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  • Boston College Law Review Volume 21 Issue 2 Number 2 Article 2


    Contemporary Authoritative Conceptions of Federalism and Exclusionary Land Use Planning: A Critique Luther L. McDougal III

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    Recommended Citation Luther L. McDougal III, Contemporary Authoritative Conceptions of Federalism and Exclusionary Land Use Planning: A Critique, 21 B.C.L. Rev. 301 (1980), iss2/2




    During the Middle Ages, many cities in Europe erected walls around their perimeters for the purpose of protecting themselves from invasion. In recent years, many local communities in this country have reinstituted a varia- tion of this ancient practice through extensive use of exclusionary land use planning ordinances. The perceived enemies of the modern community are different in the sense that they are prospective residents of the community rather than hostile military forces. Some of these modern communities erect exclusionary walls because they fear an invasion by hordes of nonresidents; an invasion which may change the character of their community or severely damage its environment. Other communities erect these walls with a view toward excluding only certain classes of nonresidents, specifically those who cannot afford to pay for all of the community services that they will require.

    It is increasingly recognized that such exclusionary land use planning or- dinances affect many people—particularly those of limited economic means—in a variety of ways.' The most obvious of these adverse effects is the limitation that such ordinances impose on the freedom to choose a com- munity in which to live. Exclusionary land use planning ordinances typically increase the cost of housing in affected communities, thereby forcing many families to overpay for housing, 2 live in overcrowded conditions or in sub- standard housing, or to look elsewhere for their housing needs. ' Local exclusionary land use ordinances thus are working against the national policy of providing a decent home and a suitable living environment for every American family.'

    Yet, neither Congress nor the Supreme Court has prescribed policies that deter to any significant degree local governments from enacting exclusionary

    * Professor of Law, Tulane University School of Law. B.A. 1959; LL.B. 1962, Mississippi; LL.M. 1966, Yale.

    ' See, e.g., R. BABCOCK & F. BOSSELMAN, EXCLUSIONARY ZONING (1973) [here- inafter cited as BmacocK & BOSSELMANI; E. BERGMAN, ELIMINATING EXCLUSIONARY ZONING ( 1974) [hereinafter cited as BERGMANI; Ellickson, Suburban Growth Controls; An Economic and Legal Analysis, 86 YALE L.J. 385 (1977); Sager, Tight Little Islands: Exclusion- ary Zoning, Equal Protection and the Indigent, 21 STAN. L. REV, 767 (1969).,

    It is generally agreed that a family is "overpaying" for its housing when it expends more than 25 percent of its income for housing.

    3 In 1966 it was estimated that there were 6.7 million occupied substandard units, 6,1 million families living in overcrowded conditions, and 7.8 million families who could not afford decent housing. The President's Comm. on Urban Housing, A Decent Home 44 (1968).

    4 National Housing Act of 1949. 42 U.S.C. §§ 1141-1190 (1970).



    [Vol. 21:301

    ordinances.' While possessing the power to deal with local exclusionary land use planning, Congress so far has not adequately addressed the prc.thle ► . The Supreme Court, acting under its present conception of federalism, generally has deferred to state and local control in the land use planning area. While some states have, prescribed policies designed to meet their responsibility under this concept of federalism to deal with the exclusionary practices of local governments, other states have been less successful or have not perceived or addressed the problem at all.

    This article first will identify the local rationale and the more significant modes of local exclusionary land use planning. Next, the effect of local exclusionary land use planning will be examined, with emphasis placed on the impacts on low income" nonresidents. The national reaction, both by Con- gress and the Supreme Court, to the problem of exclusionary land use plan- ning then will be examined. The Housing and Development Act of 1974, and the recent line of relevant Supreme Court decisions will be discussed in this section. Next, state response to local exclusionary land use planning will be investigated. Four representative states, Connecticut, California, New jersey and Oregon, will be examined in order to analyze the broad spectrum of state responses to local exclusionary policies. These examinations will reveal that. the responses to this problem by Congress, the Supreme Court, and most states have been insufficient and largely ineffectual. In conclusion, several recommendations for future action will be offered.


    A. The Perceived Specter of Growth

    In the last two decades, suburban communities have absorbed more than seventy percent of the nation's residential growth: 7 indeed, more Americans today live in suburbs than in central cities. 8 Many suburban communities, however, failed to anticipate this trend and neglected to formulate adequate plans for managing the demand for rapid expansion. As a result, these com-

    munities soon found themselves unable to maintain the quality and quantity

    of community services and facilities that they desired and needed.

    5 See notes 54-104 infra and accompanying text. 6 Generally, a low income family is deemed to be a family whose income is

    less than 80 percent of the median income for the area in which they reside. This is the Department of Housing and Urban Development's (hereinafter HUD) definition for purposes of determining eligibility for a subsidy under the section 8 Housing Assistance Payments Program. See Low Income Housing—HUD, 24 C.F.R. § 883.202 (1978). The definition of a moderate income family is less clear. Presumably it is a family whose income is less than the median income for the area. In the Section 235 Housing Program, Congress permits participation by those whose incomes are less than 95 percent of the median for the area. 12 U.S.C.A. § 1715Th(2) (Supp. 1980). Thus those families who make more than 80 percent but less than 95 percent would presumably be classified as moderate income families.

    See Developments in the Law—Zoning, 91 HARV. L. REv. 1427, 1625 n.7 (1978) [hereinafter cited as Developments].

    8 Id.


    Other communities in "sun-belt" states," and in states with attractive natural environments,'" have experienced rapid population growth through- out the past two decades. Facing the potential impact of such urbanization upon local character and ecology, these communities have abandoned their traditional philosophy that "growth is good" for a "growth is bad" ap- proach." Even serene, bucolic communities have felt the pressure for ex- pansion and have attempted to avoid intrusion by "second home" builders. 12 In many of these communities, exclusionary land use planning is seen as an effective method for combating the perceived problems of growth.

    The underlying phenomena of growth produced different rationales for exclusionary land use policies in different communities. Some communities were particularly concerned with potential growth of low and moderate in- come families. First, low and moderate income families would require com- munity services and facilities far in excess of their tax contribution.'" Sec- ond, many residents of these communities had moved from the central city precisely to escape the problems that low income families (at. least in their view) create." In order to discourage or preclude these people from becom- ing residents, many suburban communities enacted ordinances which effec- tively increased the cost of housing in the community, thereby placing it beyond the economic means of low income families.' 5

    Other communities have enacted exclusionary land use ordinances for more subjective reasons. Some partisans of limited developme