Reconsidering the Use of Direct Democracy in Making Land Use Decisions

Abstract

I. INTRODUCTION During the past thirty years, the use of direct: democratic devices, particularly the initiative, has fundamentally altered the political landscape of politics in numerous states. (1) So powerful is the initiative that it has been labeled the fourth branch of government. (2) As the consequences of this trend have unfolded, however, political observers and scholars have become concerned that direct democracy may be eroding representative democracy. (3) Others have argued for more stringent judicial review where direct democracy affects the rights of minorities. (4) Most of this debate has centered on the efficacy and appropriateness of statewide initiatives. At the same time, however, the use of the initiative and referendum at the local governmental level has also increased. (5) A principal development here has been the attempt to use direct democracy to make land use decisions, (6) a practice encouraged by the United States Supreme Court's 1976 decision City of Eastlake v. Forest City Enterprises, (7) which upheld the constitutionality of a municipal referendum on a rezoning. (8) As a result, numerous state courts have been forced to consider whether state law allows the use of direct democracy to make land use decisions, and many have concluded that it does not. (9) Moreover, although some commentators have favored such use, (10) the vast majority of the academic writing on the subject has concluded that direct democracy is an inappropriate means of making land use decisions. (11) Scholars have reasoned that initiatives and referenda imperil comprehensive land use and upset the delicate procedural structure of land use decision making. Critics coined the derogatory term ballot box planning (12) to describe what they view as an ill-advised practice. Despite this academic criticism, the use of direct democracy continues to be popular with citizens in those states where it is allowed. (13) Given this popularity, and the now-lengthy experience with the use of initiatives and referenda as devices for making land use decisions, a re-appraisal of this use is both appropriate and timely. Accordingly, this article systematically examines the criticisms leveled against the use of direct democracy in the land use context, particularly the charge that it fundamentally conflicts with rational land use planning. The article concludes that the case against direct democracy is far less one-sided than previous criticism has found. By skirting procedural devices, such as public hearings and commission review of proposals, direct democracy does sacrifice information and process values inherent in the means by which plans are adopted and land use decisions made. Furthermore, the use of direct democracy in the land use context is at its most dubious when automatically triggered and when focused on land use decisions that have no policy aspects to them. At the same time, however, not all of the objections to direct democracy in the land use context are well taken. For example, the objections that land use decisions are too for voters and impair the flexibility of the land use system are unconvincing. Land use questions involving broad policy determinations in the context are suitable for decision by the electorate. Moreover, recent sociological and political science theory about the nature of modern local governments may explain the popularity of the use of direct democratic devices in the land use context. At least to some extent, this theory may also justify the use of these devices as a response to structural imbalances in the makeup of local government. In short, blanket generalizations about the incompatibility of direct democracy with land use decisionmaking ignore a more complex series of underlying issues. A strong case can be made in defense of the use of direct democracy in this context, one that critics have not previously recognized. …