About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

75 N.C. L. Rev. 1243 (1996-1997)
Land Use Regulation in an Age of Heightened Scrutiny

handle is hein.journals/nclr75 and id is 1261 raw text is: LAND USE REGULATION IN AN AGE OF HEIGHTENED SCRUTINY DAVID A. DANA* In order to regulate proposed residential and commercial land development, states and localities employ a range of tools, including development prohibitions and conditions. Local regulators' discretion as to when they may impose such conditions or prohibitions varies by jurisdiction, but state courts generally have rejected claims that localities exceeded their statutory or constitutional authority in doing so. Until recently, United States Supreme Court jurisprudence paralleled this deferential state court jurisprudence; however, in the recent cases Nollan v. California Coastal Commission and Dolan v. City of Tigard, the Court held that, although states and localities retain broad discretion to deny landowners permission for residential or commercial development, there are substantial constitutional limitations on the conditions such governments may impose on their grants of development permission. This Article explores the ways in which judicial review of development conditions, coupled with the absence of serious judicial scrutiny of development prohibitions, may diminish allocative efficiency in land development markets. After reviewing the law and politics of development conditions, Professor Dana argues that judicial scrutiny of development conditions may impede, rather than enhance, the efficient functioning of development markets in the United States. Using fundamental economic concepts and a model of the land development process as a game between developers and regulators, he analyzes a range of inefficiencies that may result from the constitutional tests enunciated in Nollan and Dolan. * Associate Professor of Law, Boston University School of Law. B.A., J.D. Har- vard University. I greatly benefited from the comments of the participants in faculty workshops at Boston University School of Law and Northwestern University School of Law. I owe special thanks to Jack Beermann, Bob Bone, Ron Cass, Keith Hylton, Susan Koniak, Michael Kremer, Jim Lindgren, Steve Marks, Tom Merrill, Julie Schrager, and Stewart Sterk.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most