Home Rule and State Preemption of Local Land Use Control

Abstract

Though local governments have historically made most land use decisions, the housing crisis now gripping many parts of the country has caused state legislatures in places like California, Oregon, Maryland and Virginia to consider a more assertive role in regulating land use, “preempting” some local authority. The conflict between states and municipalities has raised an important constitutional question. Under the doctrine of “home rule,” localities may be immunized against state preemption with regard to certain matters of municipal concern. So is land use immune from state preemption? After evaluating both precedent and policy, this paper concludes that land use is clearly not immune. Appellate courts have consistently held that states may preempt local land use decisions in order to accomplish statewide objectives such as environmental protection, efficient land use planning, and housing affordability. Undoubtedly, addressing a crippling housing crisis is a statewide interest that would justify state preemption of local land use control. And while courts have frequently upheld local land use regulation in sweeping terms, they have done so in cases where the question was the authority of the municipality to initiate land use regulation without an express authorization from the state, not whether the municipality could act in the face of preempting state legislation. In short, home rule does not protect local land use decisions against preemption. This paper concludes by briefly addressing the merits of a proposed California ballot initiative that would constitutionally enshrine local control of land use decisions.