A Concrete Example

[Brownstein, Alan]

Whoops. This was supposed to be a hypothetical rather than a description. Please substitute "if" for "when".  The sentence should read "That argument is much harder to make if courts repeatedly insist that regulations which disfavor some architectural style (or expressive religious activity) constitute prohibited viewpoint discrimination."

As for the "contribution that land use planning provides to the larger public good," once again we are stuck with the contrast between abstractions and specifics. I have no doubt that there is a lot of important, useful, and fair land use planning out there. I also think that favoritism, NIMBYism, arrogance, prejudice, ignorance, and poor judgment on the part of local government actors and local constituencies sometimes influences land use decisions.

Of course, local governments often do the right thing. But sometimes they unreasonably burden free speech rights, equal protection principles, establishment clause requirements, abortion rights, property rights, and procedural due process rights, and sometimes those unreasonable burdens are the result of land use decisions. Courts do not and should not always defer to these decisions. Similarly, local governments do not always unreasonably burden religious liberty. But when they do, there ought to be constitutional or statutory mechanisms available to remedy those situations.

Alan Brownstein



From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Hamilton02 at aol.com
Sent: Wednesday, June 24, 2009 9:43 AM
To: religionlaw at lists.ucla.edu
Subject: Re: A Concrete Example

In a message dated 6/23/2009 7:46:39 P.M. Eastern Daylight Time, aebrownstein at ucdavis.edu writes:
But that argument is much harder to make when courts repeatedly insist that regulations which disfavor some architectural style (or expressive religious activity) constitute prohibited viewpoint discrimination. Given that background, I would think a law that provides preferential protection to such a style would be constitutionally problematic and subject to challenge.
Alan-- surely this is an overstatement.  On this theory, places like Savannah, Georgia, where the land use laws assiduously preserve an architectural look are unconstitutional.  Or how about historic Boston or Philadelphia?  What about Capitol Hill in DC?  The problem with this way of thinking is that it does not take into account the entrenched fact of land use planning, and the contribution that land use planning provides to the larger public good.

The issue here echoes the problems that are now endemic in residential neighborhoods with RLUIPA in place.  RLUIPA was passed with no respect or deference to local communities in shaping their residential and other goals.  It is antithetical to civil society.  The members of Congress completely ignored the long-settled constitutional doctrine that the federal courts and government are supposed to defer to local determinations with respect to land use.

Marci

________________________________
Make your summer sizzle with fast and easy recipes<http://food.aol.com/grilling?ncid=emlcntusfood00000006> for the grill.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/religionlaw/attachments/20090624/89e0f380/attachment.htm>