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Three Books Lead To a Land Use Revolution

One of your columnists, Ed Sullivan, was asked to speak at a law school conference in Chicago recently.  The conference was to commemorate The Quiet Revolution in Land Use Control which was published 40 years ago.  That book was one of three significant publications which, taken together, led to a significant change in the way land use controls are seen in the United States. 

The Quiet Revolution was written Fred Bosselman, a long time Illinois practioner and law professor, and David Callies, who left practice in Chicago to take a law school professorship at the University of Hawai’i.  Their thesis was that planning must be done and that it must be a significant influence on zoning and other land use controls, that the environment must be considered in planning and land use regulation, and that the interests of the state must be articulated and implemented in local plans.  Before 1971 for the most part, the pattern across the United States was for state legislatures to enable local government to plan and zone without any further state direction.  By emphasizing the successes of exceptions to these to this general rule, The Quiet Revolution established a new way of thinking about land use controls.

A second publication, available in draft form in 1971 and finalized 1976, was the Model Land Development Code, published by the American Law Institute (“ALI”), a group of prominent lawyers who seek to make the statutory law uniform in various areas of practice.  For banks and negotiable instruments, for trusts and estates, and for property law, these efforts met with some success; however land use controls were so locally orientated that these efforts were not so successful.  Nevertheless Fred Bosselman acted as Reporter for the model code, drafting and commenting upon its various proposals.  Only Florida followed the ALI model, and then only partially.  The Model Code suggested, but did not require, a local plan as a prerequisite for land use regulation and was orientated to state and local planning and regulatory structures.  Oregon did consider the ALI Code in the enactment of SB100 in 1973, but eventually took a different approach. 

The third publication was not released in final form until 1973 but was also significant and was another product of a Chicago based trio – Bosselman and Callies once again, joined by John Banta, counsel for the New York State Adirondack Park Agency.  That publication was The Takings Issue, which sought to clarify federal constitutional law of takings under the Fifth Amendment.  Then, as now, there was much confusion as to the point at which regulation would be viewed as a “taking,” requiring payment of just compensation.  The thesis of this publication was that even stringent regulations would not amount to a taking, except in the most extreme cases.  The book was widely read and no doubt played a crucial role in the development of takings jurisprudence over the next few decades.

These pioneering works form the basis for contemporary planning and land use regulation.  They bridge the gap from the era in which all planning was zoning and all zoning was undertaken for purely parochial reasons to the present in which resource lands preservation and smart growth require state policies and coordination.  Life will not get any simpler, nor will our planning regime.  These books were prescient in charting the course of planning law.

While much has been written in and about planning law over the last 40 years, few books have been as influential as those written by this “Chicago school” of planning lawyers.  Their quality is evidenced by their continued use and their clarity in stating the law, the relevancy of the issues touched upon, and the lucidity of their prose.  The passage of time has not diminished their influence.

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