Posted January 17, 2001  

Another Land-Use Bigfoot

By Jonathan Walters

When it comes to trying to boss localities around on land use, it’s been the feds who’ve been playing the part of the bully over the last five years or so.

First, as part of the Telecommunications Act of 1996, Congress hammerlocked localities on the siting of cellular telephone towers. Since then, there have been regular efforts by ideologues in Congress — who profess a deep affection for local control — to allow land owners to skip state court and go right to federal court in land-use disputes.

And twice, Congress has passed legislation that grants religious organizations special consideration when it comes to zoning, their thinking being that a traffic jam caused by a church in an otherwise tranquil, livable neighborhood is somehow divine, while a traffic jam caused by a grocery store is, apparently, the work of the devil.

So localities have been focusing quite a bit of attention on their pals in Washington, watching warily, trying to stave off further meddling.

Well, somebody had better cover localities’ backs in the land-use brawl, because states are jumping into the fight too, and not on the side of local government.

Belmont, Massachusetts, learned this the hard way recently, when the Mormon church unveiled plans for one its trademark gargantuan temples, smack in the middle of a neighborhood that, at least until the plan’s unveiling, suffered from the delusion that the town’s zoning would never allow such an intense, intrusive use in a residential district.

It turns out that under the Commonwealth of Massachusetts’ land-use law, religious properties can locate themselves anywhere in a city or town they want, regardless of zoning. The neighborhood fought the plan in court and lost, a result that was made final this month when the U.S. Supreme Court declined to review a lower federal-court decision.

And so for all those local governments who’ve been fighting the good fight on land use at the national level, a bit of advice: This might be a good time to take a peek behind you.

Jonathan Walters is a staff correspondent for Governing.

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