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CONSTITUTIONAL LIMITATIONS OF STATE GROWTH MANAGEMENT PROGRAMS

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* J.D. candidate, Yale Law School, New Haven, CT. The author holds a Master of CityPlanning from the University of California, Berkeley. He gratefully acknowledges ProfessorQuintin Johnstone for his help with this piece.1. Though there are numerous regional and local growth management programs, thescope of this Article is confined to state-level efforts.2. These states are Delaware, Florida, Georgia, Hawaii, Maine, Maryland, New Jersey,Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Washington, and Wisconsin.David R. Godschalk, Smart Growth Efforts Around the Nation, 66 Popular Government 17-18(2000), available at http://www.iog.unc.edu/pubs/electronicversions/pg/pgfal00/article2.pdf.For a listing of most of these programs’ governing statutes, see Douglas R. Porter, State145CONSTITUTIONAL LIMITATIONS OF STATEGROWTH MANAGEMENT PROGRAMSMICHAEL C. SOULES*Table of ContentsI. INTRODUCTION............................... 145II. STATE GROWTH MANAGEMENT PROGRAMS..... 148A. Vermont .................................... 149B. Oregon ..................................... 151C. Florida ..................................... 152III. THE CONSTITUTIONALITY OF STATE GROWTHMANAGEMENT PROGRAMS .................... 154A. Relevance of Regulatory Takings ................ 154B. Unlawful Delegation of Power .................. 155C. Standing ................................... 163D. Due Process ................................. 174E. Other Constitutional Issues ..................... 182IV. CONCLUSION ................................. 185I. INTRODUCTIONRecent decades have seen an increasing recognition that thetraditional model of land use planning, characterized by municipal-level decisionmaking and Euclidean-style zoning, is not meeting theneeds of residents living with its results. Some state and locallawmakers have responded with policies designed to correct theproblems of traditional planning. They have tried many potentialsolutions. One common response has been the establishment ofnew, state-level programs that increase state and regional planningauthority and promote more compact, mixed-use patterns ofdevelopment. These state growth management programs are thesubject of this Article.1Fourteen states have currently implemented some form ofstatewide growth management program.2 The lack of consensus146 JOURNAL OF LAND USE [Vol. 18:1Framework Laws For Guiding Urban Growth and Conservation in the United States, 13 PACEENVTL. L. REV. 547, 548 nn.1-2 (1996). Hawaii’s governing statute is located in sections 205-1to 205-5 of the Hawaii Revised Statutes (2001). Some commentators classify Hawaii’splanning regime separate from other state-level efforts, since the historic weakness of localgovernment power has resulted in little tension over the state’s usurpation of local land useauthority. See James H. Wickersham, Note, The Quiet Revolution Continues: The EmergingNew Model for State Growth Management Statutes, 18 HARV. ENVTL. L. REV. 489, 489 n.3(1994). Because the State Land Use Commission, rather than municipal governments, largelycontrols land use, Hawaii’s program has been described as “state-administered, rather thanstate-sponsored.” Dennis E. Gale, Eight State-Sponsored Growth Management Programs: AComparative Analysis, 58 J. AM. PLAN. ASS’N 425, 437 n.1 (1992).3. See AMERICAN PLANNING ASS’N, PLANNING FOR SMART GROWTH: 2002 STATE OF THESTATES (2002), at http://www.planning.org/growingsmart/; Patricia E. Salkin, Smart Growthat Century’s End: The State of the States, 31 URB. LAW. 601, 605-35 (1999) (discussing recentstate efforts to address problems of growth management and propose state-level solutions).4. See, e.g., In re Spring Brook Farm Found., Inc., 671 A.2d 315 (Vt. 1995).about the necessary components a successful program, together withthe concessions required to pass growth management legislation,have generated great variety in the goals and legal structure of thestate programs. These divergent models provide an opportunity forcomparing different alternatives and can prove helpful for the manystates considering growth management policies.3 Learning from thesuccesses and failures of existing programs will be crucial as morestate legislatures address the question of growth management inthe future. The goal of this Article is to aid policymakers grapplingwith this issue by examining one under-analyzed facet of growthmanagement efforts. It focuses on their constitutional limitations.Most analyses of state growth management programs haveconcentrated on issues related to either the statutory scheme or theactions of agencies administering the program. Obviously, theseprograms’ success depends upon well-crafted statutes and strongimplementing regulations. However, the judicial response to growthmanagement efforts can also affect their efficacy. Through theirresolution of individual cases, courts have the power to eitherhinder or thwart the achievement of a program’s goals.There are generally two ways courts can significantly affect thescope of a state growth management regime. The first is throughtheir interpretation of statutes and regulations. For example, theVermont Supreme Court has construed the definitions of that state’sprogram in a way that lowered the threshold of projects requiringa state-issued permit,4 thereby subjecting more projects to statewidepublic and governmental scrutiny. Second, courts can influencethese programs’ efficacy by their response to state and federalconstitutional challenges. The study of statutory interpretation questions would presentseveral problems. Since most appellate decisions related to growthmanagement programs involve some degree of statutoryFall, 2002] CONSTITUTIONAL LIMITATIONS 1475. See FDA v Brown & Williamson Tobacco Corp., 529 U.S. 120, 143-56 (2000) (imputinglegal meaning to a Congressional failure to act, suggesting that Congress would have actedhad its intent been thwarted).6. One problem that will not be analyzed at length is the issue of regulatory takings. Seeinfra Part III. A for the reasons this important constitutional topic has not been included inthis study. interpretation, a colossal number of cases would have to besurveyed. Moreover, constitutional issues are more compellingbecause of the crippling effect adverse decisions can have upon stategrowth management programs. By contrast, legislatures can, intheory, overrule decisions based solely upon statutory


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