Daniel R. Mandelker: A Record for Relevance

It is with gratitude, respect, and continued awe that I am honored to be asked a second time to celebrate Dan’s extraordinary and unique career. Not only did it span a long period of time and encompass many aspects of law and other disciplines, but Dan’s career is extraordinary for many other reasons, two of which I will mention here. First, he has achieved an honor almost unprecedented in academia: not one but two Festschrifts. The first was published in 2000³ and the second in 2023. ⁴Academicians, if they are lucky, are typically honored only once by a Festschrift, either when they retire or reach a milestone, usually the end of a fifty-year career. However, Dan’s first Festschrift was simply a point in a continuing career.

The second reason that Dan’s career can justifiably be called extraordinary is that a single Festschrift cannot capture the breath, depth, and continuing relevance of his scholarship. Dan’s career has spanned three of the four phases of land-use controls and almost the entire span of land-use controls scholarship. The first phase ranged roughly from 1900 to the beginning of World War II and includes the adoption of the 1916 New York zoning ordinance, the development of the Standard Enabling Act in 1928,⁵ the validation of zoning as a legitimate exercise of the police power by a conservative Supreme Court,⁶ and the widespread adoption of zoning in major cities and gradually their older suburbs in the 1920s and 1930s.⁷ The second or classic phase began after World War II with the explosion of litigation and scholarship due to the rapid suburbanization of major metropolitan areas and ran through the 1960s. The third phase incorporated two of the great political movements of the late 1960s: environmentalism and the demand for social and racial equality, both of which collided with our dysfunctional, fragmented system of metropolitan area governance. Dan’s scholarship began in the classic phase as land-use controls became entrenched in the standard law school curriculum and continued unabated into the third.

But, as the advertisements say, “Wait, there’s more!” Land-use controls are now entering a new era, which can be characterized as a classic Hegelian dialectic: antithesis in search of a synthesis. Since the early twentieth century, the central objective of land-use controls has been the preservation of single family neighborhoods from disfavored land uses, which include multi-family housing, commercial uses, and true nuisance-like land uses, such as industrial facilities. The policy has both a descriptive and normative basis, both of which are now being challenged. Not surprisingly, Dan’s earlier, as well as his recent, scholarship remains highly relevant.

The theoretical foundation for the preferred position of R-1 zones was laid by the Chicago School of Urban Sociology, led by Robert Park, in the first three decades of the twentieth century. Park applied the emerging science of ecology and added a dash of social Darwinism to posit that social exclusion was the natural result of competition for urban space.⁸ It was an easy step to justify legal protection of this “natural” exclusion by protecting R-1 areas from both “real” nuisances and presumed nuisances, like land uses, and is being challenged from two converging directions. This theory was “validated” in the Supreme Court’s validation of zoning in Village of Euclid v. Ambler Realty Co. Justice Sutherland’s⁹ famous statement that “very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district” impeded multi-family and higher density housing patterns for decades. More broadly, current zoning patterns are a product of both natural selection and deliberate government choices. R-1 zoning has had a long run. It survived vigorous attacks starting in the 1970s when it was criticized on the grounds of racial and social inequity. But low-density, single family zoning is now under a more sustained attack from two fronts, and municipalities are responding.

First, R-1 zoning no longer works for a large swath of the population, especially the younger, middle class and lower income households. It is a majority, not minority, problem. We have long justifiably relied on home ownership

as the primary mechanism for the typical family to build wealth for retirement and/or to help the next generation . . . [because] it brings social stability, as the home owning family is no longer subject to landlord actions that might force relocation or undue rent increases. Consequently, public policy in housing has long had an objective to sustainably increase the homeownership rate. Unfortunately, efforts in the last five decades to do this have failed; amazingly, the rate is the same today as it was back in the late 1960s. (Even worse, the much-applauded increase beginning in the early 2000s proved entirely unsustainable, with terrible damage to families and the economy when the mortgage bubble burst in 2007–08.) As a result, millions more families who could have enjoyed the benefits of an increased homeownership rate have missed out.¹⁰

Single family zoning is identified as a primary culprit¹¹ of the failure to meet demand for housing. The lack of affordable housing adversely impacts groups that cities need to survive, such as young professionals and hourly wage earners. R-1 zoning is now in its twilight, but it will be a long one. Cities and states are abandoning or substantially modifying the sacred R-1 zone in ways that would have been unimaginable only ten years ago, but NIMBYism is flourishing.

