April 28, 2021 Feature

From the Ground Up: Unshared Assumptions in Law and Planning

By Deborah M. Rosenthal

Excerpted from the Richard F. Babcock Faculty keynote, February 2017 Land Use Institute. Full text: americanbar.org/groups/state_local_government/publications/urban_lawyer/2017/49-4

Fifty-two years ago, land use attorney Richard F. Babcock wrote in The Zoning Game that “no one is enthusiastic about zoning except the people.”1 While the people may have clasped zoning to their collective bosom as part of their American birthright, not so the two major professions tasked with implementing zoning at the local level. The only thing the two professions appear to dislike more than zoning, their calling card in most communities, is each other.

As a planner and lawyer, this leaves me in an anomalous, even conflicted, position. I am equally entrenched in two professions with different world views, different goals and, the misunderstandings that occur when two professions try to function in the same arena unconsciously using different definitions of the same terms. The fundamental hopefulness of planning is the idea that it was possible to control natural and economic forces, and even improve the chances for a better future. Yet, lawyers, not planners, control the public discourse about planning decisions, with impenetrable references to due process and other objections that speak to the individual, not the collective, good.

The expectation of early planners was that zoning decisions would be made on the basis of technical criteria and stakeholder input. Planners were disappointed when zoning decisions were taken out of the technical arena and decided according to politics or, in especially tough cases, incomprehensible legal rules. Meanwhile, lawyers and planners compounded the miscommunication by meaning different things even when they used the same terms in the context of zoning. This battle over turf, dating back to the earliest days of professional planning, has not been entirely resolved, even though lawyers have indubitably won.

By law, I mean the system of largely procedural rules through which lawyers and judges evaluate zoning decisions. These rules are intended to protect individuals and, to a lesser extent, the community, from arbitrary, capricious decisions unsupported by substantial evidence.2 By planning, I intentionally limit the definition to decisions made by local officials about the future uses of land within their jurisdictional boundaries, as well as decisions about the future composition and physical appearance of their communities. To start then, in legal parlance, law is all procedure and planning is nothing but substance.

After 1926, zoning was the way that planning did or did not achieve the goals of the community. Law did not judge zoning decisions according to whether they effectively achieved professional or even political planning goals. Law used its own procedural criteria to judge whether zoning decisions were legal, regardless of whether they achieved planning aims. This is the heart of my thesis—that planners and lawyers fundamentally think of zoning and related concepts in different, frequently incompatible terms. Although it is certainly dated as a cultural reference, we could perhaps posit that lawyers are from Mars and planners are from Venus.3

How the two professions approach these central concepts defines the meaning that zoning has for each and how they define whether a zoning ordinance is legitimate or legal, which, as we have seen, is not necessary the same thing. Let’s compare some of the different meanings that the professions ascribe to the same words or concepts.

“I and We”

The most striking difference is that planning has no unit of analysis smaller than the group. As a profession, planning is dedicated to bettering the future of the target group—the world, nation, state, community, or neighborhood. In most of the country, zoning is a legislative act that implements communal policy, but is not an individual “case.”

In sharp contrast, law has no unit of analysis larger than the individual. The focus is on the rights of the individual; if a government body prevails, it is because an individual plaintiff has failed to show redressable injury, not because the collective rights of the body politic are more important to protect than those of a single individual.

So fundamental is the “I-we” distinction that lawyers and planners can talk about other concepts, like fairness and predictability, using the same words, without realizing that they are using entirely different units of analysis. That leads us to clients.

The Client

The notion of the client is central to any legal practice. We owe the client our absolute loyalty. We are still directed to put the client’s interests first, to accept the client’s goals as our own, and to use our advocacy skills in the service of those goals.

This is not how planners think about clients. The planner does not use the individual as the proper unit of analysis; the planner’s duty is to the community and the collective good.

Property

The linguistic and conceptual contrasts really heat up when we get to the definition of property. For lawyers, property is all about ownership. The requirement that government respect the relationship of the owner to his or her property is enshrined in the Constitution, as part of the fundamental law of the land.

For planners, property is about use, not ownership. Private ownership may make it more likely the land will be developed at some point, but it does not dictate the proposed use or the place of that proposed use. In fact, by focusing on individual rights in relationship to ownership, rather than use, the law ignores the defining characteristic of property to the planner.

