A Concrete Example

[Eric Rassbach]

Not to belabor the issue, but Doug is correct re the FHA, see 42 USC S.3610(g)(2)(C):

If the Secretary determines that the matter involves the legality of any State or local zoning or other land use law or ordinance, the Secretary shall immediately refer the matter to the Attorney General for appropriate action under section 3614<http://www4.law.cornell.edu/uscode/uscode42/usc_sec_42_00003614----000-.html> of this title, instead of issuing such charge.



From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Wednesday, June 24, 2009 2:31 PM
To: religionlaw at lists.ucla.edu
Subject: Re: A Concrete Example


There was no long settled "constitutional" doctrine that the federal "government" was supposed to defer to local land use decisions.  Nearly all the constitutional cases involved direct constitutional challenges, where the only branch deferring was the courts.  The courts deferred where the only constitutional claim asserted was interfernce with property rights, but they did not defer where constitutional rights were at stake.

Buchanan v. Warley struck down racially discriminatory zoning laws early on -- 1922 I think.  City of East Cleveland struck down zoning that discriminated against extended families.  Hills v. Gautreaux affirmed extensive interference with Chicago's racially discriminatory management of local public housing. Schad v Borough of Mount Ephraim struck down zoning that excluded live entertainment -- live nude entertainment on the facts of the case.  Lukumi brushed aside the claimed zoning interest in conclusoroy fashion.  I probably haven't thought of all the examples.

Congress has had less occasion to interfere, but the Fair Housing Act was no doubt contra to many local land use policies.  There is a statute that overrides local exclusion of cell phone towers.  And RLUIPA overrides local exclusion of churches.  There is nothing about zoning law that gives special license to trample on constitutionally protective activities.

Quoting Hamilton02 at aol.com:

>
> 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 for the
> grill. (http://food.aol.com/grilling?ncid=emlcntusfood00000006)
>



Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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