The Emperor’s New Clothes: Exposing the Failures of Regulating Land Use Through the Ballot Box

76 Pages Posted: 24 May 2014

Date Written: August 31, 2008


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 decisionmaking implemented by elected officials with ballot measures decided by an uninformed and oft-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.

Keywords: land use, ballot initiative, referendum, private property rights, eminent domain, takings, zoning, growth controls, indirect initiatives, single-subject requirements, waiting periods, independent citizens boards

JEL Classification: N4, N40, N5, N50, O2, O21, Q2, Q24, Q28, R1, R11, R14, R5, R52

Suggested Citation

Burke, Marcilynn A., The Emperor’s New Clothes: Exposing the Failures of Regulating Land Use Through the Ballot Box (August 31, 2008). Notre Dame Law Review, Vol. 84, No. 4, 2009, Available at SSRN:

Marcilynn A. Burke (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
4604 Calhoun Road
Houston, TX 77204-6060
United States

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