I did not come to land use law from a theoretical perspective, or even as so many of you, from a happy accident of law firm rotations early in your career. For three years, as a radio news reporter, I was a fascinated and slightly appalled observer of the inner workings of planning commissions and city councils as two Midwestern cities grappled with near- constant flooding, unbalanced growth, intractable racial and economic segregation, abandoned downtowns, inadequate infrastructure and, briefly, gasoline shortages and an early, largely ignored, call for bikable neighborhoods. I was captivated by the fundamental hopefulness of planning, the idea that it was possible to control these natural and economic forces, and even improve the chances for a better future, by, in the words of Sheryl Sandberg, “leaning in.”2 Planning was the antithesis of the invisible hand; it was a rational wellmeaning thumb on the scale that would lead to justice because it would balance all the other selfish weights that distorted our urban futures. At the same time, I noticed that lawyers, not planners, controlled the public discourse about planning decisions, with impenetrable references to due process and other objections that spoke to the individual, not the collective, good. My role, I decided, would be to translate the language of planning into the language of law so that planning ideas could be heard in an arena where lawyers drowned out the voices of the other players.
I realized quickly that it was not going to be as easy as I expected at 23. The two professions distrusted each other; they spoke with disdain of the other’s expertise and, even, good faith. To Midwestern planners, land use lawyers were “zoning pimps.” To lawyers, planners were second-rate “zoning hacks” with little to teach their communities. There was another problem, I soon realized; the two professions used the same words to mean different things, they prioritized and even described their goals differently, and they were engaged in a turf battle where the lawyers seem to have all the weapons. Yet, the two professions were chained together by the history of planning, and the fateful choice of zoning as the predominant technique for managing urban futures almost exactly a century ago. Euclid3 was the product of a brilliant decade-long campaign by lawyers to legitimize planning, but it was a backwardlooking tool that enshrined the status quo rather than committing to a different future and, by relying on age-old nuisance theory, set individual rights at odds with the needs of the larger community.
But, to return to the topic of this presentation, as a nascent interpreter of planning to law and vice versa, I was faced with, at that time, 30 years of distrust arising from a battle over turf that threatened to overwhelm the relatively new profession of planning. In most communities across the country, for most of the past 100 years, zoning has been the place where the planning and law joined in combat. The expectation of early planners was that zoning decisions would be made on the basis of technical criteria and stakeholder input (though the stakeholders were usually those we now call the “one percenters”). Planners were disappointed when zoning decisions were taken out of the technical arena and decided according to politics but, at least, the good government progenitors of modern planning accepted the role of elected officials in community decision-making.
Planners were much less accepting of a system that moved zoning decisions from the local political arena to another forum entirely — the court room — where planning theory was hardly acknowledged. Not only did planners resent judicial usurpation of local zoning control, they were frustrated by the results of moving from the planning / political arena to the courtroom. For planners, the problem was not so much that court decisions overturned zoning actions on a regular basis, because they did not; it was that the legal decisions appeared to be random, essentially unrelated to the criteria on which the local community made its zoning choices. It was as though the planners offered a menu of zoning choices, and lawyers ordered off an entirely different menu, while criticizing the planning offerings as inedible.
This battle over turf in the field of planning and zoning has not been entirely resolved, even though the lawyers have indubitably won. Every state in the nation requires lawyers to be admitted to the practice of law individually, after completing years of specialized post-graduate education and demonstrating at least a minimal level of competence in the field. Every state requires its lawyers to renew their licenses every year and many, if not most, require some form of continuing education to maintain those licenses. Planning, on the other hand, has never successfully raised professional barriers to entry. In California, which supports a virtual army of professional planners, the foot soldiers have a mish-mash of backgrounds from geography to history to little more than a vague interest in urban design. Planning is seen less as a profession than as an activity that can be accomplished by almost any reasonably intelligent college graduate, especially if they are simply staffing a zoning counter. As much as I cherish my AICP designation and highly value my graduate planning degree, they were not necessary to entering the field of professional planning the way my Yale Law degree enabled me to practice law.