The dual challenges of adapting to climate change and housing the population will require nothing less than the re-imagination of the urban landscape. Efforts to provide more affordable housing for the vast majority of our population in the fourth phase of land use controls amplify one of the central themes of Dan’s scholarship about the third phase. Early zoning ordinances in urban areas basically confirmed the status quo. The status quo was not possible as cities extended into areas with substantial amounts of vacant or agricultural land. Recognizing land use, zoning became a powerful mechanism for small legislatures and lay administrative bodies to create and distribute enormous wealth and to decide how society should be socially and racially stratified. Much of it was allocated to R-1 zoning in suburban areas growing from the interstate highway system; affordable, federally back mortgages; and white flight primarily from cities in the eastern third of the country.

Second, low-density development is ill-suited to adapt to global climate change.¹² Cities face the problem of simultaneously becoming greener and denser and providing transportation options that create a closer link between work and home. Increased density is not an end in and of itself; it is a strategy to achieve greater spatial integration of work and residence; less general dependence on the automobile; more functional, open, tree-covered space to reduce urban heat islands; and more affordable housing. This objective will be harder to achieve than addressing the housing crisis. Efforts to increase affordable housing proceed on the unarticulated assumption that that people will not have to substantially modify their behavior. However, efforts to adapt to climate change, as previously mentioned, seek to wean us from reliance on the automobile. This is not the subject of this comment, but those working on this problem will find a rich store of useful guidance in Professor Mandelker’s work on planned unit development,¹³ mixed use zoning, and manufactured housing zoning to name a few.

Dan has cast a discerning and critical eye on the impact of Post-World War II zoning in America. To me the most important legacy of Dan’s career is its continuing relevance. Two of Dan’s recent articles (emphasis on recent) illustrate my argument. He recently addressed two topics that have long been part of classic land-use controls law: spot zoning and third party standing to contest zoning decisions. These topics, as the picture in Figure 1 below illustrates, remain hyper-relevant today because they are directly related to one of the central questions of the demise of single family zoning. Cities and states have taken modest steps to modify R-1 zones, but the transition is only just beginning. The transition will be contested on many levels because the expectations built up around the sanctity and stability of R-1 zoning are deeply entrenched and will not be easily surrendered.¹⁴ I leave it to others, both pro and con, to chart and analyze this development; my point is that Dan’s scholarship has a lot to say about the processes by which it will occur.

Spot Zoning Revisited

The picture in Figure 1 was taken by the author in 2021 during a family visit in a long gentrified Seattle neighborhood. I include it for two reasons. First, as discussed below, Professor Mandelker’s first sustained examination of spot zoning occurred in an early case study of apartment rezoning Seattle.¹⁵ Second, is this a picture of a climate-adaptive and affordable urban landscape or simply spot zoning? Seattle is acutely aware of the gap between housing demand across all income and racial groups.¹⁶ In 2019, Seattle amended its zoning ordinance to allow more multi-family housing in six percent of the seventy five percent of the city that zoned R-1.¹⁷ To me, this picture shows how disruptive to established neighbors the partial unraveling of R-1 zoning, however necessary, will be. It also graphically illustrates that the replacement of classic Euclidian zoning raises a new set of spot zoning issues.

Figure 1. Gentrified Seattle neighborhood.

