75 Pages Posted: 1 Mar 2010 Last revised: 6 Aug 2012
Date Written: April 7, 2011
Municipalities throughout the nation are plagued by a seemingly unresolvable conflict between pro-growth development interests and skeptical homeowners’ groups who oppose growth near their neighborhoods. This paper uses southern California as a case study to examine the ways in which local political structural arrangements have contributed to this conflict, and the reasons why judicial challenges to these structural arrangements have had so little success. As I argue, local politics in southern California are structured in a way that fosters an artificial dichotomy between pro-growth and anti-growth positions, subverting the possibility of compromise and suppressing a wide range of views about growth and other issues. On one hand, the prevalence of at-large voting systems in southern California municipalities favors growth interests by facilitating citywide growth while muting neighborhood opposition. On the other hand, neighborhood groups liberally rely on the initiative and referendum to halt unwanted growth. Ironically, the apparent conflict between pro-growth and anti-growth agendas generated by this political structuring conceals a fundamental continuity. Both at-large voting and the initiative process function to dilute the influence of minorities and other geographically concentrated groups, entrench the political power of the professional middle classes, mute constructive dialogue about the merits of development, and cloak this ideologically loaded process in the rhetoric of a unitary public interest.
This distorted political system has been the subject of many judicial challenges, most of which have focused on the local initiative process. The courts, however, have taken pains to uphold the right of the people to enact land use laws by initiative or referendum. Rejecting arguments that the local initiative entails an excess of politics without necessary apolitical counterweights, the courts have expressed confidence in the judiciary’s own ability to temper the evils of unchecked politics through judicial review. I assert, however, that this faith in judicial review is misplaced, as the judiciary has proven incapable of balancing the complex array of competing interests involved in land-use regulation. Thus, I argue that the judiciary should instead focus on correcting defects in the political process so that the balancing of competing interests can occur, as it should, in the legislative arena.
Keywords: Land Use, Local Government, Initiatives, Ballot-Box Zoning, Direct Democracy, At-Large Voting
Suggested Citation: Suggested Citation
Stahl, Kenneth, The Artifice of Local Growth Politics: At-Large Elections, Ballot-Box Zoning, and Judicial Review (April 7, 2011). Marquette Law Review, Vol. 94, No. 1, Fall 2010; Chapman University Law Research Paper No. 10-11. Available at SSRN: https://ssrn.com/abstract=1559468