The Misuse of Land Use Control Powers Must End: Suggestions for Legislative and Judicial Responses

Municipal governments in almost all parts of the country are frequently inclined to exercise their police, spending, and policymaking powers in an impermissibly exclusionary manner. Their objective in many instances is simply to keep population growth and local property taxes down. In Maine these tendencies are very much in evidence. This misuse of local governmental powers is almost totally predicated on a misconception of the status of local governments and the purposes for which they exist. Local governments are not sovereign. They are not independent units of government. They are subunits of state government, creatures of the state analogous to state agencies and possessed of limited jurisdiction and powers. They do not exist, as some believe, to legislate local wishes, aspirations, mores, biases, conceptions of the good life, aesthetic values, political predilections, or desires to resist change. Local governments exist to provide necessary public services to those living within their borders and to facilitate the avoidance of harms. Municipalities must be made to shoulder the responsibilities for which they were created. Municipal tendencies to exclude, to shun difficult and admittedly costly problems, and to overregulate the use of land cannot be countenanced. It is the responsibility of the courts to provide a process of review which will enable the reasonableness of unicipal actions to be tested. It is the responsibility of state legislatures to develop inclusionary mechanisms designed to curtail or end municipal inclinations to exclude. The tenor, comment, and recommendations offered in this article may not be particularly welcome or politically popular, but that is not the issue. The question is: What are the minimal requirements of the law, and do we have the courage to meet them?