At the risk of caricature, I am drawing a picture of frustrated planners without state-mandated professional turf, losing control over basic zoning decisions once they are appealed to the court system and unable to predict the outcome of these decisions, or even to speak the same language as the other participants in the legal appeal. Lawyers, meanwhile, are simply oblivious to the one-sided struggle for professional supremacy taking place in third floor planning offices and staff tables. Lest I am accused of sounding as dark a note of despair as our current President, let me assure you that most planners work quite happily outside of zoning, and even those forced to identify and segregate land uses for a living recognize the majority of zoning cases will be decided by the political system without appeal to the legal system. Planners can even convince themselves that zoning is what stands between a community’s existing residents and the horde of barbarians at the gate. It is only those of us who stand at the intersection of law and planning, and worry about such things, who see the great divide in understanding and communication that makes a comprehensive land use regulatory system so difficult to implement.
I would like to circle back at this point to define some of my terms and then proceed to compare the way lawyers and planners mean different things even when they use the same terms in the context of zoning. First, 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.4 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. In legal parlance, law is all procedure and planning is nothing but substance. Planners believe that the content of their decisions gains legitimacy by demonstrating stakeholder involvement, but this is not at all the same thing as procedural protections or due process in the legal system.
It should be obvious that zoning is not identical to planning. Zoning is a system of designating and segregating land uses developed largely by lawyers in the decades before and after New York City adopted the first formal zoning ordinance in 1916. Zoning is not forward-looking; it is primarily effective in preventing change and protecting the status quo, which was after all the purpose of those early zoning ordinances. Zoning has prevented a lot of new and potentially incompatible buildings from being constructed, but it has never itself built anything. Zoning is, however, the main vehicle for local governments to implement their vision of the relationship between existing and future land uses, imperfect tool though it is. When the U.S. Department of Commerce separated zoning from planning in its 1920’s standard enabling acts, and then the Supreme Court endorsed zoning in Euclid, planning’s fate was sealed.
Zoning was legal, available, and perfectly attuned to the needs of an apprehensive citizenry desirous of controlling the future of their physical surroundings. From a legal perspective, zoning was simple. It drew lines between use areas, either existing or future, and it allowed local politicians to decide which uses were compatible and which were the equivalent of nuisances — “pig[s] in the parlor” in Justice Sutherland’s memorable phrase in Euclid. Unlike planning, which was forced to use zoning as its primary tool to manage future development, law did not use zoning to achieve any goals of the legal system itself, but instead applied legal criteria to evaluate the legitimacy — not the benefit — of zoning decisions.
So, after 1926, zoning was the way that planning achieved, 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, which would have made sense to planners and given them some badly needed professional respect. Law used its own procedural criteria to judge whether zoning decisions were legal, regardless of whether they achieved planning aims or satisfied planning policies. Although not strictly zoning, this mismatch between planning and legal criteria continues to be seen in fierce debates over rent control ordinances. Rent control is invariably adopted for the stated purpose of maintaining housing affordability, i.e., to prevent the market from pricing lower-income tenants out of their residences. A strong body of research suggests that rent control ordinances are completely ineffective in controlling affordability but, in fact, depress construction and distort the housing markets in adjacent communities. In other words, there is substantial evidence that rent control ordinances do not achieve their stated planning goals and should be rejected for planning ineffectiveness. Yet, law does not judge these ordinances by success in achieving their stated goals, but whether they were adopted with sufficient due process to avoid procedural unfairness.5
In discussing how zoning decisions are made and evaluated, you may not realize how many of the terms I use are value-laden without a common definitional base between the professions. Here is where I delve into 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.6 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. These reflect profound differences between the professions that make it difficult, if not impossible, to translate between them. 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. Except orthographically, there is no “I” in planning. As a profession, planning is dedicated to bettering the future of the target group, the world, nation, state, community, neighborhood or, in certain instances, informal stakeholder associations. Although planners give certain lip service to individual property rights, this is a construct, not a specific individual. Land use planners do not plan for individual properties nor do they make decisions based on identified individual needs; those are architects or landscapers. Planners are interested in locating uses in relationship to each other, for the benefit of a group defined by jurisdiction or some other shared set of characteristics. When the California Coastal Commission adopted regulations governing access easements as a condition of development permits, it did not do so with Mr. Nollan’s lot in mind, its unit of analysis was the coast, and its goal was to benefit the faceless, though suntanned, masses who claimed unfettered access under the Coastal Act.7 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. Yes, American law allows class actions and representative lawsuits under environmental law, but these plaintiffs are simply combinations of individuals. They must each have demonstrable individual injuries, their claims must share common elements, and the cases are proven through individual adjudications. The focus is on the rights of the individual; to the extent the legislative body prevails, it is because the 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. When civil rights lawyers want to use the law to achieve social justice goals, they look for a sympathetic plaintiff with, they hope, telegenic injuries. When planners want to adopt a policy to achieve similar social policies, they look for a way to define the problem as affecting entire subpopulations, not an individual, no matter how appealing.
