The emperor's new clothes: exposing the failures of regulating land use through the ballot box.

Author:Burke, Marcilynn A.

This Article analyzes the recent trend of regulating land use through ballot initiatives. Most of this activity occurs in jurisdictions west of the Mississippi River, and as the West becomes the new political battleground, the significance of these initiatives continues to grow. Supporters tout ballot initiatives as a positive mechanism of direct democracy, but this Article makes two normative claims to the contrary. First, regulation of land use from the ballot box produces a deliberative failure. Second, such regulation leads to a planning failure. To prove these claims, the analysis focuses on three areas of land use law at both the state and local levels: private property rights; traditional land use regulations; and environmental law. This examination highlights the negative impacts of replacing traditional land use planning and decision-making implemented by elected officials with ballot measures decided by an uninformed and off-manipulated electorate. In so doing, the Article exposes the reality behind the rhetoric of direct democracy. Following this multivariate analysis, the Article makes four proposals for mitigating the harmful effects of legislating at the ballot box. This Article is the first step in a larger project of defusing the rhetoric, with the ultimate aim of making land use law more efficient, ethical, and democratic.

INTRODUCTION I. THE DEVELOPMENT OF BALLOT INITIATIVES IN THE UNITED STATES. A. Ideological Origins . B. Early Development C. The Continuing Debate 1. Support for the Use of Ballot Initiatives 2. Criticisms of the Use of Ballot Initiatives II. THE PRIMARY FAILURES OF BALLOT INITIATIVES IN LAND USE A. Deliberative Failure B. Planning Failure III. LAND USE BALLOT INITIATIVES A. Property Rights Initiatives 1. Eminent Domain 2. Regulatory Takings 3. Eminent Domain and Regulatory Takings B. Development Control Initiatives 1. Zoning 2. Growth Controls C. Environmental Initiatives 1. Alaska: Ballot Measure 4, the "Clean Water" Initiative 2. Arizona: Propositions 105 and 106, State Trust Lands IV. MITIGATING MEASURES A. Indirect Initiatives B. Single-Subject Requirements C. Waiting Periods D. Independent Citizen Boards CONCLUSION [The] portrayal of legislatures as forums for "systematic analysis, in-depth research [and] critical compromise" is pure fantasy. On the most controversial issues, lobbyists backed by big campaign contributors block major reforms.

[W]hen the going gets tough, the politicians often freeze up. But in the 23 states with a state-wide initiative process, the voters have the power to make government responsive even when the politicians aren't.

--David D. Schmidt (1990) (1)

Direct legislation, the creation of progressives of another era, today poses more danger to social progress than the problems of governmental unresponsiveness it was intended to cure.

--Derrick A. Bell, Jr. (1978) (2)


Over the past few decades, citizens have voted in state and local plebiscites on a number of controversial public policy issues, including abortion, (3) affirmative action, (4) education, (5) environmental law, (6) same-sex marriage, (7) medical marijuana, (8) smoking, (9) term limits, (10) and taxes, (11) to name just a few. Twenty-four states and the District of Columbia and about one-half of all U.S. cities authorize the use of ballot initiatives and/or referenda, (12) and approximately eighty percent of those jurisdictions are west of the Mississippi River. The exercise of this form of direct democracy heated up in the 2006 election year cycle. In that year, there were more ballot initiatives and referenda up for consideration than any year in the country's history with the exception of only two years. (13)

In 2006, land use regulation was the "signature issue" for ballot measures, (14) and it figured prominently in the 2008 election cycle as well. (15) It has become a hot button topic, particularly in the West. The concentration of these measures in that region were significant in the 2008 presidential election, as the West continued to develop into the new political battleground. (16)

Two events--one out West and one back East--precipitated the recent whirlwind of activity surrounding land use issues. First, in November 2004 Oregonians passed Measure 37 which promised landowners 'lust compensation" whenever application of land use regulations decreased the value of their land. (17) The second significant event was the eminent domain decision of the United States Supreme Court in Kelo v. City of New London (18) in June 2005. In Kelo, the Supreme Court held that the Fifth Amendment did not prohibit the taking of private property in furtherance of New London's redevelopment scheme. (19) Writing for the majority, however, Justice John Paul Stevens noted that the states were free to limit further their use of eminent domain as a matter of public policy. (20) Many state legislatures took Justice Stevens' cue, yet most of them did not satiate the public's appetite for stricter controls. (21)

