Land Law Federalism

Abstract

Land exhibits a unique duality. Each parcel is at once absolutely fixed in location but inextricably linked to a complex array of interconnected systems, natural and man-made. Ecosystems spanning vast geographic areas sustain human life; interstate highways, railways and airports physically connect remote areas; networks of buildings, homes, offices and factories, create communities and provide the physical context in which most human interaction takes place. Despite this duality, the dominant descriptive and normative account of land-use law is premised upon local control. In a world where capital and information pass freely across increasingly porous jurisdictional boundaries, few regulatory matters can be cabined within the borders of a single state, let alone a single locality. Thus, despite the mantra of localism, modern land use law has evolved to incorporate a significant, though undertheorized, national dimension.

This Article develops a coherent national account of land-use law. First, this Article establishes a doctrinal basis and normative justification for federal land-use law, both of which derive from the cumulative effects of local land-use decisions on interstate commerce and the national welfare. Second, this Article develops a theoretical framework through which to analyze the substantial body of existing federal land law. Finally, the Article applies principles of federalism theory to outline a “local-official-as-federal-agent” model of land-use law that harnesses the relative regulatory capacities of each level of government.

Keywords: Federalism, Zoning, Land Use, Property, Local Government, NIMBY, Commandeering, Tenth Amendment, Cooperative Federalism