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. A lawyer may speak of the importance of fairness to an individual client, while planning generally does not concern itself with individual fairness, but only with fairness to the collective “we.” In fact, planning is more likely to refer to the issue as involving equity, which carries with it a sense of balancing between interest groups rather than setting individual rights against those of a group. If zoning reflects the physical conditions on the ground and the desires of the community, the notion that an individual may prefer to be in one zone rather than another for his own non-public reasons, does not register on the planning test-meter.
That leads us to clients. The notion of the client is central to any legal practice. We owe the client our absolute loyalty. If we have more than one client on a case, we must obtain ethical waivers, so they understand that our loyalties may be divided and their confidences shared. Although the obligation to represent the client “zealously within the bounds of law” has largely disappeared from our rules of ethics, 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. A recent legal commentary recommends zealous advocacy and dogged pursuit of the client’s aims, circumscribed only by ethical canons and the fear of offending the judge. The author holds up as the professional ideal “the lawyer who disagrees fundamentally with the client but who can nevertheless provide independent advice and pursue the client’s objectives with eagerness, diligence and a degree of passion for the cause.”8
This is not how planners, even private sector planners, think about clients. The American Institute of Certified Planners (AICP) Code of Ethics and Professional Conduct begins with the following principle: “[o]ur primary obligation is to serve the public interest and we, therefore, owe our allegiance to a conscientiously attained concept of the public interest that is formulated through continuous and open debate.” It continues, “We owe diligent, creative, and competent performance of the work we do in pursuit of our client or employer’s interest. Such performance, however, shall always be consistent with our faithful service to the public interest.”9 In other words, just as the planner does not use the individual as the proper unit of analysis, the planner’s duty is to the community and to the collective good. In an interesting twist, many of the private planners I know think of their projects as their real clients, not the corporate entities that pay the bills. Lawyers tend to think planners are rather arrogant to believe they can identify the public interest, but planners are dead serious about this basic principle.
The contrasting views of the client relationship were brought home to me early in my career. As a summer intern in law school, I clerked for Paul Davidoff of Suburban Action. I was a tremendous fan, and I believed whole-heartedly in the concept of advocacy planning to counter the effect of money and class in most zoning decisions. I did not, however, believe it made any sense to try to build affordable housing in the suburbs of Connecticut, where there were neither jobs nor public transportation. So, I was on fully board with the critique of exclusionary zoning and the evils of middle-class suburban flight, but I wanted off the train before we started building low-income housing on fiveacre lots in Stamford. In true planning fashion, this did not bother me. My “client” was the goal of inclusionary planning, not Suburban Action or individual families who were zoned out of housing in most of the state. I did not need to share the ultimate goal, it was enough that I could advocate enthusiastically for changing the status quo. If we got too close to achieving the goal of economic integration in suburbia, an unlikely prospect, I had no professional obligation to remain on board.
In contrast, I was sharply chastised and ordered off a major land use case when I reported to the senior partner that a new client had “a lot of good legal arguments, but his property was a terrible place for development.” I still remember the facts after 20 years. The large coastal property was located miles from the nearest urban center with neither water nor sewer service, and the owner was indignant at the idea of offering coastal access to the public. It was then, and may still be, a prime example of premature leapfrog development. But, in the legal world, the client’s goals were not mine to assess and, for my then-partners, it was not my right to refuse representation because I thought the client’s goals were legally defensible but socially objectionable. In this, as in much, I have balanced between the professions.
The linguistic and conceptual contrasts really heat up when we get to the definition of property. For lawyers, property is all about ownership. In fact, in Anglo-American law, property must be owned; terra nullius cannot exist. 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. Changing the ownership relationship of owners to their property, by seizing one of the sticks in their bundle of rights, is prohibited. The law is less concerned about the number and size of the sticks than it is about who has the right to benefit from the “profits” they generate, in the words of Justice Coke’s oft-quoted maxim. In other words, law allows the government to regulate the use of various sticks in your bundle, but it cannot confiscate them for the benefit of others, either the collective or another individual with covetous intentions.