Spot zoning is one of few substantive doctrines that courts have long used to invalidate rezonings. As cities realized that they had to modify existing zoning ordinances through small rezonings, the door to abuse of process was opened. This doctrine is primarily applied to relatively small area rezonings that allow a use different from the surrounding area. However, courts have applied the doctrine to large rezonings as well. The more intensive review of rezonings rests a mix of equal protection, a lack of a rational basis, plan inconsistency, and suspected corruption.¹⁸ Courts continue to apply the doctrine but with widely inconsistent results.

Dan first identified the root problem of spot zoning in his 1972 book, The Zoning Dilemma. One of the early giants of land use planning law, the late Allison Dunham, summarized Dan’s conclusions about spot zoning:

[W]hether government attempts to manage the allocation of land resources by administrative and “spot” amendments, as it does now, or attempts to allocate land resources by public ownership and disposition on specified conditions, an alternative considered by Professor Mandelker, a serious question of “equity” or discrimination among individuals remains: some will be “given” apartment house value by the government action and others, indistinguishable from them, will be denied this benefit.¹⁹

Some forty-five years later, Dan returned to the problem.²⁰ Spot Zoning: New Ideas for an Old Problem first reviewed two important developments relevant to spot zoning, an academic debate and the erosion of the presumption of validity. In the past forty years, there has been a vigorous debate about the vulnerability of local governments to capture by powerful interests, generally real estate developers or well-organized homeowners committed to the status quo. The second development is the minority position that rezonings are quasi-judicial, rather than legislative, acts that require a higher level of justification. After a review of the multifactor tests that courts use, such as size, public purpose, and suspicion of capture and corruption, Dan concludes that none of these tests helps courts and local governments address the fundamental problem of how much wealth distribution and to whom is fair. To better address smaller zoning changes, he returns to faith in the planning process:

Consistency with a comprehensive plan, as the only test for spot zoning, addresses these concerns. Plan adoption follows a community-wide process, with public participation, that satisfies democratic values in the land use system. The policies adopted in a comprehensive plan can provide guidance for spot zoning that will prevent arbitrary decision-making. There will be wealth transfers, as in any distributive process that makes land use decisions, but they will implement policies adopted for the entire community, not a decision limited to a single landowner. . . . Attention is still required to the possible impact of a spot zoning on neighboring properties through the adoption of mitigating measures.²¹

Professor Mandelker has identified the challenge ahead as cities deal with necessary increased density and compactness, but his remedy needs to be refined. Comprehensive planning has never fulfilled the hope of lawyers and planners and has never come to grips with pressing social equity concerns. The residential neighborhoods that will be the targets of upzoning and development are likely to be older ones, as the picture in Figure 1 shows, with smaller housing. These neighborhoods are already attracting relatively well-off homebuyers, displacing existing lower-income residents.²² There is no simple solution, but, at a minimum, cities have to engage in a two-level planning process. Cities must establish guidelines to make sure that “destructive” upzonings are widely distributed throughout the community, including wealthier neighborhoods.²³ Equity distribution must be matched with careful planning and density standards.

If upzonings cannot be effectively and fairly managed, the result will be more landowner and third-party zoning challenges. As usual, Professor Mandelker has remained ahead of the game. In 2021, he published Standing to Sue in Land Use Litigation,²⁴ which explores the ability of third-party property owners to challenge zoning changes. Zoning standing law is a hodgepodge of rationales and results. Dan strongly criticizes the restrictive federal rules of standing promoted by the late Justice Scalia. As Dan points out, these rules are generally inapplicable to the states. Few state constitutions have a case or controversy requirement. Dan then consolidates the arguments that that small local legislative bodies need more judicial supervision by describing occasions when this may be appropriate as zoning underperformance. His major argument is that a broad view of standing is necessary because “[u]nderperformance will not be attacked unless a third party, not the developer or the municipality, can attack it in court . . . .”²⁵ Reform should give applicants for zoning change and their opponents comparable access to court when they participate in land-use hearings.

