issues raised by disputes over land use and the
administrative and legal choices embedded in our legal system, this
casebook is organized in three major parts. A possible fourth part
is left for the classroom.
First, we will survey the ordinary, local administrative scheme of
land use regulation. The cases in this section are intended to
establish what that system is and what its standards are. We begin
with zoning and its blessing by the Supreme Court in Euclid. The
main idea is this: that local communities will establish a
heterogenous array of zones, that the map of the community will
then be painted with these different zones, and that regulations will
be uniform within zones and disparate among them. Nearly all else
in the ordinary scheme is a series of footnotes to this structure.
And the rest of the section provides many of these: variances,
special use permits, and comprehensive planning.
The casebook does not cover directly a number of regulations that
typically fall within this scheme. We will see some of them in cases
that follow, and your instructor may, as I do, lecture on several of