Zoning, Taking, and Dealing: The Problems and Promise of Bargaining in Land Use Planning Conflicts

Municipal land use bargaining may imply as many problems as it heralds promise, but it is widely acknowleged as the universal language of land use planning. Planners and scholars agree that public-private negotiation plays a central role in the vast majority of local land use decision-making. At least in part, this is a result of the peculiar attributes of the resource at issue. Land is, perhaps, the ultimate nonfungible. Each parcel of land possesses unique characteristics not only in its physical attributes, but also by virtue of its location, and its proximity to other unique parcels. Moreover, land uses implicate the conflicting strands of property rights far more profoundly than do uses of personalty, since free disposition of one's own land extends perilously into the realm of neighbors' quiet enjoyment of their own. Although private rights in property ownership are a foundational value of our legal system, private rights in land use are considerably more constrained. Municipal governments designate the outer limits within which landowners may freely exploit their property without unduly burdening the surrounding community; zoning, by which a community segregates incompatible land uses, is the primary mechanism. The historical and continuing contest of public and private interests in land use is, without exaggeration, epic. Police power-based zoning ordinances exist to protect public health and welfare, while takings limitations exist to protect property-owners from government abuse. But in the clash of these competing values lies the classic opportunity for negotiation to resolve disputes, and even create unexpected value in creatively-tailored outcomes. Public and private parties to land use disputes have been drawn to the bargaining model in the time-honored search for mutually agreeable solutions based on beneficial exchange. Significantly, in the absence substantive agreement on where private must yield to public interests (and vice versa), negotiated decisionmaking also provides a means of pursuing the just through deliberative procedure. It is clear that constitutive rules are needed to mark the outer boundaries of permissible public-private bargaining to avoid outcomes overly solicitous of one of these two competing values. The old doctrines of reserved powers and unconstitutional conditions would constrain state abuses, curbing government abdication of police power responsibilities and exploitation of private individuals, respectively. However, the Supreme Court has undertaken to establish additional constraints through its recent takings jurisprudence. Concerned that planning practices had leaned too far in favor of public interests in land use, the Court has used several recent takings cases to craft protections for landowners in disputes with local government. The new rules make value-creating negotiation nearly impossible in land use conflicts, a result that arguably leaves all parties worse off than before. This article explores the phenomenon of negotiation-based decisionmaking in local land use conflicts and questions the value of constraints created by the Supreme Court's new takings jurisprudence. Ultimately, it proposes a return to a bargain-based environment according to a mediation model, in which abuses are constrained through procedural attention to meaningful representation at the negotiating table. Part II reviews the general practice of land use planning and analyzes the land use dispute as a site of contest between public and private interests. Part III explores how the bargain-based model has assumed prominence among local land planning agencies seeking the uncertain equipose between public and private interests. Part IV discusses the response of the Supreme Court via its takings jurisprudence, and Part V reviews evidence of the actual impact of the takings decisions on local planning practice. Part VI analyzes the problematic anti-bargaining implications of the new takings decisions, and Part VII recommends a return to bargain-based models, constrained by a theory of representation that would counter the reserved powers critique of municipal bargaining.