For planners, property is about use, not ownership. My California license tag says “land use,” not “my land,” and the question of how and whether land should be used for human goals is at the center of the profession. 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 the desired future of the community. Since its definition of property is not based on ownership, but on use, it is easy to understand that planning focuses on whether the proposed use is appropriate, not on whether the individual’s ownership rights have been unfairly affected or an owner denied equal protection. 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.10 Planners, needless to say, do not. The legal emphasis on individual ownership rights prioritizes private control of choices about land uses and the market; legal theorists may even define the fundamental attribute of liberty as the extent of an individual’s right to make choices about use of his or her property. Underlying these conclusions is an assumption that the sum of individual choices will result in collective betterment, just as the sum of individual legal decisions results in justice. So long as individual economic power avoids monopoly or fraud, the law trusts that market decisions based on self-interest will not substantially limit the liberty of other individuals. It is the modern version of Adam Smith’s old “invisible hand.”
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. Long ago, planning pioneer Raymond Unwin argued that planning sees “… one justification and only one for limiting the individual freedom in many ways, as we must do in city life, namely, that the citizens should be given wider opportunities than he could otherwise obtain and a fuller life.”11 Historically, therefore, the planning concept of liberty was shaped by the intense suspicion of laissez-faire economic individualism at the core of the Progressive Movement at the turn of the last century. The Progressives blamed the market for most of the social ills of the industrial city. As they perceived it, prefiguring the Occupy Wall Street Movement by more than a century, the individual could only be kept from harming others by restricting his or her freedom to act solely to benefit his or her own economic self-interest. Planning, as the direct descendent of the Progressive Movement, sees controlling free choice in the development market as the only way to maximize benefits throughout society. The result of limiting the absolute liberty of some is to make more choices available to more people. Thus total liberty is increased.
There are some twists to these dual concepts of liberty that are especially relevant to environmental law. Some legal theoreticians suggest that the individual’s right to use its property in a way that pollutes the air or other “common” resources, for instance, is best controlled through after-the-fact damages imposed through the legal system rather than regulations. As we know, Anglo-American law has historically favored damages over equity, viewing it as less intrusive and less likely to restrict individual choice and innovation. Planners, and their environmentalist allies, are more likely to focus on the inability of individuals to avoid the effect of pollution through damage actions, and the absence of sufficient information to allow informed market choices. According to the planner, the freedom of the group to enjoy the benefits of health is increased by regulations operating, in effect, as preventative injunctions on behalf of the entire community.
Predictability and the Future
Predictability and security of expectations are among the law’s highest values. As Maitland said, “[k[nown general law, however bad, interferes less with freedom than decisions based on no previously known rule.”12 Predictability, therefore, results in maximum order, another high value benefit in law. Historically in law, as Allison Dunham points out, property may reasonably be defined as “the established expectations which the law gives an owner …”13 Property is not only the owner’s relationship with the land, but the set of rules that govern its use. The importance of predictability was highlighted in Lucas v. South Carolina Coastal Commission, where Justice Scalia acknowledged that property rights were created by “background principles” of state law, but clearly contemplated that these “principles” would be slow-changing and reflective of his great mantra of “original intent.”14 For lawyers, therefore, predictability is a backward-looking concept that controls the rate of change and the reliability of expectations. In 1916, property owners demanded that zoning give them the right to predict what new uses would be allowed and, in general, to prevent the intrusion of other more populist uses. Even today, we continue to hear from residents who believe that zoning is an unchangeable contract between the public agency and those who purchased in reliance on then-existing zoning designations.
Planning also claims to value predictability, but it appeals to a different set of principles. Since planning has little stake in the protection of individual expectations, it has tended to value flexibility over predictability. The purpose of predictability is to alert landowners to changed expectations, not to prevent change. The conception of planning as future-oriented endorses a largely evolutionary, but mutable, view of expectations. The orientation of planning toward a future that can be selected by the community for its own collective good also permits the planner to discount the importance of current expectations. Of course, the early proponents of zoning recognized the importance that the general public placed on the protection of expectations. Largely in response, they developed the concept of nonconforming uses as a way to protect expectations legally, without stifling planning as a tool for encouraging change. The tool that planning has relied on to accomplish its goals of both flexibility and predictability is the comprehensive plan, not zoning. Charles Haar called on planners to treat the comprehensive plan as an impermanent constitution that “orients public policy in a predictable way.” In other words, predictability for a planner involves informing property owners of departures from the past in the interests of rational future development, but it does not demand that the future evolve organically from the past.15 Nor does the past necessarily determine the future.
