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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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