Due Process in Local Land Use Decision-Making: Is the Imperfect Way of Doing Business Good Enough or Should We Radically Reform It?

Abstract:     
Local government planning and zoning decisions are inherently political struggles, but courts have traditionally assumed that both procedural and substantive due process apply to such decisions. This article argues that due process does not work well when applied to applications for land use permission because participants play according to political rather than legal rules. Moreover, when courts apply due process norms concerning impartiality of decisionmakers, they can tie local planning agencies in knots. Finally, for a variety of reasons, the U.S. Supreme Court will probably decide that procedural due process is inapplicable to most or all applications for local land use permission. Judicial review of land use decisions under substantive due process is out of step with the rational basis standard used to review other economic decisions. Instead, the article recommends that, instead of due process review in state or federal courts, a better solution is state court judicial review of the land use decisions under state substantive and procedural law. This issue of Zoning and Planning Law Report also includes a rebuttal to Asimow's article by Edward J. Sullivan.

Number of Pages in PDF File: 17

Keywords: Land use, local government planning, zoning laws, due process, land use decisions

Accepted Paper Series