Requiem for Regulation

• Date: 01 November 2014

11-2014 NEWS & ANALYSIS 44 ELR 10923

C O M M E N T S

Requiem for Regulation

by Garrett Power

Garrett Power is Professor of Law Emeritus, University of Maryland Carey School of Law.

I. Introduction

Since 1952, Cornell University Prof. Emeritus John W. Reps

has taught, studied, and written about the planning of cities,

suburbs, and farms.1 e American Planning Association

has recognized him as a planning pioneer.2 He is perhaps

the rst scholar to recognize that the best way to understand

planning’s future is to study planning’s past.3 In 1964, Pro-

fessor Reps delivered the Pomeroy Memorial Lecture at the

American Society of Planning Ocials’ annual conference.4

In a talk titled Requiem for Zoning,5 he made three

salient points. First, he rejected the assumption that com-

prehensive zoning ordinances could provide maps that

would draw bright lines putting everyt hing, once and for

all, in the proper place.6 Second, he urged that planners be

legislatively vested with broad and exible regulatory pow-

ers so as to permit them to guide the community toward

shared social, economic, and environmental goals.7 ird,

his faith in “judicia l liberalism” lef t him a ssured that the

U.S. Supreme Court would not stand in the way of discre-

tionary and exible land use pla nning.8

With the benet of 50 years’ hindsight, this Comment

considers the prescience of Professor Reps’ observations

and predictions.

II. Analysis of the Changing Landscape

A. The Quiet Revolution in Land Planning

By the 1970s, most students of government had come to

agree with Professor Reps that American society needed

1. John W. Reps, John W. Reps Biographical Note, http://urbanplanning.library.

cornell.edu/DOCS/jwrvita.htm (last visited May 28, 2014).

2. Id.

3. Id.

4. John W. Reps, Pomeroy Memorial Lecture: Requiem for Zoning, in P-

 1964: S P F  ASPO P C

56 (1964).

5. Id.

6. Id.; see also C P, E  I P: S O

 L U  A (1979).

7. Reps, supra note 4, at 64.

8. Id. at 66.

more and better planning.9 According to the consensus

viewpoint, free ma rkets no longer had the answers for the

overcrowded cities, stressed natural environments, and

acute social problems. e national government needed to

take command over water a nd air quality, and state and

local governments needed top-down federal aid.10 All three

levels of government must follow the example set by the

social democracies of Western Europe and put in place

regulations that would plan for a better societ y.11

American governments had the constitutionally req-

uisite powers. State and local governments were ve sted

with a “police power” to promote “public health, safety,

morals, or general welfare.”12 e federal government

was vested with a more specic power to “regulate Com-

merce .. . among the severa l States.”13 Any new regu la-

tions however, might deprive some private owners of their

property rights and might deprive some capitalists of their

“investment-backed expectations.”14 And the U.S. Consti-

tution prohibited all governments from “taking” private

property15 or “impairing” contract rights.16 e Constitu-

tion even more sharply curt ailed the regu latory power of

the national government to matters of interstate trade.17

When would bold new plans for a Great Society not run

afoul of the Constitution?

Supreme Court Justice Oliver Wendell Holmes Jr. had

answered that question in the landmark 1922 case of Penn-

sylvania Coal v. Mahon.18 erein he opined that when “the

regulation goes too far it w ill be recognized as a taking.”19

His statement, of course, begged the constitutional ques-

tion: How far is too far?

9. See F B  D C, C  E. Q, T

Q R  L U C (1971); O L. G, T-

  P S (1976); Charles Reich, e Law of the Planned

Society, 75 Y L.J. 1227 (1966).

10. Id.

11. Id.

12. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926).

13. U.S. C. art. I, §8.

14. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124, 8 ELR 20528

(1978).

15. U.S. C. amend. V.

16. U.S. C. art. I, §10.

17. U.S. C. art. I, §8.

18. Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922).

19. Id. at 415 (emphasis added).

Author’s Note: I thank Casandra Mejias, a research fellow in the

urgood Marshall Law Library, for outstanding editorial assistance.

Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.