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 an early study, two planners defined a “fair policy or plan — [as] — one that does not unduly favor or discriminate against any group as to the distribution of costs involved.”16 A land use lawyer is reminded immediately of the oft-quoted statement in Armstrong v. United States 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.”17 The planning definition is especially striking, though, because it applies effectively applies Armstrong’s rule about protecting an individual’s property from group demands and applies it to balancing among groups. The fact that planning has no unit of analysis smaller than the group is underlined by the commentators’ application of theories developed in the individual context to problems of the group, without even noticing they had made a shift.
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 so highly procedural, fairness is usually defined in terms of due process, which is almost entirely about individual rights. It is interesting to look back at the early days of zoning when many thought that equal protection, which demanded that “like cases be treated alike,” would be the dominant way to analyze zoning ordinances. Equal protection claims typically compare an individual case to other similar situations, demanding that all comparable property owners be treated equally and thus fairly by the regulatory agency. When I received my early training in Oklahoma during the 1970s, this concept retained considerable vitality. But, in California where I have practiced for the last 30 years, there is no such thing as a “like case” because the courts allow public agencies to dance on the heads of pins in defending their treatment of individual owners when they are part of disfavored but not formally “suspect” classes. For equal protection to be useful in zoning law, rather than in planning decisions, courts would need to be willing to recognize that property owners can lose rights because of their membership in a wide variety of non-suspect groups, like the poor, the wealthy, non-residents, or suburbanites. Planners recognized this as a political truth many years ago, yet lawyers persist in treating most substantive discrimination as non-redressable unless individual procedural violations can be shown.
A Few Parting Thoughts
This presentation has been an investigation in, I hope, the spirit of Richard Babcock. It 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 has at least given all of you some food for thought about the miscommunications that may affect your daily work in land use. I recognize that in attempting to tease out the most meaningful differences between theories of law and planning, I have ignored nuance and been guilty of overstatement, possibly gross overstatement in painting categories with a broad brush. Hoping that I will not compound these errors, I have a few parting thoughts that I hope will help put this investigation into a bigger context.
First, it is unlikely that 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. This last aspect of law may offer the best hope to planning as a professional still establishing turf. As I mentioned earlier, planners in large measure have been forced to concede final authority to law, while attempting to build a moat of judicial deference around local decision-making. In other words, planners can and should try insulating their decisions from the perverse or at least incomprehensible criteria used by the legal system. By this, I don’t mean that 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. Courts understand that zoning decisions can be set aside as “arbitrary or capricious,” but they do not necessarily have to tools to evaluate whether a decision is lacking from a planning perspective. 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 I have found helpful in my career is to accept that planning’s communal goals may be valid on their own terms, without regard to their effects on individual choices. Endangered species regulation and open space protection are reasonable public goals, and they are not made illegitimate because they circumscribe the uses that can be made of private property. What is effective is to ask how the community intends to pay for accomplishment of these goals; what are the limits of fairness or equity when a valid, beneficial policy inequitably affects individuals or subgroups. Is it fair or equitable to ask a property owner to bear the full burden of past choices by the entire community? What sacrifices can the public demand from individual owners, when the answer can be neither nothing nor everything? I emphasize this is not intended to be a takings exercise. As far as I am concerned, takings jurisprudence has proved to be a dead end precisely because it fails to acknowledge that property is both use and ownership, and it ignores the valid claims of the community in creating value. The approach I have developed over my career 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 to the idea that planning does not pick winners and losers, but offers an opportunity for all to benefit. Not only does this approach have the advantage that it designed to appeal to planning principles, it is collaborative in a way that is not typical of the legal system.
For me, personally, this presentation has been a wonderful opportunity to examine the trajectory and meaning of my hybrid and remarkably satisfying career. You can doubtless tell from the age of many of my examples and footnotes that I have been wrestling with these issues since I was a very young lawyer, determined to negotiate a peace treaty between the two professions I was about to enter. Since I see little chance that the fundamental differences between planning and law will magically disappear, or that zoning will be eliminated nationally, the work is not over. I still have a lot of interpreting to do.