Public standing is a two-edged sword that needs to be integrated into the unraveling of single-family zoning. Liberalized standing rules could create greater incentives for cities to engage in planning that distributes increased density throughout the city to the maximum extent possible and minimizes impacts on the surrounding areas. Or such rules could make it easier for third parties to challenge “upzonings” as spot zoning. As usual, Dan has anticipated this problem. He suggests that standing based on hearing participation will equalize judicial access and provide the “stake” in litigation that courts require.²⁶

This brief review of Professor Mandelker’s recent scholarship in the context of his career illustrates three aspects of his work that others can only hope to partially emulate. First, as this Festschrift illustrates, the breadth and depth of his scholarship are astonishing. Second, much of it remains as relevant as when it was written. Third, he has remained engaged and active throughout his entire career. To use a musical analogy, many composers who enjoy long, successful careers eventually turn to shorter works, but Dan is still writing symphonies, as well as concertos. And, unlike many composers, his works are being widely played and large audience is listening.

Endnotes

1. Daniel R. Mandelker, Control of Competition as a Proper Purpose in Zoning, 14 Zoning Dig. 33 (1962). In 1978, the United States Supreme Court held that municipal governments do not have absolute immunity from antitrust laws. City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978). A year later, one of the giants of land-use control, my former colleague, friend, and good friend of Dan’s, the late Fred Bosselman, wrote an article accurately predicting that zoning decisions could be challenged on antitrust grounds. He observed that Dan’s article “remained one of the few attempts to analyze an issue that goes to the philosophical heart of the zoning power.” Fred P. Bosselman, Does the Lafayette Case Bring Zoning Under the Antitrust Laws?, 31 Land Use L. & Zoning Dig. 4 (1979).

2. A. Dan Tarlock, Not in Accordance with a Comprehensive Plan: A Case Study of Regional Shopping Center Location Conflicts in Lexington, Kentucky, 1970 Urb. L. Ann. 133 (1970). As have Dan’s interests and scholarship, the Journal has evolved. “This publication originated in 1968 as the Urban Law Annual and focused entirely on issues surrounding land use, urban development, and other legal concerns of urban communities. The scope broadened in 1983 when the Journal expanded to became the Journal of Urban and Contemporary Law to encompass a broad range of topics while still emphasizing urban and land-use law. In 1999, the staff and its advisors began a lengthy process of reevaluating the Journal’s role in the advancement of legal scholarship. As a result of this process, the Journal once again broadened its scope to become the Washington University Journal of Law & Public Policy.” About This Journal, Wash. U. J. L. & Pol’y, https://journals.library.wustl.edu/lawpolicy (last visited Jan. 17, 2023). Dan has been very active in its evolution.

3. 4. Evolving Voices in Land Use Law: A Festschrift in Honor of Daniel R. Mandelker,

3 Wash. U. J. L. & Pol’y (2000). The volume included thirty-one chapters by leading United States and international land use, environmental, and constitutional law scholars.

4. German has a plural form of Festschrift, Die Festschriften, but no word to describe the extraordinary accomplishment of an honoree who achieves a second one.

5. The Act, which went through many iterations before it was finalized in 1928, was shepherded and promoted by Secretary of Commerce Herbert Hoover. For the story, see Ruth Knack, Stuart Meck & Israel Stollman, The Real Story Behind the Standard Planning and Zoning Acts of the 1920s, 48 Land Use L. & Zoning Dig. 3 (1996).

6. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

7. See Michael Allan Wolf, The Zoning of America: Euclid v. Ambler (2008).

8. The literature on Robert Park and the Chicago School is enormous. Ivis Garcia, Human Ecology and Its Influence in Urban Theory and Housing Policy in the United States, Urb. Sci., May 2019, is contemporary critique of the Chicago School and its indifference to racial inequality, although Park was an early supporter of black sociological scholarship. See generally J. Joseph P. Schwirender & Diana E. Caspalm, The Politics of Place: A History of Zoning in Chicago (reprint ed., S. Ill. Univ. Press 2016).

