Zoning and the Referendum: Converging Powers, Conflicting Processes


Situated on the outskirts of Cleveland, Ohio, are the suburban communities of Euclid and Eastlake. In 1926, Euclid’s zoning ordinance became the focus of Village of Euclid v. Ambler Realty Co., a landmark Supreme Court decision in which zoning was held to be constitutional. Fifty years later, and three miles further east on Lake Shore Boulevard, Eastlake became the focus of another major zoning decision, City of Eastlake v. Forest City Enterprises, Inc. In that decision, the Supreme Court held that communities could require referenda on certain zoning changes.

The judicial route from Euclid to Eastlake was consistent in at least one respect: both decisions upheld the power of a community to control changes inthe use of private property. Euclid permitted local legislators and appointive zoning specialists to devise, administer, and change a plan for land use controls, while Eastlake permitted a community’s voters to exercise a veto over changes in that plan.

In proceeding from Euclid to Eastlake, though, the Court effected a subtle but important change in the constitutional constraints on zoning law. In much the same way that a street keeps its name in a new community even while it changes width and direction, so the Court continues to measure zoning by a public interest standard while permitting communities to broaden that standard to include a new value: popular control of zoning decisions.

The nature of this change depends, in part, on one’s vision of zoning. Popular control is appealing to citizens who see zoning as a series of compromises by public officials which tend to favor real estate developers. From this perspective, a mandatory zoning referendum is valued because it enables voters to nullify the zoning decisions of public officials. To the zoning applicant or planner, though, popular control is ominous. This latter group sees zoning as a power which is carefully defined by substantive and procedural constraints. In their view, a referendum nullifies these constraints, thereby promoting results which are unfair to the zoning applicant and inconsistent with the community’s zoning pattern.

This Note will be guided by two premises. First, there is a fundamental tension between the zoning and referendum processes. Second, the referendum can, and should, be modified to account for this tension and thereby serve as a useful means for making zoning decisions.

The tension between the zoning and referendum processes will be analyzedin three stages. In Section I, the origins and early development of zoning and the referendum will be examined. This section will begin with a description of the substantive and procedural constraints which shaped the development of zoning and conclude with a review of the referendum’s historical antecedents, in which popular law-making was unchecked except for occasional judicial review. In Section II, this Note will consider past judicial attempts to resolve the tension between zoning and the referendum. Limits on the zoning referendum by state courts will be analyzed; differences in the Supreme Court’s treatment of various neighborhood preference requirements and mandatory referenda willbe noted. In Section III, this Note will reevaluate the tension between zoning and the referendum and propose statutory changes to reduce this tension. This section will begin with a narrower conception of the referendum power than the one presented in Eastlake and a more flexible vision of contemporary land-use regulation and will conclude with a model for changes in state referendum laws which will make the referendum a more sensitive device for making zoning decisions.

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