The Land-Use Busybodies

Property rights activists want local land-use cases thrown into federal court. Judges are starting to do it.
May 2000
By Jonathan Walters  |  Senior Editor
A Senior Editor of Governing, Jonathan has been covering state and local public policy and administration for more than 30 years.

Every couple of years, the feds decide they have nothing better to do than meddle in local land-use policy. The House of Representatives tried it in 1997, passing a piece of legislation that would have allowed land owners and developers to bypass state and local judges and take their property cases directly to federal court. That bill, which began life as part of the Republicans' Contract with America, died a well-deserved death at the end of the 105th Congress.

Now it is back, sporting a different name, the Private Property Rights Implementation Act. It has been sponsored in the Senate by Utah's Orrin G. Hatch, who has distinguished himself over the years for his ability to preach the gospel of a small federal government while conveniently ignoring the principle whenever a pet cause is on the table.

But it isn't just Congress that is doing the meddling these days. The U.S. Supreme Court recently weighed in, too, in the case of Village of Willowbrook v. Olech. The facts are these: The plaintiff, Grace Olech, wanted the Chicago suburb to extend a water main down a private road to her house in order to tap into municipal water supplies. In return, the village asked for a 33-foot easement (the width of the road, essentially). Olech balked, maintaining that the village normally asks for a 15-foot right of way in such instances, and that the village was unfairly trying to extract an unusually large right-of-way because of prior legal conflicts she had had with the local government.

This might sound to you like a pretty standard land-use dispute. The village wanted to claim a certain portion of somebody's property, and she didn't wish to give it up. Zoning, permitting, site plan review, easements, rights of way--these have been the stuff of property cases for hundreds of years. They produce chronic and frequently heated conflict, and the conflict winds up in court.

But Olech and her lawyers came up with a different wrinkle. They made the argument that Olech wasn't really a conventional land-use issue at all. It was a matter of federal constitutional rights under the equal protection clause.

The U.S. District Court rejected this reasoning, ruling that the village's right-of-way request was reasonable, given the work it planned to do, and dismissed the case. And that should have been the end of it. But Olech appealed, and the federal appeals court bought her argument. So ultimately the combatants tumbled into the U.S. Supreme Court. And on February 5, the high court decided unanimously that Olech was right--her case did involve the equal protection clause. The justices didn't grant Olech outright relief, but they gave her the right to have her case heard in trial court again, this time with the constitutional issues on the table.

Olech isn't the first effort by legal activists and their clients to turn a local land-use dispute into a federal case by claiming it's something it isn't. Quite a few land owners have argued lately that they have been victimized by due-process violations, and deserve to be heard in federal court. What's disturbing isn't the attempt itself-- it's the increasing federal willingness to accommodate such arguments.

The Olech case and the Hatch bill both raise the prospect of localities having to go to federal court over the most minor land-use conflicts. They also open the door to land owners intimidating local governments merely by threatening a federal case. This is not only bad from a legal standpoint, and bad from an administrative standpoint, it displays an ignorance of the current problems and needs of American governments.

The fact of the matter is that many local governments do lack the expertise they need to administer land-use laws competently and fairly. And there are enough instances when state courts appear less than astute in their interpretation of those laws. But what's needed here is not more federal intrusion into the lives of local officials. What's needed is capacity-building at the local and state levels. If Congress wants to get the feds more directly involved in local land use, then here's a much better idea for how to do that: Take some sliver of all federal transportation, housing and economic development funding, and give it to states and localities for training and technical assistance.

But a less punitive and more proactive approach to all this doesn't seem to interest Congress very much. Nor does it appear to interest the federal courts. If they wanted to help states rule wisely on land- use law, they could remand cases such as Olech back to state court with promises to monitor the outcome. Instead, they seem increasingly inclined to make forays into the far reaches of constitutional law.

Unfortunately, this is what passes for federal leadership these days. And what it leads to is pretty clear: Divisive and expensive court fights over land-use issues large and small that will do nothing to forward the cause of better, smarter and less quarrelsome local and state land-use planning and regulation. Greasing the skids into federal court--by whatever avenue--is only going to make matters much worse.