Reconsidering the use of direct democracy in making land use decisions.

• Author: Selmi, Daniel P.
• Position: Ballot initiatives

I.

INTRODUCTION

During the past thirty years, the use of direct: democratic devices, particularly the initiative, has fundamentally altered the political landscape of politics in numerous states. (1) So powerful is the initiative that it has been labeled the "fourth branch" of government. (2) As the consequences of this trend have unfolded, however, political observers and scholars have become concerned that direct democracy may be eroding representative democracy. (3) Others have argued for more stringent judicial review where direct democracy affects the rights of minorities. (4)

Most of this debate has centered on the efficacy and appropriateness of statewide initiatives. At the same time, however, the use of the initiative and referendum at the local governmental level has also increased. (5) A principal development here has been the attempt to use direct democracy to make land use decisions, (6) a practice encouraged by the United States Supreme Court's 1976 decision City of Eastlake v. Forest City Enterprises, (7) which upheld the constitutionality of a municipal referendum on a rezoning. (8) As a result, numerous state courts have been forced to consider whether state law allows the use of direct democracy to make land use decisions, and many have concluded that it does not. (9)

Moreover, although some commentators have favored such use, (10) the vast majority of the academic writing on the subject has concluded that direct democracy is an inappropriate means of making land use decisions. (11) Scholars have reasoned that initiatives and referenda imperil comprehensive land use planning and upset the delicate procedural structure of land use decision making. Critics coined the derogatory term "ballot box planning" (12) to describe what they view as an ill-advised practice.

Despite this academic criticism, the use of direct democracy continues to be popular with citizens in those states where it is allowed. (13) Given this popularity, and the now-lengthy experience with the use of initiatives and referenda as devices for making land use decisions, a re-appraisal of this use is both appropriate and timely. Accordingly, this article systematically examines the criticisms leveled against the use of direct democracy in the land use context, particularly the charge that it fundamentally conflicts with rational land use planning. The article concludes that the case against direct democracy is far less one-sided than previous criticism has found.

By skirting procedural devices, such as public hearings and planning commission review of proposals, direct democracy does sacrifice information and process values inherent in the means by which plans are adopted and land use decisions made. Furthermore, the use of direct democracy in the land use context is at its most dubious when automatically triggered and when focused on land use decisions that have no policy aspects to them. At the same time, however, not all of the objections to direct democracy in the land use context are well taken. For example, the objections that land use decisions are too "complex" for voters and impair the "flexibility" of the land use system are unconvincing. Land use questions involving broad policy determinations in the planning context are suitable for decision by the electorate.

Moreover, recent sociological and political science theory about the nature of modern local governments may explain the popularity of the use of direct democratic devices in the land use context. At least to some extent, this theory may also justify the use of these devices as a response to structural imbalances in the makeup of local government.

In short, blanket generalizations about the incompatibility of direct democracy with land use decisionmaking ignore a more complex series of underlying issues. A strong case can be made in defense of the use of direct democracy in this context, one that critics have not previously recognized.

The analysis below proceeds as follows. First, the article summarizes the context in which land use initiatives and referenda are used at the local government level. This section emphasizes the unique aspects of local elections in comparison to the use of direct democracy at the statewide level. Next, the article sets forth a typology of initiatives and referenda utilized at the local level. These range from referenda on narrow rezoning questions to the enactment of citywide urban growth policies embodied in separate master or general plans.

The article then examines the principal objections to the use of initiatives and referenda to make land use decisions. These objections break down into two general categories: (1) objections to the process of land use decisionmaking by direct democracy, and (2) objections to the effects of decisions, such as interference with plans, lack of flexibility in the aftermath of such decisions, and unfair impacts on individual property owners.

The discussion also repeatedly touches on another theme. Unlike the situation generally prevailing at the state law level, legislatures have the power to shape the use of the initiative and referendum at the local government level through the adoption of legislation. In its analysis of many of the objections to direct democracy as a means of making land use decisions, the article points out that appropriate legislation on the subject could alleviate some of the objections.

In sum, while the normal regulatory process is certainly superior to the use of the initiative and referendum, direct democracy can serve valuable purposes and is not necessarily incompatible with sound land use practices.

II.

DIRECT DEMOCRACY AND LOCAL LAND USE

1. The Municipal Context

   1. Terminology

   Initially, the terminology of direct democracy must be established. (14) Initiatives are legal devices whereby citizens enact legislation. (15) Proponents circulate a petition that attaches the proposed legislation, and they must obtain a set number of signatures from the registered voters of the jurisdiction in which the petition is being circulated. Once the petition is verified as complete, the legislative body of that jurisdiction (e.g. a city council or county board of commissioners) must decide whether to approve the legislation or place it before the voters at either the next general election or a specially called election. (16)

   In contrast, a referendum decides the validity of previously enacted legislation. (17) Once a bill is signed into law, state constitutions, statutes, or city charters allow voters a brief window period, often thirty days, to circulate a petition to place a referendum on that legislation before the voters. (18) If the required percentage of registered voters signs the petition, the voters will then consider the referendum at the next election. (19)

   The subject matter of both the initiative and referendum is limited. Both devices can be used only to enact or reject legislation; they are unavailable to make either administrative or quasi-judicial decisions. (20) This restriction is particularly important in the land use context, where many important decisions, such as those to grant a variance or a use permit, are considered quasi-judicial or administrative. (21) As a result, such decisions are not subject either to the initiative or referendum. (22)

   2. Features of Local Direct Democracy

   The intense debate over the possible perils posed by the increased use of direct democracy has centered on the use of the initiative at the state level. Over the last twenty years, statewide initiatives have addressed a broad variety of controversial issues, ranging from the rights of immigrants to term limits for elected officials. (23) Most importantly for the functioning of government, initiatives have restricted the revenue-raising abilities of some state governments and thereby markedly altered the operation of government in those states. (24)

   In contrast, the use of direct democracy to make land use decisions has largely taken place at the local government level. However, knowledge of how direct democracy actually operates at the local level is not well developed. (25) For example, attempts have been made to study the effects of campaign contributions on the success or failure of state initiatives. (26) However, little information exists about how campaign contributions affect electoral outcomes in local jurisdictions, even though the development industry is an obvious source of campaign contributions.

   Direct democracy clearly operates quite differently at the local level in at least five important respects. First, the voting electorate at the local level is, in general, much smaller than the statewide electorate, and the means by which local voters obtain information is also different than at the state level. Proponents and opponents of initiatives (or, in far fewer cases, referenda) in statewide elections often employ television advertisements to make their case. In local elections, voters gain information through such sources as local newspapers, local businesses, neighborhood or citizen groups, and other social institutions organized and centered at the municipal level.

   Second, the nature of local elections means that many of the criticisms of statewide direct democracy have less force when considered in the local context. (27) For example, there is much criticism of proponents' use of paid signature gatherers at the state level. (28) In contrast, at the local level grassroots activists rather than hired gatherers typically secure the needed signatures. Furthermore, while the accuracy of television ads used at the state level has been roundly criticized, such ads are not the norm at the local level.

   Third, the range of governmental decisions subject to direct democracy is much narrower at the local level. The scope of local government powers is limited, hedged in by constitutional limitations on local powers and preemption by state law. (29) A strong case...