Liberty and Freedom

Many conservative lawyers and legal philosophers equate private property with political liberty.4 Planners do not. The legal emphasis on individual ownership rights prioritizes private control of choices about land uses and the market. Planning, meanwhile, conceives of liberty in terms of the range of alternatives available within the larger community, rather than in terms of a protected area for individual choice.

Predictability and the Future

Predictability and security of expectations are among the law’s highest values. Predictability results in maximum order. For lawyers, therefore, predictability is a backward-looking concept that controls the rate of change and the reliability of expectations. Zoning was legitimized as a way of protecting the status quo.

Planning also claims to value predictability, but it appeals to a different set of principles. Planning has tended to value flexibility over predictability. The purpose of predictability is to alert landowners to changed expectations, not to prevent change. The tool that planning has relied on to accomplish its goals of flexibility and predictability is the comprehensive plan, not zoning.

Fairness and Equity

My final area of comparison involves “fairness,” a concept of importance to both professions. The planning approach to fairness is essentially group-oriented, as is its approach to liberty. In contrast, legal analysis is based on the oft-quoted statement that the government is barred “from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” 5

Not surprisingly, the legal concept of fairness is organized around the individual, not the group. As discussed earlier, lawyers move from theories of groups to individuals as easily as planners move the other direction. Because land use law is highly procedural, fairness is usually defined in terms of due process, which is almost entirely about individual rights.

A Few Parting Thoughts

What I have said is not a dictionary for planners or lawyers who wish to “talk the talk” of the other profession without “walking the walk.” But, I hope it at least gives you food for thought about the miscommunications that may affect your daily work in land use.

First, it is unlikely planning will lose its focus on the collective good, its forward orientation, or its relative indifference to individual consequences—these are integral aspects of the planning approach. On the other hand, law is not likely to abandon its focus on the individual as the basic unit of analysis or its emphasis on procedure to the exclusion of substantive analysis.

Planners can and should try insulating their decisions from the perverse, or at least incomprehensible, criteria used by the legal system. I don’t mean planners should simply rely on deference to the political system to prevent intrusions from the legal system. Planners need to continue to push for their own internally consistent view of what is “good,” but they should be very clear that the evidence supporting these decisions should be based on planning criteria, not simply the results of a local election If planners want to have more predictable legal decisions, they have to convince an unresponsive legal profession that legitimate planning decisions are based on more than procedural protections or local politics; they should meet at least some generally accepted professional standards.

Second, very little is gained by the planner standing at the sidelines and complaining that law ignores the public or collective good. What is effective is to ask how the community intends to pay for accomplishment of these goals; what the limits of fairness or equity are when a valid, beneficial policy inequitably affects individuals or subgroups. These are questions that law understands and often fits within its procedural analytic framework.

The approach I have developed is to appeal to concepts of fairness and regulatory limits that focus on discrimination between groups, rather than on individual burdens alone. This takes advantage of planning’s historical commitment to equity and the idea that planning does not pick winners and losers, but rather offers an opportunity to benefit all. Not only does this approach have the advantage it is designed to appeal to planning principles, it is collaborative in a way that is atypical of the legal system.

I see little chance the fundamental differences between planning and law will magically disappear, or that zoning will be eliminated nationally. The work is not over.

Excerpted from the Richard F. Babcock Faculty keynote, February 2017 Land Use Institute. Full text: americanbar.org/groups/state_local_government/publications/urban_lawyer/2017/49-4

Endnotes

1. Ross Netherton, The Zoning Game: Municipal Practices and Policies. By Richard F. Babcock. The University of Wisconsin Press: 1966.

2. See, e.g., CAL. CODE CIVIL PROC. §§ 1085 et seq. governing mandamus actions.

3. Gray, John. Men Are from Mars, Women Are from Venus: a Practical Guide for Improving Communication and Getting What You Want in Your Relationships. New York, NY: HarperCollins, 1992.

4. See, for instance, discussions in O’Neill, Martin, and Thad Williamson. Property-Owning Democracy: Rawls and Beyond. Malden, MA: Wiley-Blackwell, 2012.

5. 364 U.S. 40 (1960).

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By Deborah M. Rosenthal

Deborah Rosenthal, FAICP, JD, is of counsel at FitzGerald Yap Kreditor, LLP, in Irvine, California, where she devotes her practice to land use and environmental law and litigation. She works extensively with land use and environmental issues in California, including wetlands, endangered species, takings, historic preservation, mitigation banking, and coastal issues. She will chair the concluding panel of the Resiliency Institute on May 19, 2021.