Though Oregonians revised Measure 37 with the passage of Measure 49 in 2007, (22) several states--including Arizona, California, Idaho, Nevada, North Dakota, and Washington--followed Oregon's lead with varied success. (23) Some attempted to prevent transfer of property from one private party to another through eminent domain (Kel0 initiatives). Others tried to go further and restrict state and local governments' ability to regulate property by defining many regulatory actions as takings (Kelo-plus initiatives).

The negative public reaction to Kelo, the varied responses of state legislatures to the case, and the passage of Measure 37 whipped up a "perfect storm" for private property rights advocates' efforts to regulate land use through ballot initiatives. In their attempts to persuade, campaigns championing private property rights often emphasize the basic fairness of the propositions, which is appealing to the electorate. Yet, the voters are often ill-equipped to appreciate the full ramifications of these measures. (24)

Elected officials also may try to manipulate the voters. Politicians play a partisan role and try to "educate" citizens to their points of view. For example, Governor of Alaska and 2008 Republican nominee for Vice President, Sarah Palin, recently opposed two state environmental ballot initiatives. (25) Ballot Measure 2 would have prohibited aerial shooting of bears and wolves, and Ballot Measure 4 would have protected the state's waters from pollution from heavy-metals mining. (26) A public interest group supporting Measure 2 filed a complaint with the Alaska Public Offices Commission (APOC), charging that Palin's administration distributed propaganda in an illegal attempt to influence the voters to vote against the measure. (27) One week later, Governor Palin spoke out against Ballot Measure 4. Critics charged that it was unethical for the Governor, even in her personal capacity, to express an opinion on the initiative. (28) The supporters of Measure 4 also filed a complaint with the APOC about the state's website. They argued that the site's content, posted just one week before the election, was unlawfully biased. (29) The APOC agreed that the site was neither fair nor neutral. It ordered the state to remove the content. (30)

In view of this tidal wave of activity, this Article analyzes the growth of citizen-led initiatives (31) in land use law in three areas: (1) private property rights (for example, eminent domain and regulatory takings); (2) traditional land use (for example, zoning and other development controls); and (3) environmental law (for example, pollution control and land conservation).

The Article reaches two normative conclusions. First, the use of initiatives to decide land use questions produces a deliberative failure. When confronted with initiatives, voters are unlikely to deliberate and are subject to manipulation. (32) Even when deliberation occurs in this large group context, it is unlikely to increase social welfare, particularly when media campaigns, peppered with "anecdata," (33) bombard and influence the voters. Ballot initiatives have been "discredited by over-use and routinization" in states such as California where voters face multiple complex initiatives in every election. (34) The voters are "rationally ignorant" (35) and because they "hardly have the time or energy to sort out the implications of these proposals, the outcome has often been determined by misleading advertising campaigns and the capacity of special interests to mobilize their small armies of true believers." (36) Moreover, if individuals are gravitating toward bad decisions, group deliberation only amplifies this tendency to err. (37)

Second, the use of ballot initiatives to adopt land use regulation produces a planning failure. Successful land use planning requires technical expertise and long-term vision to advance the public interest, while protecting the rights of disadvantaged social groups. Ballot initiatives by their nature are limited in scope and interest-group centric. Even when initiatives attempt to provide for environmental goods such as the preservation of natural lands, (38) these two failures persist.

Unlike previous scholarship in this area, (39) this Article dissects initiatives on multiple levels. Its critique differentiates among broad policy decisions and site-specific ones, as well as statewide initiatives and local measures to reframe the issues that we have not comprehended fully in the land use context. Part I begins by placing ballot initiatives in the United States in historical context, as well as reviewing their modern usages. Following that brief historical discussion, Part II explores more specifically how ballot initiatives in the land use context fail to produce qualitatively and quantitatively adequate deliberative levels. That Part also examines the ways in which ballot initiatives may circumvent rational land use...

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