CHAIR’S MESSAGE

 By Edward J. Sullivan

Edward J. Sullivan is Chair of the Section and a member of the Portland, Oregon, firm of Garvey Schubert Barer.

About three-quarters of the states have adopted some version of the Standard State Zoning Enabling Act, which was drafted in 1926 by a blue-ribbon committee under the then Secretary of Commerce, Herbert Hoover, and set out the broad outlines by which local governments could adopt and administer zoning regulations. That same committee also drafted the Standard City Planning Enabling Act in 1928, which was adopted by three-quarters of the states. While the benefits of uniformity were apparent, the Standard Acts suffered from a number of deficiencies.

Among those deficiencies was a lack of detail on local procedures. First, it was unclear as to whether a zoning map change was, like the adoption of the overall map, a legislative act to which judicial deference was owed. Second, the Standard Zoning was vague, outdated, and was a problem to those seeking court assistance in assuring fair procedures. As a result, applicants found themselves in the midst of multiple layered hearings, facing inadequate procedures before local boards and commissions that were not always competent to handle decision making in a discretionary environment. Judicial review was uncertain, uneven, and costly.

On top of all this statutory confusion was the fact that the only U.S. Supreme Court cases in the land use field before 1972 were a quartet decided between 1926 and 1928, that used the now discredited doctrine of substantive due process, which has virtually disappeared in federal jurisprudence since 1940. Nevertheless, lawyers and state and lower federal courts all looked to, cited, and used this precedent, keeping substantive due process alive in the land use field when it had become a museum piece elsewhere.

There have been two major efforts to revise the Standard Acts, the first being that of the American Law Institute in its Model Land Development Code in the 1970s, which was used only by Florida. The second was the American Planning Association’s Growing Smart™ project, which has been adopted by several states.

Building on these efforts, the Section, along with our colleagues in the Section of Administrative Law and Regulatory Practice, has concentrated on local land use procedures and judicial review of land use actions. Under the leadership of Professors Daniel Mandelker of Washington University of St. Louis and Michael Asimow of the University of California at Los Angeles, a Joint Task Force of the two Sections has worked on enabling legislation regarding procedures, using the Growing Smart™ final report as a template. The Joint Task Force made a presentation to the leadership of both Sections at the ABA Midyear Meeting in February and is accepting comments on the draft until mid-April, when it will be finalized and presented to the Councils of both Sections at the ABA Annual Meeting in San Francisco in August. If adopted by both Councils, a Model Act will be presented to the ABA House of Delegates for action. You can get a copy by sending me an e-mail at esullivan@gsblaw.com.

The Joint Task Force combines the expertise of both Sections to provide for fair procedures for the enactment and administration of land use regulations. These are excellent examples of our efforts to serve our colleagues and our country.