Judiciary v. Adminstration

Interesting discussion today on Planning Law. We discussed a certain case in New Jersey where homeowners were suing a Planning Commission over their new Master plan for the area which included affording rezoning for a corporation with a larger parking lot and more commercial/office zoning for more research park and office construction neighboring their many homes .

Now it must be understood that the origins of planning in a statutory form began in the early 1900's with the zoning enabling act. Every state adopted this act and therefore were required to zone areas for land use. The zoning plan is effectively a land use law document, determining use. It is legislatively enacted by the administration of the municipality (city council, usually), making it nearly impossible to challenge legally. The only accepted way of challenging the action is if there is some sort of unconstitutionality of the arrangement i.e. segregation, or toxic waste dump amongst lower income properties.

On to this case. The case made it to appeal where it was promptly thrown out because of ripeness. There was no immediate negative impact on the residents as the master plan was just that, a plan. The Judge explained that the plan was simply a "best judgment of a proper course of action", and has no authority until it is adopted and enacted by the government and even then must be followed by various ordinances being implemented. Otherwise, a plan has no legal consequence. The people lost, mainly for this reason.

Another case, in Draper, Utah involved Harmon's grocers. They wanted a re-zoning to build a store, the neighbors hated the idea and the city council acted in a Judicial form and said "no". Harmon's sued that they had provided all process and information necessary to receive the zone change, but lost on the premise that although their ducks were in a row, they could not prove that the city's desire and decision to preserve the status quo would be less beneficial to the community. Not long after, Harmon's built their store because a new City Council was elected that wanted it there.

Yet another case involved a man who wanted to develop some of his land as a commercial use, as per the city master plan, but not the established zoning ordinance. He was rejected. He sued under Entitlement to a zoning change and lost.

This brings a planning law principle to bear.
The land use process has multiple levels. The foundation of land use is the zoning code. Then the master plan comes in as a quasi-code, or prospective code, not enforced at the time, but deferred to for future enforcement. Finally, the permit, which is license to build. How these levels operate is varied. In a state where planning is by statute vertically consistent, the law mandates that when the master plan is made, it is also adopted and the only question that remains is a question of what ordinances will govern the transformation such as timetables. In this system, everyone gets together and makes the plan and the decision. This works because there is no question of the legal consequence of the plan.

The alternatives are as seen in the cases. The first case shows a system where the plan has no power until at some point when it will be enacted. The flaw is in government where the plan has no power until the administration deems it does. The citizens can't stop the plan until the plan is law.
In the Harmon's case, the zoning ordinance under every circumstance could have been amended to let the store be built, but the Council forbade it. Then a new council came in and let Harmon's build. This shows the flaw in this form of government. In both circumstances, the people are at the mercy of the councils' whims. It seems that in the case of Planning and Land-use law, the statutes should govern and they should have no place but to be legally binding. It seems too much decision-making power is given to the whims of the municipality. The solution is vertical consistency. Make no plans unless they will matter.