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50 Urb. Law. 179 (2019-2020)
Home Rule and State Preemption of Local Land Use Control

handle is hein.journals/urban50 and id is 192 raw text is: 





179


Home Rule and State Preemption

of   Local Land Use Control

Kenneth Stahl*



Abstract
THOUGH  LOCAL GOVERNMENTS   HAVE HISTORICALLY made most land-use
decisions, the housing crisis now gripping many parts of the country
has caused state legislatures in places like California, Oregon, Mary-
land, and Virginia to consider a more assertive role in regulating land
use, preempting some local authority. The conflict between states
and municipalities has raised an important constitutional question.
Under  the doctrine of home  rule, localities may be immunized
against state preemption with regard to certain matters of munic-
ipal concern. So is land use immune from  state preemption? After
evaluating both precedent and policy, this paper concludes that land
use is clearly not immune. Appellate courts have consistently held
that states may preempt local land-use decisions in order to accom-
plish statewide objectives such as environmental protection, efficient
land-use planning, and housing affordability. Undoubtedly, address-
ing a crippling housing crisis is a statewide interest that would jus-
tify state preemption of local land-use control. And while courts
have frequently upheld local land-use regulation in sweeping terms,
they have done so in cases where the question was the authority of
the municipality to initiate land-use regulation without an express
authorization from the state, not whether the municipality could act
in the face of preempting state legislation. In short, home rule does
not protect local land-use decisions against preemption.


  *Professor Kenneth Stahl (kstahl@chapman.edu) is a Professor of Law and the
Director of the Environmental, Land Use and Real Estate Law Program at Chapman
University Fowler School of Law in Orange, California. As described infra notes 12
and 14, he is also counsel in a pending matter in California Superior Court that
may implicate some of the legal issues discussed in this article. See Petition for Writ
of Mandamus, California Renters Legal Adv. & Ed. Fund v. City of Huntington
Beach, No. 30-2019-01140855-CU-WM-CJC (Cal. Super. Ct. May 26, 2020). I am
grateful for excellent feedback received at the Suffolk University Zoning Roundtable,
and especially to Tim Mulvaney and Chris Elmendorf for their incisive comments.

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