9. 272 U.S. 365 (1926).

10. Don Layton, What Will It Take to Increase the Rate of the Homeownership Rate, Joint Ctr. for Hous. Stud. (Jan. 26, 2022), https://www.jchs.harvard.edu/blog/what-it-will-take-sustainably-increase-homeownership-rate.

11. Note, Addressing Challenges to Affordable Housing in Land Use Law Affordable Housing as a Right, 135 Harv. L. Rev. 1104 (2022). Of course, Dan has already started to address this problem in his reply to Michael Allan Wolf, Zoning Reformed, 2021 70 U. Kan. L. Rev. 171 (2021). Daniel R. Mandelker, A Comment on Professor Wolf’s Zoning Reformed, 71 U. Kan. L. Rev. 275, 281–85 (2022).

12. Edward Sullivan & A. Dan Tarlock, The Paradox of Change in the American West: Global Climate Destruction and the Reallocation of Urban Space and Priorities, 37 J. Env’t L. & Litig. 23 (2022).

13. Planned unit developments have their roots in the English and American garden cities and new town movements. The American branch was based on the separation of residences from cars. See Clarence C. Stein, Toward New Towns for America (1951).

14. E.g., Robert Ellickson, The Straightjacket of Single Family Zoning: The Freezing of American Neighborhoods of Single-Family Zoning, 96 Ind. L. J. 395 (2021).

15. Daniel R. Mandelker, The Zoning Dilemma (1972).

16. City of Seattle, Market Rate Housing Needs and Supply Analysis (2012), https://www.seattle.gov/Documents/Departments/OPCD/OngoingInitiatives/HousingChoices/SeattleMarketRateHousingNeedsAndSupplyAnalysis2021.pdf.

17. Seattle, Wash., Mun. Code ch. 23.45 (2022).

18. Daniel R. Mandelker & A. Dan Tarlock, Shifting the Presumption of Constitutionality in Land-Use Law, 24 Urb. Law. 1, 16 (1992) (“Upzoning or ‘spot zoning’ cases where a landowner has received an upzoning for a more intensive use can be a classic example of political malfunction. Because the courts believe that improper pressure on the legislative body may have been responsible for the upzoning, they may require the municipality to show a legitimate reason for the zoning change.”).

19. Allison Dunham, Review of The Zoning Dilemma by Daniel R. Mandelker, 39 U. Chi. L. Rev. 673, 676 (1972).

20. Daniel R. Mandelker, Spot Zoning: New Ideas for an Old Problem, 48 Urb. Law. 727 (2016).

21. Id. at 783.

22. Sophie Kasakpve & Robert Gebeloff, The Shrinking of the Middle-Class Neighborhood, N.Y. Times (July 6, 2022), https://www.nytimes.com/2022/07/06/us/economic-segregation-income.html.

23. The opposition by Silicon Valley billionaires, including basketball super star Steph Curry, in the uber wealthy Bay Area suburb of Atherton to build the first multiple family housing project in the town illustrates the on-going strength of NIMBYism. Alex Shultz, Atherton Adapts Housing Plan Over Steph Curry Complaints, SFGate, available at https://www.sfgate.com/local/article/atherton-backs-curry-opposed-housing-17755551.php The Atherton case reflects the need to ask hard questions about what affordable housing means. Erin Griffith, The Summer of NIMBY in Silicon Valley’s Poshest Town, N.Y. Times (Aug. 12, 2022), https://www.nytimes.com/2022/08/12/technology/nimby-housing-silicon-valley-atherton.html. SORRY FOR NOT COMPLETEING FOOTNOTE

24. Daniel R. Mandelker, Standing in Land Use Litigation, 56 Real Prop., Tr. & Est. L. 237 (2021).

25. Id. at 242.

26. Id. at 302.